Jewish Home Lifecare will appeal a state Supreme Court ruling that in December found the nonprofit and the state Department of Health had failed to take the “requisite hard look at specific environmental issues” surrounding the construction of a 20-story nursing home on West 97th Street.
“Jewish Home remains deeply committed to moving forward with this innovative and pioneering model of elder care. Our intention is to commence construction as soon as the ligation is concluded,” JHL said in a statement announcing the appeal.
In her ruling, Justice Joan Lobis referred to noise mitigation measures at the job site, which is surrounded by residential developments and an elementary school, and the presence of hazardous materials at the site, which would be kicked up into the air during construction.
But according to one community activist involved in the community’s original proceeding, the appeal could get more complicated as the state attorney general’s office still has at least another week to file a notice of appeal that could challenge Lobis’ decision, which requires the state Department of Health to reexamine their findings in approving the project. If that happens, the community activist said, the department would not be required to take that “requisite hard look” until the appeals process plays out and only if Lobis’ decision is upheld.
Two proceedings were filed in an attempt to block the project, one from neighborhood residents and the other from parents of students at P.S. 163, the nearby elementary school. Lobis combined both suits for the purposes of her decision, but they remain separate and distinct legal actions.
The lawyer for the group of residents, Joel Kupferman of the New York Environmental Law and Justice Project, has already signed on to defend Lobis’ decision, according to the community activist, who did not wish to be identified. Kupferman could not be reached for comment. The office of Attorney General Eric Schneiderman did not return a request for comment by press time on whether they would be joining JHL in appealing Lobis’ decision.
Rene Kathawala, a P.S. 163 parent and attorney with Orrick, Herrington and Sutcliffe, is representing the school parents. He told the Spirit that despite scoring a victory with Lobis’ decision in December, the parents decided to file a motion to reargue Lobis’ decision denying their argument that DOH committed a procedural violation during the review process.
The parents allege that violation occurred when DOH failed to provide any analysis regarding one of the parent’s mitigation measures for noise attenuation — that JHL provide central air conditioning in the school — until after the review process was complete, Kathawala said.
“DOH said central air conditioning was too expensive except in the findings statement, when the agency never bothered to mention it or analyze it at any prior point,” he said.
The parents’ original challenge to the DOH, called an Article 78 proceeding, argued several points, just two of which Lobis found merited consideration: the question of noise mitigation and hazardous materials. And while there may have been substantial arguments in the overall filing, Kathawala is cross-appealing Lobis’ decision to deny their claim that DOH committed a procedural violation.
JHL will be arguing that there are grounds for reversal of Lobis’ decision because the court “improperly substituted its judgment” for that of the health department, which carried out the review as the lead agency under the State Environmental Quality Review Act (SEQRA), according to pre-argument statements filed with the state Supreme Court’s Appellate Division.
The argument also asserts that the court erred in considering evidence that was not included in the administrative record, which allowed P.S. 163 parents and the community to “transform the cooperative SEQRA process into an ambush.”
JHL officials have previously said that Lobis’ decision would not significantly impact their construction timetable, but the project has seen significant delays because of past litigation. Construction was initially slated to begin in the fall of 2014. JHL officials said recently they’re now looking to start construction in the summer.