Development

In an article 78 proceeding by a parents group seeking to annul a findings statement issued by the Department of Health proposing to construct a 20-story nursing home adjacent to an elementary school, the Department of Health and the nursing home appealed from Supreme Court's grant of the petition. A divided Appellate Division reversed, concluding that the trial court had improperly substituted its analysis for that of the lead agency.

Developer applied to the Department of Health (DOH) to build a nursing home in Manhattan adjacent to an elementary school. Parents raised questions about the noise levels the project would generate during construction. DOH issued a Draft Environmental Impact Statement concluding that the project would not generate adverse noise impacts. When parent groups retained experts who concluded that background noise in excess of specified decibel levels would interfere with wellness of students, and that central air conditioning would be necessary to abate the noise issues, DOH responded by requiring installation of new acoustical windows and new window air conditioning units on the façade facing the school. DOH conceded that even with those new windows and window units, the noise would exceed recommended decibel levels, but noted that the manual setting those levels provided that increased noise levels would not constitute a significant adverse impact if the noise lasted for less than two years.