|HOW NYC DEPARTMENT OF BUILDINGS' FAILED POLICIES CONTRIBUTE TO CRUMBLING BUILDINGS|
A Report by
Assemblymember Scott Stringer
|ABOUT ASSEMBLYMEMBER SCOTT STRINGER|
Assemblymember Scott Stringer is a native New Yorker who was first elected to the New York State Assembly in 1992 after more than a decade of political involvement and neighborhood advocacy. Stringer represents the 67th Assembly District on Manhattan's West Side.
Stringer released a report, in April 2002, addressing the textbook shortage in New York City's public schools. In May 2002, Stringer also issued a report on tax assessor practices and assessment administration in New York City.
Stringer is the Chair of the New York State Assembly Real Property Taxation Committee and serves on the Education, Higher Education, Housing, Judiciary and Health Committees. Stringer is a former Chair of the Task Force on People with Disabilities and the Assembly Oversight, Analysis and Investigation Committee. Stringer is also a member of the Assembly Task Force on Women's Issues.
|ACKNOWLEDGEMENTS & CREDITS|
Assemblymember Scott Stringer wrote this report with the help of his staff:
Alaina Colon, Policy Director
Jason Haber, District Coordinator
John Simpson, Director of Constituent Services
Susannah Vickers, Chief of Staff
For additional copies of this report contact Assemblymember Stringer's office by phone: (212) 873-6368 or email: firstname.lastname@example.org.
TABLE OF CONTENTS
The New York City Department of Buildings (DOB) is responsible for ensuring "the safe and lawful use of over 900,000 buildings and properties by enforcing the Building Code, Zoning Resolution and other applicable laws."1 My office recently investigated the DOB to determine whether it was fulfilling this mandate to ensure New Yorkers' safety. Our investigation found that the DOB knowingly puts the lives and safety of thousands of New Yorkers at risk by allowing building code violations to remain outstanding and neglects millions of dollars of potential revenue by failing to collect overdue fines.
We were shocked to discover that nearly 13,000 of the violations the DOB issued for six of the most egregious types of building code infractions since 2001 have still not been corrected and continue to endanger tenants on a daily basis. It is an outrage that the City does not require building owners to immediately remedy these extremely hazardous and life-threatening violations. Children, the elderly, men and women all over the City are subject to dangerously substandard conditions in their homes, at school and at work without ever knowing that their safety is in jeopardy.
A perusal of recent headlines indicates the real risks of failing to address these problems. Almost every week, there is some new report of a building collapsing or an elevator malfunctioning, and these well-publicized stories involving serious injuries or deaths do not mention the thousands of tenants whose health is impacted by more subtle violations. Not only do these conditions affect the safety and well being of all New Yorkers, but the City's economy also suffers because fines for these violations remain uncollected. At least $14 million dollars in fines have not been collected for only the hazardous 2% of total building codes that this report examines. It is inexplicable and unacceptable that the City would permit any revenue stream to remain untapped in these times of budgetary deficit.
Although the DOB Commissioner, Patricia Lancaster, has recently released a review of the current state of the DOB and has begun to implement changes, the changes do not address the issues raised in this report. In the 100-Day Report, the Commissioner vaguely acknowledges that improvements are needed, such as better training for inspectors, but never indicates what actions will be taken and when. Our report addresses specific reforms that must be undertaken immediately. Specifically, the DOB must:
The primary cause of DOB's inability to keep residents safe is its failure to enforce the legally-mandated building standards. Today, compliance with these standards has essentially become optional. Unless a building owner needs something, e.g. federal aid related to September 11th or a permit for new construction, there is no motivation to correct a violation or pay a fine. Building and housing standards are important to follow and should not be a matter of choice. Due to the DOB's lax enforcement efforts, building owners view the DOB as an agency pleading for code compliance rather than mandating it. The DOB must change its role in the community to a proactive department for safety. Building owners must be made to realize that previously tolerated disregard of DOB violations and fines will now have serious consequences.
Through communication and cooperation among the State and City, the Department of Buildings, Housing Preservation and Development and the employees of those agencies, we can begin to address these serious problems. My office has developed several recommendations for reform to confront the breakdown in code enforcement. I hope that my plan will spark change and begin an important dialogue on how to keep NYC's buildings safe for their inhabitants.
