Opinion
No. 100546/15.
12-09-2015
The FRIENDS OF P.S. 163, INC.; the P.S. 163 School Leadership Team; Joshua Kross; Miles Kross, by his father, Joshua Kross; Stella Kross, by her father, Joshua Kross; Eugenia Fingerman; Elijah Fingerman, by his mother, Eugenia Fingerman; Giselle Sanchez; Giovanni Feliciano, by his mother, Giselle Sanchez; Lucindy Cuevas; Anneli Lopez, by her mother, Lucindy Cuevas; Kevin Richardson ; Cameron Richardson, by his father, Kevin Richardson ; Daniel Webster; Daniel J. Webster, by his father, Daniel Webster; Daniel Holt; and Rachel Baker–Holt, by her father, Daniel Holt, Petitioners, v. JEWISH HOME LIFECARE, Manhattan, New York State Department of Health, 156 W. 106th Street Holding Corp., 102 W. 107th Corp., & PWV Owner, LLC, Respondents. Nathaniel Robert Livingston by his parent Daisy Wright, Oliver Wright Livingston, by his parent Daisy Wright, Elizabeth Wright, Bernie Wright by his parent Elizabeth Wright, Vivian Dee, Sonia Garcia, Joan Heitner, Patricia Loftman, Lillian Pryor, Eileen Salzig, Valeria Spann and Walter Reinhardt, Petitioners, New York State Department of Health, Howard Zucker, as Acting Commissioner of the New York State Department of Health, Jewish Home Lifecare, Manhattan, PWV Owner, LLC, 156 W. 106th Street Holding Corporation, and 102 W. 107th Corporation, Respondents. Nathaniel Robert Livingston by his parent Daisy Wright, Oliver Wright Livingston, by his parent Daisy Wright, Elizabeth Wright, Bernie Wright by his parent Elizabeth Wright, Vivian Dee, Sonia Garcia, Joan Heitner, Patricia Loftman, Lillian Pryor, Eileen Salzig, Valeria Spann and Walter Reinhardt, Petitioners, v. New York State Department of Health, Howard Zucker, as Acting Commissioner of the New York State Department of Health, Jewish Home Lifecare, Manhattan, PWV Owner, LLC, 156 W. 106th Street Holding Corporation, and 102 W. 107th Corporation, Respondents.
Rene Kathawala and J. Peter Coll, Jr. from Orrick, Herrington & Sutcliffe LLP, for petitioners. Steven Russo from Greenberg Traurig, for respondent Jewish Home Lifecare, Manhattan. Yueh-ru Chu and Norman Spiegel from the office of the Attorney General of the State of New York, for respondents NYSDOH and Acting Comm'r Zucker.
Rene Kathawala and J. Peter Coll, Jr. from Orrick, Herrington & Sutcliffe LLP, for petitioners.
Steven Russo from Greenberg Traurig, for respondent Jewish Home Lifecare, Manhattan.
Yueh-ru Chu and Norman Spiegel from the office of the Attorney General of the State of New York, for respondents NYSDOH and Acting Comm'r Zucker.
JOAN LOBIS, J.
These Article 78 proceedings were brought to challenge the determination of respondent New York State Department of Health (DOH) to approve an application by respondent Jewish Home Lifecare, Manhattan (JHL) to construct a twenty-story nursing home (proposed facility or project) at 125 West 97th Street in Manhattan's Upper West Side (proposed site). Petitioners, including an organization of parents and teachers of children attending a public school adjacent to the proposed site (the P.S. 163 proceeding), and residents of buildings near the proposed site (the Tenants proceeding), seek an order and judgment vacating and aning DOH's determination, alleging that DOH failed to comply with the requirements of the State Environmental Quality Review Act (SEQRA) (Environmental Conservation Law [ECL] § 8–0101 et seq. ). Respondents JHL, DOH, Howard Zucker, and PWV Owner, LLC, oppose the petitions, which are consolidated for purposes of their disposition.
By stipulation dated May 11, 2015, the P.S. 163 proceeding was discontinued against PWV Owner, LLC, but the Tenants proceeding was not. See PWV Owner, LLC's Memorandum of Law in Opposition to Petition.
BACKGROUND
Petitioner Friends of P.S. 163, Inc. (PTA) is the parent-teacher organization representing the interests of parents and teachers of students at P.S. 163, an elementary school located at 163 West 97th Street, next to the proposed site. Petitioner P.S. 163 School Leadership Team (SLT), made up of the school principal, PTA president, teachers and parents, is the school body responsible for setting the school's educational agenda in line with its budget. The individual petitioners in the P.S. 163 proceeding include students attending P.S. 163 and their parents (collectively, with PTA and SLT, P.S. 163). In the Tenants proceeding, petitioners are individuals residents (collectively, the tenants) of, variously, 784 Columbus Avenue, 788 Columbus Avenue, 120 West 97th Street, or 765 Amsterdam Avenue, buildings located adjacent to or in the vicinity of the project site.
Respondent JHL, a not-for-profit corporation and member of the Jewish Home Lifecare System, provides healthcare services and assistance for elders in the New York metropolitan area. It currently operates a 514–bed nursing home located at 120 West 106th Street in Manhattan (existing facility). Respondents 156 W. 106TH Street Holding Corp. and 102 W. 107TH Corp. are holding companies established by JHL, which own the land at 120 West 106th Street. Respondent DOH is a state agency with the authority, among other things, to approve construction of health care facilities, including nursing homes. See Public Health Law § 2802. Respondent Howard Zucker, sued solely in the Tenants proceeding, is Acting Commissioner of DOH.
Because of the age and physical condition of its existing facility, JHL has been seeking since 2006 to replace it. In late 2006, JHL applied for DOH approval to rebuild the existing facility on the West 106th Street site, and received approval in 2008, but withdrew its plans, for financial reasons, following the global economic recession. JHL subsequently applied to build a new facility at a site on 100th Street between Columbus and Amsterdam Avenues, after it was offered a “land swap” deal for its 106th Street property. JHL's application to build on the 100th Street site was approved in 2010, but that project did not go forward because the 100th Street site did not meet zoning requirements. JHL now seeks, also as a result of a land swap deal for its 106th Street property, to build the proposed facility on an approximately seventy-three acre parcel of land, owned by respondent PWV Owner, LLC, on 97th Street between Columbus and Amsterdam Avenues.
The proposed site is located on the south side of a “superblock” bounded by 100th Street on the north, 97th Street on the south, Amsterdam Avenue on the west, and Columbus Avenue on the east. Park West Village, a residential apartment complex within the superblock, includes three buildings, located at 784 Columbus Avenue, 788 Columbus Avenue, and 792 Columbus Avenue, adjacent to and north of the project site. Other residential apartment buildings are located near the proposed site to the west and across 97th street to the south. The superblock also contains a playground, a library, a church, and on the east, extending from 97th Street to 100th Street on Columbus Avenue, a high rise apartment building and a complex of retail stores, including a Whole Foods supermarket. The proposed site was formerly a parking lot used by residents of Park West Village, and is now a vacant lot.
P.S. 163, a three-story building, with two trailers annexed to the main building used for additional classrooms, is immediately adjacent to the proposed site. The school is a pre-kindergarten through fifth grade elementary school, with about 600 students between the ages of three and eleven. The student body is racially and economically diverse, and includes students from a special education school serving severely disabled children. According to the affidavit of Joshua Kross, co-president of the PTA, at least 14% of its students have a learning disability, and more than 7.5% of its students have asthma, a higher than average incidence for New York City schools.
In February 2012, pursuant to Public Health Law § 2802(1), JHL submitted a Certificate of Need (CON) application to DOH, requesting approval to build the proposed facility to replace its existing facility. In its application, JHL maintains that there is an urgent need for a new facility because its existing facility's buildings, constructed between 1898 and 1964, are outdated and inefficient, require major infrastructure replacement, and are negatively affecting residents' mobility, privacy, independence, and quality of life.
