Comments on the Downtown Hospital Draft Environmental Impact Statement (Draft EIS). The Applicant is Mohawk Valley Health System. The Project is the proposed Hospital.
Part
I. The
Site Selection Process:
This
issue is addressed in the Draft EIS in Section 2 and Appendix D.
A.
The Study vs. a Summary:
The
Applicant was requested numerous times to disclose the Site
Selection Study it relied upon in choosing the Downtown
site. Instead, the Draft EIS supplies only a “Summary Memorandum”
of the site selection process (and only in draft form). This appears
at Appendix D to the Draft EIS.
The
Applicant needs to submit the actual study its Board
relied upon rather than a summary, so the Public
and relevant authorities do not have to speculate
on what was left out.
B.
The
Need for a New Site:
When
Applicant
announced
in
September, 2015, that
it had chosen to build the Project at the Downtown site, it
also stated
that “In
the event the downtown site proves not to be financially viable, we
will move
on to our
second site option at the St. Luke’s Campus, which the board feels
will also serve the community well.” This
is an admission that the Project is feasible at
the St. Luke’s Campus
in New Hartford.
Since
an applicant under
SEQRA cannot
be made to consider sites
it does
not own
(see 6
NYCRR 617.9(b)(5)(v) ('g')), the
Draft
EIS
needs
to explain why the
Applicant
felt
compelled to do so.
C.
The
Lack of Public Engagement:
Applicant’s
Project
depends
upon a grant provided under Public
Health Law
(PBH) Section 2825-b.
The grant application will
be judged on “the
extent to which the applicant has engaged the community affected by
the proposed capital project and the manner in which community
engagement has shaped such capital project.”
(PBH
2825-b
(4)(f)).
The Applicant never at any time engaged the Public
on the proposed
location of the Project.
In
fact, there is evidence that local officials deliberately kept the
discussion of facility location away
from the Public
(See
word-searchable
e-mail
‘dump'
or images,
9/1/15
e-mail, Anthony Brindisi to Steven DiMeo and Anthony Picente: “I
don't want public opinion derailing this.”)
Had
the Applicant engaged the Public at
the site selection stage,
Applicant
would have been able to develop
appropriate siting criteria to address the
Public Interest
(e.g., convenience
of the Public to access current medical providers and the new
facility, loss
of businesses
and taxable
properties, disruption to traffic patterns,
need
to construct new municipal facilities and public infrastructure,
changes to community character,
facility
location
relative to transportation of hazardous substances, etc.).
Given
PBH
2825-b(4)(f),
if
the Applicant continues to pursue a
site other than St. Luke’s Campus,
it needs to reopen the site selection process for Public Input
and to develop appropriate criteria for choosing a site that protects
the Public Interest.
D.
Inconsistent Screening of Sites:
The
Summary Memorandum states
that a Geographic
Information
System
analysis was initially
used to
“identify parcels 50 acres and larger that could potentially
host a new combined facility”. Of the 12 sites subsequently
considered for “fatal flaws,” an exception to the above rule
appears to have been made for the Downtown Site because it is neither
a “parcel” (actually being about 90 parcels as shown on County
ownership maps) nor is it 50 acres (actually being from 17 to 34
acres depending upon how the site is defined). Since the other 11
sites (e.g., 5 of them are golf courses) more closely match the
50-acre-parcel rule, the Downtown site is dissimilar to the others.
The
Applicant needs to explain why an exception was
made to its 50-acre-parcel site-screening rule
to put the Downtown Site on the
list of sites to be considered, otherwise its placement
on the list appears arbitrary.
E.
Fatal Flaw Analysis –
Land Use History:
According
to the Summary Memorandum, the 12 sites were screened for “fatal
flaws” – “factors that could impact the development potential
of the site.” The Downtown Site is currently occupied by some 40
entities including Private Businesses, Not-For-Profits, and a
Municipal Police Garage. It
is also occupied by streets that
would have to close to accommodate the Project.
The Site has
been in use for nearly
200 years. The length
and level of use of the
Downtown Site (detailed
in Appendix E of
the Draft EIS), which
could be expected to complicate any redevelopment, make
it markedly dissimilar
to the other sites
which are mostly
outside the urban core.