1 Fiscal Year 2002 Mayor's Management Report (MMR), p.69.
This report focuses primarily on the DOB's failure to adequately serve as an enforcement agency and to, in turn, protect New Yorkers from extremely dangerous building code violations. My office has repeatedly requested DOB's help in accessing the data for this report. Despite Freedom of Information requests filed by my office, the DOB has been unable or unwilling to provide us with complete data concerning all of the 379 types of violations categorized by the DOB. While there is a Building Information System (BIS) currently available online providing information on individual buildings, the BIS does not produce citywide data.
After numerous requests through emails and phone calls, the DOB eventually agreed to provide information on a subset of hazardous violation categories. From that subset, my office analyzed data for fiscal years 2001 and 2002 about six types of the most egregious hazardous building code violations, out of the total 379 possible categories. The six types of building code violations revealed that NYC has failed to ensure that close to 13,000 seriously hazardous violations were corrected, over 6,000 of which were issued as far back as 2001.
Our analysis addresses 6 out of 379, or only 2%, of the building code violation categories, just scratching the surface of NYC's crumbling infrastructure.
The hazardous types of code violations analyzed in this report include:
Our research also revealed a troubling collateral result of DOB's ineffective building code enforcement. The City's inability to collect the fines, issued along with the violations, in a timely manner is exacerbating the current fiscal budget crisis. The annual ongoing financial implications of failing to retrieve multi-millions of dollars in fines are immense.
This report demonstrates that the DOB lacks the effective measures needed to ensure the safety of the inhabitants of the City's buildings. The goal of this report is to make sure that New York City residents preserve the right to safe housing. The apparent regulatory breakdown of the City's building and housing code enforcement system is not a new problem. However, if the City cannot force its building owners to make essential repairs, residents could be forced to continue to live in potentially life threatening conditions.
II. DEPARTMENT OF BUILDINGS
The Fiscal Year 2002 Mayor's Management Report (MMR) states that the DOB's responsibility is to "ensure the safe and lawful use of over 900,000 buildings and properties by enforcing the Building Code, Zoning Resolution and other applicable laws". If the DOB's role is to act as an enforcing agency for compliance with building codes, then one only has to look at recent building collapses in the City to realize that the DOB has failed to fulfill its purpose.
On March 21, 1995, a building located in Harlem, at 142 W. 140th Street, completely lost its sidewall causing the floors to tilt downward and pushing eight of its tenants into the rubble below. While the buildings' partial collapse took the tenants by surprise, the DOB had already issued the building three hundred and thirty-seven violations, fifty-six of which were for hazardous conditions.
On July 13, 2000, a building in the Lower East Side partially collapsed injuring 11 people. The collapse also forced over 100 people out of their homes in nearby buildings. The father and son owners caused the collapse by conducting illegal renovations to the building. One of the owners is a licensed architect for the project and sent paperwork to the DOB falsely certifying that no structural changes were being made to the building. More importantly, in April 2002, after the renovations began, neighbors complained about the construction leading to the issuance of a stop work order by a building inspector. Despite the inspector's order, the work continued. Not until three months later, in July 2000, did the partial collapse occur. Clearly, the mere issuance of a violation does not ensure that the owner will comply.
On October 24, 2001, a 13-story scaffolding collapsed inside a courtyard of a Gramercy Park office building while construction workers removed bricks from the facade to apply cement. The collapse killed five workers and seriously injured four others. The scaffold's design was in violation of building codes and the requirements set forth by engineers. The building codes require that a licensed engineer or architect design a scaffold that is more that 75 feet above ground. On October 11, 2002, District Attorney Morgenthau indicted the constructor contractors for manslaughter and assault. This tragedy should never have happened and would not have happened if the DOB had enough inspectors to have visited the site. However, DOB only inspects possible scaffolding violations when a complaint is made. But, the reality is that most people do not know under what conditions to complain to the DOB in the first place.
The examples above provoke the questions: "If violations were issued in the past, why were they not cured so that these catastrophes would have been prevented"? and "How can the DOB protect me if I am expected to notify them of code violations that I know nothing about"? My investigation shows that frequently the DOB sends its inspectors back for a three-month follow-up re-inspection, rather than taking immediate action to ensure that owners fix open life threatening violations. The DOB allows these re-inspections to continue indefinitely without succeeding in enforcing critical code regulations. Unfortunately, the lack of immediate follow up to check on the owner's progress in correcting the violation can, and has, led to serious injury or the loss of life.
