[NYtenants-online] Court overturns Vallone Lead Law; Gif Miller Boxed-in

Tenant tenant@tenant.net
Wed, 02 Jul 2003 01:26:45 -0400


NYtenants Online/TenantNet                                7/2/03
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IN THIS ISSUE ...

1. Court melts NYC lead-paint law, says kids being hurt (AP)
2. Coalition to End Lead Poisoning calls for passage of Meaningful Lead Law
3. Appeals Court Strikes Down City's Law on Lead Paint (NY Times)
4. City's Lead Paint Law Is Found to Lack Environmental Review (Law Journal)
5. Perkins: Pass Lead Paint Bill (Newsday)
6. Lead-law Councilmember has his own problem bldg. (Daily News)

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THE TEXT OF THE DECISION is available at:
www.nmic.org/nyccelp/Documents/Vallone-Appeal/decision.pdf

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COURT MELTS NYC LEAD-PAINT LAW, SAYS KIDS BEING HURT
NY Daily News (AP)
by Joel Stashenko
Tuesday, July 1st, 2003

A 1999 New York City law designed to protect children from being poisoned 
by lead-based paint is invalid, the state’s highest court determined Tuesday.

The City Council declared that the 1999 changes to an earlier paint 
abatement statute would have no adverse environmental impacts — a 
declaration that was challenged  in court by environmentalists, child 
health advocates and others. The Court of Appeals decided 6-0 Tuesday that 
the council did not present the proper evidence to support a finding of no 
negative environmental impacts.

The council in 1999 eliminated lead dust from the definition of lead paint 
hazards, and it removed lead paint protections for households containing 
children older than 5.  The previous law had mandated that landlords also 
take lead paint abatement steps in units containing 6-year-olds.

Writing for the court, Judge Victoria Graffeo said the council gave “no 
assurances” that it had weighed environmental and public health concerns 
against economic considerations when formulating the 1999 law. The court 
said the City Council had violated the State Environmental Quality Review 
Act, which “guarantees that environmental concerns are confronted and 
resolved prior  to agency action and insulates rational agency 
determinations from judicial second-guessing.”

“This is a great, great victory for the children of New York,” said City 
Councilman Bill Perkins, who represents Harlem and parts of the Upper West 
Side of Manhattan.  “This is a day in which the children have beaten the 
slumlords.”

A trial-level judge also found that the 1999 law violated the state’s 
environmental review statute, but the midlevel Appellate Division of state 
Supreme Court ruled it was valid. As the litigation continued, the City 
Council has been working on a new lead paint bill that now has the support 
of 37 of the 51 members of the council. It would shift more of the 
responsibility on lead paint hazards to building owners and require that 
the city take a more proactive approach in ensuring that hazards are corrected.

The Republican Bloomberg administration opposes the new measure. “The bill 
focuses on liabilities, not on programs that will improve children’s 
health,” said Ed Skyler, a spokesman for Mayor Bloomberg.

Skyler noted that the number of lead paint cases in the city has fallen 
significantly in recent years. But in the Court of Appeals ruling Tuesday, 
Graffeo said poisoning from lead-based paint is still a “serious public 
health problem.”

In 2000, about 19 of every 1,000 children between ages six months and six 
years had elevated lead levels in their blood according to a New York City 
study.

Several environmental and consumer groups have been suing New York City for 
years, trying to get the city to enforce a lead paint abatement statute 
first enacted in 1982. The case decided Tuesday was led by the New York 
City Coalition to End Lead Poisoning. “This put the onus back on the city 
council, that if they’re going to do something, to do it in the right way,” 
said Matthew Chachere, attorney for the coalition.

Lead paint is blamed for causing brain and neurological damage in humans, 
especially in young children as their bodies develop. Lead paint was banned 
by the city in 1960, but thousands of older city dwellings are known to 
contain paint that can chip off or cause lead-bearing dust to be released 
into the air.

