SEQRA Remains a Hot Topic for the NY Court of Appeals in Friends of P.S.163 v Jewish Home Lifecare and New York State Dept of Health

January 02, 2018

On December 12, 2017, the New York State Court of Appeals issued a joint decision on the appeal of two Article 78 proceedings challenging the same proposed development. The two appeals, Friends of P.S. 163 v Jewish Home Lifecare and New York State Department of Health and Wright v New York State Department of Health, sought to annul a decision of the New York State Department of Health (NYSDOH), approving the construction of a 414-bed residential facility for elderly and disabled individuals on the Upper West Side of Manhattan.  The NYSDOH was designated as the lead agency under the State Environmental Quality Review Act (“SEQRA”).   One set of petitioners were the parents of children attending a public elementary school located next door to the facility’s proposed location. The other set of petitioners were tenants living in apartment buildings that surround the facility’s proposed location.

Petitioners complained that the NYSDOH’s SEQRA review was procedurally and substantively flawed and did not adequately address the risks of exposure to hazardous materials, in particular, lead-contaminated soil and airborne lead, as well as exposure to construction noise. In affirming the Appellate Division, which had reversed the decision of the Supreme Court, the Court of Appeals dismissed both challenges and upheld the NYSDOH’s decision.

The Court of Appeals went through an extensive analysis of what the NYSDOH did prior to issuing its SEQRA Findings Statement. This included: (1) a Phase I environmental site assessment that did not identify any recognized environmental conditions; (2) a Phase II environmental site assessment that included 38 soil samples taken from areas within the footprint of the proposed facility and nearby locations outside the footprint and also included groundwater samples; (3) scoping for the draft environmental impact statement (DEIS); (4) preparation of the DEIS; (5) two public hearings on the DEIS; (6) preparation and filing of the final environmental impact statement (FEIS); and (7) preparation and adoption of the SEQRA Findings Statement.

The Court of Appeals noted that the sampling detected levels of lead in the soil that were typical of sites containing urban fill and were below the restricted residential soil cleanup objectives used by the New York State Department of Environmental Conservation. In addition, the NYSDOH determined that certain mitigative measures would be required to handle, monitor and contain the lead-contaminated soil during construction. As to potential levels of airborne lead dust, the NYSDOH determined that using certain monitoring and mitigation measures during construction would ensure that concentrations of airborne lead dust would not exceed the national ambient air quality standards. As to noise, the NYSDOH conducted modeling to assess potential impacts and assess abatement techniques to control noise. It also relied upon New York City’s Environmental Quality Review Technical Manual to minimize the exceedance of certain decibel limits during construction.

Some of the mitigation measures imposed by the NYSDOH in its SEQRA Findings Statement for the lead-contaminated soil included: (1) extensive construction health and safety plans; (2) a remedial action plan; (3) requiring tarps on trucks; (4) requiring wetting soil during excavation and loading onto the trucks; (5) requiring proper off-site disposal of the soil; (6) vehicle inspections; (7) real-time monitoring of dust levels; and (8) requiring soil vapor barriers for the cellar and sidewalls of the new facility.  The noise-related impacts would be controlled by: (1) ten-foot sound barriers, which would be increased to sixteen feet for classrooms closest to the construction; (2) interior acoustic windows in classrooms facing the construction site; (3) window air conditioning units for certain classrooms; and (4) prohibiting noisy construction activities during the school’s annual testing periods.

In their Article 78 proceedings, petitioners contended that the NYSDOH used flawed assessment methodologies, relied upon outdated standards, failed to adequately mitigate environmental damage of the proposed construction, and failed to adequately consider alternative mitigation measures. In particular, petitioners asserted that the developer should have been required to install central air conditioning in the school and tent the excavation.

Petitioners initially prevailed, getting the Supreme Court to annul and vacate the NYSDOH approval. That was a short-lived victory, as the Appellate Division reversed and dismissed the two proceedings, finding that the trial court has inappropriately substituted its judgment for the expertize of the NYSDOH. The Appellate Division granted leave to appeal and the Court of Appeals affirmed the appellate court.

The Court of Appeals noted that the court’s role in reviewing the lead agency’s decision under SEQRA is limited to determining whether the decision was made in accordance with lawful procedure, and whether substantively the decision was affected by an error of law, was arbitrary and capricious or an abuse of discretion. The Court of Appeals further noted that a reviewing court is not supposed to weigh the desirability of the action or choose among the alternatives.   Rather, it is limited to determining whether the agency took a “hard look” at relevant areas of environmental concern and made a “reasoned elaboration” for the grounds of its decision. Using those standards, the Court of Appeals found that the NYSDOH had relied upon the appropriate standards, had carefully considered the potential environmental harm and acted within its authority in choosing among the alternatives, further noting the wide latitude given to agencies in conducting SEQRA reviews.