Tuesday, July 29, 2008

Glaring gap: AY EIS ignored noise, vibration, disruptions faced by footprint residents

Grating, honking noise from construction equipment. Vibrations that shake buildings, enforcing a 7 a.m. wake-up call. Cracks in building walls and steps. Dust and dislodged paint in the house. Unsavory diesel and sewer aromas. Surprise cutoffs of water and gas. Long waits for restoration of utilities.

That’s life some days for the people--fewer than two dozen--living on the north side of Dean Street between Flatbush and Sixth Avenues in the Atlantic Yards footprint, as massive construction equipment is used to upgrade water and sewer connections destined to help service an 18,000-seat arena and thousands of apartments. (Click on graphics to enlarge.)

(See The Footprint Gazette blog for video here and here. On 7/25/06, the New York Times, in an article skeptical about AY blight claims, focused on this block.)

The AY catch

Here’s the catch: the Empire State Development Corporation’s (ESDC) voluminous environmental review, required to disclose the potential impacts of the project, said nothing about the impact on those in the footprint, whether residents or those working at or visiting Freddy’s Bar & Backroom, on the corner.

The Final Environmental Impact Statement (FEIS), which detailed the potential impact of the project, did acknowledge that construction activities might be “perceptible and annoying in buildings very close to a construction site.” But it didn’t acknowledge that some “very close” buildings might be on the north side of Dean Street, destined to be demolished for the project.

As the graphic at right shows, construction noise receptors were placed only at locations across the street from construction activities. (I've highlighted some--but not all--areas on Dean and Pacific Streets where there are residents, as well as a business open to the public. For example, I left out P.C. Richard/Modell's at Site 5 in the far west of the footprint.)

Two excavators have been working on the block, models 345C and 315D, equipment that in Caterpiller’s own brochures is shown by itself at a non-urban construction site, not in a residential street. (The current 345D model is similar to the 345C model.)

Some residents consider it a form of harassment, an effort to wear them down and choose buyouts rather than remain in lawsuits challenging the project. While there’s no evidence that’s the motivation, project planners’ effort to get the work done sooner rather than later certainly makes people uncomfortable.

Legal recourse?

It's hardly clear that there's legal recourse. "As there was no construction or infrastructure work going on when we filed the EIS suit in April 2007, this situation is not something we could have considered in that suit," Develop Don't Destroy Brooklyn spokesman Daniel Goldstein told me, after I queried him. (The dismissal of the case is under appeal, with a state appellate court expected to hear oral arguments in September. Success would not necessarily block the project but could require an additional and expanded environmental review.)

"But now that the intolerable situation for residents in the footprint—impacts which were not contemplated or reviewed by the ESDC in the environmental review process—continues to worsen we are reviewing and considering what legal avenues are available to us," added Goldstein, who lives on the south side of Pacific Street, abutting the north side of Dean Street. (At right, new larger pipes destined for installation are stored in a Dean Street lot, with Goldstein's building in the background.)

"Additionally we are advocating politically along with those residents, and doing our best to assist them," Goldstein added. "We urge our elected officials to bring relief to the residents in the footprint from the noise, vibrations and near round the clock disruptions impacting their lives in an unacceptable manner."

Residents, however, have told me that sympathetic elected officials have said there's not much they can do and less-sympathetic officials have pretty much passed the buck to the ESDC, the agency in charge.

[Update 11:35 a.m.: One of the people quoted below, WK, tells me his water service was out this morning for several hours, without notice, but was finally restored.]

ESDC punts

So, why were these residents left out? I suspect that planners assumed that, by the time construction activities began, no one would be there.

But I don’t know for sure, because, when I asked the ESDC why the impact on footprint residents was left out and whether that was standard operating procedure, the questions were ignored.

Similarly, I didn’t get an answer to the question of whether there’d been any attempt to measure noise or inspect for vibratory impacts for these residents.

ESDC avoidance of public policy issue

Goldstein told me that, as a footprint resident, rather than as a DDDB representative, he queried ESDC ombudsman Forrest Taylor, pointing to the FEIS graphic that omitted the footprint and stating that “the FEIS never contemplated people living in the project site while work was going on, so that needs to be reconsidered.” (Goldstein in February posted videos on YouTube showing late night construction work that interfered with his sleep.)

Taylor wrote back, “Since your attorneys have brought suit against ESDC with respect to the EIS, I have been instructed not to discuss your allegations with respect to the EIS, as these issues are being handled by the attorneys.”