The
Applicant needs to explain why the
current and past
history
of uses were
not considered a “fatal flaw” that would warrant rejection of the
Downtown Site,
otherwise its
“fatal flaw”
analysis appears
arbitrary.
F.
Fatal Flaw Analysis –
Existing Plans
and Rules
The
current occupants and uses of the Downtown Site reflect almost
200 years of
official City of Utica
decision-making
(ranging from zoning
and street layout to lot sizes).
Applicant’s proposal to replace the Columbia-Lafayette neighborhood
with a campus of medical buildings, parking facilities, and
discontinued streets is
inconsistent with these prior decisions. The
Gateway
Historic Canal District (which
covers the Downtown Site)
has
a plan and design
requirements that were adopted in 2005. The
Utica Master Plan of 2011 and its 2016 Update, were
officially adopted to
guide future development within the City. None
of these call for a
transformative change to the Columbia-Lafayette Neighborhood. Neither
the Applicant, nor its consultants,
nor the
elected/non-elected persons/officials
who want the hospital Downtown
(see
K.,
infra)
have the legal
authority on their own
to change Utica’s
official plans, ordinances, etc.
The
Applicant needs to explain why the
existing laws
and plans etc.
were not seen as
a “fatal flaw”
that would require rejection of the Downtown Site, otherwise
its “fatal
flaw” analysis
appears arbitrary.
G.
Fatal
Flaw Analysis – Objectives
of PBH 2825-b:
The
Applicant currently operates
two
hospitals
(St. Elizabeth’s and St. Luke’s) and
a number of other facilities in the Utica area. The
largest facility is
St.
Luke’s Hospital
in
New Hartford
with
370 inpatient beds (inclusive
of 24 physical
medicine and rehabilitation beds co-located
in a separate building on the St. Luke’s Campus with a 202 bed
nursing home).
Applicant
proposes to use the grant provided under PBH
2825-b
to
consolidate
and reduce beds from its 201-bed
St.
Elizabeth’s Campus (SEMC)
with
those from St. Luke’s into
a new facility that
would
have 373 beds (excluding
the
24
physical medicine and rehabilitation beds, which would remain in
their current location at
St. Luke’s)
(see
Draft
EIS
p173/3527). In
spite of the consolidation of
hospital beds from two facilities, the
Applicant proposes to maintain some functions at both the St.
Elizabeth’s and St. Luke’s Campuses.
The
St. Luke’s Campus qualifies for funding under PBH 2825-b because,
being on Utica’s western boundary, it is located in Oneida County’s
“largest population center,” the wording of
the law
deliberately not restricting funds to the City of Utica. As noted
under B., above, Applicant acknowledged that the Project is feasible
and
would
be built on
the St. Luke’s Campus if it could not be done
Downtown. If
the new facility were to be constructed at the St.
Luke’s Campus instead
of Downtown,
it
would
represent
an increase of only
27
hospital
beds (about
7%)
on that
site.
In
this regard it is also noted that the St. Luke’s Home on-site
has already reduced
its
long term care beds by 40 (Draft EIS p653/3527).
While
long term care
beds
may not be the same as hospital beds, it suggests that even with the
addition of beds transferred
from
SEMC,
the overall use of the St. Luke’s Campus
with
a combined hospital
facility
would
be less intense
than it had been in the past.
The
Project is
supposed
to
be judged upon the extent to which it “will contribute to
the integration of health care services and long term sustainability
of
the applicant...” (PBH
2825-b
(4)(a)).
Focusing
on (4)(a)’s
“sustainability” clause,
creating
an additional
campus Downtown
for
the
Applicant
to build and maintain intuitively
seems
to contradict this goal. Intuition,
however, appears
substantiated by Applicant’s own numbers which reveal that,
in
spite of a projected reduction of 184 employees, there
will be
an
almost
33%
INCREASE in the number of employees PER
BED
from about 4.75 before consolidation to at least 6.3 after
consolidation. (See
the
number of beds cited above and Applicant’s pre and post
consolidation employee estimates at
Draft EIS pp589-90/3527).
