2 CITY COUNCIL

CITY OF NEW YORK

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THE TRANSCRIPT OF THE MINUTES

of the

COMMITTEE ON HOUSING And BUILDINGS

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10 December 12, 2003

Start: 11:30 a.m.

11 Recess: 2:30 p.m.

12 City Hall

Council Chambers

13 New York, New York

B E F O R E:

MADELINE PROVENZANO

16 Chairperson,

COUNCIL MEMBERS: Joel Rivera

18 Diana Reyna

Tony Avella

19 Gale Brewer

Leroy Comrie

20 Lewis Fidler

Robert Jackson

24 LEGAL‑EASE COURT REPORTING SERVICES, INC.

17 Battery Place ‑ Suite 1308

25 New York, New York 10004

(800) 756‑3410

2 A P P E A R A N C E S

COUNCIL MEMBERS:

Melinda Katz

5 Kendall Stewart

James Oddo

6 Philip Reed

Tracy Boyland

7 Domenic Recchia

Peter Vallone, Jr.

2 A P P E A R A N C E S (CONTINUED)

Andrew Hoffman

4 President

Community Housing Improvement Program

David Pechefsky

6 Finance Division

Council of the City of New York

Larian Angelo

8 Finance Division

Council of the City of New York

Jeffrey Haberman

10 Counsel and Deputy Director

Infrastructure Division

11 Council of the City of New York

12 Jay Damashek

Deputy General Counsel

13 Council of the City of New York

14 Chris Collins

Counsel and Deputy Director

15 Land Use Division

Council of the City of New York

Gail Benjamin

17 Director, Land Use Division

Council of the City of New York

1 COMMITTEE ON HOUSING AND BUILDINGS

2 CHAIRPERSON PROVENZANO: Good morning.

3 My name is Madeline Provenzano, and I chair the

4 Committee on Housing and Buildings.

5 Thank you for attending this hearing

6 on proposed Intro. No. 101‑A, in relation to

7 childhood lead poisoning prevention.

8 Proposed Intro. No. 101‑A has been

9 the subject, or has been subject to numerous

10 revisions since the introduction of this bill.

11 Today's hearing will be conducted on

12 the latest version of the bill, which is available

13 for those of you who need it.

14 The version of this bill before the

15 Committee is dated 12/5/03, 10:40 p.m.

16 The Committee has held several

17 hearings on this matter, the last of which was

18 conducted on December 10th.

19 Also, before this Committee today is

20 a preconsidered resolution by Council Member

21 Perkins, finding that enactment of proposed Intro.

22 101‑A does not have a significant adverse impact on

23 the environment and is consistent with the same

24 Environment Quality Review Act.

25 At this point, Terzah Nasser will

1 COMMITTEE ON HOUSING AND BUILDINGS

2 explain a problem that we had at the last hearing

3 and we need to reenact a part of it that was not

4 recorded.

5 MS. NASSER: Terzah Nasser, Counsel to

6 the Committee on Housing and Buildings. At the

7 hearing on December 10th, we had a power

8 fluctuation, such that we lost some of the audio

9 portion to the hearing. We have invited Mr. Andrew

10 Hoffman to return to the hearing and to present his

11 testimony, to read into the record his testimony

12 again, because we lost a fair portion of his

13 presentation, and some of the exchange with the

14 members.

15 Mr. Hoffman, thank you.

16 MR. HOFFMAN: Good afternoon. I mean,

17 good morning. My name is Andrew Hoffman, I'm

18 President of the Community Housing Improvement

19 Program, a property owner, advocacy organization,

20 also an owner and manager of housing in New York

21 City.

22 I'm also the father of three children

23 who had grown up in an apartment in New York City

24 built before 1960, presumably containing lead‑based

25 paint.

1 COMMITTEE ON HOUSING AND BUILDINGS

2 I don't say that to be funny, but I

3 say that to let the Council members present know

4 that I'm here for the same reason that you guys are

5 here for, to protect the children of the dangers of

6 lead‑based paint.

7 The City Council now finds themselves

8 in a typical job. The task here is how to prevent as

9 much as possible young children from being affected

10 from the dangers of lead paint. Unfortunately, what

11 the City Council has done, despite previous

12 testimony by myself and others, is to create a

13 series of measures which will make the operation of

14 affordable housing in New York City much more

15 costly.

16 Local Law 1 was an imperfect law. It

17 was followed by Local Law 38, which was heavily

18 negotiated and although not perfect, it did a much

19 better job in protecting children from the dangers

20 of lead‑based paint.

21 Local Law 38 provided a roadmap for

22 myself and other owners to help eliminate the

23 hazards associated with the paint, and in fact lead

24 paint poisoning has dropped dramatically, while

25 Local Law 38 was in effect.

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2 Intro. 101 takes us in a much

3 different direction.

4 First, it gives plaintiff attorneys a

5 boom by eliminating the minor protections property

6 owners had under Local Law 38. I'm sure we've all

7 been on the City subways and we've seen the ads for

8 the plaintiff attorneys guaranteeing money for

9 parents of children poisoned by paint.

10 Under Local Law 38 we had some minor

11 protection, but if Intro. 101 is passed in its

12 present form, it would open the flood gates to

13 plaintiff's attorneys, it would dramatically

14 increase our property insurance, it will make lead

15 insurance unaffordable and probably unattainable.

16 It's imperative the Council reach out

17 to the State Insurance Department so they can hear

18 from another governmental agency the facts

19 concerning what Intro. 101 will do to the insurance

20 industry.

21 The day‑to‑day operations of my

22 building will become much, much more costly. Vacant

23 apartments will now have to be painted by

24 lead‑certified workers, even if I know that a child

25 under seven will not be occupying that apartment, I

1 COMMITTEE ON HOUSING AND BUILDINGS

2 still have to prepare that vacant apartment as if a

3 child under seven was going to occupy that

4 apartment. That's simply unfair.

5 This introduction provides funding,

6 education for City inspectors, including continued

7 education for inspectors and supervisory personnel,

8 but no where in this introduction is any funding

9 provided to help owners deal with this law, and I

10 think that's also very unfair.