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NEW YORK CITY COALITION TO END LEAD POISONING
Press Release
July 1, 2003

STATE'S HIGHEST COURT TOSSES OUT CONTROVERSIAL NEW YORK CITY LEAD PAINT LAW
COALITION CALLS FOR IMMEDIATE PASSAGE OF CHILDHOOD LEAD POISONING 
PREVENTION ACT (INTRO 101-A)

Members of the New York City Coalition to End Lead Poisoning (NYCCELP) and 
City Council Deputy Majority Leader Bill Perkins applauded the Court of 
Appeals decision today tossing out Local Law 38, the controversial lead 
paint law. They called for immediate passage of the Childhood Lead 
Poisoning Prevention Act, Intro 101-A, of which Council Member Perkins is 
the leading sponsor.

In a unanimous decision, the Court ruled that Local Law 38, which former 
Speaker Peter Vallone rushed through the City Council in 1999, is null and 
void because the City Council failed to consider its environmental health 
impact on children.  The Court expressed concern that the Council conducted 
"little qualitative analysis" of the impacts of Local Law 38 and "no 
assurances that the environmental and public health concerns presented took 
"their proper place alongside economic interests.'"

In a stinging 17-page decision, the Court of Appeals stated that the City 
Council had ignored key potentially adverse effects of Local Law 38, 
including the fact that the bill failed to control toxic lead dust 
generated by deteriorated lead paint. The Court noted that lead dust is the 
primary route of exposure of young children to toxic lead.

The Court expressed concern at the "alarmingly" high rate of childhood lead 
poisoning in New York City, noting that lead poisoning causes brain damage 
that results in loss of intelligence and behavioral problems.

In what they call "an important test for the City Council," public interest 
groups, environmental organizations and community advocates urged the 
Council act quickly to pass Intro 101-A, which would require landlords to 
take responsibility for correcting lead paint hazards that generate toxic 
lead dust.

"It would be unfortunate if the City were to rush through a weak bill that 
did not provide proper protection for children," said Councilmember Bill 
Perkins, who had voted against Local Law 38 in the summer of 1999.  "That's 
what got us into this mess in the first place. We've always maintained that 
Local 38 was illegal and ineffective, and clearly this Court decision bears 
that out."

"I want to thank the Court for its strong decision. Local Law 38 was so 
unjust. The Council and the City did something wrong by pushing that bill 
through," said Cordell Cleare, Co-Chair of NYCCELP. "Thousands more 
children are poisoned every year. This is what happens when you don't put 
children first. The City Administration keeps telling the public that they 
should be patient. There is no room for patience when children are being 
poisoned and suffering permanent damage from toxic lead. We need a strong 
and effective bill that really protects children."

While nullification of Local Law 38 restores the pre-existing Local Law 1, 
which courts have interpreted to require removal of all lead paint from 
multiple dwellings containing young children, the attorney for the 
Coalition explained that this is not cause for alarm.

"In open court, we expressed our willingness to cooperate with the City to 
stay the requirement of City agencies to enforce full abatement under Local 
Law 1, if the City is moving forward quickly and in good faith to pass 
strong and effective childhood lead poisoning prevention legislation," said 
Matthew Chachere, attorney for NYCCELP. "But they have to do it right this 
time. They can't ignore the science like they did in 1999. And they can't 
rush through a phantom bill in the dead of night."

"We thank Council member Bill Perkins and the other Council members who 
recognized the harmfulness of Local Law 38 when it came to a vote in the 
summer of 1999. They stood up to Peter Vallone and voted against it," said 
Dave Palmer, of NYPIRG. "We hope that Speaker Gifford Miller, who voted in 
favor of Local Law 38 and the flawed environmental assessment that the 
Court of Appeals nullified, will move swiftly to pass Intro 101-A."

Intro 101-A has gained 37 sponsors since it was introduced in March 2002. A 
hearing was held on the bill on June 23, but it has not yet been scheduled 
for a vote.

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APPEALS COURT STRIKES DOWN CITY'S LAW ON LEAD PAINT
NY Times
July 2, 2003
by Al Baker and Randal C. Archibald

The state's highest court today struck down New York City's four-year-old 
law to clean up lead paint, saying the City Council had failed to comply 
with New York's environmental standards in passing it.

In a unanimous decision, the seven-member Court of Appeals ruled that Local 
Law 38, signed by Mayor Rudolph W. Giuliani in 1999, was invalid because 
the Council failed to identify and explain the potential environmental and 
public health impacts of the legislation.

Specifically, the law the Council passed lowered the age for children to be 
protected by the statute and eliminated the regulation of dust from 
deteriorating lead paint as a health hazard, among other changes.

