NYS DEPARTMENT OF HEALTH
.. Sequence Number : 004
ARTICLE 78SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY -- PART 6
THE FRIENDS OF PS. 163, INC; THE PS. 163 SCHOOL
LEADERSHIP TEAM; JOSHUA KROSS; MILES KROSS, Index No.:100546/15
by his father, Joshua Kross; STELLA KROSS, by her
father, Joshua Kross; EUGENIA FINGERMAN; ELUJAH
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, DECISION, ORDER
Petitioners, & JUDGMENT
~ against -
JEWISH HOME LIFECARE, MANHATTAN, NEW YORK
STATE DEPARTMENT OF HEALTH, 156 W. 106™
STREET HOLDING CORP., 102 W. 107"! CORP,, &
PWV OWNER, LLC,
Respondents,
NATHANIEL ROBERT LIVINGSTON by his parent Index No.:100641/15
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,
Potidonens ; INFILED JUD‘
a Tis amen as not een e mete m ‘County Clerk
against obtain entry, counsel or authorized rene a
NEW YORK STATE DEPARTMENT OF HEALTH#EPGA" In person at the J Ceeattative must
HOWARD ZUCKER, As Acting Commissioner of “'2* ‘coment Clerk's Desk (Room
the NEW YORK STATE DEPARTMENT OF HEALTH, a
JEWISH HOME LIFECARE, MANHATTAN, PWV... .
‘OWNER, LLC, 156 W. 106" STREET HOLDING
CORPORATION, and 102 W. 107" CORPORATION,
Respondents.ears uso noon rams
LOBIS, JOAN,
‘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 atwenty-story nursing home (proposed facility
‘or project) at 125 West 97" Street in Manhattan's Upper West Side (proposed site). Petitioners,
including an organization of parents and teachers of children attending a public schoo! 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 annulling 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,
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 97 Street, next to the proposed site. Petitioner P.S. 163 School Leadership
Team (SLT), made up of the schoo! principal, PTA president, teachers and parents, is the school
body responsible for setting the schoo!’s educational agenda inline with its budget. The individual
petitioners in the P.S. 163 proceeding include students attending P.S. 163 and their parents
‘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.(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 97° 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 106* Street in Manhattan
(existing facility). Respondents 156 W. 106 Street Holding Corp. and 102 W. 107™ Corp. are
holding companies established by JHL, which own the land at 120 West 106” Street. Respondent
DOH isa 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 106" 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 ata site on 100" Street between Columbus and Amsterdam Avenues, after it was offered
‘a“land swap” deal for its 106" Street property. JHL’s application to build on the 100® Street site
‘was approved in 2010, but that project did not go forward because the 100" Street site did not meet
zoning requirements, JHL now seeks, also as a result of a land swap deal for its 1064 Street
rmteosproperty, to build the proposed facility on an approximately seventy-three acre parcel ofland, owned
by respondent PWV Owner, LLC, on 97" Street between Columbus and Amsterdam Avenues.
‘The proposed site is located on the south side of a “superblock” bounded by 100
Street on the north, 97" 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 97" street to the south. The superblock also contains
‘a playground, a library, a church, and on the east, extending from 97" Street to 100 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% ofits students have a leaming disability, and more than
7.5% of its students have asthma, a higher than average incidence for New York City schools.
Presetomarare or Paws,
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
toreplace its existing facility. In its application, JHL maintains that there isan urgent need for anew
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 9" through 19" floors, and “subacute,” or short-term rehabilitation care on the
4* through 8" 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
tothe public. Access to the building would include a public pedestrian entrance on West 97" 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 97° to 100* 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 97" Street. Construction
of the proposed facility was estimated to take approximately thirty months to complete,
‘The design for JHLs 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
5environment than exists in traditional nursing homes, and providing “more enhanced interaction and
more focused attention and care between residents and staff.” Findings Statement, J] 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
critical community need.”
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
2By prior orders of this court, ami
granted, without opposition,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)?
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.
°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 N.Y., 72 N.Y.2d 674, 680 (1988).
‘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 n 1 (Sup. Ct. N.Y. County 2003); see.
NY, 302 A.D.2d 155, 157 (1st Dep't 2002); see also Akpan v Koch, 75 N.Y.2d 561, 567
(1990).
7
Parte‘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
vaitten 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.