11 It's clear from listening to prior

12 testimony that we all need a workable law to protect

13 the children. CHP was able to work, CHP, my

14 organization, was able to work with the Council on

15 some small aspects of Intro. 101. A continuous

16 dialogue concerning the Intro that helps clarify the

17 100 square foot issue, previous the 100‑square foot

18 issue pertained to the whole apartment, and it was

19 clarified to pertain to just one room and we

20 appreciate the Council's help on that matter. But we

21 need to continue the same dialogue when it comes to

22 the insurance issue.

23 In the seventies we couldn't get

24 asbestos coverage, two years ago there was terrorism

25 coverage that was a problem, and now mold insurance

1 COMMITTEE ON HOUSING AND BUILDINGS

2 is excluded from almost all of my insurance

3 policies.

4 After you pass Intro. 101, that

5 insurance will be nonexistent or unattainable. More

6 needs to be done and I'm ready to work with all

7 those concerns to make this bill a better one. We

8 all want the same thing. We do not want our children

9 to be affected by lead‑based paint. The City

10 Council, over strong comments by property owners and

11 activists alike, have proposed a law which is

12 over‑reaching. It's haste to make this introduction

13 into law. I think the City Council has done property

14 owners a grave injustice and I urge the Committee to

15 reexamine Intro. 101.

16 Thank you for giving me these second

17 opportunities to present my testimony.

18 CHAIRPERSON PROVENZANO: Well, it

19 really isn't a second, since we didn't record your

20 first.

21 But Council Member Recchia will,

22 since this is kind of a reenactment, Councilman

23 Recchia will ask one or two questions which are the

24 same ones that he asked last time. He will be the

25 only one that is able to question this witness.

1 COMMITTEE ON HOUSING AND BUILDINGS

2 Councilman.

3 COUNCIL MEMBER RECCHIA: Thank you.

4 The last time you testified you spoke

5 about admitting insurance and non‑admitting

6 insurance. Could you explain that for the Committee.

7 MR. HOFFMAN: New York State Insurance

8 Department is the body that governs insurance

9 companies in the City and they have certain rules in

10 the state and they have certain rules and

11 regulations pertaining to insurance companies,

12 insurance carriers, and if you are an admitted

13 carrier, you agree to comply with the rules and

14 regulations concerning the New York State Insurance

15 Department, but what happens and what's happened

16 recently in the past couple of years in my

17 experience is the insurance market is very tight

18 right now, every carrier is an admitted carrier, all

19 the names that you know, Chubb, Traveler, they all

20 have other insurance companies that are not

21 admitted, and those insurance companies are not

22 required to live by the same rules.

23 As an example with myself, after 9/11

24 terrorism insurance was impossible to get. But New

25 York State said that in order to be an admitted

1 COMMITTEE ON HOUSING AND BUILDINGS

2 carrier you had to supply terrorism coverage. So,

3 what happens is, I have one building that's large,

4 it's in excess of, value is $50 million. What the

5 insurance companies do is they essentially take a

6 value of $200 a square foot, so if you have a

7 building that's in excess of 250,000 square feet,

8 that building replacement value is in excess of $50

9 million. Coverage was essentially non‑existent.

10 So what my brokers had to do is in

11 order to take a non‑admitted carrier, you have to be

12 rejected by an admitted carrier, so they float my

13 insurance out to ten admitted carriers and they

14 don't bid on it, I just don't get prices. So, then I

15 have to go to the non‑admitted carriers at that

16 point, and at that point they don't have to live by

17 the same rules and regulations, so as an example, I

18 don't have terrorism coverage on my policy, I don't

19 have mold coverage on my policy, I actually have

20 lead now, but two years ago, three years ago I

21 didn't have lead, so I'm sure that on my policy

22 renewal, when Intro. 101 passes, they're going to

23 exclude lead again.

24 COUNCIL MEMBER RECCHIA: So you feel

25 if this is passed that the insurance industry will

1 COMMITTEE ON HOUSING AND BUILDINGS

2 have a hard time, the admitted carriers will not

3 want to ensure. What they do will be a high premium.

4 MR. HOFFMAN: Yes. And the admitted

5 carriers, what they have done in the past, you're

6 allowed to ask for an exclusion from the New York

7 State Insurance Department, and I know that they

8 have asked in the past for exclusions on lead paint.

9 It's part of the pollution exclusion, and at that

10 point you have the option of possibly buying a

11 rider. A few years ago it was non‑existent.

12 COUNCIL MEMBER RECCHIA: Thank you.

13 CHAIRPERSON PROVENZANO: Okay, thank

14 you.

15 Thank you, Mr. Hoffman.

16 I'd like to introduce the Council

17 members that are here, members of the Committee, I

18 have Council Member James Oddo. Who is next? I can't

19 see. Well, Melinda was actually hiding you. Council

20 Member Lou Fidler, Councilwoman Melinda Katz,

21 Councilman Joel Rivera. To my left, Councilman Tony

22 Avella, Councilman Phil Reed, who is not a member of

23 the Committee, Councilwoman Diana Reyna. Council

24 Member Robert Jackson, Council Member/woman Tracy

25 Boyland, who is not a member of the Committee,

1 COMMITTEE ON HOUSING AND BUILDINGS

2 Council Member Bill Perkins, who is not a member of

3 the Committee, and Council Member Domenic Recchia,

4 who is not a member of the Committee.

5 We have today a fiscal impact

6 statement, after I don't know how many months that

7 we've been asking for it, but we do have it today.

8 So, I'm going to call on the folks from our Finance

9 Division to answer some questions. You all have a

10 copy before you. Hopefully you've taken a look at

11 it. There have been many questions in the past about

12 this statement.

13 Another thing I would ask is that the

14 folks in the audience, there may be some heated

15 moments here, and I would ask for everybody's

16 indulgence and that they behave, for hopefully what

17 is the last time.

18 I'm going to ask the Committee folks,

19 or anyone, if they want to ask any questions.

20 James Oddo, I cannot imagine that you

21 don't have a question.

