Reproduced on Recycled Paper
APL-2017-00099
Court of Appeals
State of New York
In the Matter of the Application of
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-Appellants,
For a Judgment under Article 78,
against
(Caption continued on inside cover)
Index No.
100546/15
BRIEF FOR AMICUS CURIAE THE CITY OF NEW YORK
RICHARD DEARING,
SUSAN AMRON,
AMY MCCAMPHILL
of Counsel
September 25, 2017
ZACHARY W. CARTER
Corporation Counsel
of the City of New York
Attorney for Amicus Curiae the
City of New York
100 Church Street
New York, New York 10007
Tel: 212-356-2317
Fax: 212-356-2069
amccamph@law.nyc.gov
(Caption continued from cover)
JEWISH HOME LIFECARE, MANHATTAN,
Respondent-Respondent,
NEW YORK STATE DEPARTMENT OF HEALTH, 156 W.
106TH STREET HOLDING CORP., 102 W. 107TH CORP.,
and PWC OWNER, LLC,
Respondents.
Index No. 100641/15
In the Matter of the Application of
DAISY WRIGHT; NATHANIEL ROBERT LIVINGTSON, 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-Appellants,
For a Judgment under Article 78,
Against
NEW YORK STATE DEPARTMENT OF HEALTH, HOWARD
ZUCKER, as Acting Commissioner of the New York
State Department of Health, PWV OWNER, LLC, 156
W. 106TH STREET HOLDING CORPORATION, and 102
W. 107TH CORPORATION
Respondents,
JEWISH HOME LIFECARE, MANHATTAN,
Respondent-Respondent.
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................................................... ii
PRELIMINARY STATEMENT .................................................................. 1
INTERESTS OF AMICUS CURIAE ......................................................... 4
STATEMENT OF THE CASE ................................................................... 8
A. The CEQR Technical Manual .................................................... 8
1 The CEQR Technical Manual’s Analysis of
Construction Activities ............................................................. 11
2 The CEQR Technical Manual’s Analysis of Noise. .............. 12
3 The CEQR Technical Manual’s Analysis of Hazardous
Materials ................................................................................... 17
B. The Decisions Below ................................................................. 19
1 The Trial Court Found that Compliance with the
CEQR Technical Manual was Not Sufficient to Establish
that NYSDOH Had Taken a Hard Look under SEQRA ......... 19
2 The First Department Credited NYSDOH’s
Compliance with the CEQR Technical Manual, and
Found that NYSDOH Had Taken a Hard Look under
SEQRA. ..................................................................................... 21
ARGUMENT: ........................................................................................... 23
I. ENVIRONMENTAL REVIEW CONDUCTED IN
ACCORDANCE WITH THE CEQR TECHNICAL
MANUAL MEET THE HARD LOOK STANDARD OF
SEQRA ...................................................................................... 23
B. AN AGGRIEVED PARTY WHICH DOES NOT FILE AN
APPEAL IS NOT BARRED FROM PARTICIPATING IN
ANOTHER PARTY’S PROPERLY-FILED APPEAL ............. 30
CONCLUSION ......................................................................................... 33
- ii -
TABLE OF AUTHORITIES
Cases Pages
511 W. 232nd Owners Corp. v. Jennifer Realty Co.,
98 N.Y.2d 144 (2002) ............................................................................ 30
Avella v. City of New York,
27 N.Y.3d 1059 (2016) .......................................................................... 31
Bd. of Mgrs. of the Plaza Condo. v. N.Y.C. Dep’t of Transp.,
131 A.D.3d 419 (1st Dep’t 2015) .......................................................... 24
Chinese Staff & Workers Ass’n v. Bloomberg,
26 Misc. 3d 979 (Sup. Ct. N.Y. County 2009) ..................................... 26
Chinese Staff & Workers’ Assn v. Burden,
88 A.D.3d 425 (1st Dep’t 2011),
aff’d, 19 N.Y.3d 922 (2012) .................................................................. 24
Coal. Against Lincoln West, Inc. v. Weinshall,
21 A.D.3d 215 (1st Dep’t 2005) ............................................................ 24
Coal. to Save Coney Island v. City of New York,
27 Misc. 3d 1221(A), 2010 N.Y. Misc. LEXIS 1025 (Sup.
Ct. N.Y. County 2010) .......................................................................... 25
Collier Realty LLC v. Bloomberg,
24 Misc. 3d 1071 (Sup. Ct. N.Y. County 2009) ................................... 26
Develop Don’t Destroy (Brooklyn), Inc. v. Empire State Dev.