JHL's proposed project entails construction of a 20–story, 376,000 square foot building, which would accommodate 414 beds, 100 fewer than the existing facility, with 264 long-term care beds on the 9th through 19th floors, and “subacute,” or short-term rehabilitation care on the 4th through 8th floors. The remaining floors would contain shared common areas, administrative offices, and service and support areas; and a rooftop garden would be available for residents and their visitors. The ground floor level would include green space along the west side of the building, open to the public. Access to the building would include a public pedestrian entrance on West 97th Street, and an entrance at the rear of the building. Park West Drive, a north-south access lane within Park West Village, running on the east side of the project site from 97th to 100th streets, would provide access for vehicles, including ambulances and taxis, to the turnaround driveway and entrance in the rear of the building. Service access and truck loading docks would be on 97th Street. Construction of the proposed facility was estimated to take approximately thirty months to complete.
The design for JHL's proposed facility incorporates an innovative model for nursing home care, known as the “Green House” model, which is based on creating a more home-like environment than exists in traditional nursing homes, and providing “more enhanced interaction and more focused attention and care between residents and staff.” Findings Statement, ¶ 18. Under this model, each residential floor of the proposed facility would be organized into small “homes,” for a maximum of twelve residents, which would function independently with self-managed teams of staff members providing nursing home services.
Several organizations providing services to the elderly in the New York City area, including the Alzheimer's Association's New York City Chapter, Services and Advocacy for GLBT Elders (SAGE), and West Side Federation for Senior and Supportive Housing, Inc., joined in submitting an amicus brief in support of JHL's proposed facility. They argue, in part, that JHL's proposed new and improved nursing home facility, as the first New York City nursing home to incorporate the innovative approach to elder care offered by the Green House model, would serve a critical community need.
By prior orders of this court, amici's motions for leave to appear as amici curiae were granted, without opposition.
The determination of JHL's application is subject to SEQRA, which requires environmental review of government actions which may have a significant effect on the environment. See ECL § 8–0109(2). Pursuant to the procedures set out in SEQRA and its implementing regulations, see generally ECL § 8–0109 ; 6 NYCRR Part 617, JHL initiated the review process by submitting an Environmental Assessment Statement (EAS) to DOH in May 2013 (see 6 NYCRR §§ 617.1, 617.2 [b], 617.3), after which DOH determined that the project “may have a significant adverse impact on the environment” (6 NYCCR § 617.7; ECL § 8–0109[2] ), requiring the preparation of an Environmental Impact Statement (EIS). See 6 NYCRR § 617.7(a). In June 2013, DOH issued a “Positive Declaration” and a Notice of Intent to Prepare a Draft Environmental Impact Statement (DEIS), and assumed the role of “lead agency,” without opposition of other involved agencies, for purposes of the environmental review of the project. See ECL § 8–0109(4), (6) ; see generally 6 NYCRR 617.2(u).
A “lead agency” is “principally responsible for undertaking, funding or approving an action, and therefore responsible for determining whether an environmental impact statement is required in connection with the action, and for the preparation and filing of the statement if one is required.” 6 NYCRR § 617.2(u) ; see ECL § 8–0111(6) ; Coca–Cola Bottling Co. v. Board of Estimate of the City of NY, 72 N.Y.2d 674, 680 (1988).
As the first step in preparing an EIS, DOH distributed a draft “scoping” document, identifying the “potentially significant adverse impacts related to the proposed action that are to be addressed in the draft EIS,” 6 NYCRR § 617.2 [af], to involved agencies and interested parties for review and comment. A public hearing on the scope of the environmental review was held in September 2013, comments on the scoping document were accepted until October 2013, and a final “Scoping Document” was issued in January 2014. As set out in the draft scoping documents, the City Environmental Quality Review (CEQR) Technical Manual (CEQR Manual) “generally serves as a guide with respect to environmental analysis methodologies and impact criteria for evaluating the effects of the Proposed Project.” Draft Scoping Document, at 3, Admin. Rec. DOH 00582.
CEQR rules (62 RCNY §§ 5–01 et seq.) “implement SEQRA in New York City and are essentially the same as the SEQRA rules.” Chatham Green, Inc. v. Bloomberg, 1 Misc.3d 434, 435 n1 (Sup.Ct. N.Y. County 2003) ; see 27th St. Block Assn. v. Dormitory Auth. of State of NY, 302 A.D.2d 155, 157 (1st Dep't 2002) ; see also Akpan v. Koch, 75 N.Y.2d 561, 567 (1990).
The DEIS was completed in March 2014, and two days of public hearings on the DEIS were held in May 2014. Numerous community members, including some petitioners, and other interested parties, including some elected officials, testified at the hearings, or submitted written comments, in opposition to the project. Many of the negative comments focused on the harm to children caused by excessive noise levels and the potential harm from toxic materials at the construction site, and addressed the need for greater mitigation measures beyond what was being offered by JHL.
Following the hearings and public comments period, a Final Environmental Impact Statement (FEIS) was prepared for DOH, by AKRF, Inc. (AKRF) on behalf of JHL, and on November 14, 2014, DOH issued a “Notice of Completion” of the FEIS. On December 10, 2014, DOH issued a Findings Statement, as required by SEQRA, certifying that the requirements of SEQRA were satisfied and adverse environmental effects of the project revealed in the FEIS will be minimized or avoided to the maximum extent practicable, and approving construction of the proposed facility.
The FEIS addressed the potential significant adverse impacts of the project to the following areas: Land Use, Zoning, and Public Policy; Shadows; Historic and Cultural Resources; Hazardous Materials; Water and Sewer Infrastructure; Transportation; Air Quality; Greenhouse Gas Emissions; Noise; Public Health; Neighborhood Character; Construction; Mitigation; and Alternatives.
Petitioners commenced the instant proceedings in March and April 2015, alleging that DOH, in approving the proposed project, violated the requirements of SEQRA by failing to give the requisite “hard look” to certain environmental factors. More particularly, petitioners allege that DOH “committed numerous errors with respect to its analysis of the construction impacts for noise, hazardous materials, traffic, mitigation of those harms, and an alternative re-build scenario.” P.S. 163 Petition, ¶ 71; see Tenants' Petition, ¶¶ 2–3.
DOH's Construction Noise Findings
DOH found, generally, that elevated noise levels caused by construction would occur for two or more years outside residential buildings adjacent to the proposed site, but the buildings' windows and air conditioning units would reduce interior noise levels to an acceptable level. DOH also found that P.S. 163 would experience elevated noise levels resulting from construction, for a total of fourteen months, which was “not deemed a significant adverse construction noise impact under applicable CEQR Technical Manual Criteria,” but would nonetheless be mitigated by measures offered by JHL, including “acoustical interior windows” and air conditioning units for classrooms on the east side of the school. Findings Statement, ¶¶ 77, 91.
The noise findings, like the FEIS analysis, relied on criteria set out in the CEQR Manual to evaluate the impact of noise associated with the project. As described in the CEQR Manual, “[n]oise, in its simplest definition, is unwanted sound,” which “can cause stress-related illnesses, disrupt sleep, and interrupt activities requiring concentration,” even at levels that are not considered hazardous. CEQR Manual, Ex. B to Abatemarco Aff. in Opp., at 19–1. CEQR guidelines classify noise, based on dBA levels, into four categories: acceptable, marginally acceptable, marginally unacceptable, and clearly unacceptable.
Sound is measured, basically, in decibels (dB); “dBA” is a measurement adjusted to account for human perception and sensitivities.
