Matter of Friends of P.S. 163, Inc. v. Jewish Home Lifecare, Manhattan , 146 A.D.3d 576 ( 2017 )

Order and judgment (one paper), Supreme Court, New York County (Joan B. Lobis, J.), entered on or about December 18, 2015, which granted the petitions seeking to annul a Findings Statement issued by respondent New York State Department of Health (DOH), dated December 10, 2014, approving respondent Jewish Home Lifecare, Manhattan’s (JHL) application to construct a 20-story nursing home facility in Manhattan, and remitted the matter to DOH for preparation of an amended Final Environmental Impact Statement (FEIS) to reconsider the findings on the issues of noise and hazardous materials, reversed, on the law, without costs, the petitions denied, the Findings Statement reinstated, and the proceedings brought pursuant to CPLR article 78 dismissed.

It is axiomatic that judicial review of an agency determination under the State Environmental Quality Review Act (SEQRA) is limited to whether the agency procedures were lawful and “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” (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986], quoting Aldrich v Pattison, 107 AD2d 258, 265 [2d Dept 1985]; Matter of Chinese Staff & Workers’ Assn. v Burden, 19 NY3d 922, 924 [2012]). Moreover, “[i]t is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence” (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219, 232 [2007]). Since it is the responsibility of the agency to analyze reports and other documents submitted to it,“it is not for a reviewing court to duplicate these efforts. As we have repeatedly stated, ‘[w]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to “weigh the desirability of any action or [to] choose among alternatives” ’ ” {id., quoting Akpan v Koch, 75 NY2d 561, 570 [1990], quoting Jackson, 67 NY2d at 416). Thus, the court’s province is to “assure that the agency itself has satisfied SEQRA, procedurally and substantively” (Matter of Jackson, 67 NY2d at 416; Matter of East End Prop. Co. #1, LLC v Kessel, 46 AD3d 817, 820 [2d Dept 2007], lv denied 10 NY3d 926 [2008]). In this regard, “[dissatisfaction with an agency’s proposed mitigation measures is not redressable by the courts so long as those measures have a rational basis in the record” (Matter of Jackson, 67 NY2d at 421).

“An agency’s compliance with its substantive SEQRA obligations is governed by a rule of reason and the extent to which particular environmental factors are to be considered varies in accordance with the circumstances and nature of particular proposals” (Akpan v Koch, 75 NY2d at 570, citing Jackson, 67 NY2d at 417; Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 688 [1996]; Matter of Town of Dryden v Tompkins County Bd. of Representatives, 78 NY2d 331, 333-334 [1991]). Where “there has been such a reasonable consideration of alternatives, the judicial inquiry is at an end” {id. at 334). “Thus the general substantive policy of the act is a flexible one. It leaves room for a reasonable exercise of discretion and does not require particular substantive results in particular problematic instances” (Coalition Against Lincoln W. v City of New York, 94 AD2d 483, 492 [1st Dept 1983], affd 60 NY2d 805 [1983]).

Furthermore, not every conceivable environmental impact, mitigating measure or alternative must be addressed. “What must be required is that information be considered which would permit a reasoned conclusion” (id.; see also Matter of Residents for Reasonable Dev. v City of New York, 128 AD3d 609, 610-611 [1st Dept 2015]; Matter of C/S 12th Ave. LLC v City of New York, 32 AD3d 1, 7 [1st Dept 2006]). “So long as the officials and agencies have taken [a] ‘hard look’ at environmental consequences . . . the court does not seek to impose unreasonable extremes or to interject itself within the area of discretion of the executive as to the choice of the action to be taken” (Natural Resources Defense Council, Inc. v Morton, 458 F2d 827, 838 [DC Cir 1972] [footnote omitted]).

In arriving at its conclusions, “[a]n agency may rely on consultants to conduct the analyses that support their environmental review of proposed projects. The choice between conflicting expert testimony rests in the discretion of the administrative agency” (Matter of Brooklyn Bridge Park Legal Defense Fund, Inc. v New York State Urban Dev. Corp., 50 AD3d 1029, 1031 [2d Dept 2008], lv denied 10 NY3d 714 [2008] [citations omitted]; Matter of DeFeo v Zoning Bd. of Appeals of Town of Bedford, 137 AD3d 1123, 1127 [2d Dept 2016]; Matter of Thorne v Village of Millbrook Planning Bd., 83 AD3d 723, 725-726 [2d Dept 2011], lv denied 17 NY3d 711 [2011]).

Here, the motion court determined that DOH took a “hard look” at the issues raised by petitioners with the exception of two areas of concern: noise mitigation and off-site migration of lead-bearing dust.

We find that DOH’s determination was not arbitrary and capricious or unsupported by the evidence (see Akpan v Koch, 75 NY2d at 570). DOH took the requisite “hard look” at the project’s anticipated adverse environmental impacts, including noise and hazardous material impacts, and provided a “ ‘reasoned elaboration’ ” of its basis for approving the project, including the remedial measures to be employed to mitigate adverse impacts (Matter of Riverkeeper, 9 NY3d at 231-232, quoting Matter of Jackson, 67 NY2d at 417).