Focusing
on the “integration of health care services” clause of
PBH2825-b(4)(a),
placing
an
additional 2
miles between a
new
hospital Downtown
and
Applicant’s 24
bed rehabilitation
and 202
bed skilled
nursing facilities
remaining
at
St. Luke’s
seems
contrary
to
both
the
"integration”
required by (4)(a)
and
PBH
2825-b’s
general
purpose
to “consolidate
multiple licensed health care facilities...”
The
Project is
also to
be
judged on “the extent that the proposed capital project furthers
the
development
of primary care and other outpatient services...”
PBH
2825-b
(4)(d).
The
presence of St. Luke’s Hospital has spawned a
de
facto
medical district of providers in the Utica Business Park and along
Burrstone and French Roads (e.g.
Slocum-Dixon Medical Group, Omni Surgical Center, Mohawk Valley
Endoscopy Center).
Removal of the anchor institution, St. Luke’s Hospital, to Downtown
Utica will
result in less convenience for the medical providers and their
patients, reduce
opportunities for collaboration,
and appears
contrary
to the intent of PBH
2825-b
(4)(d).
Since
it acknowledges the feasibility of putting the Project on the St.
Luke’s Campus and
its plan to retain at
least some services
both
there
and at SEMC,
the Applicant needs to explain
why the
purpose and provisions of PBH
2825-b
were
not seen as a
“fatal flaw” to the Downtown Site
(and
to
any site
other than St. Luke’s Campus),
otherwise
its “fatal
flaw” analysis
appears to
be arbitrary.
H.
Arbitrary/Subjective
Criteria and Ranking Scheme:
After
most of the sites were eliminated due to “fatal flaws” the
Summary
Memorandum
indicates
that the remaining
three
(St. Luke’s, Downtown, and the Psych Center) were scored based on
points assigned for certain criteria. As
noted under C,
above, the
Applicant made no
effort to determine criteria to protect the Public Interest.
The
criteria that
were chosen
appear
arbitrary/subjective.
For
example, proximity
to the Thruway and Oriskany Blvd. is
deemed
important, but proximity to the Parkway/Pleasant/Burrstone corridor
that would collect traffic from Corn Hill,
South East Utica,
and
northeastern
Town of New Hartford; and
French Rd./Champlin Ave. that would collect traffic from South Utica
and New Hartford Village, is
not.
Distance to employees (using zipcode “centroids” rather than
actual distances) is deemed important, but distance to actual
patients is not, and distance to medical providers is not.
The
scoring appears equally arbitrary/subjective.
Two
points are assigned to Downtown for having a “Potential microgrid
opportunity,” while St. Luke’s received no points for actually
having a microgrid (the
Co-Gen Facility).
Why
were 4 points not deducted from Downtown for the 2500 foot gas line
referenced on Draft EIS p. 94/3527? Why
was a point not added to St. Luke’s for not encroaching on a
potential federal wetland when the Draft EIS’ “Capacity Analysis”
(p. 1596/3527) demonstrates project elements could be arranged
on-site so as not to encroach on the wetland?
As
previously indicated,
the criteria have not been related to the purpose, objectives and
goals of PBH
2825-b
.
In
so far as the environmental criteria are concerned, they appear
selective, subjectively scored and inadequately explained and have
not been related to the legal requirements of SEQRA (as detailed
under Part III,
infra)
to
avoid/minimize environmental impacts or
of
other
provisions of the Environmental Conservation Law. Applicant’s
choice
of
St. Luke’s rather than the 2nd-ranked
Psych Center as its “second option” suggests
that even Applicant believes that the scoring process was
arbitrary
and subjective.
In
light
of the above,
the criteria and scoring provisions of the site selection process
appear to have
been
arbitrarily
chosen
and
calculated to achieve a predetermined result, making
them unreliable for decision-making.
I.
Capacity Analysis: A “conceptual
capacity analysis” was performed on the top three sites to,
essentially, position the elements of the Project on those sites.
Interestingly, the analysts chose to distinguish an “urban site”
(with a 10 acre requirement) from a “suburban site” (with a 45
acre requirement) without explaining why an
urban configuration of elements could not be employed on a suburban
site to conserve space, avoid environmental impacts, and allow for
future growth. Although an answer to the question
“What is the cost premium of the recommended site?” is
promised, it appears no where. (Draft
EIS p. 39/3527,
and Appendix D).