The CEQR Manual identifies “nuisance level for noise,” during daytime hours (between 7:00 a.m. and 10:00 p.m.), as more than 45 dBA indoors and 70 to 75 dBA outdoors. CEQR Manual, at 19–21. Based on standards set forth in the CEQR Manual, DOH considered 45 dBA to be an acceptable interior noise level for both P.S. 163 and the nearby residential buildings. CEQR's acceptable indoor noise levels do not differentiate between schools and residences. As per CEQR guidelines, acceptable exterior levels of noise outside schools, and commercial or office buildings, are the same as acceptable daytime levels outside residences; acceptable levels for residences at night, and for hospital and nursing homes at any time, are lower.
AKRF measured existing noise levels at six locations near or adjacent to the project site, including outside P.S. 163, and calculated expected noise levels during construction based on an analysis of five months selected as representative of the range of construction activities to take place over the course of construction of the proposed facility. In addition to analyzing absolute noise levels, the FEIS evaluated the impact of relative increases in noise levels in accordance with the CEQR Manual. As the FEIS explained, “the dBA scale is logarithmic, meaning that each increase of 10 dBA describes a doubling of perceived loudness.” FEIS, 10–2. Generally, for daytime hours, an increase of 5 dBA is considered significant, and for nighttime hours, an increase of 3 dBA is significant. DOH found that, near the school, the increase in hourly noise levels during the loudest stages of construction, would range from 3.4 dBA to 17.5 dBA, with absolute levels up to 77.2 dBA.
The loudest construction noise would occur, according to the FEIS, during excavation and foundation work, superstructure construction, and periods when two or more stages of construction overlapped; with the most significant sources of noise being the operation of pile driver, tower crane, pavement breakers, concrete pumps, and trucks. The FEIS concluded, with respect to P.S. 163, that construction of the proposed facility “would result in noise level increments exceeding the CEQR Technical Manual impact criteria for no more than nine consecutive months (three months of excavation and foundation work and 6 months of superstructure) and no more than fourteen total months (three months of excavation and foundation work, 6 months of superstructure, [two months of] exterior facade construction with interior fit-out activities, and three months of interior fit-out activities with site work).” FEIS, 13–40, 13–39; Findings Statement, ¶ 90.
The CEQR Manual divides construction noise into short-term (less than two years) and long-term (two years or more), and provides that short-term construction noise impacts generally do not require detailed assessment, and are not considered to have a significant adverse environmental impact. The CEQR Manual also provides, however, that short-term construction noise affecting “highly sensitive locations,” such as schools, warrants further analysis. CEQR Manual, Ex. B to Abatemarco Aff., 22–3. Here, the FEIS concluded, with respect to P.S. 163, that because “the construction stages with the greatest potential to result in noise level increases (i.e., excavation and foundation and superstructure construction) would last only approximately 9 months” (FEIS, 13–29), and noise exceeding CEQR standards otherwise would occur “intermittently” for a period of less than twenty-four months, construction noise fell under CEQR's short-term category. Nonetheless, the FEIS noted, because P.S. 163 was a highly sensitive location immediately adjacent to the proposed site, a detailed analysis was done.
Based on the noise analysis conducted, the FEIS concluded that “[c]umulative noise levels at the school during the loudest periods of construction would be expected to range from the low to high 70s dBA ... similar to noise levels experienced on busy New York City streets,” FEIS, 14–9; Findings Statement, ¶ 77, which, DOH found, “are not considered a significant adverse impact pursuant to CEQR Technical Manual impact criteria.” Findings Statement, ¶ 108. DOH also found that “[p]otential disruptions to P.S. 163 resulting from elevated noise levels generated by construction would be expected to be comparable to those that would occur adjacent to a typical New York City construction site during the limited portions of the construction period when the loudest activities would occur.” Id.; FEIS, 13–41, 14–9. According to the FEIS, “[w]hile there would be periods of the construction when P.S. 163 experiences elevated noise levels that would be intrusive and noisy, construction would not result in two or more years of sustained elevated noise levels and would therefore not be considered a significant adverse noise impact according to CEQR Technical Manual construction noise impact criteria.” Id., 14–9, 19–75, 19–97–19–98.
DOH further found that, although construction noise would not be deemed a significant adverse construction noise impact, mitigation measures offered by JHL, including installation of “acoustical” windows in east-facing classrooms and window air conditioning units in east-facing classrooms that do not already have them, would reduce the noise levels inside the school to an acceptable level. Findings Statement, ¶ 91; FEIS, 11–6. In response to public comments about the negative effects on children resulting from elevated noise levels, the FEIS reiterated that “noise control measures as required by the New York City Noise Control Code as well as additional measures that go beyond code requirements” would reduce interior noise levels at P.S. 163 to below 45 dBA, except for nine months of excavation and foundation work, when the levels would be in the 50s dBA, “which would be comparable to interior noise levels in many locations throughout New York City and typical urban environments, which generally range from the low–40s to mid–60s dBA.” FEIS, 19–74, 19–98. The FEIS concluded that “[t]he occurrence of this level of noise exposure at certain limited, episodic times would not likely result in significant adverse public health impacts.”Id., 11–6–11–7.
With respect to the impact of construction noise on the tenants, DOH found that three residential buildings in the vicinity of the proposed site would experience noise levels exceeding CEQR standards during two years of construction, but concluded that the affected buildings' double-glazed windows and air conditioning units would reduce noise levels, inside the apartments, to acceptable maximum interior noise levels of less than 45 dBA. DOH also found that outdoor balcony areas at two of the affected buildings would experience significant adverse noise impacts during the loudest periods of construction, which could not be feasibly or practically mitigated, but the balconies could be used at times when construction work was not occurring, including late afternoons and weekends.
Hazardous Materials Findings
As described in the FEIS, hazardous materials include any substance posing a threat to human health or to the environment, such as metals; volatile organic compounds (VOCs), commonly found in petroleum products; semi-volatile organic compounds (SVOCs), associated with fuel oil, coal, and ash; polychlorinated biphenyls (PCBs), associated with transformers and utilities; pesticides; and asbestos, lead, and mercury, found in building materials, paint, and fixtures. Such substances may pose a threat to human health when they exist in elevated levels at a site, and when actions, such as excavation of soil during construction, create a pathway for human exposure.
DOH's assessment of the potential adverse impact of hazardous materials at the project site, as set out in the FEIS, was based on a Phase I Environmental Site Assessment (ESA) prepared in May 2011; an “updated regulatory database evaluation” conducted in January 2014 by AKRF; and a Subsurface (Phase II) Investigation conducted in September 2013 by AKRF, in accordance with a work plan approved by DOH. The Phase I ESA, based on a visual inspection of the property, and investigation of prior uses of the property and current or past hazardous waste activities, identified a prior, cleaned-up petroleum spill at the site; the January 2014 update identified an active-status, on-site oil spill.
The Phase II investigation involved collecting and testing subsurface soil and water samples for the presence of VOCs, SVOCs, PCBs, pesticides, and various metals. AKRF tested thirty-eight samples of soil and groundwater from eight borings, into soil up to twenty feet below grade, and six tree pits at the project site, and found “[u]rban fill materials (sand, gravel, silt, coal, brick, ash, and/or slag)” throughout the borings. FEIS, 5–3–5–4. The test results were compared to various federal and state standards and guidelines, including the New York State Department of Environmental Control's (DEC) Unrestricted Use Soil Cleanup Objectives (USCOs), based on long-term exposure to unpaved soil; and DEC's Restricted Residential Use Soil Cleanup Objectives (RRSCOs), based on multiple family residences with some potential for soil contact.