Corp.,
94 A.D.3d 508 (1st Dep’t 2012) ............................................................ 28
Fetman v. Burden,
16 Misc. 3d 1141(A), 2007 N.Y. Misc. LEXIS 6415 (Sup.
Ct. Kings County 2007) ....................................................................... 27
Fisher v. Guiliani,
280 A.D.2d 13 (1st Dep’t 2001) ............................................................ 25
- iii -
Hand v. Hospital for Special Surgery,
34 Misc. 3d 1212(A), 2012 N.Y. Misc. LEXIS 158 (Sup. Ct.
N.Y. County 2012),
aff’d, 107 A.D.3d 642 (1st Dep’t 2013) ................................................ 25
Jackson v. N.Y. State Urban Develop. Corp.,
67 N.Y.2d 400 (1986) .............................................................................. 8
Landmark West! v. Burden,
3 Misc. 3d 1102(A), 2004 N.Y. Misc. LEXIS 464 (Sup. Ct.
N.Y. County 2004),
aff’d, 15 A.D.3d 208 (1st Dep’t 2005) .................................................. 27
Matter of Neighborhood in the Nineties v. City of New York,
24 Misc.3d 1239(A), 2009 NY Misc. LEXIS 2191 (Sup. Ct.
N.Y. County 2009),
aff’d, 82 A.D.3d 602 (1st Dep’t 2011) ............................................ 11, 26
Powell v. City of New York,
16 Misc. 3d 1113(A), 2007 N.Y. Misc. LEXIS 4784 (Sup.
Ct. N.Y. County 2007) .......................................................................... 26
Save Our Parks v. City of New York,
2006 N.Y. Misc. LEXIS 2365 (Sup. Ct N.Y. County 2006) ................. 27
Weeks Woodland Ass’n, Inc. v. Dormitory Auth. of New York,
2011 N.Y. Misc. LEXIS 249 (Sup. Ct. N.Y. County 2011) .................. 25
Statutes and Regulations
24 CFR § 51.100 et seq. ............................................................................ 15
24 CFR § 51.101(a) ................................................................................... 15
24 CFR § 51.101(a)(9) ............................................................................... 15
6 N.Y.C.R.R. § 617.4 ................................................................................... 8
15 R.C.N.Y. Chapter 28 ............................................................................ 15
- iv -
43 R.C.N.Y. Chapter 6 ................................................................................ 9
62 R.C.N.Y. Chapter 5 ................................................................................ 9
Mayoral Executive Order No. 91 ............................................................... 9
N.Y.C. Admin. Code § 24-219 ................................................................... 15
N.Y.C. Admin. Code § 24-224 ................................................................... 15
N.Y.C. Admin. Code § 24-227 ................................................................... 16
U.S. Supreme Court Rule 12(6). .............................................................. 31
Other Authorities
NYC Department of Environmental Protection, “A Guide to
New York City’s Noise Code, Understanding the Most
Common Sources of Noise in the City,” ............................................... 14
1
The City of New York (the “City”) files this brief as amicus curiae
to address a recurring legal question that could have substantial
implications for city agencies. The brief expresses no view on the merits
of the particular nursing home facility proposed here. But the
environmental review conducted by the New York State Department of
Health did rely on a longstanding technical manual—the City
Environmental Quality Review (“CEQR”) Technical Manual—that was
prepared by the City to promote consistency, predictability, and
efficiency in environmental reviews across the five boroughs. Because
city agencies use that manual to guide hundreds of environmental
reviews each year, this brief focuses on showing that compliance with
the manual’s procedures satisfies the “hard look” standard for
environmental reviews under the State Environmental Quality Review
Act (“SEQRA”).
PRELIMINARY STATEMENT
This case involves the environmental review of a proposed nursing
care facility in a typically dense New York City neighborhood, adjacent
- 2 -
to an elementary school and residential buildings. The proposed facility,
neighborhood, and environmental review are far from unusual. New
buildings are constructed with regularity in the City, and construction
often occurs in densely-populated neighborhoods among varying types
of existing land uses. Where a project requires a discretionary
government approval or is undertaken or funded by government, both
State law and City procedures implementing that law—namely SEQRA
and CEQR procedures—often require an assessment of the potential for
significant adverse environmental impacts from the project’s
construction.
In order to provide guidance on environmental reviews, the City
has adopted the CEQR Technical Manual, which details procedures for
assessing the potential for adverse environmental impacts in twenty
different subject matter areas, and includes thresholds for determining
when potential impacts may be considered significant. The City’s CEQR
Technical Manual is routinely used to guide environmental reviews in
the City, and was used by NYSDOH to guide its environmental review
here.
- 3 -
The First Department appropriately concluded that NYSDOH was
“entitled to rely on the accepted methodology” set forth in the CEQR
Technical Manual. (A. 14). In doing so, the First Department acted in
accordance with longstanding, and uniform, precedent upholding
environmental reviews prepared consistent with the CEQR Technical
Manual’s guidance. Indeed, the only court that has ever ruled otherwise
was the trial court here. The trial court’s contrary conclusion—that
NYSDOH did not adequately consider the project’s potential for
significant adverse environmental impacts, even though the court found
that the environmental review prepared by NYSDOH followed the
CEQR Technical Manual—was without precedent.
The CEQR Technical Manual contains the consistent and
predictable processes developed over decades by the City for reviewing
potential environmental impacts. All large-scale projects, most major
new City programs, and many seemingly ordinary developments must
undergo environmental review. Given the number of actions subject to
environmental review, the ability to rely on well-understood and
carefully crafted guidelines for conducting such reviews is critical to
City agencies. Without the certainty of knowing that an environmental
- 4 -
review prepared in accordance with the guidance of the CEQR
Technical Manual will withstand challenge, City agencies will be
significantly hindered in their ability to move forward with major new
projects and programs. Similarly, applicants for discretionary approvals
or permits from the City will likewise be deprived of the predictability
needed for private development.
