Friends of P.S. 163, Inc. v. Jewish Home Lifecare

• Decision Date: 12 December 2017
• Docket Number: No. 128,128
• Citation: 68 N.Y.S.3d 382,30 N.Y.3d 416,90 N.E.3d 1253
• Parties: In the Matter of the FRIENDS OF P.S. 163, INC., et al., Appellants, v. JEWISH HOME LIFECARE, Manhattan, Respondent, New York State Department of Health, et al., Respondents. In the Matter of Daisy Wright, et al., Appellants, v. New York State Department of Health, et al., Respondents, Jewish Home Lifecare, Manhattan, Respondent.
• Court: New York Court of Appeals Court of Appeals

30 N.Y.3d 416

90 N.E.3d 1253

68 N.Y.S.3d 382

In the Matter of the FRIENDS OF P.S. 163, INC., et al., Appellants,

v.JEWISH HOME LIFECARE, Manhattan, Respondent,New York State Department of Health, et al., Respondents.

In the Matter of Daisy Wright, et al., Appellants,

v.New York State Department of Health, et al., Respondents,Jewish Home Lifecare, Manhattan, Respondent.

No. 128

Court of Appeals of New York.

Decided December 12, 2017

Orrick, Herrington & Sutcliffe LLP, New York City (Matthew R. Shahabian, J. Peter Coll, Jr. and Rene Kathawala of counsel), for Friends of P.S. 163, Inc., and others, appellants in the first above-entitled proceeding.

John R. Low-Beer, Brooklyn, and Joel R. Kupferman, New York Environmental Law and Justice Project, New York City, for Daisy Wright and others, appellants, in the second above-entitled proceeding.

Eric T. Schneiderman, Attorney General, New York City (Ester Murdukhayeva, Barbara D. Underwood and Steven C. Wu of counsel), for New York State Department of Health and others, respondents in the first and second above-entitled proceedings.

Greenberg Traurig, LLP, New York City (Henry M. Greenberg of counsel), for Jewish Home Lifecare, Manhattan, respondent in the first and second above-entitled proceedings.

Akerman LLP, New York City (Richard G. Leland and Nathan T. Horst of counsel), for The Real Estate Board of New York, Inc., amicus curiae.

Sive, Paget & Riesel, P.C., New York City (Michael Bogin and Jonathan Kalmuss-Katz of counsel), for CaringKind and others, amici curiae.

Hughes Hubbard & Reed LLP, New York City (George A. Tsougarakis and Taylor K. Reynolds of counsel), for Services & Advocacy for Gay, Lesbian, Bisexual & Transgender Elders and another, amici curiae.

Zachary W. Carter, Corporation Counsel, New York City (Amy McCamphill, Richard Dearing and Susan Amron of counsel), for City of New York, amicus curiae.

Adele Bartlett and James A. Caras, Office of the Manhattan Borough President Gale A. Brewer, New York City, for Gale A. Brewer and others, amici curiae.

Mobilization for Justice, New York City (Kevin Cremin, Nahid Sorooshyari and Jeanette Zelhof of counsel), for Cardozo Bet Tzedek Legal Services and another, amici curiae.

Rachel Spector, New York Lawyers for the Public Interest, New York City, for American Academy of Pediatrics, New York Chapters 2 & 3, and others, amici curiae.

OPINION OF THE COURT

RIVERA, J.:

Petitioners in these two article 78 proceedings challenge a New York State Environmental Quality Review Act (SEQRA) assessment by the New York State Department of Health (DOH) of Jewish Home Lifecare's (JHL) application to construct a new residential facility in New York City. Petitioners are, respectively, parents of students attending a public elementary school next door to the proposed construction site and tenants living in apartment buildings surrounding the site.

We reject petitioners' arguments and hold that DOH complied with its SEQRA responsibilities. It identified and assessed relevant environmental hazards, and, as the agency deemed necessary, imposed mitigation measures to protect public health and safety. Therefore, we affirm the order of the Appellate Division.

I. STATUTORY AND REGULATORY SEQRA PROCESS

In New York State, "SEQRA makes environmental protection a concern of every agency" ( Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 414, 503 N.Y.S.2d 298, 494 N.E.2d 429 [1986], citing Environmental Conservation Law § 8–0103[8] and 6 NYCRR § 617.1 [b] ). Any construction project that requires state agency approval, such as the construction of a nursing home (see Public Health Law § 2802 ), "which may have a significant effect on the environment," must go through a full SEQRA assessment to make sure that it is undertaken in a way that minimizes damage to the environment and public health (see Environmental Conservation Law § 8–0109[1], [2] ). To that end, the agency must prepare an Environmental Impact Statement (EIS) that complies with both the substantive and procedural requirements of SEQRA and all other applicable regulations (see Environmental Conservation Law § 8–0109[2], 6 NYCRR parts 617–618). This "insures that agency decision-makers—enlightened by public comment where appropriate—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" ( Matter of Jackson, 67 N.Y.2d at 414–415, 503 N.Y.S.2d 298, 494 N.E.2d 429 ).