22 COUNCIL MEMBER ODDO: It's such an

23 ominous tone that there's going to be some heated

24 moments.

25 CHAIRPERSON PROVENZANO: It's an

1 COMMITTEE ON HOUSING AND BUILDINGS

2 ominous day.

3 COUNCIL MEMBER ODDO: I just have one

4 question. Does the Administration agree with cost

5 estimates that the Council came up with?

6 MR. PECHEFSKY: Yes, I'm David

7 Pechefsky from the City Council Finance Division, to

8 my right is my boss, Larian Angelo, Director of the

9 Division, and at this time the Administration hasn't

10 shared with us their fiscal impact.

11 As you know, the bill was amended

12 heavily since, there were many iterations of the

13 bill since the last time the Administration actually

14 provided a cost estimate, so at this time we don't

15 know.

16 COUNCIL MEMBER ODDO: Thank you, Madam

17 Chair.

18 CHAIRPERSON PROVENZANO: In looking at

19 the statement, I see that the section that talks

20 about the age of the child, which would start out at

21 seven, and then after the first year could possibly

22 go to six, has that been factored in? When you did

23 this assessment, were you basing it on a seven or

24 six, and at any place did you figure out what the

25 difference would be if we started at six, rather

1 COMMITTEE ON HOUSING AND BUILDINGS

2 than seven, what the difference in the year

3 financially would be?

4 MS. ANGELO: Generally speaking, when

5 we do a fiscal impact, we try and do the most

6 conservative estimate. So, indeed, we assume that

7 the age of seven remained throughout the period of

8 the fiscal impact, even though we were aware that

9 the age could be lowered from seven to six by the

10 Department of Health. But we wanted to do a

11 conservative fiscal impact, so in fact it may

12 overestimate the cost slightly.

13 David, do you want to finish the

14 discussion?

15 MR. PECHEFSKY: Sure. The fact that

16 the age would be seven and under Intro. 101‑A for

17 the first year, was what we used in projecting the

18 costs, and it was factored in in many areas, in

19 terms of HPD's inspections, and also in the amount

20 of remediation work that the City might have to do.

21 CHAIRPERSON PROVENZANO: So, the total

22 cost for the first year would be 31,604,664?

23 MS. ANGELO: That's correct.

24 CHAIRPERSON PROVENZANO: If we started

25 at age six, how much would that decrease? What is

1 COMMITTEE ON HOUSING AND BUILDINGS

2 the exact figure that the difference between age six

3 and seven is costing us?

4 MR. PECHEFSKY: Well, about 4 million.

5 CHAIRPERSON PROVENZANO: About $4

6 million.

7 MS. ANGELO: Arrived at on the

8 assumption that about 15 percent, that if you look

9 at zero to 18, the entire cohort, about 16 percent

10 of the cohort is in each age year. So the assumption

11 is it would lower the ongoing or the recurring cost

12 by that 15 percent.

13 CHAIRPERSON PROVENZANO: And do we

14 have any idea where, since you are our finance

15 person, our very good finance person, do we have any

16 idea where we're getting this more than $31 million?

17 MS. ANGELO: The $31 million, or the

18 cost of any bill is factored into the budget, and it

19 will simply become part of the costs of the budget,

20 of which there are many that arise during the course

21 of the year. For example, generally speaking, we

22 assume that we will have to put more money in the

23 budget for uniformed overtime, but seldom precisely

24 estimated, there's overspending in a variety of

25 agencies and underspending in some agencies, so it

1 COMMITTEE ON HOUSING AND BUILDINGS

2 will become one additional cost, added to various

3 other additional costs that will arise during the

4 year in the budget.

5 CHAIRPERSON PROVENZANO: Do we have

6 any other questions?

7 Oh, we've also been joined by Council

8 Member Stewart, a member of the Committee,

9 Councilwoman Gale Brewer, and Council Member Leroy

10 Comrie.

11 Anybody else here that I didn't

12 catch?

13 Council Member Rivera.

14 COUNCIL MEMBER RIVERA: Thank you very

15 much, Madam Chair.

16 It states in here in the fiscal

17 impact paper that the City will recoup part of the

18 cost of the implementation; can you explain that

19 more for the record?

20 MR. PECHEFSKY: Sure. Part of the cost

21 of the bill is in remediation costs through the

22 City's emergency repair program. In circumstances

23 where the owner fails to correct a violation, the

24 City may end up doing the work, this is the case not

25 only for lead violations, but for other types of

1 COMMITTEE ON HOUSING AND BUILDINGS

2 class C violations.

3 Generally speaking the City recoups

4 some of those costs from landlords, that's factored

5 into the bill. That's reflected as revenue, coming

6 back to the City.

7 COUNCIL MEMBER RIVERA: Oh, so that's

8 .4 ‑‑

9 MR. PECHEFSKY: Yes, that's part of

10 it. That number reflects, in part that number

11 reflects anticipation of City recouping part of ERP

12 costs over time.

13 COUNCIL MEMBER RIVERA: Got you. Thank

14 you.

15 CHAIRPERSON PROVENZANO: Council

16 Member Oddo.

17 COUNCIL MEMBER ODDO: Thank you, Madam

18 Chair.

19 Does the $31 million figure in FY '05

20 include potential or cost of liability judgments

21 against the City?

22 MR. PECHEFSKY: No, because the fiscal

23 impact is limited in scope to direct cost to the

24 City, a cost that the bill more or less directly

25 causes the City to assume.

1 COMMITTEE ON HOUSING AND BUILDINGS

2 COUNCIL MEMBER ODDO: Does the Finance

3 Committee have an estimate that they would like to

4 share with the Committee of what they anticipate

5 liability cost to be to the City?

6 MS. ANGELO: No, I don't believe, we

7 haven't done that estimate.

8 COUNCIL MEMBER ODDO: Is there a way

9 of attempting to calculate that?

10 MS. ANGELO: We will always do an

11 estimate of anything. We'll always find a way to do

12 a calculation. But that is not in the fiscal impact.