INTEREST OF AMICUS CURIAE
The City is a municipal corporation of the State of New York
generally responsible for the health and well-being of its approximately
eight and a half million residents, countless businesses and institutions,
and over 50 million annual visitors. The City’s interest in this case
derives from its concern that environmental reviews conducted in
accordance with the City’s CEQR Technical Manual be granted
appropriate deference by reviewing courts.
The City has been conducting environmental reviews in
accordance with SEQRA since SEQRA was first enacted in the 1970s.
Beginning in 1993, in an effort to ensure consistency in the City’s
reviews, to better coordinate among City agencies, to take advantage of
various agencies’ expertise, and to better provide predictability and
- 5 -
uniformity to applicants for City approvals or funding, the City
developed guidelines for conducting City agency reviews. The
comprehensive CEQR Technical Manual was first formally issued in
December 1993 and continues to be periodically updated and refined.1
Using the CEQR Technical Manual, City agencies have conducted
approximately 4,500 environmental reviews since 2005. In the past five
years alone, City agencies have conducted approximately 1,440
environmental reviews of a broad range of actions. As an example,
within the past fifteen months, City agencies prepared or accepted
Final or Draft Environmental Impact Statements for a rezoning
proposal for Downtown Far Rockaway, a plan for Citywide ferry service,
a project to develop sewer control overflow facilities for the Gowanus
Canal, a mixed-used development encompassing a full block in East
Harlem, and a zoning amendment to regulate new self-storage facilities.
During the same timeframe, City agencies have prepared or accepted
environmental assessments for approximately 400 projects, ranging
from wetland reclamation at Alley Pond Park in Queens to a local law
1 The current version of the Technical Manual was released in 2014 and is available
at http://www.nyc.gov/html/oec/html/ceqr/technical_manual_2014.shtml.
- 6 -
to promote the use of clean heating oil, and have begun the
environmental review process that will lead to a barrier to better
protect parts of lower Manhattan from storm surge. In addition, during
approximately the past five years, State agencies have used the CEQR
Technical Manual approximately 83 times in their SEQRA reviews of
State agency actions within the City.
City agencies are able to manage the large number of
environmental reviews that the City undertakes because they can rely
on the guidance of the CEQR Technical Manual, which facilitates
thorough, high-quality, consistent, and efficient analysis of the twenty
technical areas analyzed within such reviews. To determine the
significance of potential environmental impacts, City agencies routinely
utilize the CEQR Technical Manual’s screening methodologies and
impact thresholds, each of which is well-founded and widely accepted in
its relevant field. The CEQR Technical Manual’s reliable guidance
benefits City agencies in proposing new projects and programs that
enable the City to deliver services to its residents and support the City’s
continued growth and economic health; the guidance also benefits
private applicants, both not-for-profit organizations and for-profit
- 7 -
companies, who need government approvals or receive government
funding for their projects.
The CEQR Technical Manual supports the dual objectives of
providing the City with thorough and informative environmental review
documents that assist City agency decision-making, while avoiding the
bottlenecks and inequity that would result from needing to continually
reinvent methodologies and standards on a project-by-project basis. If
the methodologies and standards for significance in the CEQR
Technical Manual are subject to second-guessing by courts, the City’s
goal of high-quality, efficient, timely, and consistent environmental
review would be unachievable, discretionary decision-making by City
agencies would be severely hindered, and predictability for applicants
would suffer.
Aside from the City’s primary and driving interest in ensuring
that compliance with the CEQR Technical Manual is accorded proper
deference, the City also has an interest, as a large government entity
and frequent litigant, in ensuring that even if the City does not appeal a
specific decision, it can nonetheless participate in another party’s
properly-filed appeal.
- 8 -
STATEMENT OF THE CASE
As the City’s interest in this case derives from the New York State
Department of Health’s (“NYSDOH”) reliance on the CEQR Technical
Manual in conducting the environmental review challenged here, the
City’s Statement of the Case focuses on the CEQR Technical Manual
and how courts have addressed the CEQR Technical Manual to date.
Secondarily, as the City asserts that a non-appealing aggrieved
party is entitled to participate in an appeal by another aggrieved party,
the City reviews the history of NYSDOH’s participation in the appeal.
A. The CEQR Technical Manual
SEQRA requires that agencies consider the potential
environmental impacts of actions they propose to approve, fund, or
undertake. Agencies conducting environmental reviews under SEQRA
must “identify the relevant areas of environmental concern, take a ‘hard
look’ at those areas, and make a ‘reasoned elaboration’ of the bases for
their determination.” Jackson v. N.Y. State Urban Dev. Corp., 67 N.Y.2d
400, 417 (1986) (internal citation omitted). As authorized by State
regulation, see 6 N.Y.C.R.R. § 617.4, the City has adopted procedures
- 9 -
for City agencies to conduct environmental reviews under SEQRA, first
by Executive Order and later by rule. 1977 Mayoral Executive Order
No. 91, 43 R.C.N.Y. Chapter 6; Rules of Procedure for City
Environmental Quality Review, 62 R.C.N.Y. Chapter 5.