After the agency initially determines that it must prepare an EIS, SEQRA review proceeds through several steps. First, the project sponsor or the lead state agency on the project may conduct an optional "scoping session," exploring the method to be used in assessing the project's environmental impact (see 6 NYCRR § 617.8 ).¹ Next, the lead agency must prepare or cause to be prepared a Draft Environmental Impact Statement (DEIS), to be filed with the Department of Environmental Conservation, which surveys the relevant environmental risks posed by the proposed project ( Environmental Conservation Law § 8–0109 ; 6 NYCRR § 617.12 [b][6] ). After the DEIS has been finished and publicly reviewed, the agency prepares and files a Final Environmental Impact Statement (FEIS) ( Environmental Conservation Law § 8–0109[6] ). The DEIS and FEIS must analyze "the environmental impact and any unavoidable adverse environmental effects" of the project under review, as well as "alternatives to the proposed action ... including a ‘no-action alternative,’ ... and mitigation measures" ( Matter of Jackson, 67 N.Y.2d at 416, 503 N.Y.S.2d 298, 494 N.E.2d 429 [citations omitted] ). Finally, before approving the project, the agency must "make an explicit finding that the requirements of [SEQRA] have been met and that[,] consistent with social, economic[,] and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided" ( Environmental Conservation Law § 8–0109[8] ). By administrative regulation, such finding must be contained in a written Findings Statement, which considers the conclusions reached in the FEIS, weighs and balances the relevant environmental impacts, and "provide[s] a rationale for the agency's decision" ( 6 NYCRR §§ 617.11 [c], [d] ).

Opportunity for public participation and engagement is an essential and mandatory part of the SEQRA process. At each step, the agency must provide for public comment, usually through a written public comment period (see 6 NYCRR §§ 617.8 [e], 617.9[a][2]-[5], 617.11[a], [b]; see generally Matter of Jackson, 67 N.Y.2d at 415–416, 503 N.Y.S.2d 298, 494 N.E.2d 429 [summarizing SEQRA process, including public comment requirements] ). The agency is further authorized to hold optional public hearings at its discretion (see Environmental Conservation Law § 8–0109 [5] ; 6 NYCRR §§ 617.8 [e], 617.9[a][4] ).

II. DEPARTMENT OF HEALTH'S SEQRA REVIEW OF JHL's CONSTRUCTION PROJECT

In the appeal before us, JHL applied to DOH for permission to construct a new 414–bed residence for the elderly and disabled on a vacant lot on West 97th Street in New York City, to replace JHL's existing, outdated facility several blocks away. JHL submitted an Environmental Assessment Statement to DOH, triggering the SEQRA review process. DOH assumed the SEQRA lead agency role, and subsequently issued a notice of intent to prepare a DEIS. As provided in DOH's final scoping document, the DEIS analyzed, among other environmental matters, the potential impact on public health of exposure to hazardous materials, including soil-based lead and airborne lead dust, as well as the effects of construction noise. To address these and other concerns, the agency developed a Remedial Action Plan (RAP) and Construction Health and Safety Plan (CHASP), which outlined measures to protect workers and the surrounding community during the construction.

With respect to hazardous materials, the DEIS incorporated the results of two separate environmental site assessments, conducted by different experts. The first, a Phase I assessment, found "[n]o evidence of recognized environmental conditions" and recommended no further action. Nevertheless, the agency proceeded to a Phase II assessment, which collected and analyzed subsurface soil and groundwater samples from the footprint and immediate vicinity of the proposed facility. This report concluded that lead levels at the site were no higher than those typically found in urban fill, and were below the Department of Environmental Conservation's Restricted Residential Use Soil Cleanup Objectives, which provides a remediation standard for contaminated land ( Environmental Conservation Law § 27–1415 ; 6 NYCRR § 375–6).

Based on these reports, DOH concluded that any risks posed by lead could be appropriately mitigated. The DEIS noted that, although lead presented a health hazard, especially to children, there would be no long-term public exposure to lead in the soil, because the excavated leaded dirt would be removed or covered by the new facility, and thus did not constitute a soil-lead hazard as defined by the United States Environmental Protection Agency (EPA).

DOH further considered the risk of airborne lead dust migrating from the construction site. Since New York State does not have an airborne lead risk standard, DOH relied on the National Ambient Air Quality Standard (NAAQS), a federal standard established by the EPA pursuant to the Clean Air Act ( 42 USC §§ 7408 – 7409 ; 40 CFR Part 50). The NAAQS sets forth an acceptable lead dust level for "sensitive populations" including children and the elderly. To ensure airborne lead dust remains within the NAAQS limits, DOH imposed monitoring and containment measures, including sprinkling/wetting soil...