13 MR. PECHEFSKY: Let me just say also,

14 nor does the fiscal impact statement contemplate

15 whatever benefits, in terms of savings, there may be

16 in the longrun to the City from reducing lead

17 poisoning, for example, special education costs,

18 health savings and health care. It doesn't

19 anticipate that either, that's outside the scope of

20 the fiscal impact.

21 MS. ANGELO: I mean, generally

22 speaking, a fiscal impact is not done with something

23 called dynamic scoring.

24 There may be costs in the outyears

25 that beyond the three or four or five years that we

1 COMMITTEE ON HOUSING AND BUILDINGS

2 estimate, and there may be savings in those three or

3 four years beyond.

4 But generally we limit it to direct,

5 straight‑forward costs.

6 CHAIRPERSON PROVENZANO: But there is

7 the possibility that more landlords may not accrue

8 the cost themselves. You know, how did you figure

9 out how many buildings ‑‑ David is shaking his head.

10 He's been with me so long he knows the question I'm

11 going to ask, and I'm sure he does.

12 You know, obviously you said to

13 yourself, well, X amount of landlords are not going

14 to do it, so the cost will be on HPD. But how can

15 you do that, because you don't really know how many

16 landlords, you know, there could be twice that

17 amount.

18 MR. PECHEFSKY: We know based on HPD's

19 reports to the City Council how many landlords were

20 correcting the violations under Local Law 38, based

21 in part on the back and forth between HPD and the

22 IBO on previous versions of the bill, and we

23 estimate how many landlords, what the rate of

24 correction will be among landlords, and we estimate

25 that it is going to be somewhat lower than HPD

1 COMMITTEE ON HOUSING AND BUILDINGS

2 reported in its reports to the Council, because of

3 some of the concerns that HPD raised about time

4 frames and so forth. So that is factored into the

5 cost, that the City may be assuming, may have to do

6 more remediation jobs.

7 CHAIRPERSON PROVENZANO: So that has

8 been factored in?

9 MR. PECHEFSKY: That has been factored

10 in, yes.

11 CHAIRPERSON PROVENZANO: Even

12 considering the fact that this bill has issues like

13 presumption which could possibly lead to landlords,

14 to property owners not getting insurance, which

15 could lead to more abandoned buildings, bla, bla,

16 bla, bla.

17 MR. PECHEFSKY: It doesn't factor in

18 that. In factors in the ‑‑ it looks to the

19 provisions that pertain towards the time frames that

20 owners have to do correction in, it looks at the

21 provisions regarding HPD inspections, it doesn't

22 follow the trail all the way, it doesn't make

23 assumptions about the financial conditions of

24 buildings over time.

25 CHAIRPERSON PROVENZANO: Thank you.

1 COMMITTEE ON HOUSING AND BUILDINGS

2 Council Member Rivera.

3 COUNCIL MEMBER RIVERA: Thank you very

4 much again, Madam Chair.

5 I know we don't have in the fiscal

6 impact statement how much the City would save in

7 terms of special education and other associated

8 costs, but can we find, do we have a number? And,

9 also, can we find out how much the City would save

10 in terms of extra resources being given to kids that

11 are affected by lead in the future? Is there a way

12 to get that number?

13 MS. ANGELO: Yes. I'm sure we can take

14 a look at that in the Finance Division and we would

15 be happy to do that. But, again, it will not be

16 included in the fiscal impact, because, again, as we

17 cannot really speculate three or four, five years

18 down the road, how landlords may or may not change

19 their pattern of a remediation, we also can't

20 speculate on this cost savings of having healthier

21 kids.

22 COUNCIL MEMBER RIVERA: Thank you.

23 CHAIRPERSON PROVENZANO: Council

24 Member Perkins.

25 COUNCIL MEMBER PERKINS: Thank you

1 COMMITTEE ON HOUSING AND BUILDINGS

2 very much, Madam Chair.

3 Let me just say, it has been pointed

4 out, however, that the cost to the, the social cost

5 to the City, when children are lead poisoned, is

6 about $1.4 billion a year. I know you don't normally

7 in your fiscal impact statements look at that, but

8 as a way of helping my colleagues understand the

9 enormous amount of savings that we're talking about

10 by virtue of not having children poisoned, it's been

11 estimated by those who are experts in the field,

12 doctors, et cetera, that it's about $1.4 billion.

13 Let me ask just so I'm clear, because

14 I know the question has come up, we don't normally,

15 and in my experience, I don't know if we've ever

16 anticipated the liability cost to the City when

17 we've given fiscal impact statements.

18 MS. ANGELO: Not to my knowledge, but

19 I'm working from memory here. So, at some point we

20 can go back and take a look, but I can't really

21 recall one.

22 COUNCIL MEMBER PERKINS: Thank you.

23 CHAIRPERSON PROVENZANO: Any other

24 questions?

25 Thank you, again. As always, you've

1 COMMITTEE ON HOUSING AND BUILDINGS

2 done a great job.

3 MR. PECHEFSKY: Thank you.

4 CHAIRPERSON PROVENZANO: You have

5 before you that huge package, the negative

6 declaration. I don't know how many of you have even

7 taken a look at it, but this is a resolution that we

8 will have to vote on.

9 I'd like to call on Jeff Rotus, is he

10 somewhere? I'm sorry, that's my other Jeff. Jeff

11 Haberman, who has been lucky enough not to be

12 involved in this. Jeff Haberman, who I would like to

13 have him give kind of a brief, if that's at all

14 possible, analysis of this. A brief analysis, and

15 then we'll take questions from the Committee, or

16 whoever. See, that's how brief it's going to be.

17 And he's joined by Chris Collins.

18 MR. HABERMAN: Good morning. My name

19 is Jeff Haberman. I am Counsel and Deputy Director

20 of the Council's Infrastructure Division.

21 CHAIRPERSON PROVENZANO: Ralphie, I'm

22 not sure that mic is great.

23 MR. HABERMAN: Okay, is this better.

24 My name is Jeffrey Haberman. I'm

25 Counsel and Deputy Director of the Council's

1 COMMITTEE ON HOUSING AND BUILDINGS

2 Infrastructure Division.

3 MR. COLLINS: And I'm Chris Collins.

4 I'm the Counsel and Deputy Director of the Land Use

5 Division and we have provided some level of

6 assistance in the environmental review issues for

7 the Infrastructure Division on this matter.