With respect to petitioners’ objection that the window air conditioning units proposed as an element of noise-mitigating measures at P.S. 163 would not supply adequate fresh air, it was not unreasonable for DOH to rely on a type of ventilation already in wide use at the school. DOH also rationally rejected, as unreasonably expensive and time-consuming, petitioners’ request that central air conditioning be installed at the school. The rough cost estimate for such installation obtained by DOH, though far from the result of a detailed study on its feasibility, complied with 6 NYCRR 617.9 (b) (5) (v), which requires consideration of “the range of reasonable alternatives to the action that are feasible, considering the objectives and capabilities of the project sponsor.”

Significantly, the record is clear that the air conditioning units were not the only noise mitigation measure required by DOH. It also mandated, among other things, the installation of new acoustical windows on the side of the school facing the project site.^* As noted above, the mere fact that DOH did not accept or specifically address in the FEIS all the conclusions and recommendations of petitioners’ experts with respect to the issue is not tantamount to a failure to take a “hard look” at this issue (Matter of Brooklyn Bridge Park Legal Defense Fund, 50 AD3d at 1030-1031; Coalition Against Lincoln W., 94 AD2d at 492).

Moreover, DOH 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 (see Matter of Finn v City of New York, 141 AD3d 436 [1st Dept 2016], Iv denied 28 NY3d 906 [2016]; see also Matter of Chinese Staff, 88 AD3d at 429). DOH determined that noise levels would exceed the CEQRTM impact criteria in classrooms along the school’s eastern facade facing the construction site for a total of 14 months. However, the manual also provides that such increased noise levels inside the school would not constitute a significant adverse impact if those levels lasted less than two years. DOH also found that the combination of replacement acoustical windows and air conditioning units is estimated to reduce noise levels by 25-30 dBA during the same period of time.

“SEQRA requires an agency ‘to list ways in which any adverse effects . . . might be minimized’ (ECL 8-0109 [2]), but it does not require an agency to impose every conceivable mitigation measure, or any particular one. Rather, in accordance with its balancing philosophy, SEQRA requires the imposition of mitigation measures only ‘to the maximum extent practicable’ ‘consistent with social, economic and other essential considerations’ (ECL 8-0109 [8])” (Matter of Jackson, 67 NY2d at 421-422).

Thus, although petitioners, the motion court and the dissent do not agree with DOH’s findings, the record supports the conclusion that DOH took the requisite “hard look” at this issue.

The record also reflects that DOH took the requisite “hard look” at the issue of containment of hazardous dust from the construction site. While it is true that DOH conceded that there is a controversy over whether any level of exposure to lead dust is acceptable, it can base its determination as to mitigating measures on currently accepted federal and state mitigating measures. In that respect, DOH reviewed soil sampling from the proposed construction site. It found that 38 samples contained lead levels of 290 parts per million (PPM), and three contained levels of over 1,000 PPM. The threshold for child play areas, as per the National Ambient Air Quality Standards, is 400 PPM. As a result, DOH mandated certain remedial measures, including a two-foot cap of clean soil over any ground left exposed after construction and dust control measures including watering of the soil during demolition, excavation, and soil transport to minimize airborne dust.

Although some of the petitioners contend that DOH failed to perform adequate soil sampling, even the motion court determined that DOH conducted a “comprehensive and detailed investigation.”

As with the noise mitigation issue, petitioners argue that the reports of their experts as to proposed mitigation measures were not adequately addressed or considered, and that DOH should have set forth measures to prevent, not merely mitigate, migration of lead dust from the project site. Of course, mitigation of adverse environmental impacts is the mandate of SEQRA (ECL 8-0109 [2] [f]). Petitioners’ argument again ignores well settled precedent, which bears repeating, that the mere fact that an agency accepts its own consultants’ recommendations over those of petitioners while not specifically addressing all the conclusions and recommendations of petitioners’ consultants does not mean that the agency failed to take a “hard look” at a particular issue (Matter of Brooklyn Bridge Park Legal Defense Fund, 50 AD3d at 1031; Coalition Against Lincoln W., 94 AD2d at 492).

DOH reasonably relied on federal standards, including National Ambient Air Quality Standards, in determining what measures to employ to mitigate the possibility of off-site migration of lead-bearing dust (see Matter of Spitzer v Farrell, 100 NY2d 186, 191 [2003]). Its mitigation measures reflect its considered judgment and meets the required “hard look” under SEQRA.

In short, we find that the motion court erroneously “substituted its analysis for the expertise of the lead agency” simply because the agency rejected what the court considered to be better measures in mitigation (Matter of South Bronx Clean Air Coalition v New York State Dept. of Transp., 218 AD2d 520, 522 [1st Dept 1995], lv denied 87 NY2d 803 [1995], citing Coalition Against Lincoln W., 94 AD2d 483).

We have considered petitioners’ remaining arguments, including its contention that JHL has no right to appeal, and find them unavailing.

Concur — Friedman, J.R, Sweeny and Webber, JJ.

* Respondent was also required by DOH to increase the noise barrier facing the school to 16 feet, double the standard height. It further required respondent to place noisy machinery away from the school, to use less noisy electrical equipment, to ensure that the noisiest work does not take place during the yearly testing period and to make available a construction manager to liaise with P.S. 163 to address any issues as they arise during the construction project.