The law it replaced, Local Law 1, enacted in 1982, had required stringent 
cleanup of lead paint hazards in apartments housing children age 6 and 
younger, while the new law reduced that threshold to children 5 and younger.

In a resolution accompanying the law passed in 1999, the Council said that 
there would be no significant adverse environmental or health effects of 
the legislative changes it enacted. Challenged by more than a dozen 
plaintiffs, including environmental advocates and affected families, the 
Council lost a fight in State Supreme Court and won at the Appellate Division.

But under the State Environmental Quality Review Act, the Council had been 
mandated to provide a "reasoned elaboration" of the basis for its decision 
on why those changes would not be harmful, the Court of Appeals ruled. 
There the Council fell short, the court ruled.

"We conclude that the City Council did not fully comply with Seqra's 
stringent requirements," Judge Victoria A. Graffeo wrote in a 17-page 
decision. Chief Judge Judith S. Kaye and the five other judges concurred.

"Strict compliance with SEQRA guarantees that environmental concerns are 
confronted and resolved prior to agency action and insulates rational 
agency determinations from judicial second-guessing," Judge Graffeo wrote.

Efforts to address the abatement of lead paint in city apartments where 
children are living have been continuing for decades in New York. Although 
lead rates have been steadily declining in the city, pockets of higher 
rates have persisted and from 1995 to 2000, nearly 95 percent of city 
children identified as suffering from lead poisoning were black, Hispanic 
or Asian. In the ruling, the court said that the dangers of exposure to 
lead paint, especially to children, were well documented and posed a 
serious public health problem.

Growing children can suffer brain damage from eating lead paint chips or, 
more commonly, from putting their hands in their mouth after touching dust 
that comes from deteriorating lead paint, said David C. Palmer, an 
environmental justice advocate for the New York Public Interest Research 
Group, a plaintiff in the case.

He was among supporters of the lawsuit who gathered on the steps of City 
Hall today to declare victory and urge the Council to take up a new measure 
that has been languishing in the Council for more than a year. The 
proposal, sponsored by Councilman Bill Perkins, would give children wider 
protection than either the 1982 or 1999 measures, the supporters said.

Many advocates held signs. One said, "Hey Giff/Get the lead out," directed 
at the Council speaker, Gifford Miller, who only last week scheduled a 
hearing on the new measure even though it had been introduced in March 2002.

"This is a day when the children have beaten the slumlords," said Mr. 
Perkins, who said his proposal had the support of 37 of 51 council members.

Mr. Miller declined to take a position on the court's decision because he 
had not yet read it.

The court's decision today revived the earlier law, Local Law 1, while 
sending the matter back to the Supreme Court. "We expect that the parties 
will continue to work cooperatively to ensure that the resurrection of 
Local Law 1 does not further imperil New York City's children," Judge 
Graffeo wrote. It was an effort to change that earlier law, which required 
total abatement of lead-based paint and was viewed by many as exacerbating 
the risk to children by disturbing even intact paint, that led to the 1999 law.

In a written statement, Michael A. Cardozo, the city's corporation counsel, 
said the court's decision gave inadequate weight to the Council's 
"extensive consideration of potential environmental impacts."

"That said," he added, "the City Council must now act promptly to rectify 
the situation."

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CITY'S LEAD PAINT LAW IS FOUND TO LACK ENVIRONMENTAL REVIEW
Ruling effectively reinstates older version requiring remediation
By John Caher
New York Law Journal
July 2, 2003

The Court of Appeals Tuesday struck New York City's 1999 lead paint 
abatement law, effectively reinstating an older version that imposes a 
heightened duty on landlords but also requires remediation that is now 
considered inappropriate and potentially dangerous.

In a 6-0 opinion by Judge Victoria A. Graffeo, the Court said the city 
neglected to follow the State Environmental Quality Review Act when it 
enacted Local Law 38 in 1999. The Court, acutely aware that by voiding 
Local Law 38 it is resurrecting the discredited Local Law 1, urged the city 
to come to terms with public interest and environmental groups to "craft a 
workable solution that strives to reconcile the important social and 
economic consequences" of lead abatement.