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
‘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,DOH “committed numerous errors with respect to its analysis ofthe 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, $f 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, 977, 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, “[njoise, 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,
‘Sound is measured, basically, in decibels (dB); “dBA” is a measurement adjusted to
account for human perception and sensitivities.
a
panosums aouent pote
marginally unacceptable, and clearly unacceptable.
‘The CEQR Manual identifies “nuisance level for noise,” during daytime hours
(between 7:00 am. 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
BA 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 ABA describes a doubling of perceived loudness.” FEIS, 10-2, Generally, for daytime hours,
an increase of $ 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 forno 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 ormore), 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 highly sensitive location immediately adjacent
“le| to the proposed site, a detailed analysis was done.
Based on the noise analysis conducted, the FEIS concluded that “[cJumulative noise
levels atthe 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
ndings 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 “{plotential 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 atypical New
‘York City construction site during the limited portions of the construction period when the loudest
activities would oceur.” [d,; 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
t ‘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 publiccomments
about the negative effects on children resulting from elevated noise levels, the FEIS reiterated that
12.soencos verso uncon rest
“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 bein 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
BA.” 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 publichealth
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-
slazed 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),
13.perme oa
‘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 ata 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 I) 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 aprior, cleaned-up petroleum spill at the site; the January 2014 update identified
an active-status, on-site oil spill.
The Phase Il 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 “[uJrban 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- ‘
“4term 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,
1136; 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
“15
Pomematerials,” 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 ofthe new building, acap 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 ol spill, and performing dewatering, ifrequired,
in accordance with the New York City Department of Environmental Protection. With the above
measies in place, DOH determined, there would be no significant adverse impacts related to
hazardous materials due to construction or operation of the proposed facility.
“Teale Finds
‘The FEIS initially concluded that, because the project would generate less than fifty
vehicle trips per peak hour through intersections inthe 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 97* 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 97* Street between Columbus and Amsterdam Avenues, the
-16-
peasprincipal 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 pm. to 3:45 p.m.); and weekday p.m. peak hour (5:30 p.m, to 6:30 pm.). The study area
included two intersections with traffic lights, 97" Street and Amsterdam Avenue, and 97° Street and
Columbus Avenue; and one intersection without a light, at 97" Street and Park West Drive.
‘The study particularly looked at delays and queuing (i.e, standing vehicles) at the
above intersections. It analyzed existing trafic pattems 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 97* Street and
‘Amsterdam Avenue and 97* 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 97" 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
-IT-‘number of vehicles using the driveway, without any vehicles backing up into the access lane, DOH
found that the project would not result
analysis.
increased pedestrian traffic sufficient to require a detailed
‘The traffic study also addressed pedestrian safety, recognizing that the intersection
of 97" 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 atthe intersection of Columbus Avenue and 97* 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.
‘The FEIS considered four alternatives to the proposed project, including a “No-Build
Altemative,” as required by SEQRA; a “No Significant Adverse Impacts Criter “Crane
Relocation Alternative,” and, in response to public requests, a “West 106 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
-18-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 impactits 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 withthe goals and objectives of the proposed project.
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 (4); 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 itis still expedient to modify a proposed project in order to mitigate any adverse
environmental effects.” Metropolitan Museum Historic Dist, Coalition v De Montebello, 20A.D.3d
-19-wxcrs urn sour reeiaet
28, 34 (1st Dep’t 2005) (citations omitted); see 6 NYCRR 617.1 (c).”
“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, 100N.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.¥.2d 373, 380-381 (1992) (citation
omitted); see City Council of the City of Watervliet v Town Bd, of the Town of Colonie, 3 N.Y.3d
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).
to discharge an
agency'sresponsibility under the act.” Coalition for Future of Stony Brook Vil. vReilly,299 A.D.2d
481, 483 (2nd Dep’t 2002) (citations omitted); see Vallone, 100N. Y.2d at 348; Merson v McNally,
Strict and “{lJiteral compliance with the letter and spirit of SEQRA is required .
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 (1); see ECL § 8-0105 (6); Chinese Staff & Workers Assn, v City of New York,
68 N.Y.2d 359, 365 (1986).
-20-sm wed oc mona
90 N.Y.24 742, 750 (1997); King, 89 N.Y.2d at 347. “Anything less than strict compliance . . .
offers an incentive to cut comers 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,
LLG, 130 A.D.3d 1570, 1571 (4th Dep’t 2015); Williamsburg Around the Bridge Block Assn, v
Giuliani, 223 A.D.24 64, 73-74 (Ist Dep’t 1996).