Sometimes, when the building code regulations are not applied properly, the logic of the law is lost. For example, building owners are given a grace period, usually 45 days, to fix non-hazardous violations before incurring any fines or having to appear for a hearing before the Environmental Control Board (ECB). The theory behind the grace period is that the owner should have some time to fix a problem that is not immediately life threatening.
For hazardous violations, there is no grace period. Following the same logic, since the violation is hazardous, immediate action must be taken to fix the problem. The denial of a grace period for hazardous violations was originally intended to require a building inspector to re-inspect after 24 hours to make sure work was being done to fix the problem or the City would take appropriate action. However, DOB does not have nearly enough inspectors to follow up after 24 hours of an issuance of a hazardous violation. Therefore, no corrective action is guaranteed or aggressively enforced.
Another important issue is the level of discretion attributed to the inspection process and the lack of clear regulatory guidelines. It is up to the discretion of the DOB building inspector to notify the DOB Commissioner and, in the case of an owner's refusal to do the work required, refer extremely hazardous violations to Housing Preservation and Development (HPD) for emergency repair. There is not a system in place that requires an inspector to automatically notify a supervisor after the issuance of certain extremely hazardous violations. Ultimately, providing inspectors with clear regulatory guidelines is crucial to maintaining consistency among the reasons for emergency repair referrals.
At times, the DOB allows band-aid repairs, such as placing sidewalk sheds outside a building in case the fašade collapses, to prevent it from falling on pedestrians. However, the permanent correction of an unstable facade may not happen for months or even years. Moreover, a sidewalk shed may prevent a single brick from landing on a pedestrian, but could not withstand a partial fašade collapse or even a single brick falling from a great height.
One improvement to enforcing repairs of hazardous conditions in the City's buildings is to better monitor the status of open violations. The only way the DOB knows of a corrected violation is when an owner officially files a certificate of correction. However, there have been several problems in the past with the filing of false correction certificates as well as failure to notify DOB of the correction in the first place.
III. HOUSING PRESERVATION
HPD provides a valuable service to the DOB by organizing and implementing emergency repair work. Emergency repairs are almost always conducted by outside contractors. When work must be done immediately, contractors, who are on call, will do the work. If HPD has time before the work needs to begin, HPD will put the work out to bid. Once the work is completed, HPD puts a lien on the property to collect the costs incurred from the owner. HPD can attempt to take the building away from the owner if the owner refuses to pay.
While HPD serves an important role, it cannot afford to do all emergency repairs requested throughout the City. HPD's budget for emergency repairs is based on what emergency services were performed in previous years. The Office of Management and Budget (OMB) designs HPD's budget for their different lines of service and programs. Occasionally, if HPD goes over budget on one line of service and needs extra money, OMB will approve taking funds assigned to other lines of service. Within HPD's budget, there are no monies set aside in anticipation of building disasters and, in the event of a major disaster, HPD would need to request additional resources from the City before it could accommodate the needs of the City's residents.
IV. ENVIRONMENTAL CONTROL BOARD
The ECB is the administrative court responsible for conducting hearings for all of the hazardous violations studied in this investigation. It is also the entity that deals with the collection of the associated fines. The ECB is not involved with enforcing either building or housing code compliance. Its relationship to the DOB is to conduct hearings for the violations issued and to determine the amount and collect payment of the fines. The ECB's ability to enforce payment of those fines is limited, and in the cases of the owners' repeated refusal to pay the fines by the set deadlines, the ECB can refer the problem to the Department of Finance (DOF) for collections. In order for ECB to involve the DOF it needs to get a judgment from a court of general jurisdiction stating that the owner is justly indebted to the City for an amount certain. This process, which may take several months, further delays the receipt of huge sums of money to the City.
The very issuance of penalties and fines and the ECB's efforts to collect those fines do not enforce code compliance. Fines can be paid without the correction of the violations. Violations can be corrected without the payment of the associated fines. Simply put, there is not a direct correlation between payment of fines and the correction of violations. Ultimately, it seems the building's owner has the power to decide when, and if, the violation warrants prompt attention, a decision which is often based on the owner's desire to take business actions with the building.