To provide guidance to City agencies, and consistency and
certainty to applicants for City approvals, the City first issued the
CEQR Technical Manual in December 1993. The methodologies and
standards contained in the CEQR Technical Manual have been further
developed and refined since City agencies first began conducting
environmental reviews. They are updated as environmental criteria are
recognized and quantified, as new models and methods are developed to
better assess potential impacts, and as standards are revised to reflect
evolving science. Since its issuance, the CEQR Technical Manual has
been updated with revisions in 2010, 2012, and 2014. The current
version of the CEQR Technical Manual is the 2014 edition.
The CEQR Technical Manual’s methodologies and standards
reflect the judgment of numerous City agencies with expertise in
different technical areas of review, including as relevant here, the
Department of Environmental Protection (noise, air quality, and
- 10 -
hazardous materials, among other areas), the Department of City
Planning (planning, consistency, public policy, among other areas), the
Department of Education (schools), the Department of Health and
Mental Hygiene (public health), and the Mayor’s Office of
Environmental Coordination (environmental review coordination and
oversight, among other areas), as well as the New York City School
Construction Authority, a State authority (schools).
Moreover, the methodologies and standards in the CEQR
Technical Manual were established to take into account the City’s
environment, where buildings, activities, and people—including
vulnerable and sensitive populations—exist in close proximity to each
other. Indeed, in its environmental reviews conducted using the CEQR
Technical Manual, the City routinely considers the proximity of projects
and activities to sensitive populations. The CEQR Technical Manual
balances proper concern and consideration for such sensitive
populations with recognition that new development, programs, and
activities are intrinsic to a thriving, dynamic urban environment.
- 11 -
1. The CEQR Technical Manual’s Analysis of Construction
Activities
The CEQR Technical Manual’s construction chapter (chapter 22)
considers the potential for significant adverse impacts from
construction activities.
In assessing the potential for significant adverse impacts from
construction noise—which are inherently temporary—the CEQR
Technical Manual considers the duration and magnitude of the noise,
and the sensitivity of the receptor populations. For construction
activities of less than two years, a detailed assessment of noise is
usually not warranted; instead, construction noise “is generally
analyzed only when it affects a sensitive receptor over a long period of
time.” CEQR Technical Manual at 22-2; see also id. at 22-6; Matter of
Neighborhood in the Nineties v. City of New York, 24 Misc.3d 1239(A),
2009 NY Misc. LEXIS 2191, at **42-43 (Sup. Ct. N.Y. County 2009)
(recognizing that “to the extent [that construction up to as-of-right
levels] is neither prolonged [n]or unusual the CEQR Technical Manual
recognizes that such impacts may be ignored in determining” whether
detailed environmental review is required), aff’d, 82 A.D.3d 602 (1st
Dep’t 2011).
- 12 -
When a detailed quantitative analysis of potentially significant
construction noise impacts is deemed warranted, the CEQR Technical
Manual makes clear that the analysis should consider the duration of
specific construction activities in assessing their potential effects on
nearby sensitive receptors. CEQR Technical Manual at 22-10. The
potential significance of such impacts is assessed in accordance with
guidance in the CEQR Technical Manual’s noise chapter (chapter 19).
Where construction activities will disturb a project site and the
site contains hazardous materials, the hazardous materials chapter of
the CEQR Technical Manual (chapter 12) guides the assessment of the
potential for significant adverse impacts from hazardous materials on
both construction workers and the surrounding community during
construction. CEQR Technical Manual at 22-3.
2. The CEQR Technical Manual’s Analysis of Noise
Like the construction chapter, the CEQR Technical Manual’s
noise chapter notes that noise impacts from construction may be
temporary even though construction may last years, and instructs
agencies to consider the duration of each phase of construction in
- 13 -
assessing whether noise impacts from construction should be deemed
significant. CEQR Technical Manual at 19-2.
To perform the assessment, agencies identify and consider noise-
sensitive locations, known as “receptors”; schools are classified as an
indoor noise-sensitive receptor. Id. at 19-1, 19-6. Indeed, the CEQR
Technical Manual states that “[r]eceptors are generally the subject of
most noise impact analyses,” id. at 19-6, and proper consideration of
sensitive receptors is a consistent theme of the CEQR Technical
Manual’s noise chapter. See, e.g., id. at 19-1 (a goal of CEQR is to
determine “a proposed project’s potential effects on sensitive noise
receptors”), 19-10 (traffic noise should be assessed at hours with
greatest noise impacts on sensitive receptors), 19-11 (for certain
reviews, Department of City Planning should be consulted to identify
sensitive noise receptors), 19-18 to 19-19 (for determining both existing
noise conditions and future noise levels with the action, noise should be
estimated at noise-sensitive receptors).
The CEQR Technical Manual establishes a general guideline of 45
decibels (“dB(A)”) for indoor noise during daytime hours, including
specifically at schools. CEQR Technical Manual at 19-21 to 19-22.
