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Vallone Lead Paint Law Reinstated

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Vallone Lead Paint Law Reinstated

Postby consigliere » Wed Mar 27, 2002 12:33 am

This article appeared in the March 27th online edition of the New York Law Journal:
New York City Lead Paint Law Upheld
By Tom Perrotta

An appellate court Tuesday reinstated a New York City lead paint law struck down by a lower court, saying the City Council did not violate environmental regulations when it passed the measure.

The unanimous ruling from the Appellate Division, First Department, dismissed a lawsuit by the New York City Coalition to End Lead Poisoning Inc., a group that has challenged the city's lead paint laws over a period of two decades.

The coalition, whose previous suits had resulted in fines against the city and threats of jail time for officials held in contempt, had argued that Local Law 38, passed in 1999, would reduce landlords' responsibility to cure dangerous lead paint conditions and make it more difficult to bring negligence suits on behalf of children. The coalition estimates that 35,000 children in New York City have elevated levels of lead in their blood.

The group scored a victory in October 2000, when Manhattan Supreme Court Justice Louis B. York ruled that the City Council had failed to conduct an adequate environmental review of the law, and that its legislative review process was "mostly perfunctory."

But Tuesday, Justice John T. Buckley, writing for the court in In re Application of New York City Coalition to End Lead Poisoning Inc., 5336-5337, said the council had addressed all relevant issues in an environmental assessment statement. The court ruled that the council's review process justified its decision to not let the law through an environmental impact statement as defined by the State Environmental Quality Review Act (SEQRA) and City Environmental Quality Review (CEQR).

"Every provision of the amending ordinance had been the subject of extensive debate involving experts from various fields as well as representatives of interested organizations," Justice Buckley wrote. "This review clearly satisfied the requirements of SEQRA and CEQR."

The enactment of Local Law 38 came after Justice York had ruled that the city was in contempt of court for not enforcing the previous law, Local Law 1, which required landlords to remove lead paint from buildings. Justice Buckley noted Tuesday that if the First Department had affirmed Justice York's ruling, it would have placed the city in "immediate contempt."

Local Law 38 advocated containment rather than abatement, citing research that showed removing lead paint released harmful dust into the air and posed more of a health risk than carefully covering lead paint. The law required landlords to inspect for lead paint once a year and to take action when lead paint is peeling from a wall.

The yearly inspection was challenged as too lax by opponents, who feared landlords were being given license to perform inadequate or sloppy repairs without outside supervision. They said the law might conflict with the Court of Appeals ruling in Jaurez v. Wavecrest Management Team Ltd, 88 NY2d 628 (1996), which found landlords were on continual notice for lead paint hazards.

Opponents also took issue with the new law's definition of "lead-based paint" as paint containing 1.0 milligram of lead per square centimeter or greater, a reduced standard from the previous law, which required only 0.7 milligrams per square centimeter.

The court had not been asked to resolve these clear disagreements, but to determine whether the City Council had followed proper procedures in passing the law. The council passed a three-part test, the court said, because it had "(1) identified the relevant areas of environmental concern, (2) took a hard look at them and (3) made a reasoned elaboration of the basis for its determination."

The court said that a critical factor in its analysis was that all parties to the suit had agreed that removing lead paint from buildings had proven to be more dangerous than containment. But defining containment -- and the forcefulness of the law -- was a matter for the Legislature, not the court.

"Petitioners' real complaint is that their views did not prevail," Justice Buckley wrote. "Nothing in SEQRA," he added, "requires that governmental remedial actions perfectly solve environmental problems not originally created by the government."

The judge said that invalidating the law and upholding the lower court would "grant petitioners the political victory they failed to achieve in the legislative forum."

Matthew J. Chachere, who represented the coalition, said he was disappointed in the ruling and was discussing an appeal to the Court of Appeals with lawyers representing other plaintiffs in the suit.

Mr. Chachere said the council's review process was not equivalent to the thorough explanations required by SEQRA. For example, he said, "friction and impact surfaces" -- surfaces like windows that can shake loose lead dust because of constant impact -- were not addressed by the review process.

"The court seems to have indicated that the deliberative process of the City Council is an adequate substitute for an environmental impact statement," Mr. Chachere said.

He added that the coalition and other plaintiffs are supporting new legislation proposed Monday by the City Council, which would make it easier to bring lawsuits on behalf of poisoned children. As to whether Local Law 38 would affect the duties of landlords, he pointed to last year's Court of Appeals ruling in Chapman v. Silber, 128, which reversed a trend from three Appellate Divisions, and said that landlords could be held liable for lead paint if they were given constructive, rather than actual, notice.

Thomas L. McMahon, the general counsel for the City Council, said the ruling gives the council a clean slate to consider the new legislation introduced this week. "The court's affirmation gives the council the opportunity to review, assess and improve the law."

Assistant Corporation Counsel George Gutwirth argued on behalf of the City Council. He was joined by Simon Wynn of the State Attorney General's Office and several attorneys representing real estate groups, including the Real Estate Board of New York and the Associated Builders and Owners of Greater New York.

Justices Peter Tom, Richard T. Andrias, David B. Saxe and Alfred D. Lerner concurred with Justice Buckley's opinion.
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Re: Vallone Lead Paint Law Reinstated

Postby consigliere » Wed Mar 27, 2002 11:02 am

This item appeared in the New York Region Metro Briefing section of The New York Times, in the March 27th online edition:

An appeals court unanimously upheld a disputed lead-paint control law yesterday, dismissing a lower court ruling that the City Council had not made a proper review of the law's environmental impact. The ruling came a day after a majority of City Council members introduced a bill that would make it easier for the parents of children with lead poisoning to sue their landlords. Critics of the upheld law have long said it unduly favors landlords, while its supporters say it has been effective because the number of lead-poisoning cases among children has declined since it was passed in 1999.
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