Matter of New York City Coalition to End Lead Poisoning Inc. v. Vallone, 
80, is the latest development in a protracted dispute over the best way to 
address the lead paint problem, a dilemma the city has sought to resolve 
since 1960, when it first banned lead-based paint. Over the last 20 years, 
the city has grappled with remediation and adopted two local laws designed 
to ensure a safer environment for children living in older housing stock.

Local Law 1, adopted in 1982, was premised on a lead-free approach and 
required landlords to remove or cover any lead-based paint in housing units 
occupied by children under age 7.

In 1999, the City Council replaced the lead abatement statute with the less 
stringent Local Law 38. That version focused on establishing a lead-safe 
rather than lead-free environment. It omitted lead dust from the definition 
of lead paint hazards, reduced the class of protected youngsters from under 
7 to under 6, and eliminated the requirement to cover or remove lead paint. 
At the same time that Local Law 38 was passed, the city adopted a 
resolution asserting that the new statute would not result in a significant 
adverse environmental impact.

The prime issue in this case was whether the city had complied with the 
State Environmental Quality Review Act (SEQRA). Acting Supreme Court 
Justice Louis B. York held that the city failed to comply, but the 
Appellate Division, First Department, reversed. Tuesday, the Court of 
Appeals reversed the First Department.

Judge Graffeo said that even though the city had secured opinions from top 
lead paint experts, many of them expressing concern over the exclusion of 
lead dust from the definition of hazard, it made no mention of those 
concerns when drafting the environmental statement. Similarly, the city 
gave short-shrift to concerns over lowering the age of children in the 
protected class, Judge Graffeo said.

"The negative declaration . . . does not contain a reasoned elaboration 
explaining why the City Council reached this conclusion," Judge Graffeo 
said. She said the city can revive Local Law 38 by revisiting the 
environmental impact issue and following the requisite procedural steps.

The ruling revives Local Law 1, which experts agree "is not a viable or 
realistic approach to protecting the city's population, particularly its 
young children, from lead exposure," Judge Graffeo said. Since that law was 
written, new studies show that disturbing intact paint exacerbates the risk 
of lead poisoning.

"In holding Local Law 38 null and void and remitting to Supreme Court, we 
expect that the parties will continue to work cooperatively to ensure that 
the resurrection of Local Law 1 does not further imperil New York City's 
children," Judge Graffeo wrote.

Matthew J. Chachere of the Northern Manhattan Improvement Corp. argued for 
the plaintiffs. Assistant Corporation Counsel Elizabeth I. Freedman 
defended the city.

Mr. Chachere said the ruling reinstates many appropriate safeguards against 
lead paint. He also said compromise along the lines suggested by Judge 
Graffeo is a realistic goal.

"The only aspect of all the regulations that the administration has 
complained about is the requirement that the city inspect for and order the 
abatement of all lead painted surfaces, including intact ones," Mr. 
Chachere said. "We have consistently offered to the city, both before 
enactment of Local Law 38, during litigation over Local Law 38 and at oral 
argument [at the Court of Appeals] to stay that one provision. If the city 
wants to work out an accommodation on that one aspect, I would imagine my 
clients would be willing to consent."

Corporation Counsel Michael A. Cardozo said he is disappointed with the 
ruling, but expects that the City Council, in a spirit of cooperation, will 
take action soon.

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PERKINS: PASS LEAD PAINT BILL
Newsday
by Marc Parry
June 22, 2003, 6:02 PM EDT

A Manhattan councilman Sunday called on his colleagues to pass a 
long-stalled bill that would stiffen the city's lead-paint restrictions. 
Councilman Bill Perkins (D-Harlem) charged that "systemic racism" and 
"benign neglect" have created an epidemic of lead poisoning among minority 
children.

"Every day that we delay is a day in which 20 or 30 children are being 
lead-poisoned," Perkins said at a City Hall news conference held to drum up 
support for the bill. The measure will receive its first public hearing 
Monday. It was introduced in November and has been bottled up in the 
Housing and Buildings Committee since then.

Under the proposed law, landlords would have to clean up lead dust instead 
of just lead paint. The dust is generated by paint that has deteriorated. 
Inhaling it can cause permanent brain damage. The bill, if enacted, would 
also shorten deadlines for cleaning up lead paint.

"This is an issue of environmental racism and environmental justice," said 
Maureen Silverman of the New York City Coalition to End Lead Poisoning. 
Silverman said 95 percent of lead-poisoned children are blacks and Latinos 
from low-income neighborhoods.