V. A Look at the Numbers
The New York City Department of Buildings currently has 196 building inspectors for approximately 900,000 buildings, including both residential and commercial structures citywide. Of the 196 DOB inspectors, 66 are classified as field inspectors for construction and 62 serve as supervisors for the construction field inspectors.
As the graph illustrates above, there are currently 196 DOB inspectors. However, this number has declined greatly in the past few years. Although there were 260 inspectors employed by the DOB as recently as 2000, the number of inspectors dropped to 230 in 2001 and is continuing to decrease. The lack of State and Federal funding for building code inspectors directly affects the number of inspectors the DOB can afford to hire, especially construction inspectors. Since most building disasters occur during construction and renovation projects, it is crucial that DOB hire adequate numbers of construction inspectors. The number of construction inspectors dropped from a recent high of 96 inspectors in 1989 to as low as 47 such inspectors in 1997. While there are 66 construction field inspectors in 2002, 14 of them work solely in a special quality of life unit in Queens, leaving very little for the other boroughs. Outside of construction (127 inspectors), plumbing (17 inspectors), and elevators (36 inspectors), the number of inspectors for boilers and hoists/rigging are in the single digits. Certainly, the current number of building inspectors working in the DOB is grossly insufficient for a city consisting of over 900,000 buildings. For instance, Chicago, another city with a large number of commercial and residential high rises, has as many as 227 building inspectors for only 670,000 buildings. 3
There are two agencies primarily responsible for enforcing City building and housing codes. The distinction between these agencies is often misunderstood inside and outside of the industry, especially among tenants.
2The DOB could not provide us with this information, so the data in this section was provided by an anonymous source with close familiarity with the discussed subject matter.
3Telephone interview with Chicago Department of Buildings, October 23, 2002.
In July 2002, DOB's Commissioner issued a 100-Day Report, which describes the status of the department and its goals for the following year. According to that report, on an annual basis, the DOB and ECB combined issue an average of 56,000 violations citywide. Prior to 1987, all violations issued by the DOB were returnable to criminal court. However, the City has since decriminalized building code violations and created the ECB as the civil administrative court to conduct hearings of violations and issue fines.
Owners must appear before the ECB to answer violations, except for violations issued by inspectors employed by private companies. For example, elevators must be inspected five times every two years (two times by the owner and three times by the DOB). However, the DOB does not have enough of its own inspectors to conduct the required number of inspections. To fulfill its mandate, the DOB currently hires three private companies to help conduct the required number of elevator inspections in the City, the only periodic inspection provided by the DOB. Violations issued by inspectors from privately owned companies, which constitute the majority of elevator violations, are defined as "DOB violations". "DOB violations" are issued without a fine or requirement to appear before the ECB or any other tribunal. Again, we have the DOB as a toothless tiger. Elevator violations must be dealt with in a manner that will ensure the safety of all New Yorkers.
In light of the fact that there are little real enforcement measures in place at the DOB, my office attempted to retrieve the total number of outstanding violations to ascertain the pervasiveness of the problem. Despite numerous inquiries to various city agencies, our office was unable to find out how many total violations are outstanding in the City. This leads us to believe that either the City does not keep this type of data or is unwilling to provide it to the public. Clearly, the City must do a better job tracking outstanding violations and should include the data in the MMR each year.
C. Our Study's Findings
12,795 violations are still unresolved from fiscal years 2001 and 2002 of the violations DOB issued for the six most hazardous types of infraction codes. As the DOB could not provide my office with a total of outstanding violations to date, the data the DOB did provide could be used to extrapolate the total. According to my analysis of DOB's data for the past two years, there is an average of 2,000 violations for each of the 6 hazardous building codes. Thus, if there are 12,795 violations for only six types of codes, there could be up to 800,000 outstanding violations for all of the 379 building codes. Adding the number of uncured violations from previous years to the 56,000 new violations issued on average each year further increases the number of total violations citywide. Thus, uncorrected violations are clearly an ongoing yearly problem. With the total number of violations possibly close to a million, it is imperative that the City address DOB's failure in code enforcement.