- 14 -
However, the CEQR Technical Manual does not establish 45 dB(A) as a
fixed standard for determining significance. As noted above, the
duration of noise—particularly, the duration of inherently short-term
and intermittent construction noise—is relevant in considering whether
a noise impact should be deemed significant under the CEQR Technical
Manual. And, the very noise description that the CEQR Technical
Manual uses for assessing indoor noise—L10—represents the decibel
level that would be exceeded 10% of the time, thereby excluding noise
from intermittent events. Id. at 19-4.
In absolute terms, 45 dB(A) is not excessively noisy. A quiet
suburban area at night has typical noise levels between 40-50 dB(A),
while daytime noise levels in a typical suburban area range from 50-60
dB(A). Id. at 19-3. A whisper has a decibel level of 30 dB(A), while
normal conversation ranges between 50-65 dB(A). NYC Department of
Environmental Protection, “A Guide to New York City’s Noise Code,
Understanding the Most Common Sources of Noise in the City,” 2005, at
2.2 By contrast, a jackhammer or power saw, two pieces of powered
equipment commonly used in construction, each have a decibel level of
2 The Guide is available at http://www.nyc.gov/html/dep/pdf/noise_code_guide.pdf
- 15 -
110 dB(A), more than sixty-four times louder than 45 dB(A),3 since the
decibel scale is logarithmic. Id.; CEQR Technical Manual at 1-3 (noting
that each change of dB 10 is equivalent to a doubling or halving of
sound level).
The 45 dB(A) guidance for acceptable interior noise used in the
CEQR Technical Manual reflects the considered judgment of expert
City agencies responsible for noise control, and is consistent with other
indoor noise standards. For example, the United States Department of
Housing and Urban Development’s (“HUD”) regulations addressing
noise levels to be avoided when HUD provides funding for new
construction and other programs includes a stated goal that the interior
auditory environment not exceed 45 decibels. 24 CFR § 51.101(a)(9); see
also 24 CFR § 51.100 et seq. The regulations reflect HUD’s general
policy to provide minimum national standards applicable to HUD
programs to protect people from excessive noise in their communities
and places of residence. 24 CFR § 51.101(a). Similarly, the New York
City Noise Control Code establishes an interior cumulative limit of 45
3 Independent of CEQR, the City regulates construction noise by requiring noise
mitigation plans, additional noise mitigation for specific construction equipment
(such as jackhammers), and perimeter noise barriers, and by limiting construction
work hours. See N.Y.C. Admin Code §§ 24-219 to 24-224; 15 R.C.N.Y. ch. 28.
- 16 -
decibels for circulation devices (heat, ventilation, and air conditioning
equipment) measured three feet inside an open window. N.Y.C. Admin.
Code Section § 24-227.
With respect to schools, the 45 dB(A) interior noise level is also
consistent with design standards for new schools used by the New York
City School Construction Authority (“SCA”), the State authority
charged with responsibility for constructing new schools and renovating
existing schools in the City. SCA designs new schools to have an
interior noise level of 40 decibels. This relatively low interior noise level
goal for new schools reflects the greater practicability of achieving a
lower noise level when designing a new building, where central air can
easily be provided at the outset, heating and ventilation equipment as
well as plumbing can be constructed to avoid generating noise audible
in classrooms, and walls and windows can be designed to attenuate
outdoor noise. In contrast, SCA does not limit noise in existing schools,
and in general has not undertaken noise control measures at existing
schools except under atypical circumstances, such as installing noise
attenuating windows in schools located beneath airport flight paths.
- 17 -
Routine construction activities adjacent to a school are not such a
circumstance.
3. The CEQR Technical Manual’s Analysis of Hazardous
Materials
Among the concerns the CEQR Technical Manual’s hazardous
materials chapter (chapter 12) addresses is possible exposure to
pollutants carried in airborne dust produced by construction activities.
CEQR Technical Manual at 12-3, 12-13 to 12-15. The CEQR Technical
Manual acknowledges that many sites in the City may contain
contaminated soil, often as a result of past waste management
practices. Id. at 12-2. For these reasons, control of fugitive dust
emissions from excavation activities is a common measure undertaken
at construction sites.
The CEQR Technical Manual directs the agency preparing the
environmental review to conduct a Phase I Environmental Site
Assessment (“ESA”) to review available information concerning the site
and, depending on the findings of the ESA, a Phase II ESA to sample
and obtain information about subsurface conditions. Id. at 12-6. The
hazardous materials on the site are characterized using various
technical guidance documents authored by the New York State
- 18 -
Department of Environmental Conservation (“NYSDEC”), NYSDOH,
and the United States Environmental Protection Agency (“EPA”). Id. at
12-8, 12-11 to 12-13. If hazardous materials are identified at the site
and it appears that remedial measures are likely to be warranted, the
CEQR Technical Manual calls for submission of a Remedial Action Plan
(“RAP”) and site-specific Construction Health and Safety Plan
(“CHASP”). Id. at 12-13.
The CEQR Technical Manual recommends that agencies
coordinate with the New York City Department of Environmental
Protection for consistent technical guidance and review throughout the
hazardous materials assessment. The CEQR Technical Manual is also
replete with references to NYSDEC, NYSDOH, and EPA standards and
processes for assessing contamination levels and potential risks. See,
e.g., id. at 12-13 to 12-14, 12-20 to 12-21; see also id. at 12-24 to 12-25.
