December 09, 2003

Article at The New York Sun

The No-Build Alternative

New York City's most eminent nonprofit housing developers and financiers contend that the City Council's proposed lead abatement bill will dangerously impede - perhaps halt - most rehabilitation of decaying housing stock in the city's oldest neighborhoods. Groups such as the Community Preservation Corporation, Phipps Houses, and the Settlement Housing Fund say that the previous lead-abatement law, Local Law 38, passed in 1999, was working well.

The law successfully cleaned up lead in residences while permitting rehabilitation to go forward. However, many social service advocates disagreed from the start. After the bill's passage, the City Council and Mayor Giuliani were sued almost immediately by a group of advocates, the New York City Coalition to End Lead Poisoning and the New York Public Interest Research Group, who contended that the city had failed to conduct a full state-mandated Environmental Impact Statement.

Judge Lewis York in the state Supreme Court agreed, declaring Local Law 38 invalid, and requiring the City Council to start over. The result has been a contentious debate with ugly charges of racism and indifference to the welfare of small children regularly hurled at the new bill's opponents. The bill, which will probably be passed by the full council on Friday, holds landlords solely responsible for the presence of lead paint and dust, and sets up a stringent schedule for inspection, removal, and cleanup. It also makes landlords highly vulnerable to law suits by tenants, say the bill's opponents, even if lead is not found in their apartments.

This is happening - to the delight of many social service advocates and the distress of housing producers - because the litigious exploitation of environmental reviews has become the new technique of choice for groups displeased with the policies of elected officials. Any group that disagrees with a project can sue on this convenient technicality.

Many New Yorkers are falsely comforted by the term "New York State Environmental Quality Review Act," or Seqra, which they think means a deeply substantive analysis of the environmental costs and benefits of a particular project. However, it's no such thing. Reviews deal with a huge number of factors very superficially and without focus, said land-use attorney Howard Goldman. "The 'E' in EIS stands for everything - not for environmental."

Mr. Goldman said that state environmental reviews were designed for places like Utica and Ossining that "didn't have a very comprehensive planning process in place." However, New York City has its Uniform Land Use and Review Procedure, which basically does everything that state environmental reviews do, Mr. Goldman said. "Seqra creates," he argued "another cause of action for project opponents that wouldn't otherwise exist."

In other words, it gives people who lose in the political process a chance to get the courts to step in and overturn the result of the public decision, however extensive the hearings. And for many years public hearings have indeed been extensive. In 1999, for example, the City Council heard testimony from the full range of experts and advocates on childhood lead poisoning, including the health and housing commissioners, medical professionals, lead-abatement experts, and trial lawyers. In four public hearings and in written submissions, every conceivable environmental concern and safe work practice was addressed.

When the city appealed Judge York's decision, it submitted eight volumes of evidence, much of it from the hearings. However, lead abatement is only one of many city policies overturned or stymied or delayed by Seqra suits.

The UnConvention Center offers a completely different instance of the same misuse of environmental reviews. Located on city-owned Pier 94, which runs from West 53rd Street to West 55th Street along the Hudson River and established under the Giuliani administration, the UnConvention Center is the city's only venue for midsize trade shows. (The Coliseum at Columbus Circle had housed midsize shows before its demolition in 2000.)

No one can seriously doubt the importance of trade shows and conventions for the city's economy. When its $4.5 million in renovations are completed, the UnConvention Center anticipates that its trade shows will generate $822 million in economic benefits during the first year, and $5 billion over seven years.

The project will support some 10,080 local jobs. In order to be allowed to renovate the pier, which has had no physical work done in years, the UnConvention Center filed an environmental impact statement as part of its Ulurp application. However, opponents are saying that the EIS was flawed because it should have assumed that the pier, which was built in 1959 for the Cunard line, wasn't there at all. Park advocates, who want to do away with the pier in order to increase the size of Hudson River Park, call this the "no-build alternative."

The development adviser, a managing partner of Washington Square Partners, Paul Travis, pointed out that when Hudson River Park was created in the early Giuliani administration, both the city and state specifically agreed to exclude Pier 94 from park property.

"This is a misuse of the environmental review," Mr. Travis said. "No one is claiming that there are traffic or air problems that we haven't addressed. They are simply trying to stop a project they don't like - and it will cost us a year if we have to go through another complete EIS."

In discussing the lead-abatement bill, the Phipps Houses president, Adam Weinstein, said, "This will make the rehabilitation of occupied housing extremely expensive. So everyone should be asking: to what benefit?"

That should be the question asked every time a disgruntled group invokes an environmental review to stop a project: to what benefit? And to whose?