DOH found that the levels of metals and compounds detected in the soil and groundwater samples were “consistent with those typically found in the kinds of fill material encountered in the borings, which included brick and other building materials.” Findings Statement, ¶ 36; FEIS, 5–4. It also found that certain VOCs, SVOCs, metals and pesticides exceeded the conservative USCOs, but not the RRSCOs, and four metals, including lead, barium, mercury, and arsenic, exceeded the RRSCOs. Lead levels in three of the thirty-eight soil samples, measured in milligrams per kilogram (mg/kg), exceeded 1,000 mg/kg, with a maximum of 3,850 mg/kg; the average lead level for all samples was 290 mg/kg, and the average level from the tree pit samples was 304 mg/kg. As indicated in the Phase II investigation report, the USCO for lead is 63 mg/kg, and the RRSCO for lead is 400 mg/kg.
DOH concluded that the average lead levels of the samples do not indicate a “soil-lead hazard” as defined by the U.S. Environmental Protection Agency (EPA), and found that lead did not pose a significant threat to public health or the environment and required no remediation. DOH noted that DEC similarly found that, despite lead levels exceeding the USCO found in three samples, lead concentrations at the project site did not pose a significant threat to public health and required no remediation.
While DOH found that construction would disturb soil containing “historical fill materials,” petroleum-contaminated soil, and some soil exceeding the hazardous waste threshold for barium, it concluded that adverse impacts would be avoided by implementing a Remedial Action Plan (RAP) and Construction Health and Safety Plan (CHASP), which require a vapor barrier around the cellar slab and sidewalls of the new building, a cap of clean soil in areas not covered by buildings or paving, and air and dust monitoring in compliance with DEC regulations. Measures to limit the potential impact of airborne lead dust would be addressed in the RAP and CHASP, DOH stated, and would include wetting exposed soils, and air monitoring, to ensure that lead levels would not violate the National Ambient Air Quality Standard (NAAQS) for lead in the ambient atmosphere. Other safety and remediation efforts would include handling and disposing of excavated soil in accordance with DEC requirements, remediating the identified oil spill, and performing dewatering, if required, in accordance with the New York City Department of Environmental Protection. With the above measures in place, DOH determined, there would be no significant adverse impacts related to hazardous materials due to construction or operation of the proposed facility.
Traffic Findings
The FEIS initially concluded that, because the project would generate less than fifty vehicle trips per peak hour through intersections in the study area, a detailed traffic analysis was not required by CEQR guidelines. Nonetheless, a traffic study was done, “as congestion has been noted along West 97th Street between Amsterdam Avenue and Columbus Avenue.” FEIS, at 7–1.
DOH thus based its traffic findings on a detailed FEIS analysis of the effect of the project on traffic conditions on West 97th Street between Columbus and Amsterdam Avenues, the principal access route to the proposed facility. The traffic impact analysis was conducted using methodologies consistent with the CEQR Manual guidelines. Traffic conditions were analyzed for three peak hours: weekday a.m. peak hour (8:00 a.m. to 9:00 a.m.); weekday midday peak hour (2:45 p.m. to 3:45 p.m.); and weekday p.m. peak hour (5:30 p.m. to 6:30 p.m.). The study area included two intersections with traffic lights, 97th Street and Amsterdam Avenue, and 97th Street and Columbus Avenue; and one intersection without a light, at 97th Street and Park West Drive.
The study particularly looked at delays and queuing (i.e., standing vehicles) at the above intersections. It analyzed existing traffic patterns during weekday peak hours, and estimated increased vehicle traffic resulting from the project based on vehicle trips generated at the existing facility. It concluded that the project would add vehicle trips to the study area, and the increase in vehicle trips would result in significant adverse traffic impacts at the intersections of 97th Street and Amsterdam Avenue and 97th Street and Columbus Avenue, during the peak hours studied. DOH found that these adverse traffic impacts could be fully mitigated with measures such as signal retiming and phasing changes, subject to review and approval by the New York City Department of Transportation (DOT).
The FEIS also concluded that increased traffic at the intersection of Park West Drive and 97th Street, although resulting in some delay, would be minor and would not be considered a significant adverse impact. In addition, the FEIS concluded that JHL's use of Park West Drive for vehicle access to the proposed facility's rear entrance and turnaround driveway would not impede other vehicles using Park West Drive, as the driveway could accommodate the estimated peak number of vehicles using the driveway, without any vehicles backing up into the access lane. DOH found that the project would not result in increased pedestrian traffic sufficient to require a detailed analysis.
The traffic study also addressed pedestrian safety, recognizing that the intersection of 97th Street and Columbus Avenue is classified as a high pedestrian/bicycle crash location, and that increased vehicular traffic at that intersection resulting from the project could worsen unsafe conditions. Noting that DOT, responding to pedestrian safety concerns, has already implemented pedestrian and bicycle safety improvements at the intersection of Columbus Avenue and 97th Street and along Columbus Avenue, DOH proposed additional safety measures for the intersection, including adjusting the pedestrian walk signals to provide more time to cross the streets at the intersection, and installing “yield to pedestrians” and “signal ahead” signs, which DOT has reviewed and could implement.
Alternatives
The FEIS considered four alternatives to the proposed project, including a “No–Build Alternative,” as required by SEQRA; a “No Significant Adverse Impacts Criteria;” a “Crane Relocation Alternative;” and, in response to public requests, a “West 106th Street Redevelopment Alternative” (redevelopment alternative).
The redevelopment alternative would involve rebuilding the existing facility on a portion of its current site, and selling a portion of the site, which was recently rezoned for residential development, to fund the new facility. Under this alternative, a smaller, 10–story nursing facility would be constructed, accommodating 303 beds, including 189 long-term beds and 114 short-term rehabilitation beds. DOH found that the smaller facility, with fewer beds, would be more costly to operate than the proposed facility, would not meet Green House design principles as well as the proposed facility, would disrupt the existing facility's operations and residents during construction, and would continue to present physical challenges that would negatively impact its elderly residents. DOH recognized that redevelopment of the existing facility could incorporate a Green House model, but found that, due to restraints on the building design as a result of rezoning, the redeveloped facility would not conform to the principles of Green House design as well as the proposed facility. DOH concluded that, although this alternative would not result in significant adverse environmental impacts, it would not, overall, be consistent with the goals and objectives of the proposed project.
DISCUSSION
SEQRA
SEQRA was enacted with the “laudable goal” of giving “environmental concerns their proper place alongside economic interests in the land use decision-making processes of State and local agencies.” King v. Saratoga County Bd. of Supervisors, 89 N.Y.2d 341, 347 (1996), citing ECL § 8–0103(7) and 6 NYCRR 617.1(d) ; see N.Y.C. Coalition to End Lead Poisoning, Inc. v. Vallone, 100 N.Y.2d 337, 347 (2003). “An essential purpose of SEQRA is to incorporate environmental considerations directly into the governmental decision-making process as early as possible while it is still expedient to modify a proposed project in order to mitigate any adverse environmental effects.” Metropolitan Museum Historic Dist. Coalition v. De Montebello, 20 AD3d 28, 34 (1st Dep't 2005) (citations omitted); see 6 NYCRR 617.1(c).
“Environment” is broadly defined under SEQRA and its implementing regulations, and expressly includes “land, air, water, minerals, flora, fauna, noise, ... and human health.” 6 NYCRR 617.2(l) ; see ECL § 8–0105(6) ; Chinese Staff & Workers Assn. v. City of New York, 68 N.Y.2d 359, 365 (1986).
“SEQRA guarantees that agency decisionmakers will identify and focus attention on any environmental impact of proposed action, that they will balance those consequences against other relevant social and economic considerations, minimize adverse environmental effects to the maximum extent practicable, and then articulate the bases for their choices.” Vallone, 100 N.Y.2d at 348, quoting Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 414–415 (1986). Information obtained during the SEQRA process should enable agencies to “determin[e] whether or not a project or activity ... [is] in the best over-all interest of the people of the State.” ‘ WEOK Broadcasting Corp. v. Planning Bd. of the Town of Lloyd, 79 N.Y.2d 373, 380–381 (1992) (citation omitted); see City Council of the City of Watervliet v. Town Bd. of the Town of Colonie, 3 NY3d 508, 516 (2004).