Ultimately, one key reason violations remain uncured is that the DOB allows an indefinite number of re-inspections without mandating that the violations be cured. The DOB must impose strict timetables for correcting violations and must hold building owners accountable for failure to meet deadlines. A severe lack of information compounds these problems. The DOB does not sufficiently track the remedy of violations and payment of fines and does not do a good job of warning tenants about outstanding violations and when they are supposed to be corrected. In light of the large number of open violations, the DOB is clearly overwhelmed and should update their computing systems and explore other technological solutions to monitor the correction status of violations and the payment of fines and to better communicate with tenants affected by building owners non-compliance.
Since two years ago, $13,965,434 dollars out of $19,903,365 in fines have not yet been collected for these six types of hazardous building code violations. As shown in the graph below, the City is still waiting to collect 70% of those fines.
The graph above highlights the failed collection efforts of the ECB, the administrative court, and the Department of Finance (DOF), which is responsible for collections referred to it by the ECB. The $13,965,434 in uncollected fines represent those levied for only 2% of the types of code violations since 2001. As the DOB does not currently track the total amount of uncollected fines, it is impossible to determine the extent to which the City has failed to collect fines. If the City imposed close to $20 million in fines attributable to the six types of hazardous violations over two years, then approximately $10 million in fines are issued per year for such violations. In short, there is clearly a huge financial resource that must be pursued to bolster the City's economic health.
VI. RECOMMENDATIONS FOR REFORM
NYC should request monetary aid from the State and Federal governments.
New York City should be more aggressive in getting monetary aid from the State and Federal governments for critical building code enforcement capabilities.
Appoint a real oversight commission to oversee the DOB, HPD and the ECB.
The commission should be a nine-member entity, with its chair to be an independent person well-versed in construction, such as the dean of a respected Engineering School. Four of its members should be the Commissioner of HPD and DOB and the chief inspectors for each agency. Two of the remaining four members of the board should be representatives of landlords and two should be representatives of tenants.
Self-certification was an experiment to reduce City expenses, but it simply does not work in its current state. The various agencies do not conduct a simple check to see that a permit had been issued for work claimed to have been done. Additionally, when an owner hires an engineer or architect to inspect a building, the professional can be under a great deal of pressure to minimize the seriousness of a building's deterioration. Therefore, we suggest DOB inspectors perform random checks to be sure construction or renovation projects are done according to code.
Provide adequate initial and ongoing training, education, and opportunities for communication for inspectors.
New DOB inspectors receive very minimal training. A substantial portion of their job training occurs out in the field and through the help of fellow coworkers. This is unacceptable. Inspectors must have proper training before being allowed in the field. Equally important, the provision of ongoing training and industry updates should occur on a regular basis regardless of the inspector's experience level. Inspectors should also have formal and easily accessible outlets for communication to the department heads. Open communication among employees is vital to providing quality services to the community. Inspectors in the field are the most familiar with the changing needs of the community. Their voices must be heard.
Revamp computer hardware and software to allow better verification and quality control of data used by inspectors.
While the DOB claims to be in the process of technological advancement, inspectors need new technology now. Streamlining the data entry and retrieval process is crucial to monitoring violations and the status of building safety. Inspectors must be able to rapidly access all available information about a building to properly enforce maintenance and ensure the proper safety measures are in place. This technology needs to be made available quickly and without unnecessary delay. The cost of implementing this 21st century technology would be more than offset by revenue generated by the timely collection of fines.
The recommendations made in this report were drafted after serious consideration. Their intent is not to increase the burdens on the City or on individual property owners. The recommendations are proposed with the spirit that action must be taken to ensure the safety of our citizens: we are part of a City devoted to the fair and just treatment of all New Yorkers.
In the midst of one of the worst fiscal crises in its history, New York City has no excuse for failing to seek all possible sources of revenue to avoid raising taxes and cutting essential services provided by City agencies. Neglecting to collect millions of dollars in revenue could increase the likelihood that New Yorkers lose their jobs and that their quality of life, funds for education, fire and police protection and the essential health services will diminish. Failure to effectively and efficiently enforce building and housing codes is not an option. The City must start solving these problems immediately before another building falls apart and hurts more innocent people. It is unconscionable that the City has let this pattern continue as people's lives, not to mention the economic health of the City, are at stake.