Actually, Goldstein as an individual has not sued ESDC; DDDB has funded and led a challenge to the EIS joined by 25 groups, though that lawsuit, as noted, did not address the situation of footprint residents.

Residents of 473 Dean Street, home to the Footprint Gazette blogger, are plaintiffs in three suits filed by attorney George Locker against the ESDC and other defendants.

But putting the issue of plaintiffs aside, this public policy question deserves an answer.

ESDC’s response

Instead, ESDC spokesman Warner Johnston offered a general response to my questions: “The EIS contains a comprehensive analysis of the construction-related environmental impacts of the Atlantic Yards Project and requires that construction activities be performed in a manner that minimizes and mitigates impacts.”

While the EIS analysis is very extensive, I’m not sure it can be called “comprehensive,” given that impacts on footprint residents are left out.

He continued, “The specific construction-related issues touched upon in your email are noise, vibration, air quality and utility work. The FEIS identifies measures to address each of these issues, including the use of equipment that complies with the noise emission levels specified in Table 17c-3 of the FEIS (“Construction Equipment Noise Emission Levels”); other measures to address construction noise; vibration monitoring to protect historic buildings; dust-suppression measures; the use of ultra-low sulfur diesel fuel for all equipment having diesel engines; the use of diesel particulate filters or other best available tailpipe emissions reduction technology on all nonroad engines of 50 hp or greater and on all concrete trucks and concrete pump trucks; and many other measures specified in the FEIS in considerable detail.”

"Maximum extent practicable"

It’s not clear how much impact those measures have. But the standard seems flexible. Wrote Johnston, “In its SEQRA [State Environmental Quality Review Act] Finding Statement (approved December 8, 2006), ESDC determined that the numerous measures put into place to minimize and mitigate construction-related impacts were sufficient and appropriate and would avoid or minimize adverse environmental impacts to the maximum extent practicable. ESDC stands by that finding.”
(Emphasis added)

The “maximum extent practicable” statement seems to be the key phrase. It may just not be practicable to make things more comfortable for footprint residents.

(At right, cracks at 473 Dean Street, alleged to have been caused by the construction work, but I don't have proof. More from the Footprint Gazette.)

Wiggle room under SEQRA?

According to my reading of the State Environmental Quality Review Act (SEQRA), it's hardly clear that those made uncomfortable could make progress in court. SEQRA states:
Within the framework presented in paragraph 617.9(b)(5) of this subdivision, EISs should address only those potential significant adverse environmental impacts that can be reasonably anticipated and/or have been identified in the scoping process.

Should this have been reasonably anticipated or identified? Arguably, but I could imagine the ESDC responding in court that it wasn’t anticipated.

Then again, developer Forest City Ratner's willingness to provide noise-abating air conditioners to those both inside and outside the footprint indicates that someone recognizes that footprint residents are situated similarly to those neighbors who were recognized in the FEIS.

What SEQRA said

The SEQRA Findings Statement acknowledges that Dean Street, from Fourth to Vanderbilt Avenues, was among the locations “expected to experience significant construction noise impacts.”

It states that “construction is not expected to result in any significant adverse vibration impacts,” but acknowledges impacts:
Construction traffic and noise will alter the quiet character of Dean Street and Pacific Street in the immediate vicinity of the project site. A number of specific measures to minimize noise, vibration, dust, and other construction-related nuisances will be employed where practicable. The impacts will be localized and will not change the character of the larger neighborhoods surrounding the project site.


The character of life on those streets, however, has changed.

Still, the only unmitigated impacts acknowledged in the FEIS are outdoor locations: the Dean Playground, Brooklyn Bear’s Pacific Street Community Garden or South Oxford Park. The document states:
If owners or tenants of the Temple of Restoration, the Pacific Branch Library and residences in the vicinity that will experience noise impacts elect not to take advantage of noise mitigation measures, the Project will have construction noise impacts at these locations.


However, footprint residents say that noise mitigation measures--notably double-pane windows and air conditioners, supplied by developer Forest City Ratner if not already installed--don’t fully work.

Responding to questions

Johnston concluded, “ESDC welcomes input from the community and certainly believes that members of the community have a legitimate right to raise their concerns about any aspect of the project, including its construction. ESDC will continue to attempt to address any specific concerns raised by the community.”

Any recourse?

I spoke to the Dean Street resident who blogs at The Footprint Gazette. (I’ll call him FG.) “We’ve called 311 a hundred times and spoken with [ESDC ombudsman] Forrest Taylor a number of times.” Elected officials, both for and against the project, have expressed varying degrees of sympathy, but haven't been able to help.

