By Arthur Z. Schwartz
Almost as though related by fate, two community-based lawsuits addressed to attacks on the fundamental livability of our community proceed in parallel through the Court system. Both cases involve a fundamental decision by government to largely ignore the needs of our community and proceed while giving “lip-service” to the concept of community input. And both threaten the health and safety of Villagers.
The first, titled Progressive Action of Lower Manhattan v. Zucker [the NYS Commissioner of Health] challenges the steps taken since early 2017 to close Beth Israel Hospital, with 800 beds, and “replace” it with a 70-bed hospital at the corner of 14th Street and 2nd Avenue. In early 2017, Mt. Sinai Hospital, which bought Beth Israel in 2015, and had promised to keep it open, began closing major components of the hospital. Heart surgery went away. The Maternity Unit, which delivered thousands of babies every year, was closed, as was the neo-natal intensive care unit, and the pediatric surgery unit. In each case the hospital sought the permission of the NY State Department of Health (DOH) through the Certificate of Need (CON) process, a toothless process created by State regulations, but did so in 12 different applications, filed in a way which avoided any public review. DOH rolled over in each case and said “okay.” It demanded no need studies, no impact studies, and asked for no public input.
A suit was filed in November 2017. We argued that the closure plan had to be vetted under the State Environmental Quality Review Act (SEQRA), with a public process measuring its impact on the affected communities. We also argued that the CON process was handled by DOH in a perfunctory manner. At that point the closures stopped, while Beth Israel and the Attorney General tried to shut our lawsuit down. (An interesting note: Letitia James, then Public Advocate, and now the incoming Attorney General, wrote a letter to the Health Commissioner, in August 2017, echoing many of the same arguments being made in the lawsuit; will she now change her position as counsel to the DOH in this case?) But in September Judge Shlomo Hagler denied motions to dismiss the case and ordered briefing on the merits.
Beth Israel continues to have a vibrant Emergency Room, and hundreds of beds are still filled because general surgery still occurs. But many doctors have left, intern and residency programs go unfilled, and vast swaths of the hospital are a ghost town. In opposing the lawsuit, Beth Israel argues that it has expanded the capacity of its new hospital. What was once a two-story building, will now be 12 stories, but the bed count remains at 70—which means that no serious surgery will occur there. And women in Lower Manhattan (including the Village) will have to go to NYU to have babies, or some point north. Beth Israel argues that the construction of its new 12- story building will have to be subjected to a public process, and that is where the community will have input. But the input they propose is unlikely to change their mind.
The community, with the aid of elected officials, has two aces in the hole. First is the lawsuit—which could force Mt. Sinai-Beth Israel back to the drawing board—which means a genuine community needs study. Second is the part that has Mt. Sinai drooling; the full city block between 1st and 2nd Avenue, from 16th to 17th Streets, now zoned for Medical use, which Mt. Sinai wants to sell as a major condo development project. But that won’t get done without the cooperation of Council Members Carlina Rivera and Keith Powers. Rivera, now Chair of the City Council Hospitals Committee is a member and supporter of the Coalition to Save Beth Israel, and as a resident of the affected community, is ready to run with whatever leverage we can open with the lawsuit. Zoning changes need City Council approval.
The second project that a coalition of 18 block associations and community groups have in court is the Mitigation Plan being slowly imposed on the East and West Village, and the Lower East Side, by Department of Transportation Commissioner Polly Trottenberg, perhaps the most arrogant Commissioner in City government. That case is called 14th Street Coalition vs. Trottenberg.
Trottenberg is using the L Train shutdown, scheduled for next April (and an ensuing 15-month period) as an excuse to reconfigure the Village, Chelsea and the Lower East Side. She claims, with no statistical basis, that 500,000 people a day are going to either ride buses across 14th Street or crowd the 14th Street sidewalks, and that even more are going to board buses at the last L Train stop in Brooklyn, and ride for an hour to take subways to 14th Street, where they will change buses and commute to a north-south subway line. Among her plans is the closure of 14th Street to nothing but diesel buses (which will run every two minutes), 70 diesel buses an hour going both ways across the Williamsburg Bridge and then up 1st Avenue and Lafayette Street, and the creation of 11 foot wide bike lanes on 12th and 13th Streets, which take away all parking on one side and leave a narrow 10 foot path for vehicles —including the traffic which used to run on 14th Street and ambulances and fire vehicles—to proceed east and west. All affected residents are aghast, and no one except Trottenberg, and the bike enthusiasts whom she takes leadership from, really believes that swarms of people will be riding bikes across 12th and 13th Streets to get to their subway stops in the morning.
That lawsuit too relies on SEQRA, and claims that a proper environmental review, also called a “hard look,” was not done. In their defense DOT, with assistance from the Metropolitan Transportation Authority (MTA), claim that they have had hundreds of meetings, incorporated community input, and that they are exempt from SEQRA’s environmental study requirements. While that case awaits argument residents of 12th and 13th Streets are figuring out how to get fuel deliveries, UPS deliveries, and unload groceries in front of their homes now blocked by an 11-foot-wide bike lane. And residents of the East Village, on 14th Street, struggle with 16 hours a day of noisy dusty construction, as the MTA uses their block as a major construction zone.
Both cases will be argued in December. Perhaps by January the community will have its voice back on these important projects.
Arthur Z. Schwartz is the Democratic District Leader in Greenwich Village, and is lead counsel in the Beth Israel and L Train shutdown lawsuits.