In this way, the CEQR Technical Manual acknowledges the federal and
state agencies’ expertise in assessing both the potential for significant
adverse impacts from hazardous materials in soil and the sufficiency of
proposed dust control measures to protect public health.
- 19 -
As described above, the CEQR Technical Manual’s approach
incorporates the input of experts trained in hazardous materials
exposure and construction techniques, and is the accepted method for
controlling construction dust in the City.
B. The Decisions Below
1. The Trial Court Found that Compliance with the CEQR
Technical Manual was Not Sufficient to Establish that
NYSDOH Had Taken a Hard Look under SEQRA.
In vacating the environmental review here, the trial court found
that NYSDOH followed the CEQR Technical Manual but nonetheless
concluded that NYSDOH did not take the “hard look” required by
SEQRA.
With respect to noise, the trial court rejected NYSDOH’s “singular
reliance on CEQR guidelines,” concluding that under the “special
circumstances here,” reliance on the CEQR Technical Manual did not
constitute a hard look as required by SEQRA. (A. 84.) The special
circumstance identified by the court was the presence of an elementary
school with young children next to the construction site. (A. 84.) But,
consistent with the CEQR Technical Manual, NYSDOH recognized that
the school is a sensitive receptor, and conducted a detailed noise
- 20 -
analysis—which the court also found consistent with the CEQR
Technical Manual’s methodologies—that concluded that the duration
and the magnitude of the project’s construction noise would not
constitute a significant adverse environmental impact. (A. 65-68.) The
court, while recognizing that “the CEQR Manual sets out generally
accepted standards and methodologies for testing and estimating noise
levels” (A. 83), nevertheless held that NYSDOH’s compliance with those
standards and methodologies was not sufficient. (A. 84.)
With respect to hazardous materials, the trial court also found
that in accordance with the CEQR Technical Manual, NYSDOH
comprehensively considered hazardous material issues. (A. 88.)
Specifically, the court concluded that NYSDOH performed a
“comprehensive and detailed investigation” in accordance with the
CEQR Technical Manual and federal and state standards, and did not
ignore the issue of airborne dust. (A. 88.) But rather than accept
NYSDOH’s determination that commonly used dust construction
suppression measures were sufficient to control dust levels and avoid
unhealthy exposure to any dust-borne lead, the court credited
petitioners’ experts’ contrary statements that no lead dust levels were
- 21 -
acceptable near a school, and held that NYSDOH did not take an
appropriate hard look at hazardous materials. (A. 90.)
NYSDOH did not file an appeal from the trial court’s decision, but
Respondent Jewish Home Lifecare, Manhattan, did.
2. The First Department Credited NYSDOH’s Compliance with
the CEQR Technical Manual, and Found that NYSDOH Had
Taken a Hard Look under SEQRA.
Reversing the trial court’s decision vacating the environmental
review, the First Department specifically credited NYSDOH’s reliance
on the CEQR Technical Manual. With respect to noise, the First
Department held that NYSDOH “is entitled to rely on the accepted
methodology set forth in the City Environmental Quality Review
Technical Manual (CEQRTM) with respect to the allowable temporal
duration of elevated noise from construction in making its
determination.” (A. 14.) Since the duration of any elevated noise levels
in the school’s classrooms would be limited, and since the CEQR
Technical Manual provides that duration of noise is relevant in
determining the significance of its impact, the First Department found
that NYSDOH’s determination of no significant adverse noise impacts
- 22 -
in the school classrooms was consistent with the CEQR Technical
Manual and constituted a “hard look.” (A. 15.)
With respect to hazardous materials, the First Department
concluded that NYSDOH “can base its determination as to mitigating
measures on currently accepted federal and state mitigating measures,”
and that NYSDOH “reasonably relied on federal standards . . . in
determining what measures to employ to mitigate the possibility of off-
site migration of lead-bearing dust.” (A. 16-17.) The First Department
rejected Petitioners’ assertions that NYSDOH must accept Petitioners’
consultations’ recommendations over NYSDOH’s own assessment, and
concluded that NYSDOH had taken an appropriate “hard look” at
hazardous waste. (A. 17.)
The First Department granted NYSDOH’s motion to submit an
amicus brief in support of Jewish Home Lifecare, Manhattan.
- 23 -
ARGUMENT
POINT I
ENVIRONMENTAL REVIEWS CONDUCTED
IN ACCORDANCE WITH THE CEQR
TECHICAL MANUAL MEET THE HARD
LOOK STANDARD OF SEQRA
Environmental reviews conducted in accordance with the CEQR
Technical Manual, as both lower courts found NYSDOH’s
environmental review was here, meet SEQRA’s hard look standard and
should be upheld.
As discussed above, the standards in the City’s CEQR Technical
Manual reflect the considered expert judgment of those City agencies
charged with responsibility for the relevant area of potential impact,
have been relied on by the City and by applicants for City approval and
funding for decades, and are consistent with applicable practices and
guidance from other regulatory agencies. For these reasons, courts have
consistently deferred to the CEQR Technical Manual in deciding
challenges to environmental reviews.