8 MR. HABERMAN: Under the State's, the

9 Environmental Quality Review Act, Article 8 of the

10 Environmental Conservation Law, local legislation is

11 considered to be an action and requires undertaking

12 an environmental analysis. That was done in this

13 case, the outcome of that analysis indicates that a

14 negative declaration is the appropriate outcome.

15 There are three possible outcomes, one is the need,

16 a positive declaration requiring an environmental

17 impact statement, a determination that there will be

18 no significant ‑‑

19 CHAIRPERSON PROVENZANO: I'm having

20 trouble hearing you.

21 MR. HABERMAN: Okay.

22 CHAIRPERSON PROVENZANO: Bring the mic

23 up. Okay.

24 MR. HABERMAN: There are a number of

25 possible outcomes under this review. One is that a

1 COMMITTEE ON HOUSING AND BUILDINGS

2 positive declaration, that the action will have an

3 adverse, a significant adverse environmental impact,

4 requiring an environmental impact statement.

5 A potential outcome is that there is

6 no significant, going to be no significant adverse

7 environmental impact in which case a negative

8 declaration would be an appropriate outcome.

9 And the third possibility is if there

10 are some potential adverse impacts, but they can be

11 mitigated, then a possible outcome is a conditional

12 negative declaration.

13 The analysis before you was performed

14 consistent with the City Environmental Quality

15 Review Technical Manual, which sets out those items

16 that have to be, that should be examined, indicates

17 criteria that should be looked at, and indicates

18 what some recommendations on what constitutes

19 significance, or significant environmental, adverse

20 environmental impact.

21 For example, in Section 222, there's

22 a roster of the criteria for significance, such as

23 removal or destruction of large quantities of

24 educational forma, creation of a conflict with

25 community development plans, the impairment of a

1 COMMITTEE ON HOUSING AND BUILDINGS

2 historical archeological resources, major change in

3 use of either quantity or type of energy, et cetera.

4 I think it's important to keep in

5 mind that this analysis is, most of the analyses,

6 are geared to what I would call the "built

7 environment," where some construction or physical

8 change is taking place.

9 MR. COLLINS: I think it's also

10 important for me to just add that, at its very core

11 environmental review is a disclosure process, it

12 doesn't necessarily give you a result. The intent of

13 environmental review is to inform you, the decision

14 makers, as to whether or not you want to take a

15 particular action in light of potential impacts that

16 have been identified in the analysis.

17 As you know, the earlier lead paint

18 bill was invalidated by the State's highest court of

19 the basis of what was deemed to be a flawed

20 environmental review, and, so, I believe the staff

21 of the Infrastructure Division has been particularly

22 cautious in making sure that all of the necessary

23 aspects of the legislation have been covered in this

24 review.

25 As Jeff mentioned, it was done in

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2 accordance with the requirements of the CEQR

3 Technical Manual, and the Threshold Review is

4 basically what's called an environmental assessment,

5 environmental assessment statement in which a series

6 of questions are asked and answered, and on the

7 basis of the answers and the analysis performed

8 pursuant to those regulations, a reasonable

9 conclusion can be reached that significant adverse

10 impacts would not be identified as a result of

11 taking this action.

12 MR. HABERMAN: The document before

13 you, the attachment to the environmental assessment

14 statement, has separate sections, each one

15 addressing ‑‑ each the attachment to the

16 environmental assessment statement, which is part of

17 this package, has a section that addresses each of

18 the areas that is recommended to be examined.

19 The analysis was that none of the

20 particular areas would result in a significant

21 adverse environmental impact and therefore the

22 recommendations that a negative declaration be

23 issued.

24 CHAIRPERSON PROVENZANO: Okay, thank

25 you.

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2 I'm going to ask the questions, but

3 I'd just like to comment, it kind of blows my mind

4 that we get a document like that at 4:30 last night,

5 and we're expected to look at it and explore it and

6 come up with questions, and I totally don't

7 understand that.

8 Also, you know, we've spent six

9 months and I can't tell you how many hours testimony

10 on lead and lead dust, and truthfully, I've only

11 glanced at this, and even if I read every word of

12 it, I would still not understand it.

13 It would probably take another six

14 months for you to explain to me what's in it.

15 But I totally don't understand how

16 we're talking about lead and lead dust, and we come

17 up with a negative declaration that says there's no

18 significant environmental impact, I just don't

19 understand that. I think I'm one of the few members,

20 it doesn't seem to bother too many other people.

21 Do we have any questions? Council

22 Member Oddo.

23 COUNCIL MEMBER ODDO: Thank you, Madam

24 Chair. And I would like to reiterate your point

25 about notice. I got this document from my staff late

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2 yesterday afternoon, and if you truly go through it,

3 or go through it the way it needs to be analyzed,

4 there really isn't sufficient a time to do that and

5 to vote intelligently today, but apparently that's

6 what we're being asked to do.

7 Gentlemen, who actually wrote this?

8 MR. HABERMAN: Most portions of it I

9 wrote. I wrote it.

10 COUNCIL MEMBER ODDO: And Jeff, you

11 and I have been colleagues and worked together for

12 12 years now, so you're very good at what you do,

13 you've written negative decs before.

14 MR. HABERMAN: I have a number of

15 times, on a number of occasions.

16 COUNCIL MEMBER ODDO: Okay.

17 Was there a negative dec written for

18 Local Law 38?

19 MR. HABERMAN: There was. However, I

20 was not a participant in the Local Law 38 enactment

21 process, but I do have a copy of the negative

22 declaration with me.

23 COUNCIL MEMBER ODDO: Without casting

24 blame on anyone, do we know who wrote the negative

25 dec back then?

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2 MR. HABERMAN: A member of staff.

3 COUNCIL MEMBER ODDO: Okay.

4 Are they still employed on the

5 Council's staff?

6 MR. HABERMAN: They are.

7 COUNCIL MEMBER ODDO: And they weren't

8 involved in this one at all?