To effectuate the goals of SEQRA, “the Legislature created an elaborate procedural framework' governing the evaluation of the environmental ramifications of a project or action.” Vallone, 100 N.Y.2d at 347 (citation omitted); see ECL §§ 8–0109, 8–0113 ; 6 NYCRR part 617). Strict and “[l]iteral compliance with the letter and spirit of SEQRA is required ... to discharge an agency's responsibility under the act.” Coalition for Future of Stony Brook Vil. v. Reilly, 299 A.D.2d 481, 483 (2nd Dep't 2002) (citations omitted); see Vallone, 100 N.Y.2d at 348 ; Merson v. McNally, 90 N.Y.2d 742, 750 (1997) ; King, 89 N.Y.2d at 347. “Anything less than strict compliance ... offers an incentive to cut corners and then cure defects only after protracted litigation, all at the ultimate expense of the environment.” Vallone, 100 N.Y.2d at 348 ; see Dawley v. Whitetail 414, LLC, 130 AD3d 1570, 1571 (4th Dep't 2015) ; Williamsburg Around the Bridge Block Assn. v. Giuliani, 223 A.D.2d 64, 73–74 (1st Dep't 1996).
Procedurally, SEQRA requires, at the start, “that all agencies determine whether the actions they directly undertake, fund or approve may have a significant impact on the environment, and, if it is determined that the action may have a significant adverse impact, prepare or request an environmental impact statement.” 6 NYCRR 617 .1(c); see ECL 8–0109(2). “Where an environmental impact statement is required, a draft environmental impact statement (DEIS) must first be prepared by either the applicant or the governmental agency to which public comment is invited at a public hearing.” Coalition for Responsible Planning, Inc. v. Koch, 148 A.D.2d 230, 232 (1st Dep't 1989). “A key element in the environmental review process is the public review and comments on the DEIS,” id. at 234, “so as to draw on the reservoir of public information and expertise which SEQRA intends to tap.” ‘ Williamsburg Around the Bridge Block Assn., 223 A.D.2d at 73 (citation omitted).
“The EIS, the heart of SEQRA, clearly is meant to be more than a simple disclosure statement.... Rather, it is to be viewed as an environmental alarm bell' whose purpose is to alert responsible public officials to environmental changes before they have reached ecological points of no return.” Town of Henrietta v. Department of Envtl. Conservation, 76 A.D.2d 215, 220 (4th Dep't 1980) ; see Metropolitan Museum Historic Dist. Coalition, 20 AD3d at 34 ; Roosevelt Islanders for Responsible Southtown Dev. v. Roosevelt Is. Operating Corp., 291 A.D.2d 40, 52 n3 (1st Dep't 2001) ; Williamsburg Around the Bridge Block Assn., 223 A.D.2d at 71. An EIS must include “a description of the proposed action and its environmental setting,” “the environmental impact of the proposed action including short-term and long-term effects,” “any adverse environmental effects which cannot be avoided,” and “mitigation measures proposed to minimize the environmental impact.” ECL § 8–0109(2)(a)–(c), (f) ; see 6 NYCRR 617.9(b)(5) ; Bronx Comm. for Toxic Free Schs. v. New York City Sch. Constr. Auth., 20 NY3d 148, 155 (2012).
SEQRA also requires that an EIS discuss alternatives to the proposed action, including a no action alternative and alternative sites, as appropriate. (See 6 NYCRR 617.9 [b][5][v] ). “Review of possible alternatives has also been characterized as the heart of the SEQRA process.” ‘ Association for Community Reform Now (“ACORN”) v. Bloomberg, 13 Misc.3d 1209(A), *11, 824 N.Y.S.2d 752, 2006 N.Y. Slip Op 51750(U) (Sup.Ct. N.Y. County Sept. 19, 2006) (citation omitted), aff'd, 52 AD3d 426 (1st Dep't 2008).
Judicial Review
As with administrative proceedings generally, “[j]udicial review of a lead agency's SEQRA determination is limited to whether the determination was made in accordance with lawful procedure and whether, substantively, the determination was affected by an error of law or was arbitrary and capricious or an abuse of discretion.” Akpan, 75 N.Y.2d at 570, quoting CPLR 7803(3) (other citations omitted); see Chinese Staff & Workers' Assn. v. Burden, 19 NY3d 922, 924 (2012) ; Jackson, 67 N.Y.2d at 417. “In assessing an agency's compliance with the substantive mandates of the statute, the courts must review the record to determine whether the agency identified the relevant areas of environmental concern, took a “hard look” at them, and made a “reasoned elaboration” “of the basis for its determination.” “ Akpan, 75 N.Y.2d at 570, quoting Jackson, 67 N.Y.2d at 417 ; see Bronx Comm. for Toxic Free Schs., 20 NY3d at 155 ; Chinese Staff & Workers' Assn., 19 NY3d at 924.
While “it is not the role of the courts to weigh the desirability of any action or choose among alternatives,” Jackson, 67 N.Y.2d at 416 ; see Akpan, 75 N.Y.2d at 570 ), “judicial review must be meaningful.” ‘ Develop Don't Destroy (Brooklyn) v. Empire State Dev. Corp., 33 Misc.3d 330, 346 (Sup.Ct. N.Y. County 2011) (citation omitted), aff'd, 94 AD3d 508 (1st Dep't 2012) ; see Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 NY3d 219, 231–232 (2007) ; Akpan, 75 N.Y.2d at 570. “It is the court's responsibility to ensure that, in light of the circumstances of a particular case, the agency has given due consideration to pertinent environmental factors,” ‘ Develop Don't Destroy (Brooklyn), 33 Misc.3d at 346, quoting Akpan, 75 N.Y.2d at 571 ), and has “satisfied SEQRA, procedurally and substantively.” Jackson, 67 N.Y.2d at 416.
“The reviewing court must employ reasonableness and common sense, tailoring the intensity of the hard look' to the complexity of the environmental problems actually existing in the project under consideration.” Chinese Staff & Workers' Assn., 88 AD3d 425, 429 (1st Dep't 2011), aff'd, 19 NY3d 922. SEQRA compliance “must be examined in light of the particular facts and circumstances surrounding the project,” Town of Henrietta, 76 A.D.2d at 224 ), and “[t]he degree of detail with which each factor must be discussed obviously will vary with the circumstances and nature of the proposal.” Jackson, 67 N.Y.2d at 417 (citation omitted); see Kahn v. Pasnik, 90 N.Y.2d 569, (1997) ; Akpan, 75 N.Y.2d at 570.
Application of Law
In these proceedings, petitioners claim that DOH failed to take the requisite “hard look” at the significant adverse impact of construction noise, hazardous materials at the site, and traffic; and failed to sufficiently address mitigation measures and reasonable alternatives. P.S. 163 also contends that DOH failed to consider the long term impact of construction on the school's enrollment and finances. In opposition, respondents assert that DOH fully satisfied SEQRA's requirements and identified and took a hard look at all relevant environmental impacts of the project, including the areas challenged by petitioners, and offered a reasoned elaboration of the basis of its findings.
Construction Noise
Petitioners argue that DOH failed to address evidence of the particular damage to children's development and learning caused by elevated noise levels, and erroneously determined that the duration and level of excess noise would not have a significant adverse impact on P.S. 163. DOH, petitioners contend, did not measure current ambient classroom noise levels and assumed they were higher than they were, and consequently substantially underestimated the increase in volume that students would experience during the loudest fourteen months of construction. DOH's construction noise analysis also was inadequate, petitioners assert, because it focused entirely on average noise levels, without considering the evidence of adverse impacts of “high impulsive noise,” that is, intense noise of short duration, on children.