Compliance with the CEQR Technical Manual constitutes the
hard look required by SEQRA. Until the trial court’s decision in this
case, no court had found that an environmental review was conducted
- 24 -
in accordance with the CEQR Technical Manual and yet concluded that
the review was insufficient. Just the contrary: courts have consistently
accepted agency reliance on the CEQR Technical Manual in conducting
environmental reviews as establishing compliance with SEQRA. When
agencies have followed the CEQR Technical Manual, courts have
consistently upheld their environmental reviews. See, e.g.:
Bd. of Mgrs. of the Plaza Condo. v. N.Y.C. Dep’t of Transp.,
131 A.D.3d 419, 419-20 (1st Dep’t 2015) (citing to the CEQR
Technical Manual in concluding that agency appropriately
reviewed bike share program);
Chinese Staff & Workers’ Ass’n v. Burden, 88 A.D.3d 425,
429 (1st Dep’t 2011) (upholding environmental review
conducted “[i]n accordance with accepted methodology, as set
forth in the 2001 CEQR Technical Manual”), aff’d, 19 N.Y.3d
922 (2012);
Coal. Against Lincoln West, Inc. v. Weinshall, 21 A.D.3d 215
(1st Dep’t 2005) (reversing trial court and upholding agency
determination that supplemental environmental review was
- 25 -
not warranted where agency applied criteria set forth in
CEQR Technical Manual);
Fisher v. Giuliani, 280 A.D.2d 13 (1st Dep’t 2001) (upholding
environmental assessment where agency’s conclusion that
zoning amendment would not have significant traffic
impacts adhered to CEQR Technical Manual’s threshold for
analysis);
Hand v. Hosp. for Special Surgery, 34 Misc. 3d 1212(A), 2012
N.Y. Misc. LEXIS 158, at **24-25 (Sup. Ct. N.Y. County
2012) (upholding environmental review conducted “[i]n
accordance with accepted methodology, as set forth in the
CEQR Technical Manual”), aff’d, 107 A.D.3d 642 (1st Dep’t
2013);
Weeks Woodland Ass’n, Inc. v. Dormitory Auth. of New York,
2011 N.Y. Misc. LEXIS 249 (Sup. Ct. N.Y. County 2011)
(recognizing that agency took hard look in assessing
potential for traffic impacts because assessment complied
with CEQR Technical Manual);
- 26 -
Coal. to Save Coney Island v. City of New York, 27 Misc. 3d
1221(A), 2010 N.Y. Misc. LEXIS 1025 (Sup. Ct. N.Y. County
2010) (upholding environmental review that complied with
CEQR Technical Manual);
Chinese Staff & Workers Ass’n v. Bloomberg, 26 Misc. 3d
979, 987 (Sup. Ct. N.Y. County 2009) (upholding
environmental review and noting that “[t]he problem with
[petitioners’] argument . . . is that [the City’s] assessment of
socioeconomic impacts in the FEIS followed the two-step
approach set forth in the CEQR Technical Manual”);
Collier Realty LLC v. Bloomberg, 24 Misc. 3d 1071, 1077
(Sup. Ct. N.Y. County 2009) (upholding environmental
review that included consideration “of the score of
environmental review categories identified in the CEQR
Technical Manual”);
Matter of Neighborhood in the Nineties v. City of New York,
24 Misc. 3d 1239(A), 2009 N.Y. Misc. LEXIS 2191, at **33-44
(Sup. Ct. N.Y. County 2009) (upholding environmental
- 27 -
review conducted in accordance with the CEQR Technical
Manual);
Powell v. City of New York, 16 Misc. 3d 1113(A), 2007 N.Y.
Misc. LEXIS 4784, at **4-5 (Sup. Ct. N.Y. County 2007)
(referencing CEQR Technical Manual in holding that
because of short duration of construction, agency was not
required to undertake detailed analysis of potential for
construction impacts);
Fetman v. Burden, 16 Misc. 3d 1141(A), 2007 N.Y. Misc.
LEXIS 6415, at **23-24 (Sup. Ct. Kings County 2007)
(upholding environmental review prepared using the CEQR
Technical Manual);
Save Our Parks v. City of New York, 2006 N.Y. Misc. LEXIS
2365, **17-18, 24-26 (Sup. Ct. N.Y. County 2006) (denying
an application for preliminary injunction when challenged
environmental review was conducted in accordance with the
CEQR Technical Manual and thus petitioners failed to show
a likelihood of success on the merits);
- 28 -
Landmark West! v. Burden, 3 Misc. 3d 1102(A), 2004 N.Y.
Misc. LEXIS 464 (Sup. Ct. N.Y. County 2004) (holding that
agency’s consideration of impact on historic resources
followed guidance of CEQR Technical Manual and
constituted hard look), aff’d, 15 A.D.3d 308 (1st Dep’t 2005).
In contrast, where agencies disregard the CEQR Technical Manual
without good reason in conducting environmental reviews, they may be
vulnerable to a court finding that they have failed to take the
appropriate hard look.4 See Develop Don’t Destroy (Brooklyn), Inc. v.