9 MR. HABERMAN: They were.

10 COUNCIL MEMBER ODDO: Okay. I'll tell

11 you why I'm troubled. The Council just passed six

12 down‑zonings on Staten Island, three in Council

13 Member McMahon's district and three in my district,

14 and that process was delayed because we were told

15 that we had to do a full‑blown EIS, and in that

16 study we had to look at the economic impact

17 down‑zoning these communities, not only on Staten

18 Island, but Citywide. And it just strikes me that in

19 that situation we had to do a full‑blown EIS, and

20 here we're saying that there's a negative dec to do

21 an EIS for this lead bill, and I have to be honest

22 with you, I can't get my arms around those two

23 facts.

24 It would seem to me that the scope of

25 this bill is as great as, or if not greater than

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2 down‑zoning applications. Is it surprising to you

3 gentlemen, having completed this analysis, that it

4 is a negative declaration?

5 MR. HABERMAN: No, because the

6 hallmark of a negative declaration is that there is

7 no significant adverse environmental impact. Not

8 that there would be no impact at all, and I think

9 the analysis bears out that there will not be a

10 significant adverse environmental impact.

11 COUNCIL MEMBER ODDO: Again, Madam

12 Chair, I went through the document not as closely as

13 I would like to be able to, but there are a few

14 things that jump at me that I would like to be able

15 to ask, if that's okay?

16 On page two of the text there is a

17 paragraph that says "an issue that must be noted is

18 whether the dictates of the proposed law will result

19 in owners either withholding dwelling units from the

20 rental market, decline to rent those dwelling units

21 to families with children of applicable age so as to

22 avoid the obligation to comply, or abandoning

23 residential buildings subject to the provisions."

24 And then later on it says that "there

25 was no testimony by owners to that effect." And it

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2 says, "it's reasonable to assume for the purposes of

3 this analysis that owners will not intentionally

4 violate this law."

5 Does that mean that the expectation

6 of you folks is that Mr. Hoffman was going to come

7 in and testify and some of his colleagues, that they

8 were going to come in and testify before the Council

9 because of this bill they were going to violate the

10 law, and we expected them to come here and say that,

11 and in absence of them saying that, it's not an

12 issue?

13 MR. COLLINS: No, I don't think that

14 that's the case at all, Councilman. I think that

15 it's reasonable to assume that people will obey the

16 law, and the purpose of this section was simply to

17 indicate that this was a subject that was considered

18 and reviewed, but that the reasonable conclusion is

19 that people will obey the law.

20 But it in essence was, as I said

21 before, it was sort of to flag this as a potential

22 issue for you, the decision‑makers, to take into

23 account.

24 COUNCIL MEMBER ODDO: The reasonable

25 conclusion based on the testimony or lack of

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2 testimony, or the reasonable conclusion based on

3 something outside of what happened in the hearings?

4 MR. COLLINS: The reasonable

5 conclusion based on the analysis that was conducted,

6 including the testimony.

7 COUNCIL MEMBER ODDO: Back on page

8 one, there is the sentence under the Land Use,

9 Zoning and Public Policy paragraph, where it says,

10 "consequently the proposed action is not expected

11 to have significant effect on Land Use, Zoning or

12 other Public Policy, such as urban renewal plans,"

13 et cetera.

14 Is that statement consistent with the

15 testimony of Mr. Lappin and some of the folks from

16 the affordable housing industry?

17 MR. HABERMAN: It is if you examine

18 the CEQR Technical Manual, which was the guidance

19 document for preparing environmental analyses. It

20 points to ‑‑

21 CHAIRPERSON PROVENZANO: Jeff, you

22 have to talk into the mic.

23 MR. HABERMAN: It points to certain

24 things that should be examined, such as the impact

25 it might have on urban renewal plans, on the

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2 comprehensive waterfront plans, on Solid Waste

3 Management Plan, Business Improvement Districts,

4 City maps, the activities that will be required were

5 proposed Intro. 101‑A to be enacted, I don't believe

6 would have any bearing, would have any adverse

7 impact on those other policies.

8 COUNCIL MEMBER ODDO: But that's not

9 your opinion, and that's not consistent with what

10 the testimony was that we've heard from Mr. Lappin

11 and other folks in the affordable housing industry.

12 So, how do we come to that conclusion, when that

13 conclusion is not consistent with some of the

14 testimony that we heard?

15 MR. COLLINS: For purposes of

16 environmental review about the state law and City

17 law, operate under the assumption that people will

18 obey the law. I think that's the clearest way I can

19 answer that, Councilman.

20 MR. COLLINS: Fair enough. I

21 appreciate that, but when there is testimony, I

22 don't want to say to the contrary, but testimony

23 that raises that issue and raises questions about

24 that issue, I think it's sort of a leap, frankly I

25 think we reached the conclusion and we try to work

1 COMMITTEE ON HOUSING AND BUILDINGS

2 backwards, despite the testimony be damned.

3 But let me ask you about another

4 point related to that. On page three, the first full

5 paragraph that begins, "concern expressed at the

6 hearings..." The last sentence says, "however, it is

7 believed that no testimony was received on this

8 issue..." and they're talking about insurance, "...

9 or issue from any representative of an insurance

10 company as to whether insurance would remain

11 available and at what rates. While the unintended

12 consequence spoken of may happen, it's speculative

13 and not yet possible to quantify."

14 I appreciate the fact that we didn't

15 have any testimony from the insurance industry and

16 the Counsel and the Chair mentioned the fact that

17 the insurance industry was invited and apparently no

18 one attended, but is it incumbent upon us to sort of

19 explore this issue in greater detail, considering

20 that this was the heart of the hearings? Should we

21 have engaged in some sort of study, some sort of a

22 more comprehensive look to determine if in fact this

23 is a genuine issue, instead of simply saying it may

24 happen, it's speculative and we can't quantify it?

25 Because if we analyze it in more

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2 detail, perhaps the ultimate decision of a negative

3 deck would not, you know, would not have been

4 reached.