Procedurally, SEQRA requires, atthe start, “that all agencies determine whether the
actions they directly undertake, fund or approve may have a significant impact on the environment,
and, ifit is determined thet the action may have a significant adverse impact, prepare or request an
environmental impact statement.” 6 NYCRR 617.1 (¢); 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.24230, 232
(Ist 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, itis 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
noreturn,” Town of Henrietta v Department of Envil, Conservation, 76 A.D.2d 215, 220 (4th Dep’t
2encrsunro w0oKoet renee
1980); see Metropolitan Museum Historic Dist, Coalition, 20 A.D.3d at 34; Roosevelt Islanders for
p., 291 A.D.2d 40, 52 n 3 (Ist 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), (; see 6 NYCRR 617.9 (b) (5); Bronx Comm. for Toxic Free
‘Schs, v New York City Sch, Constr, Auth,, 20 N-Y.3d 148, 155 (2012).
SEQRA also requires that an EIS discuss altematives 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
g, 13 Misc. 3d
1209(A), *11, 824 NYS2d 752, 2006 NY Slip Op 51750(U) (Sup. Ct. N.Y. County Sept. 19,
2006)(citation omitted), aff'd, 52 A.D.3d 426 (1st Dep't 2008).
Judicial Review
As with administrative proceedings generally, “[jJudicial 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
G3) (other citations omitted); see Chinese Staff & Workers’ Assn, v Burden, 19 N.Y.3d 922, 924
22.(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 $70, quoting
‘Jackson, 67 N.Y.2d at 417; see Bronx Comm, for Toxic Free Schs,, 20N.Y.3d at 155; Chinese Staff
& Workers’ Assn, 19 N.Y.3d at 924.
While “it is not the role ofthe 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, 34
330, 346 (Sup. Ct. N.Y. County 2011) (citation omitted), afd, 94 A.D.3d 508 (Ist Dep't 2012); see
Riverkeeper, Inc, v Planning Bd, of Town of Southeast, 91N.Y.3d 219, 231-232 (2007); Akpan, 75
N.Y.24 at $70. “It is the court’s responsibility to ‘ensure that, in light of the circumstances of a
particular cose, the agency has given due consideration to pertinent environmental factors,"" Develop
Don’t Destroy (Brooklyn), 33 Mise, 3d at 346, quoting Akpan, 75N.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 A.D.3d 425, 429 (Ist 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
! 23.of detail with which each factor must be discussed obviously will vary with the circumstances and
nature of the proposal.” Jackson, 67N.Y.2d at 417 (citation omitted); see Kahn v Pasnik, 90N.Y.2d
569, (1997); Akpan, 75 N.Y.2d at $70,
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 atl 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 partihular damage to
children’s development and learning caused by elevated noise levels, and erroneously determined
thatthe duration and level of excess nose would not have a significant adverse ifapact on PS. 163.
DOH, petitioners contend, did not measure current ambient classroom noise! levels andassumed 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
24
ranmaaveragenoise 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.”
PS. 163 Memo, at 14 n 6. 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
PS. 163 as aresult 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
by35 dBA were necessary to reduce construction noise to appropriate levels. Petitioners assert that,
although DOH “belatedly acknowledge[d] central air conditioning es a potential mitigation measure”
-25-for the first time in the FEIS,
163 Memo, at 22, it did not consult the New York City School
Construction Authority (NYCSCA), 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
airconditioning. 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, $f] 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 thet, 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.
-26-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 25-30BA
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. Com,,
47 AD.3d 542, $43 (Ist 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 N.Y., 28 Misc. 3d 204, 210 (Sup. Ct. N.Y.
County 2010), aff'd, 75 A.D.34 412 (1* Dep’t2010). Thus, setting aside the disagreements between
respondents’ and petitioners’ experts as to standards and testing methods, the question remains
20whether 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 leaming 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
-28-sess venso nocuDe mrss
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 « 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 airbome 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-Lend 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
-29-sass ocwet ponies
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
*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 fom judicial review, but may be considered in reviewing the reasonableness ofan
agency’s failure to address the issue. 67 N.Y.2d at 427; see
of Great Neck, 10 Misc, 34 1078(A), *14, 814 N.Y.S.2d 893, 2006 NY 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
‘NLY.3d at 154 (court considered petitioner’s expert affidavit challenging adequacy of
respondent's proposed mitigation measures).
