Wednesday, January 16, 2019

Part I. Site Selection - Downtown Hospital DEIS

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-bs 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.

J. The Site Selection Process’ failure to incorporate 6 NYCRR 617.7(c)(1) criteria makes the Draft EIS incomplete and insufficient to support SEQR findings.
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:

“… I feel like walking away from this whole thing and telling the community and hospital if you don't want this thing downtown then good luck at St Luke's and don't come see me for one ounce of state support ...”
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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