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LEAD AGENCY TOOK THE REQUISITE HARD LOOK AT LEAD DUST AND NOISE CONCERNS RAISED IN CONNECTION WITH CONSTRUCTION NEAR A SCHOOL IN NEW YORK CITY AND, AFTER IMPOSING MITIGATION MEASURES, PROPERLY APPROVED THE CONSTRUCTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the challenge to the Final Environmental Impact Statement (FEIS) allowing construction of a 400 bed residential facility near a school in New York City was properly denied. The petitioners (neighbors and parents of school children) were primarily concerned with lead dust and noise. The court found that the lead agency (Department of Health [DOH]) had taken the requisite “hard look” at the lead dust and noise concerns (which were addressed by mitigation measures). The opinion includes a concise and uncomplicated explanation of the environmental-impact-statement procedures required by the State Environmental Quality Review Act (SEQRA):

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Preventing the migration and inhalation of lead dust was one of the environmental risks the agency specifically set out to measure and mitigate … . In recognition of the risk, DOH imposed a battery of construction protocols to monitor and contain airborne dust. DOH reasonably concluded that these mitigation measures were sufficient to ensure that airborne lead levels remained within acceptable … limits, and explained its assessment fully in the DEIS [Draft Environmental Impact Statement] and FEIS. …

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DOH conducted a detailed analysis of construction noise, employing assumptions based on reasonable worst case scenarios. In assessing both the dangers of construction noise and the most appropriate mitigation measures, DOH acted within its “considerable latitude in evaluating environmental effects and choosing among alternatives” (id.). The fact that petitioners would have preferred different or additional mitigation measures presents a difference of opinion about the best way to address the environmental impacts that the agency, not the courts, must consider and resolve. In fact, the agency considered the opinions of petitioners’ experts and determined that the lower noise levels for which they advocated were “not often achieved in densely-populated urban locations such as NYC.” DOH also considered that its levels did not exceed the City Manual’s recommendation. Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan, 2017 NY Slip Op 08621, CtApp 12-12-17

 

ENVIRONMENTAL LAW (LEAD AGENCY TOOK THE REQUISITE HARD LOOK AT LEAD DUST AND NOISE CONCERNS RAISED IN CONNECTION WITH CONSTRUCTION NEAR A SCHOOL IN NEW YORK CITY AND, AFTER IMPOSING MITIGATION MEASURES, PROPERLY APPROVED THE CONSTRUCTION (CT APP))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (LEAD AGENCY TOOK THE REQUISITE HARD LOOK AT LEAD DUST AND NOISE CONCERNS RAISED IN CONNECTION WITH CONSTRUCTION NEAR A SCHOOL IN NEW YORK CITY AND, AFTER IMPOSING MITIGATION MEASURES, PROPERLY APPROVED THE CONSTRUCTION (CT APP))/ENVIRONMENTAL IMPACT STATEMENTS (LEAD AGENCY TOOK THE REQUISITE HARD LOOK AT LEAD DUST AND NOISE CONCERNS RAISED IN CONNECTION WITH CONSTRUCTION NEAR A SCHOOL IN NEW YORK CITY AND, AFTER IMPOSING MITIGATION MEASURES, PROPERLY APPROVED THE CONSTRUCTION (CT APP))/LEAD DUST (ENVIRONMENTAL LAW, LEAD AGENCY TOOK THE REQUISITE HARD LOOK AT LEAD DUST AND NOISE CONCERNS RAISED IN CONNECTION WITH CONSTRUCTION NEAR A SCHOOL IN NEW YORK CITY AND, AFTER IMPOSING MITIGATION MEASURES, PROPERLY APPROVED THE CONSTRUCTION (CT APP))/NOISE (ENVIRONMENTAL LAW, LEAD AGENCY TOOK THE REQUISITE HARD LOOK AT LEAD DUST AND NOISE CONCERNS RAISED IN CONNECTION WITH CONSTRUCTION NEAR A SCHOOL IN NEW YORK CITY AND, AFTER IMPOSING MITIGATION MEASURES, PROPERLY APPROVED THE CONSTRUCTION (CT APP))

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