-30-investigation failed to recognize that this was a possible recognized environmental condition (REC),
Duggan Aff, 18. Asa 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,, 925,
31. While he concludes that soil samples were not “appropriately analyzed for all contaminants,”
id., 435, he does not find that the number of samples used was inadequate for a proper analysis.
‘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 atthe 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
airbome 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 concer” atthe proposed site, also criticizes the use
of average levels as not accounting for “hot spots” with high concentrations of lead. He further
asserts thatthe 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 thet is disturbed and migrates to places
where children [are).” Lester Aff,.1]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
31implemented to ensure that dust does not escape into the surrounding neighborhood. Id,, 29. Dr.
David Carpenter (Carpenter), a public health physician, attests that “[tJhere 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 itis 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., ff] 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
‘concems 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 airbome dust. The FEIS recognized that construction activity can create
airbome 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 atthe site, petitioners’
experts did not criticize the number of samples taken, but the methods used to test them. Even if
larger sampling of soil could have resulted in finding “hot spots” with higher levels of lead or other
32.
resettoxins, 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
airbome 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 N.Y.3d 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.”
i Palaez, 2.N.Y.3d 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.
33.|
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’ concems 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 airbome 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.
34
peTraffic
Petitioners raise various objections to DOH’s traffic findings, P.S. 163 alleges that,
DOH’s traffic analysis was “fatally flawed” because it excluded 97° Street west of Amsterdam
Avenue from the traffic study area, did no “real analysis” of vehicle queuing on 97" 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 97" 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 96* Street, prohibiting left
tums, which is affecting traffic flow on 97* Street.
Another report prepared by EPDSCO, Inc, (EPDSCO), an environmental consulting
-35-
Pansatmens ures anew —
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
‘Ni 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 A.D.3d
at $43, To the extent, for instance, that petitioners argue that the traffic study area should have been
extended to include 97* Street west of Amsterdam, and should have considered the impact of traffic
patter changes at 96* 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 concems 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’
-36-(ECL8-0109 [2}), butt does not require an agency to impose every conceivable mitigation measure,
or any particular one.” Jackson, 67N. Y.2d at 421-422, Moreover, it was not unreasonable for DOH
torely 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.
Altemative 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 hed 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 106* Street site could
not conform to the Green House model, The tenants also challenge DOH’s finding thatthe 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 JHLs 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
37program 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 altemative 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 A.D.3d 513,
514-515 (Ist Dep't 2011); Develop Don’t Destroy Brooklyn), 59 A.D.3d 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, 67N.Y.2d at 417;
“all that is required is that the agency analyze a reasonable range of alternatives to the proposed
Project.” C/S 12" Ave, LLC v City of New York, 32 A.D.3d 1, 7 (Ist Dep’t 2006) (citation omitted)
-38-(emphasis in original). That having been done, itis 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 schoo! enrollment and funding, resulting from parents deciding to take their
children out of the schoo! 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,
y.Common Council of the City of Albany, 13 N.Y.3d 297, 306, 307 (2009) (petitioners must allege
and prove their injury isreal; agency need not investigate every conceivable environmental problem);
seealso Jackson, 110 A.D.2d 304, 308-309 (Ist 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 concems, 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, “{eJconomic injury is not by itself
within SEQRA’s zone of interests.” Society of Plastics Indus,, 77 N.Y.2d at 777; see Mobil Oil
Comp, v Syracuse Indus, Dev. Agency, 76 N.Y.2d 428, 433 (1990) (“to raise a SEQRA challenge,
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”).
39
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Conclusion
Although the record indicates that DOH followed proper SEQRA procedures (see
Aldrich, 107 AD2d 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, itis
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 annulled; and
itis 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.
Dated: _/2 19 3
ENTER:
HON. onto JSC.
ma ul INFILED. JUDGMENT
| is Judgment has not been entered by the County Clerk
: {and notice of entry cannot be served based hereon. To
, counsel or authorized representative must
Pid {mn person at the Judgment Clerk's Desk (Room