Petitioners further argue that DOH erroneously adopted the CEQR Technical Manual's noise level standard of 45 dBA as an acceptable level for classrooms, despite evidence submitted by the PTA during the SEQRA process showing that the CEQR standard is “inconsistent with well-accepted and long-standing scientific data on health impacts of noise on young children.” P.S. 163 Memo, at 14 n6. As petitioners note, in response to the DEIS, a group of pediatric environmental health specialists at the Mount Sinai Children's Environmental Health Center submitted comments, at the request of the PTA, stating that the project should consider “children's unique susceptibilities to noise, especially in the learning environment,” and recommended maximum classroom noise levels of 40 dBA, or lower, depending on the age of the children. See Mount Sinai Children's Environmental Health Center Comments, Ex. 6 to Kathawala Aff. The pediatricians concluded that there may be significant adverse noise impacts on children attending P.S. 163 as a result of the project, and the predicted noise levels during the fourteen noisiest months of construction would be loud enough to interfere with the children's well being and ability to learn.
In addition, petitioners argue that DOH failed to take a hard look at or engage in a substantive analysis of noise mitigation measures, and, in particular, disregarded the testimony of Lee, an acoustical engineer, that central air conditioning and acoustical windows that attenuate noise by 35 dBA were necessary to reduce construction noise to appropriate levels. Petitioners assert that, although DOH “belatedly acknowledge[d] central air conditioning as a potential mitigation measure” for the first time in the FEIS, P.S. 163 Memo, at 22, it did not consult the New York City School Construction Authority (N.Y.CSCA), as it should have, to analyze the cost and time necessary to install central air conditioning in the school, or otherwise assess the feasibility of installing central air conditioning. Id. at 22–23. Petitioners argue that NYCSCA's “rough estimate” that it would take $8–10 million to install air conditioning, contained in an email exchange between DOH and NYCSCA, and on which DOH apparently relied in making its finding, is not supported by any evidence or analysis. See Kathawala Aff., ¶¶ 2–3; Emails, Ex. 1 to Kathawala Aff. Thus, petitioners argue, DOH's finding that central air conditioning was not feasible has no reasonable basis.
In opposition, respondents argue that the FEIS construction noise analysis appropriately relied on impact criteria set forth in the CEQR Manual in concluding that, because high levels of noise would not occur continuously for two or more years, construction noise would not have a significant adverse impact on P.S. 163 students. Respondents also argue that the CEQR Manual provides sufficient guidance and “accepted methodologies” for evaluating public health consequences of construction-related noise, and DOH's use of the CEQR Manual's noise level standards was reasonable, notwithstanding that other authorities recommend lower levels. Similarly, respondents claim, petitioners' challenge, based on petitioners' expert's measurements of current indoor classroom noise levels, to respondents' estimated increases in classroom noise levels, reflects only a disagreement between experts not reviewable by the court.
DOH also contends that it recognized that the school is a sensitive receptor, and considered the potential harm to students at P.S. 163, by undertaking a detailed noise analysis. Further, respondents argue, whether the impact of construction-related noise on P.S. 163 “is deemed significant or not is of no consequence in light of JHL's commitment to mitigate such impacts through the installation of noise attenuating windows,” which will provide approximately 25–30 dBA of noise attenuation. JHL Memo, at 35–36. With the installation of these windows, JHL asserts, together with other mitigation measures that will be in place, classroom noise levels would be reduced to acceptable levels, even though levels would be above 45 dBA during nine months of construction activity. Respondents additionally assert that it was not irrational to assume that classroom windows would be closed during construction, considering that JHL agreed to provide air conditioning units for some classrooms, not to mitigate noise but as an alternate means of ventilation. Respondents contend that the individual air conditioning units offered by JHL are “a reasonable and cost effective means of alternate ventilation to mitigate a temporary construction noise impact, especially in a case like this where the noise impacts are well below the threshold deemed significant under SEQRA.” JHL Memo, at 32.
Notwithstanding that the CEQR Manual sets out generally accepted standards and methodologies for testing and estimating noise levels, and while recognizing that it generally is not the court's role to resolve conflicts between experts, see Chu v. New York State Urban Dev. Corp., 47 AD3d 542, 543 (1st Dep't 2008), the court still must ensure that agencies give “reasoned consideration to all pertinent issues revealed in the process.” Jackson, 67 N.Y.2d at 417 ; see Mulgrew v. Board of Educ. of City Sch. Dist. of City of NY, 28 Misc.3d 204, 210 (Sup.Ct. N.Y. County 2010), aff'd, 75 AD3d 412 (1st Dep't 2010). Thus, setting aside the disagreements between respondents' and petitioners' experts as to standards and testing methods, the question remains whether DOH sufficiently considered the particular effects of elevated noise levels, including levels above the CEQR Manual's maximum acceptable interior level, on the children attending P.S. 163.
The FEIS did not address the particular adverse effects of elevated noise levels on children's learning abilities or performance in school, and did not respond to public comments raising such concerns, other than to reiterate its adherence to CEQR standards and the proposed mitigation measures offered by JHL, and to state that lower noise level standards are not achievable in urban environments. Considering the exceptional circumstances of this matter, involving an elementary school, with children as young as three years old, in extremely close proximity to the construction site, and DOH's finding that CEQR standards would be exceeded, even with the proposed mitigation measures, for nine months of construction, DOH's singular reliance on CEQR guidelines, which do not address the special circumstances here, falls short of showing that the requisite hard look was taken.
It also appears from the record that DOH did not take a sufficiently hard look at additional noise mitigation measures, including central air conditioning, to reduce the adverse noise impact on the school. DOH's finding that central air conditioning was not a feasible measure is based on NYCSCA's summary conclusion that it would be too costly and time consuming to install, which provides no reasoned basis for the finding.
As to the impact of construction noise on the tenants, however, petitioners neither argue nor offer evidence to show that DOH did not take a sufficient look at the relevant issues and evidence presented during the review proceedings, or that its findings were procedurally or substantively inadequate. Although the tenants assert, as DOH acknowledged, that outdoor balconies on two buildings would experience unmitigated elevated noise, and some construction periods may result in interior noise levels above the CEQR Manual recommended levels, the tenants do not dispute that the inside noise would be sufficiently mitigated, or that it was arbitrary and capricious to accept that the noise on the outdoor balconies could not be feasibly or practically mitigated.
Hazardous Materials
As with construction noise, petitioners raise concerns about the potential harm, particularly to children at P.S. 163, caused by exposure to toxic materials at the construction site. Petitioners argue that DOH did not take a hard look at the presence of and exposure pathways for all toxic materials because it relied on outdated standards and soil cleanup guidelines, did not adequately test soil samples to determine levels of all contaminants, including lead, did not address the adverse impact of airborne dust from the construction site, and did not require sufficient remediation and safety measures.
More particularly, petitioners argue that DOH erroneously relied on outdated EPA “soil-lead hazard” standards and DEC soil cleanup guidelines in determining that lead at the construction site does not present a significant adverse impact. As the tenants contend, the EPA definition of “soil-lead hazard” was promulgated in 2001, and EPA itself has acknowledged that it is outdated; and the DEC soil cleanup guidelines, adopted in 2006, were required to be updated every five years, but were not.
Petitioners also argue that the limited sampling done by AKRF and its use of an average level of sample results, on which DOH based its findings, did not adequately address the potential for higher levels of lead, when significantly elevated lead levels were found in several samples. Petitioners further argue that the soil clean-up guidelines used in the hazardous materials assessment did not account for airborne lead dust; and DOH failed to analyze or apply sufficiently protective measures to prevent harm. Petitioners also allege that other toxic materials, including arsenic and barium, were not sufficiently addressed.