Landlords have fought to beat back the bill, citing two main reasons.

First, they say the law would result in costs of as much as $20,000 to fix 
every apartment in which peeling paint is a problem. Owners would have to 
sheetrock entire apartments for as little as two square feet of 
contamination, they say.

Second, landlords argue that the proposal would force them to keep track of 
children in every house and apartment. The current law requires parents to 
notify landlords of a child's presence.

Frank Ricci of the Rent Stabilization Association, the largest association 
of property owners in the city, said the current law works because it 
"requires parents and owners to work together." "The proposal would take 
parents out of the equation," he said.

About 50 supporters turned out for Sunday morning's rally. The supporters 
included tenant groups, unions and a handful of City Council members. Many 
accused Council Speaker Gifford Miller of holding up the bill. They said he 
prioritizes contributions from the real estate industry over the health of 
New York's children.

Councilman Charles Barron (D-East New York ) said 36 of 51 City Council 
members support the proposal, enough for an override if the Housing and 
Buildings Committee votes it down. "This bill should move swiftly through 
the council," he said. "Children are more important than real-estate 
interests."

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LEAD-LAW POL HAS HIS OWN PROBLEM BLDG.
NY Daily News
June 23, 2003
By Tamer El-Ghobashy and Joanne Wasserman, with Johnny Dwyer

A Brooklyn councilman set to hear testimony today on toughening lead laws 
owns an apartment building that has 144 violations - everything from 
peeling lead paint to rats to lack of heat and hot water, the Daily News 
has learned.

Kendall Stewart, a member of the City Council's Housing Committee who plans 
to vote against strengthening lead laws, confirmed yesterday he owns 
1740-1744 Nostrand Ave. in his East Flatbush district.

But he insisted the violations had been cleaned up.

Besides, he said, he was not to blame for the four-unit building's 
problems: The broken lock on the front door and broken mailboxes, the lack 
of electricity in the hallways? The tenants' fault, Stewart said.

"It's a cultural thing," he said of his tenants, many of whom are Haitian. 
"The Haitian folks, because of their poverty, will have five to eight 
people living in an apartment, and they will break the locks if one doesn't 
have a key."

The city's Housing and Preservation Department took Stewart to court in 
April, charging he owed more than $27,000 in heat and hot-water fines for 
weeks when tenants went without the services, records show.

Stewart, a podiatrist who joined the Council in 2002, said the penalties 
were reduced to $300 when he produced receipts showing he had resolved the 
problem in one day.

He also owns another building in his district, on Church Ave., that has 
five violations - including citations for roaches and a leaky roof, records 
show.

Bill languished for year

The Democrat is slated to hear today from tenant advocates who want the 
city's lead laws toughened - including a forced cleanup of lead dust and a 
shortened time for landlords to make repairs.

Landlords and City Hall officials are expected to testify in support of the 
current law, citing the declining numbers of children who have suffered 
lead poisoning in recent years.

Despite the backing of more than two-thirds of the Council, the bill has 
languished without a hearing for more than a year.

Stewart called it a "meal ticket for lawyers" who want to sue landlords, 
and said he would vote no.

The disclosure of Stewart's property problems enraged tenant leaders and 
took Council Speaker Gifford Miller (D-Manhattan) by surprise.

"This is the first we are hearing of this," said Chris Policano, a 
spokesman for Miller, who has not taken a position on the proposed lead 
bill. "We believe landlords should not be in violation, and when they are, 
they should cure them."

But Dave Palmer of the New York Public Interest Research Group said Miller 
"has been pushing this bill down a dead-end road. Now we find out that a 
slumlord has been allowed onto the housing committee."

"What we couldn't believe was that one of these deplorable landlords just 
so happens to be a city councilmember," said Gabriel Thompson of the Pratt 
Area Community Council, a Brooklyn-based tenants' rights group. "What kind 
of message does that send?"

A tenant at Stewart's building disputed the councilman's contention that he 
had repaired the building, where a News reporter yesterday encountered a 
broken front lock, flies and a foul smell in the hallway.

"He hasn't responded like he is supposed to," said the tenant, who didn't 
want his name used. "I'm mainly concerned about the rats and pests."