A State Supreme Court judge ruled that in approving Jewish Home Lifecare’s plan to build a 20-story nursing home on West 97th Street, the NYS Dept. of Health did not adequately take into account the impact that noise and hazardous material would have on the surrounding community.
In her ruling, Judge Joan Lobis said that the DOH followed proper state environmental review procedures, but that, “in certain substantive areas…did not take the requisite hard look at specific environmental issues.”
The ruling vacates and annuls the DOH’s approval of JHL’s application and calls for an amended Final Environmental Impact Statement that reconsiders findings on the issues of noise and hazardous material.
JHL has sought to build its nursing home on a parking lot that’s situated 30 feet from P.S. 163, an elementary school, and is surrounded by three housing complexes. P.S. 163 parents and local residents each filed Article 78 proceedings, which are used to challenge decisions by a local or state agency.
At issue is the effect that construction noise would have on students at the school and the possibility that hazardous materials from the parking lot, which was found to contain toxic levels of lead and other contaminants, would be dispersed into the air during the work. The two Article 78s were combined in Judge Lobis’ decision.
JHL’s mitigation efforts included wetting down the parking lot during construction to reduce the risk of contaminants being picked up by the air and providing P.S. 163 with noise attenuating windows. In a statement, JHL said it’s moving forward with preparations to begin construction next summer and will consider appealing the court’s decision.
“Jewish Home will take appropriate steps in order to move ahead with plans to construct the Living Center of Manhattan on West 97th Street,” JHL said in their statement. “We remain committed to working with the school’s parents to identify workable solutions. At the same time, Jewish Home will consider its other options, including appealing the decision.”
According to Rene Kathawala, a P.S. 163 parent and lawyer who is representing fellow parents in their suit, the proceedings argued four main points: the effect that construction and the nursing home itself would have on traffic in the neighborhood, the possibility of building the nursing home at a JHL-owned site on West 106th Street, which the community contends is a better location, and the questions of noise and hazardous materials.
Lobis’ ruling did not find merit with the first two arguments concerning the project’s impact on traffic and the West 106th Street site. Kathawala said, however, that the most significant portions of the proceedings concerned noise and hazardous materials.
“The essence of our case was noise and hazardous materials, they lost both of those and they lost both of those in significant and material ways,” he said. “[The FEIS] demonstrates their lack of concern about the mitigation measures, which is why the judge vacated it.”
Kathawala also took issue with the notion that JHL has worked with parents on finding solutions to their concerns. He said the noise attenuating windows the company offered the school blocked eight to 13 decibels less noise than what the parents’ expert recommended.
“JHL is trying to build a $252 million dollar nursing home [next to] an elementary school, and they’re spending $350,000 on mitigation efforts,” said Kathwala. “That tells you all you need to know.”
Through a spokesperson, JHL declined to elaborate on whether they would file an appeal or proceed with a review. The spokesperson said JHL does not anticipate that the summer 2016 start date of construction will be significantly delayed. The project has experienced significant delays, however, due to legal challenges. According to news reports from 2013, construction was supposed to commence in the fall of 2014.
JHL’s statement also indicated its understanding that the court’s decision requires the company to file a supplemental EIS. But Kathawala said a SEIS only comes into play if there’s been significant changes made to the FEIS, and that Lobis’ decision actually requires them to reevaluate the FEIS’ findings altogether.
“It’s not just sitting there and rewriting [the FEIS], they need to reexamine the underlying facts and apply the law properly to get the mitigation correct,” said Kathawala.
In her decision, Lobis ordered “an amended FEIS, to reconsider the findings on the issues of noise and hazardous material.” The JHL spokesperson did not clarify JHL’s understanding of what’s required of them in the judge’s decision by press time.
Albina De Meio, vice president of the Park West Village Tenants Association, which filed an Article 78 on behalf of local residents, said the association is pleased with the outcome of their challenge.
“The purpose of the Article 78 was to put in question the decision made by the New York State Department of Health on the Environmental Impact Statement findings and process,” said De Meio. “All of us who reside at Park West Village and in the immediate neighborhood are pleased with the decision issued by Judge Lobis.”
Local lawmakers also praised the court’s decision.
“This is a win for P.S. 163’s students: under the plan that was approved, a huge, high-rise project could have choked and deafened a high-performing school with dust and noise,” said Manhattan Borough President Gale Brewer in a statement. “Judge Lobis saw what we saw: the State Department of Health was wrong to approve this massive construction project next to P.S. 163.”
Councilmember Mark Levine, in whose district the project resides, applauded Lobis’ decision and touted legislation he’s sponsoring in the city council to set restrictions on construction next to public schools.
“This ruling marks a victory in the push to protect the students of PS 163,” said Levine. “I am grateful for the tireless work of the parents of PS 163 and the surrounding community as our fight continues.”