In support of their claims, petitioners submit affidavits from a number of experts, criticizing various aspects of the hazardous materials investigation. P.S. 163, for example, submits an affidavit from environmental engineer Bruce Duggan (Duggan), who claims that because the Phase I investigation did not recognize that prior development of the site as a parking lot “may have” included the use of fill-in debris that “may have” included asbestos, lead and other contaminants, the investigation failed to recognize that this was a possible recognized environmental condition (REC). Duggan Aff., ¶ 18. As a result, Duggan concludes, DOH did not follow DEC's specific procedures for “hazardous materials associated with Historic Fill.” Id., ¶ 19. Duggan also contends that because the Phase II sampling protocol failed to address the “possible” historic fill condition, it failed to separately test for each of the fill components, such as asbestos, lead, PCBs and mercury. Id., ¶¶ 25, 31. While he concludes that soil samples were not “appropriately analyzed for all contaminants,” id., ¶ 35, he does not find that the number of samples used was inadequate for a proper analysis.
Respondents argue that these affidavits should not be considered because they were not submitted during the SEQRA proceedings. However, the Court of Appeals refuted that argument in Jackson, holding that the failure to raise an issue during the administrative proceeding does not preclude it from judicial review, but may be considered in reviewing the reasonableness of an agency's failure to address the issue. 67 N.Y.2d at 427 ; see Waldbaum, Inc. v. Incorporated Vil of Great Neck, 10 Misc.3d 1078(A), *14, 814 N.Y.S.2d 893, 2006 N.Y. Slip Op 50119(U) (Sup.Ct. Nassau County 2006) (same). In any event, expert affidavits submitted, as here, in support of petitions addressing the adequacy of an agency's review of issues raised during a SEQRA proceeding, may be considered by the court. See, e.g. Bronx Comm. for Toxic Free Schs., 20 NY3d at 154 (court considered petitioner's expert affidavit challenging adequacy of respondent's proposed mitigation measures).
The tenants' experts also criticize the methods used to test the soil samples, the standards and guidelines relied on, and the use of average levels found in the samples. Paul Bartlett (Bartlett), an environmentalist, states that using average levels ignores the heterogeneous mix of contaminants at the site, which likely have higher levels of lead and a greater risk of exposure than the average levels show. Bartlett also states that DOH did not adequately address the impact of airborne dust from the site, and concludes that the proposed mitigation measures would not sufficiently prevent exposure to airborne dust and chemicals. Toxicologist Stephen Lester (Lester), identifying lead as “the primary contaminant of concern” at the proposed site, also criticizes the use of average levels as not accounting for “hot spots” with high concentrations of lead. He further asserts that the cleanup guidelines relied on by DOH, “while relevant for determining whether or not to allow contaminated soil to remain in place on a site—are not sufficient for evaluating the health risk, especially to children, from contaminated lead dust that is disturbed and migrates to places where children [are].” Lester Aff .,¶¶ 20, 21. Also, he opines, wetting soil and air monitoring would not be sufficient to manage the dust, and he recommends that more aggressive measures be implemented to ensure that dust does not escape into the surrounding neighborhood. Id., ¶ 29. Dr. David Carpenter (Carpenter), a public health physician, attests that “[t]here is no known lower threshold for the adverse effects of lead in children,” that the harmful effects of lead exposure on children's cognitive function are not reversible, and that lead dust can be a risk to children even when it is invisible. Carpenter Aff., ¶¶ 9–11. He concludes that efforts should be made “to prevent, not just lessen, migration of contaminants offsite,” and also states that air monitoring and wetting soil alone are not sufficient measures. Id., ¶¶ 16–18.
The record in this case shows that DOH based its findings on a comprehensive and detailed investigation of hazardous materials at the site, which considered the relevant environmental concerns raised by petitioners. The investigation included testing of soil samples for numerous potentially hazardous materials, including fifty-two VOCs, sixty-seven SVOCs, and twenty-six metals, such as lead and mercury (see Tenants Memo, at 46), in accordance with CEQR Manual criteria and federal and state standards and guidelines in effect at time of investigation. Nor did DOH ignore the issue of airborne dust. The FEIS recognized that construction activity can create airborne dust, which may include lead, and can cause harm to people inhaling or ingesting such dust, and recognized that DEC requires dust control measures.
To the extent that petitioners argue that AKRF's investigation did not do a wide enough sampling to accurately assess the levels of toxic substances in the soil at the site, petitioners' experts did not criticize the number of samples taken, but the methods used to test them. Even if a larger sampling of soil could have resulted in finding “hot spots” with higher levels of lead or other toxins, the issues pertaining to remediation and safety plans required by DEC would remain the same. Further, notwithstanding EPA's apparent agreement to consider revising its lead dust hazard standard, it was not unreasonable for DOH to use the otherwise accepted standards in place at the time of the environmental review. See Spitzer v. Farrell, 100 N.Y.2d 186, 191 (2003).
What is less clear is whether DOH took a hard enough look at remediation and safety measures to address the potential harm in lead-containing airborne dust particles. Petitioners, and their experts, claim that the RAP and CHASP are inadequate, particularly for purposes of containing airborne dust, and particularly in view of the potential harm to young children.
There is no question that the dangers of exposure to lead, “especially to young children, are well documented and pose a serious public health problem.” Vallone, 100 N.Y.2d at 342 ; see Palaez v. Seide, 2 NY3d 186, 197 (2004) ; Juarez by Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 640 (1996). Lead poisoning, even at low levels, “can harm the central nervous system and cause health problems such as impaired growth, hearing loss and limited attention span.” Palaez, 2 NY3d at 197 ; see Vallone, 100 N.Y.2d at 342–343. “Lead dust is the primary exposure pathway of childhood lead poisoning. Not surprisingly, young children are at a higher risk for lead exposure and its deleterious effects because of their normal hand-to-mouth activity and their developing neurological systems.” Vallone, 100 N.Y.2d at 343 (citations omitted). “Children under the age of six, whose nervous systems are still developing, are particularly vulnerable to the damage caused by lead poisoning.” Juarez, 88 N.Y.2d at 640–641.
Because, petitioners contend, there is no safe level of lead exposure, and because children are particularly sensitive to the effects of lead exposure, which can cause irreversible damage, DOH must require measures beyond wetting soil and air monitoring. Petitioners' experts almost uniformly agree that aggressive efforts must be made to do more than lessen exposure, and must aim to prevent dust from migrating to nearby sensitive receptors, such as P .S. 163. To that end, several experts attest, the only adequate solution is a full containment system, such as a sealed tent placed over areas being disturbed.
Petitioners' concerns about the severe and lasting consequences to children of lead exposure are well taken. As noted before, the circumstances here, involving young children at a school very close to the construction site, present extraordinary and uniquely difficult challenges. DOH found that DEC's required dust control measures, including real-time air monitoring, will “ensure that 15–minute average respirable dust levels stay below 150 micrograms per cubic meter (ug/m),” the federal standard for airborne lead. Id., 11–2. But, by DOH's own acknowledgment, “there is controversy as to whether there is any level of lead exposure that can be considered safe.” FEIS, 19–34, Response 10–16. Given the special concerns here, DOH's determination that containment measures, such as a tent, were not warranted because the RAP and CHASP were sufficient to control and measure dust levels, does not demonstrate that DOH took a hard enough look at all relevant mitigation measures or made a reasoned elaboration for its failure to consider containment measures.
Traffic
Petitioners raise various objections to DOH's traffic findings. P.S. 163 alleges that DOH's traffic analysis was “fatally flawed” because it excluded 97th Street west of Amsterdam Avenue from the traffic study area, did no “real analysis” of vehicle queuing on 97th Street between Columbus and Amsterdam Avenues, used “second-rate methodology” to estimate trips generated by the project, ignored the prevalence of children and the needs of the elderly in its pedestrian safety analysis and proposed mitigation measures, and did not consider the pedestrian deaths that occurred in the area in 2013 and 2014. P.S. 163 Petition, ¶¶ 100–107; see P.S. 163 Memo, at 19. The tenants argue that DOH failed to adequately analyze the adverse impact of traffic congestion on Park West Drive, failed to sufficiently address the risk to pedestrians from increased traffic on 97th Street, and proposed ineffective mitigation measures dependent on the actions of another agency.
