Court of Appeals November Session: Arguments of Interest for November 16, 2017

The Court of Appeals’ November concludes on Thursday, November 16, 2017, with three cases on the argument docket (the Court’s case summaries can be found here).

First on the calendar is a State Environmental Quality Review Act case, which asks whether the New York State Department of Health took a hard look at the potential adverse environmental impacts of a proposed nursing home facility that will be built in Manhattan next to an elementary school. The Court will then hear a Family Law case, which involves the question whether Family Court has jurisdiction under Family Court Act § 846-a to impose a final order of protection for the willful violation of temporary orders of protection, even where it does not find that the violator did not commit a “family offense” under the statute. The last case on the docket asks whether the New York City Water Board acted arbitrarily and capriciously in imposing a City-wide rate increase while at the same time granting a one-time credit to only certain property owners.

No. 128      Matter of The Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan; Matter of Wright v New York State Department of Health

Every time a construction project is proposed, it generally has to go through a environmental review that identifies all potential adverse environmental impacts that could result if the project is built, takes a “hard look” at whether those impacts are significant, and provides a written reasoned elaboration of the agency’s determination of significance.  In Matter of the Friends of P.S. 163, Inc., the project is a nursing home that was reviewed and approved by the New York State Department of Health.  The proposed 20-story nursing home was to be built on the Upper West Side of Manhattan next to P.S. 163, an elementary school with about 600 students between the ages of 3 and 11.

While any project raises some potential environmental impacts, one next to a school has to be reviewed pretty carefully to ensure that the students won’t be impacted. During the SEQRA review, DOH identified that the construction could potentially cause noise and toxic dust exposure issues, but concluded that the mitigation measures that were selected would ensure that the exposure would not exceed federally acceptable levels.  Based upon that conclusion, DOH approved the nursing home.

Two groups of parents and teachers at the school and residents of nearby apartment buildings challenged the approval, arguing that the SEQRA review didn’t take a hard enough look at the noise and toxic dust impacts and that the mitigation measures weren’t enough to protect the students next door. Supreme Court, New York County agreed and annulled the DOH approval. The Court held that DOH “did not address the particular adverse effects of elevated noise levels on children’s learning abilities or performance in school,” nor “take a sufficiently hard look at additional noise mitigation measures.”  The Court held that DOH did not take a hard enough look at the potential environmental impacts in light of the special concerns of having young elementary school students next door to the construction site.

The Appellate Division, First Department, however, reversed on a 3-1 vote. The Appellate Division held that a higher standard of environmental review doesn’t apply to this project because it is located next to a school.  DOH reasonably evaluated the noise impacts, the Court held, and was obligated only to evaluate and impose mitigation measures to the maximum extent practicable.  The best mitigation measures are not always required. Because DOH relied on the federal standards of exposure to determine whether the mitigation measures imposed would be adequate, the Court held that DOH complied with its obligations under SEQRA.

The Court of Appeals will now hear argument on whether DOH took a hard look at the potential adverse environmental impacts of the nursing home project and whether a higher standard of review should apply to projects that are proposed to be built next to schools, churches, or other sensitive uses.

The Appellate Division, First Department’s order can be found here.

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