5 MR. HABERMAN: Well, two comments. One

6 is, it was in fact some testimony to the contrary,

7 and there was, you'll also note, that there is at

8 least one organization that maintains on their

9 website of insurance companies that do provide

10 insurance coverage, but more importantly, and so

11 there was some contravailing testimony, it's also

12 important to keep in mind that the analysis is

13 designed to measure proposed Intro. 101‑A against

14 the existing law, and the existing law is Local Law

15 1, which is a full abatement requirement, and so,

16 that's the nature of the analysis, and so it was in

17 that comparison that this analysis was done.

18 COUNCIL MEMBER ODDO: Let's take it

19 one at a time. First, with respect to testimony on

20 this issue, we had one individual testify and really

21 what she testified to, about hard and soft insurance

22 markets, and I think her testimony, when you balance

23 it out against individuals who spoke who were

24 practitioners, who were owners, who I think had more

25 hands‑on dealings with insurance here in New York

1 COMMITTEE ON HOUSING AND BUILDINGS

2 City, I think her testimony frankly didn't measure

3 up.

4 Your second point, that the standard

5 that we're using is Local Law 1, could you explain

6 that in just a little bit more detail?

7 MR. HABERMAN: On July 1st of this

8 year, the Court of Appeals issued a decision

9 invalidating Local Law 38 of 1999.

10 COUNCIL MEMBER ODDO: Correct.

11 MR. HABERMAN: The Court, in its

12 decision, the Court in its decision explicitly

13 stated that, and I'm reading from page 15 of the

14 slip opinion,"the parties recognized that by

15 operation of law, our validation of Local Law 38

16 revives Local Law 1. And so that became the baseline

17 for the analysis.

18 COUNCIL MEMBER ODDO: Is that your

19 interpretation of what the basis should be, Local

20 Law 1?

21 Clearly, I understand the judge's

22 decision, but is that staff's interpretation that

23 the baseline here is not what was on Local Law 38

24 but should be on Local Law 1?

25 MR. HABERMAN: Well, the Court made it

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2 very clear that Local Law 38 no longer exists as a

3 legal mechanism.

4 COUNCIL MEMBER ODDO: Understood.

5 MR. HABERMAN: Number two, the nature

6 of an environmental analysis is to compare what one

7 believes the actions might accomplish against what

8 the existing conditions are.

9 The existing condition quite clearly

10 is Local Law 1.

11 COUNCIL MEMBER ODDO: The existing

12 conditions in terms of getting insurance right now

13 ‑‑

14 MR. HABERMAN: No, I'm sorry.

15 COUNCIL MEMBER ODDO: Because that's

16 the issue we're talking about, getting insurance.

17 And I would say that it's not, because the insurance

18 these folks probably have is based for policies

19 based on Local Law 38.

20 MR. HABERMAN: I don't know that to be

21 a fact. And that wasn't the nature of the analysis.

22 COUNCIL MEMBER ODDO: Okay.

23 MR. HABERMAN: It was measured against

24 Local Law 1.

25 MR. COLLINS: If I could just add some

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2 to that?

3 COUNCIL MEMBER ODDO: Yes.

4 MR. COLLINS: The courts consistently

5 have said for purpose of environmental review what

6 you need to have is a reasonably elaborated

7 analysis. You need to look to various issues that

8 the law requires you to analyze.

9 That doesn't mean that you as one of

10 the decision‑makers may not come to a different

11 conclusion based on other testimony or just your

12 belief of other factors, and, so, I understand the

13 basis of your question, based on certain testimony

14 that was received in the course of the Committee's

15 hearing, but for purposes of this environmental

16 review and its validity, I believe that the analysis

17 is adequate on the issue.

18 COUNCIL MEMBER ODDO: Fair enough. Let

19 me just ask you a procedural question.

20 This document is to reflect testimony

21 solely, or you factor in making your decision about

22 a negative dec outside information that didn't

23 happen within the four walls of City Hall?

24 MR. COLLINS: Your decision as the

25 decision‑makers on this legislation ‑‑

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2 COUNCIL MEMBER ODDO: Well, your

3 recommendation let's say.

4 MR. COLLINS: No, may take into

5 account any number of factors, your life experience,

6 the testimony you heard, your knowledge and any

7 research that you've done.

8 COUNCIL MEMBER ODDO: But how do we

9 have a resolution in front of us that encourages a

10 negative dec?

11 MR. COLLINS: Because by following the

12 dictates of the technical manual, the analysis of

13 the various required categories was conducted by

14 staff. There was a resolution introduced.

15 COUNCIL MEMBER ODDO: Again, but the

16 analysis is analysis of testimony only, or analysis

17 of outside ‑‑

18 MR. COLLINS: It's an analysis of

19 subject matter.

20 COUNCIL MEMBER ODDO: Which is outside

21 the testimony?

22 MR. COLLINS: It could include the

23 testimony.

24 COUNCIL MEMBER ODDO: Okay.

25 MR. COLLINS: Only I think there are

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2 references and footnotes to the various witnesses at

3 the various hearings.

4 COUNCIL MEMBER ODDO: Fair enough.

5 MR. COLLINS: So it's a fairly broad

6 review, and the sources of your information can be

7 varied.

8 COUNCIL MEMBER ODDO: Okay. Madam

9 Chair, two questions. Two last questions.

10 I think I see an inconsistency in J

11 hazardous materials and Q air quality, and correct

12 me, please.

13 In J it says the action essentially

14 involves activities principally in the interior of

15 the subject of the buildings, therefore there is no

16 further need to consider hazardous materials in

17 exterior areas. Later on we talk about an air

18 quality. The last sentence, this may result in the

19 generation of more particle matter, but the increase

20 cannot at this time be quantified.

21 Is there any inconsistency there?

22 MR. HABERMAN: I don't believe so. The

23 discussion about particulate matter was directed at

24 the work that would be performed in the interiors of

25 the building, and so I don't believe that there is

1 COMMITTEE ON HOUSING AND BUILDINGS

2 any inconsistency there.