“The 311 calls haven’t really resulted in anything,” he said. “If we call with a noise complaint, or my apartment was flooded with diesel fumes, they come at a totally different time. I was trying to get them to come by, immediately.” Indeed, he said the excavator's movement of large steel plates in the morning can cause major vibrations, but when I visited, it was relatively tolerable, and the same thing happened, according to FG, the morning Taylor visited.


“We’ve gotten some minor things accomplished,” FG said, citing Taylor’s intervention. For example, workers had put a Porta-Pottie right in front of FG’s building, though there’s ample space on the block in front of empty buildings or empty lots. Later in the day, it was moved. (FG instead has fought back with sardonic videos and ungentle protest songs.)

Forest City Ratner agreed to supply air conditioners for those who don’t have them. “It doesn’t really help,” FG said. “It deeply penetrates all parts of the apartment,” FG said of the sound. “I keep earplugs, but it’s no relief. Once they start, I’m up.”

“We’ve all had our utilities shut off,” FG said. “There have been a couple of times we got no notice, once they rang my bell and said they were going to shut off the water for an hour. The Community Liaison officer then came by and apologized profusely.”

The utility snag

A resident down the block, whom I'll call WK, took the day off from work yesterday in a fruitless wait for KeySpan to show up and restore gas service that had been off for four days.

The announcement had not been placed on his front door and he hadn't tried to use the gas last Thursday or Friday, given that his water was out those days. (He went without showers.) So when his housemate and a guest tried to cook over the weekend, they brought back food partly prepped only to find the gas was off.

"No one knows when anyone [from the utility companies] is going to be here," WK said, crediting a representative from Forest City Ratner's Community Liaison Office for visiting three times yesterday in a cordial but ultimately fruitless attempt to coordinate restoration of service.

Gas in his building is scheduled to be turned off twice more during the first eight days of August, which will require utility representatives to walk through the entire, mostly vacated building, checking multiple connections. That means more time off for WK.

WK said that at least one utility shutoff was not planned but occurred when workers accidentally hit the gas lines, leading him to wait around for a lengthy inspection by KeySpan.

“Normal people do not have to live like this,” he said. "I'm not very happy about the little things--not having gas service for a couple of days, or not having water, but that's not the point," he added. "This whole [project] shouldn't be happening in the first place."

A barrier

Among the Mitigation Commitments promised are a minimum 8 foot perimeter barrier (constructed of 3/4” thick plywood), with a 16 foot barrier (of 3/4” thick plywood) adjacent to sensitive locations, plus “[w]here practicable, use of quiet construction procedures,” the use of “quality mufflers,” and “[w]here practicable,” the use of noise curtains and equipment enclosures.

The wall blocking off the sidewalk is meant to protect residents from construction equipment. It also provokes a feeling of isolation. FG produced a mash-up audio with Ronald Reagan apparently targeting the Brooklyn Borough President: Mr. Markowitz Tear Down This Wall.

Also, the wall makes it impossible for a vehicle to come by to load anything and blocks emergency vehicles, as FG has detailed.

Down the block, WK says he believes the wall led to an attempted break-in, since the would-be burglar could act under some cover. One outside door was pried open, but the burglar was stopped before he got through a second door.

Response to comments

In the Response to Comments chapter of the FEIS, the ESDC acnowledges:
Response 17-10: As noted in the DEIS, with the exception of the case of fragile, typically historically significant structures or buildings, generally construction activities do not reach the levels that can cause architectural or structural damage, but they can achieve levels that may be perceptible and annoying in buildings very close to a construction site.


Also, the FEIS states:
Response 17-17: The DEIS included an assessment of the potential vibration impacts of construction activities on structures and residences near the project site. Vibratory levels would not result in architectural or structural damage to nearby structures.


There's no evidence, however, whether the buildings in the footprint were checked. After all, how important is structural damage in buildings destined for the wrecking ball?

Interestingly enough, as part of the EIS lawsuit, Jim Vogel, a member of the steering committee of the Council of Brooklyn Neighborhoods and a resident of Pacific Street one block west of the project footprint, filed an affidavit regarding vibations.

He stated that, in March 2007, more than three months after the FEIS was submitted, engineers working on the project were inspecting buildings on his block that might be affected by vibrations--and that his building would need some protection or stabilization.