Petitioners argue that their objections are supported by two expert reports submitted during the SEQRA proceedings, concluding that DOH's traffic analysis was flawed and inadequate. In one report, prepared for the Coalition for a Livable West Side, Robert Chamberlin (Chamberlin), Senior Director at RSG, a Vermont-based research and consulting firm, criticized methods used in DOH's traffic study to estimate “traffic demand” resulting from operation of the proposed facility, and called the proposed traffic congestion mitigation measures ineffective. He also commented that the traffic study did not address a new traffic pattern at Broadway and 96th Street, prohibiting left turns, which is affecting traffic flow on 97th Street.
Another report prepared by EPDSCO, Inc. (EPDSCO), an environmental consulting firm engaged by the PTA to review the traffic analysis conducted by Sam Schwartz Engineering for the DEIS, agreed in substance with Chamberlin's critique. It added that the traffic study should include a weekend day analysis; that vehicle trip generation projections for the project underestimated staff, visitor and resident trips; and that the proposed site plan did not, but should, show Park West Drive and clarify how it has been modified and will be used.
Neither report, however, demonstrates that DOH's traffic analysis was fatally flawed or inadequate. Petitioners' experts disagree with the methods and results of DOH's traffic study, but do not show that DOH overlooked or failed to address the pertinent traffic issues. See Roosevelt Islanders for Responsible Southtown Dev., 291 A.D.2d at 55 ; Orchards Assocs. v. Planning Bd. of N. Salem, 114 A.D.2d 850 (2nd Dep't 1985) ; Aldrich v. Pattison, 107 A.D.2d 258 (2nd Dep't 1985). Nor are the conclusions of petitioners' experts supported by proper authority. See Chu., 47 AD3d at 543. To the extent, for instance, that petitioners argue that the traffic study area should have been extended to include 97th Street west of Amsterdam, and should have considered the impact of traffic pattern changes at 96th Street and Broadway, petitioners submit nothing to show that the traffic study area did not comport with CEQR Manual guidelines, or that extending the study area would have changed the study's conclusion that increased traffic resulting from the project would have a significant adverse effect.
Thus, with respect to its traffic analysis, DOH identified the relevant concerns and sufficiently addressed those concerns in the FEIS, and proposed reasonable mitigation measures. “SEQRA requires an agency to list ways in which any adverse effects * * * might be minimized' (ECL 8–0109[2] ), but it does not require an agency to impose every conceivable mitigation measure, or any particular one.” Jackson, 67 N.Y.2d at 421–422. Moreover, it was not unreasonable for DOH to rely on DOT to implement the recommended mitigation measures, as “nothing in the act bars an agency from relying upon mitigation measures it cannot itself guarantee in the future.” Id. at 422.
Alternative Site
Petitioners contend that DOH did not take a hard enough look at the redevelopment alternative because it ignored its prior approval in 2008 of JHL's application to rebuild its existing facility at its current site, which had full community support and, as DOH had found, would have no significant adverse environmental impact. Further, petitioners argue, JHL's 2006 application to rebuild on the existing site stated that the then proposed facility would incorporate the Green House model, in contradiction to respondents' present assertion that a facility on the 106th Street site could not conform to the Green House model. The tenants also challenge DOH's finding that the existing facility is operating inefficiently, and argue that DOH should have considered the alternative of constructing a new facility at another site not under JHL's control.
Contrary to petitioners' contentions, DOH addressed JHL's prior applications, in its response to public comments, and explained that rezoning of the existing facility's site following the prior application resulted in a smaller than previously proposed available site; and, therefore, a smaller facility than previously proposed would be constructed, which would be less suitable for incorporating the Green House model. DOH further responded that the analysis of the redevelopment alternative does not contradict the 2006 application because it “describes the best program that could be envisioned for the site under the current ... zoning ... and reflects the current thinking and experience of JHL in developing an appropriate model of care for the twenty-first century.”
SEQRA directs agencies to consider, evaluate and describe a “range of reasonable alternatives to the action that are feasible, considering the objectives and capabilities of the project sponsor,” 6 NYCRR § 617.9 [b][5] [v], and grants agencies “considerable latitude” in choosing between alternative measures. Jackson, 67 N.Y.2d at 417. “Nothing in the law requires an agency to reach a particular result on any issue.” Id. Although DOH found that the redevelopment alternative would not result in significant adverse environmental impacts, its determination, after weighing the redevelopment alternative against the proposed facility, that the proposed facility would better meet the project's particular objectives in developing “the first true urban Green House model nursing facility” in New York City, Findings Statement, ¶ 19, was rationally based and supported by the record. See Tribeca Community Assn. v. New York City Dept. of Sanitation, 83 AD3d 513, 514–515 (1st Dep't 2011) ; Develop Don't Destroy (Brooklyn), 59 AD3d at 319. DOH did not, in this case, exceed the “considerable latitude” afforded it under SEQRA to choose among alternatives.
Nor do petitioners show that it was necessary or reasonable for DOH to consider other, unidentified alternate sites not owned by JHL. To satisfy the mandates of SEQRA, it is not necessary that every conceivable alternative be identified and addressed, Jackson, 67 N.Y.2d at 417 ; “all that is required is that the agency analyze a reasonable range of alternatives to the proposed project.” C/S 12th Ave. LLC v. City of New York, 32 AD3d 1, 7 (1st Dep't 2006) (citation omitted) (emphasis in original). That having been done, it is not the court's role to “weigh the desirability of any action or to choose among alternatives.” Jackson, 67 N.Y.2d at 416 ; Akpan, 75 N.Y.2d at 570.
Impact on School Enrollment and Funding
As to P.S. 163's argument that DOH failed to consider the damage the proposed project would have on school enrollment and funding, resulting from parents deciding to take their children out of the school to avoid the noisy and dangerous construction project, this issue as presented during the SEQRA proceedings raised only a potential economic harm, and DOH did not act arbitrarily or unreasonably in omitting the issue from further analysis. Save the Pine Bush, Inc. v. Common Council of the City of Albany, 13 NY3d 297, 306, 307 (2009) (petitioners must allege and prove their injury is real; agency need not investigate every conceivable environmental problem); see also Jackson, 110 A.D.2d 304, 308–309 (1st Dep't 1985) (unsubstantiated fear of catastrophe did not support need for further study), aff'd, 67 N.Y.2d 400 (1986). Further, while economic concerns may be raised in a SEQRA proceeding in conjunction with environmental concerns, see Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 777 (1991) ; Duke & Benedict, Inc. v. Town of Southeast, 253 A.D.2d 877, 878 (2nd Dep't 1998), generally, “[e]conomic injury is not by itself within SEQRA's zone of interests.” Society of Plastics Indus., 77 N.Y.2d at 777 ; see Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 N.Y.2d 428, 433 (1990) (“to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature”); Sun Co. v. City of Syracuse Indus. Dev. Agency, 209 A.D.2d 34, 50 (4th Dep't 1995) (“failure to address the economic impacts of the project ... did not violate SEQRA”).
Conclusion
Although the record indicates that DOH followed proper SEQRA procedures (see Aldrich, 107 A.D.2d at 264 ), the court finds that DOH, in certain substantive areas identified above, did not take the requisite hard look at specific environmental issues. Any remaining arguments raised by the parties have been considered by the Court and found unavailing.
Accordingly, it is
ORDERED AND ADJUDGED that the petitions are granted to the extent that DOH's determination, dated December 10, 2014, approving JHL's application, is vacated and aned; and it is further
ORDERED and ADJUDGED that the matter is remitted to DOH for preparation of an amended FEIS, to reconsider the findings on the issues of noise and hazardous material.