Empire State Dev. Corp., 94 A.D.3d 508 (1st Dep’t 2012) (finding that
agency did not take hard look when it failed, without good reason, to
consider reasonable worst case development scenario outlined in CEQR
Technical Manual).
Thus, in holding that NYSDOH “is entitled to rely on the accepted
methodology” set forth in the CEQR Technical Manual, the First
Department’s ruling was consistent with well-established precedent.
Here, the court found that using the CEQR Technical Manual,
4 However, although compliance with the CEQR Technical Manual is sufficient to
constitute a “hard look,” compliance is not required by SEQRA or CEQR, and an
agency may adequately assess potential environmental impacts of a proposed action
using other methodologies or procedures.
- 29 -
NYSDOH conducted a detailed analysis of the potential for significant
adverse noise impacts from construction on the students at the adjacent
school. (A. 13-15.) NYSDOH also undertook a thorough analysis of the
potential for significant adverse impacts from soil disturbance, and any
resulting airborne lead dust, from construction. (A. 15-17.) NYSDOH’s
analysis and resulting conclusions reflect the expertise embodied in the
CEQR Technical Manual’s recommended methodologies and thresholds
of significance for assessing noise and hazardous materials. NYSDOH’s
preparation of the review consistent with the CEQR Technical Manual
complied with SEQRA’s requirement that the potential for significant
adverse environmental impacts be given a hard look.
While the First Department’s acceptance of CEQR Technical
Manual compliance promotes consistency, efficiency, and predictability
in the environmental review process, a contrary approach would foster
confusion, inefficiency, and needless variation in that process. In
contrast to the First Department’s well-supported ruling, the trial court
concluded that NYSDOH failed to meet SEQRA’s “hard look” standard
despite adhering to the CEQR Technical Manual. (A. 83-90.) Given the
many diverse actions subject to CEQR review—from market-rate and
- 30 -
affordable housing developments, to area-wide rezonings, to large new
municipal facilities, to relatively small improvement projects—the
City’s ability to undertake or encourage new projects and programs
would be severely hampered if agencies cannot rely upon the CEQR
Technical Manual’s standards. Similarly, project planners, developers
and other applicants for City discretionary approvals would suffer from
loss of the predictability that the City has worked for decades to ensure.
POINT II
AN AGGRIEVED PARTY WHICH DOES NOT
FILE AN APPEAL IS NOT BARRED FROM
PARTICIPATING IN ANOTHER PARTY’S
PROPERLY-FILED APPEAL
Appellant Friends of P.S. 163, Inc. (“Friends”) urges this Court to
hold that aggrieved parties who do not file an appeal—here,
NYSDOH—should be barred from participating in an appeal properly
filed by another party. The City agrees with the respondents that the
discretionary decision of the Appellate Division below to accept an
amicus brief from NYSDOH is not reviewable by this Court.
More fundamentally, Friends’ argument rests on the mistaken
premise that it is improper for an aggrieved party who has forgone
- 31 -
appeal to be heard to support another party’s appeal. But no such rule
exists. While a party generally must file an appeal or cross-appeal to
obtain distinct affirmative relief, see, e.g., 511 W. 232nd Owners Corp. v.
Jennifer Realty Co., 98 N.Y.2d 144, 151 n.3 (2002), doing so is not
necessary simply for a party to be heard in an otherwise pending
appeal.
This Court, indeed, permits an aggrieved but non-appealing party
to participate as a respondent in support of the appealing party. The
City recently did just that in Avella v. City of New York, 27 N.Y.3d 1059
(2016), a case challenging the City’s approval of a development project.
The United States Supreme Court follows the same approach. U.S.
Supreme Court Rule 12(6). NYSDOH thus could and likely should have
been permitted to participate as a respondent in the court below;
certainly, there was no bar to the agency’s participation as amicus.
These points have special resonance for governmental litigants, as
repeat players. Such litigants may decline to appeal a particular
adverse decision for a variety of reasons. But that decision does not
mean the party is indifferent to the outcome if an appeal nevertheless
proceeds on a notice of appeal filed by a different party. To the contrary,
- 32 -
the party will often retain a strong interest in how the case is resolved
and, just as critically, in how appellate precedent is established for
future cases. These interests not only justify the party’s participation in
the appeal, but confirm that such participation promotes the courts’
interest in receiving a full and helpful presentation of the issues.
- 33 -
CONCLUSION
Environmental reviews conducted in accordance with the CEQR
Technical Manual meet SEQRA’s hard look standard and should be
upheld, and NYSDOH’s participation in the appellate proceedings of
this case was appropriate.
Dated: New York, NY
September 25, 2017
RICHARD DEARING
SUSAN AMRON
of Counsel
Respectfully submitted,
ZACHARY W. CARTER
Corporation Counsel
of the City of New York
Attorney for Amicus Curiae the
City of New York
By: __________________________
AMY MCCAMPHILL
Assistant Corporation Counsel
100 Church Street
New York, NY 10007
212-356-2317
amccamph@law.nyc.gov
- 34 -
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief was prepared using Microsoft Word
2010, and according to that software, it contains 5,440 words, not
including the table of contents, the table of cases and authorities, this
certificate, and the cover.
____________________________________
AMY MCCAMPHILL