Chapter 17, Construction Impacts, states, regarding vibrations:

The buildings of most concern with regard to the potential for structural or architectural damage due to vibration are the Swedish Baptist Church and nearby row houses along Dean Street, which are immediately adjacent to the site of Building 15. The project sponsors will implement a monitoring program to ensure that no architectural or structural damage will occur.


That raises the question: what about the houses down the block on Dean Street? At right is a crack at 473 Dean Street.

Vibration monitoring

Regarding mitigation of vibrations, the FEIS says:
The buildings of most concern with regard to the potential for structural or architectural damage due to vibration are the Swedish Baptist Church and nearby row houses along Dean Street, which are immediately adjacent to the Site of Building 15. Vibration levels at buildings within this area will be kept below the 0.50 inches/second PPV limit. In addition, the project sponsors will implement a monitoring program to ensure that this limit is not exceeded, and that no architectural or structural damage will occur. At all other locations, the distance between construction equipment and receiving building is sufficiently large to avoid vibratory levels which would result in architectural or structural damage.


The site of Building 15 is on Dean Street east of Sixth Avenue, with four-story apartment buildings immediately adjacent.

However, apparently there's no such monitoring of buildings on Dean Street west of Sixth Avenue. So it’s hardly clear that “the distance between construction equipment and receiving building is sufficiently large to avoid vibratory levels which would result in architectural or structural damage.”

The FEIS states:
For limited periods of time due to infrequently occurring construction activities, vibratory levels will be perceptible in the vicinity of the construction site but would not be considered significant adverse impacts.


Again, it depends on who’s receiving the impact.

Neighborhood character

The FEIS says, regarding neighborhood character:
Construction activity associated with the proposed project would have significant adverse localized neighborhood character impacts in the immediate vicinity of the project site during construction. The degree of this change would depend on the type of construction activity being performed, the location and the length of time this disruption is expected to occur, and the character of the immediately adjacent neighborhoods. Construction would change the character of the project site from an underutilized and blighted area to one of construction activity. The existing uses on the site do not contribute to a vibrant neighborhood character, and their replacement with construction activities would not result in significant adverse impacts to neighborhood character on the project site.

Construction would also have significant adverse impacts on the local street network and cause construction-related noise, particularly along the Dean Street corridor just south of the project site.


Presumably, the north part of the Dean Street corridor, within the project footprint corner, would face even more construction-related noise. And while the ESDC may consider it underutilized and blighted, those living there have well-kept apartments that they are using every day, as FG details (above).

Immediate vicinity, losing character

The FEIS concludes:
The impacts would be localized and would not alter the character of the larger neighborhoods surrounding the project site. The proposed project would not result in significant adverse neighborhood character impacts during construction, except in the immediate vicinity of the project site.


In other words, if you live in the footprint, you’re out of luck. And, as far as I can tell, not in a very good mood.

Noise impacts

Regarding mitigation of noise, the FEIS says:
However, after evaluating all practical source and path controls, there would still be locations where construction activities alone and construction activities combined with project-generated traffic would result in predicted significant adverse noise impacts on the adjacent properties... Where they do not, receptor controls would be made available to residents within the significant adverse impact area identified in Figure 17c-2. At the Brooklyn Bear’s Community Garden, the Dean Playground, and South Oxford Park, because of safety and aesthetic concerns, there is no feasible and practicable mitigation that would eliminate project impacts; however, with respect to the Dean Playground, the impact would be partially mitigated by the provision of an amenity to the park users.


“Receptor controls” means air conditioners and double-pane windows.

It continues:
Figure 17c-2 is a map summarizing the locations where significant impacts are predicted to occur due to Phase I construction or the cumulative effects of Phase II construction activities and project-generated traffic. The locations where significant impacts are predicted to occur are typically the floors of a building which have a direct line-of-site to the site of construction.

In general, even during construction, L10 noise levels would generally be in the high 60 to high 70 dBA range and would be in the CEQR Technical Manual’s “marginally acceptable” to “marginally unacceptable” categories.
...(Noise levels in many areas of New York City are in the “marginally unacceptable” range.)


It’s all relative

The FEIS concludes:
While construction activities would be noticeable and intrusive, the noise levels produced by construction activities with the incorporated noise reduction measures would be relatively low for construction of a project of this magnitude. Additional mitigation measures that were identified to further reduce these incremental construction noise levels at nearby residences are described below and summarized in Chapter 19, “Mitigation”.

(Emphasis added)

But there are few projects of this magnitude, so, for those in the immediate vicinity, that’s surely cold comfort.

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