3 COUNCIL MEMBER ODDO: One last

4 question, Madam Chair. How long did it take to write

5 this document?

6 MR. HABERMAN: Over what period? Are

7 you asking over what period of time? How many hours?

8 COUNCIL MEMBER ODDO: From the first

9 time a pen went to paper, give me an hour of

10 actually writing, or give me a time period, I'll

11 take both. Actual writing, time period of analyzing

12 and putting it together.

13 MR. HABERMAN: Well, I didn't maintain

14 a log.

15 COUNCIL MEMBER ODDO: Understood. An

16 estimate.

17 MR. HABERMAN: An estimate? It was

18 done over the course of weeks, I would say as the

19 bill was evolved, and the bill went through many

20 iterations, there were meetings, there were

21 hearings, I couldn't tell you the first moment that

22 I put finger to keyboard, but it was over a

23 substantial period of time.

24 COUNCIL MEMBER ODDO: Gentlemen, thank

25 you. I appreciate your professionalism.

1 COMMITTEE ON HOUSING AND BUILDINGS

2 CHAIRPERSON PROVENZANO: Did you get

3 an answer?

4 COUNCIL MEMBER ODDO: It took a long

5 period of time, and the point of my asking that

6 question is to reaffirm your initial point that we

7 have a document that is a threshold issue, it was

8 given to us at 4:00 in the afternoon, it's obviously

9 very technical, but less than 18 hours later we're

10 supposed to sit here and vote intelligently on the

11 document. And as you can see from my questions,

12 they're very technical and you can interpret it

13 different ways, and I think it's quite disturbing

14 and unnerving to have to vote on a document that

15 took weeks to prepare with such short notice.

16 CHAIRPERSON PROVENZANO: I would just

17 like to pursue that point a little bit. I know that

18 you spent a lot of time on the bill itself, but I'm

19 not so sure ‑‑ see, I have a different point of view

20 than James. I'm not so sure that as much time was

21 spent on the negative declaration. So, I think, you

22 know, I think if you search your mind you could

23 probably understand or decide or think about at what

24 point you actually started working on this dec? Was

25 it a week ago? Was it three days ago? I mean, on the

1 COMMITTEE ON HOUSING AND BUILDINGS

2 actual document. Because anything that preceded that

3 had to do with the legislation more than it did with

4 this resolution. And the reason I'm asking this is,

5 Councilman Oddo is kind of comparing that it took

6 you such a long time, and you came up with this

7 document, and we're asked to in 15 or 20 minutes to

8 vote on it. My point is, I don't think enough time

9 was spent on this document. And I think if more time

10 had been spent we may be sitting here with a

11 different result. So that's why I'm asking the

12 question.

13 MR. HABERMAN: Again, I couldn't give

14 you a precise time, but you also have to keep in

15 mind that the nature of the analysis is such that

16 one reads material, reads the testimony, hears the

17 testimony, talks to people, and there's a period of

18 time where one gathers information, gathers

19 knowledge about the analysis, that's relevant to the

20 analysis, without necessarily reducing that to

21 writing.

22 CHAIRPERSON PROVENZANO: I'm not going

23 to get my answer.

24 Okay, I would just like to answer a

25 question for you, Council Member Oddo. You asked who

1 COMMITTEE ON HOUSING AND BUILDINGS

2 the person was that did the negative impact on Local

3 Law 38? She is here, she's still employed, and it's

4 Terzah Nasser.

5 Council Member Comrie.

6 COUNCIL MEMBER COMRIE: That last

7 statement kind of answered part of my question. I

8 was not aware that this Council itself had the

9 authority to do environmental impact statements. Can

10 you give me some briefing on how that authority is

11 enacted and what that process is that the Council

12 has an authority to do an environmental impact

13 statement?

14 MR. HABERMAN: Well, let me backtrack.

15 The Council has legal obligation when it enacts

16 legislation to undertake an environmental analysis.

17 Article 8 of the State Environmental

18 and Conservation Law and the regulations that were

19 promulgated thereunder impose that legal obligation

20 by defining local legislation as an action that

21 requires the environmental examination.

22 COUNCIL MEMBER COMRIE: Is there a

23 process or a document that has to be submitted to

24 the State or any environmental agency before it's

25 submitted?

1 COMMITTEE ON HOUSING AND BUILDINGS

2 MR. COLLINS: This determination, the

3 negative declaration, and similarly, if it had been

4 a positive declaration, the CEQR rules require that

5 these documents be made available to the public and

6 that they be circulated to the State DEC and a

7 variety of other City/State agencies.

8 COUNCIL MEMBER COMRIE: And will any

9 of those state agencies have a chance, did any of

10 those state or City agencies have a chance to see

11 this document, this present document, to voice an

12 opinion on it one way or another?

13 MR. COLLINS: No, it's simply a

14 distribution. It's not a public hearing requirement,

15 it's not a comment period requirement similar that

16 one would have if there was a full‑blown

17 environmental review. It's a notice requirement.

18 COUNCIL MEMBER COMRIE: It's a notice

19 requirement.

20 MR. COLLINS: Yes.

21 COUNCIL MEMBER COMRIE: So, in fact, a

22 different agency could look at this document and

23 come back with a different decision, or ‑‑

24 MR. COLLINS: It's not a decision.

25 They could perhaps have a different opinion or

1 COMMITTEE ON HOUSING AND BUILDINGS

2 express a view, but the obligation to conduct

3 environmental review under the law is imposed upon

4 what's called the lead agency, and for purposes of

5 adoption of local laws, the lead agency is either

6 City Council and/or the Mayor's Office, or the

7 Council may, by giving notice to the Mayor's Office,

8 assume lead agency status by itself, which is what

9 the Council did with regard to this particular

10 analysis.

11 COUNCIL MEMBER COMRIE: And in

12 drafting this analysis, you said that it's, the word

13 you used, this is an opinion, this is an opinion of

14 the Council based on information that was presented

15 to it?

16 MR. COLLINS: The law requires that

17 certain categories of subject matter be analyzed,

18 and the courts have required that that analysis be

19 what they call reasonably elaborated, and that's a