Again, the selection of data and
conclusions presented appear to be arbitrary and unreliable for
decision-making.
All
levels of government that will fund and/or approve aspects of the
Project are obliged
to make a SEQR finding that the project will avoid or minimize
adverse environmental impacts to the maximum extent practicable
(etc.).
All
draft environmental impact statements must contain “a
description and evaluation of the range of reasonable alternatives to
the action that are feasible, considering the objectives and
capabilities of the project sponsor. . . The range of alternatives
may also include, as appropriate, alternative: (a)
sites . . .”
(6
NYCRR 617.9(b)(5)(v)(a)).
While
an applicant cannot be made to consider sites it does not own or
have under option as
an alternative
(see
6 NYCRR 617.9(b)(5)(v)
(‘g’))
(i.e.,
the Applicant here could not have
been
made to consider Downtown as an alternative),
where
an applicant, as
the Applicant here,
admits
that it
owns a site that meets all its objectives
and capabilities,
a
government agency could
not honestly make its SEQR finding if it appeared that the owned-site
might
better avoid/mitigate adverse environmental impacts.
The
State has promulgated
a non-exhaustive list of such adverse
environmental impacts
in 6
NYCRR Part 617.7
(c)(1).
The Site
Selection Process failed to incorporate
these criteria
into
the analysis of site alternatives to permit the determination of
which
sites
best minimized
or avoided
adverse environmental impacts (see
Part III
infra)
Failure
to include this analysis is fatal to
going forward on the Downtown choice because at this point the record
is incomplete
for
the purposes of
supporting
a SEQR finding. The
EIS needs to supply this information and be able to support a
conclusion that the Downtown Site better minimizes/avoids
environmental impacts.
K.
Undue
Influence:
Various
e-mails (see
e-mail
‘dump’
or
images)
exchanged
in January and February 2015 (about
the time that the PBH
2825-b
funding
was announced)
among County Executive Anthony Picente; former State Senator, County
Executive and current counsel to MVHS Raymond Meier; Lawrence
Gilroy, Co-chairman of the Mohawk Valley Regional Economic
Development Council (MVREDC);
Mohawk
Valley EDGE (MVEDGE)
President
Steven DiMeo and Assemblyman Anthony Brindisi; reveal
that this
group of
individuals, who
are effectively the local “gate-keepers” controlling Applicant’s
access to the State’s Grant apparatus, wanted
the Project to
be located
Downtown for
urban renewal purposes and
that they would
try to steer
the process to that end.
Relevant
to
this
is
the
2/3/2015 e-mail
from
Mr.
DiMeo
to Mr.
Brindisi
wherein
Mr.
DiMeo stated:
"
… My whole thought process in bringing Elan on board is to
make sure that we guide siting decision in favor of downtown..."
[emphasis supplied].
MVEDGE
hired Elan to do the site selection study, and the Summary Memorandum
was provided by MVEDGE, Elan, and O’Brien
&
Gere (OBG, also author of the Draft EIS).
Also
relevant is
the 11/5/2015 e-mail from Mr.
Brindisi to Mr. DiMeo, wherein
Mr.
Brindisi stated:
Against
the backdrop of a Summary Memorandum that shows
an inconsistent and somewhat arbitrary process, the still-secret
status of the siting study, and Applicant’s voluntary designation
of St. Luke’s Campus as its ‘second option,’ the
e-mails
suggest
that the site
selection process may have been tainted by undue influence and that
the conclusions and recommendations of the site selection process, to
the extent reported in the Draft EIS, reflect this influence and must
be discounted
accordingly.
L.
Conclusions regarding Site Selection:
The
Applicant is unable to proceed on the Downtown Site in light of its
ownership of a satisfactory site at St. Luke’s Campus, and the lack
of data in the EIS to support a conclusion that the Downtown Site
better avoids/minimizes adverse impacts than the St. Luke’s Campus
– which is unlikely given the analysis in Part III below.
Applicant’s
choice of its St. Luke’s Campus as a “second option” is
supportable on the existing record because it already owns the site
and cannot be made to consider sites it neither owns nor has options
upon. If the Applicant wants to proceed with the Project on the St.
Luke’s Campus, it would accordingly have to revise its designs and
the EIS.
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