FALLING APART AT THE SEAMS

A Critical Analysis of New York Citys Failure to Enforce its Building Code & A Roadmap to Reform

Manhattan Borough President Scott M. Stringer January 2010

ACKNOWLEDGEMENTS

Borough President Stringer would like to thank Investigative Policy Analyst Stephen Corson who was the lead researcher and writer of this report and Community Liaison Greg Kirschenbaum who first focused the offices attention on building violations. The Borough President also recognizes the substantive contributions made to this report by Scott Schell, Senior Advisor and Policy Director; Jenifer Clapp, Deputy Director of Policy and Research; Shira Gans, Policy Analyst; Alaina Gilligo, Chief of Staff; Cuong Nguyen, Deputy Chief of Staff; Sascha Puritz, Director of External Affairs; Andrew Doba, Director of Communications; Jimmy Yan, General Counsel; Anthony Borelli, Director of Land Use, Planning and Development; Brian Cook, Senior Urban Planner and Policy Advisor; Jennifer Hong, Senior Urban Planner; Paimaan Lodhi, Urban Planner; Jessica Silver, Deputy Director of Community Affairs; and interns Allison Delise, Jessica Hall, and Lauren OToole. The Borough President also appreciates the data collection and hard work of the following staff and interns: Caesar Alfano, Sari Bernstein, Dawn Billings, Alassane Diop, Bingjun Dong, Ray Fu, Jessica Guerra, Ezma Joseph, Becca Lewis, Yu Li, Edward Maxwell, Deborah Morris, Hilary Nemchik, Judith Outlaw-Walker, Jongmin Park, Monica Piraino, Evan Ritscher, Kate Spaulding, Sherri Taft-Leonce, Debbie Timothy, Kate Toth, Natalia Villarman, Lori Williams and Mali Zhou.

TABLE OF CONTENTS I. II. III. IV. V. EXECUTIVE SUMMARY...3 INTRODUCTION.................5 REGULATORY FRAMEWORK FOR BUILDING COMPLIANCE.7 METHODOLOGY AND LIMITATIONS .9 FINDINGS............................11 A. B. C. D. VI. VII. Violation Type & Severity.11 Duration of Open ECB Violations.14 Case in Point: Schools and Hospitals.15 Lost Revenue to the City18

RECOMMENDATIONS.....20 CONCLUSION....................26

VIII. APPENDIX...........................27

Falling Apart at the Seams: A Critical Analysis of New York Citys Failure to Enforce its Building Code & A Roadmap to Reform

I.

EXECUTIVE SUMMARY

Over a 34 day period in the fall of 2009, the Office of Manhattan Borough President Scott M. Stringer conducted an extensive review of open Department of Buildings (DOB) and Environmental Control Board (ECB) violations on 41,992 lots throughout the borough. In total, it found 177,518 open DOB violations and 45,270 open ECB violations in New York Citys database nearly a quarter of a million open building violations in Manhattan alone. Of the open ECB violations, 33 percent (a projected 15,000 borough-wide) are classified as Hazardous or Class-1 which pose a threat that severely affects life, health, safety, property, public interest or persons so as to warrant immediate corrective action. And yet, despite the seriousness and severity of this situation, the average time period during which each of these serious violations has remained open is nearly five years. One violation in the random sample has actually been open and unremedied since June 2, 1988. The study also found major enforcement problems in schools and hospitals. Specifically, 82.7 percent of Manhattans public schools and all five of Manhattans public hospitals have open ECB violations; 38.8 percent of public school buildings have open ECB violations and 60 percent of public hospital buildings have open ECB violations classified as Hazardous or Class-1. To cite just one disturbing example, a school in West Harlem, which had 15 Hazardous or Class-1 ECB violations, is reported to have interior structural cracking vertical and horizontal causing lateral movement through entire building. The story of the DOB is at best one of erratic enforcement and at worst one of gross negligence on the part of the City Administration. Tens of thousands of Manhattan buildings have safety or structural violations that go unresolved for years due to a failed buildings enforcement system, threatening the Citys public health, safety, and infrastructure. These ongoing building violations, when left unresolved, threaten the safety and health of residents as well as their ability to remain in their homes, schools, hospitals, and places of work. They also cost the City an estimated nearly $60 million in lost revenue just from Manhattan enough to fund, at least partially, initiatives like NYPD cadet classes, MTA Student MetroCards or NYCHAs Section 8 vouchers. Based on these results from just one borough, the likely cost of lost revenue from building violations in the City as a whole is truly distressing. In an effort to bring DOB up to a level of competence that New Yorkers deserve, the Office of Manhattan Borough President Scott Stringer is proposing the following eightpoint plan to enforce the safety and health standards of the building code, protect our building stock, and bring economic benefits to the City.

Manhattan Borough President Scott M. Stringer

1. Reduce the mission of DOB and create a New York City Office of Inspection (OOI), which will be responsible for building inspection and remediation. As a quasi-governmental authority, the OOI can draw more qualified inspectors, respond to fluctuations in development, and will have the authority to re-classify building violations so that the most dangerous violations are given an urgent designation and sufficient government attention. 2. Equip building inspectors with 21st century technology, successfully used by the Department of Sanitation, to ensure the seamless and open transfer of information from building inspectors to City government and the public. 3. Call for regular audits by DOB of randomly selected self-certified Certificates of Corrections submitted by building owners to determine their reliability and accuracy. 4. Expedite the response time by DOB to inspect and remove a stop work order after a building owner has remedied a violation, thus reducing the threat of lost wages or even lay-offs among construction workers. 5. Improve the complaint system by allowing the electronic submission of photographs by email, text, or other means in order to facilitate inspectors access and identification of the violation upon the inspection of a site. 6. Make the ECB a fully public body, with appointees from each of the five Borough Presidents as well as the Speaker of the City Council to reduce the potential for conflict of interest and inappropriate influence by the current and future mayors. 7. Use federal funds from the pending jobs bill in Congress to put New Yorkers to work fixing outstanding building violations to alleviate the building violation backlog and to create new construction jobs. 8. Extend the successful, but short lived, penalty relief program for delinquent ECB violations to allow building owners with delinquent ECB fines to correct the condition and pay the base fine without additional penalties, late fees, or interest.

Falling Apart at the Seams: A Critical Analysis of New York Citys Failure to Enforce its Building Code & A Roadmap to Reform

II.

INTRODUCTION

New York Citys built environment is not indestructible. Our building stock is the backbone of our urban infrastructure and is necessary, just like the expansive network of bridges, roads, railways, utilities and water tunnels, for our City to function. If we are not vigilant about maintaining this vital asset, it will deteriorate. The New York City Building Code, Construction Code, and Zoning Resolution are a comprehensive set of rules laid out by the City to prevent the deterioration of our building stock and to keep New Yorkers safe. The responsibility to uphold and enforce these building codes fall to the Department of Buildings (DOB), and DOBs primary enforcement mechanism is to issue violations, which carry a monetary fine and civil penalty, and / or stop work orders for construction violations. However, a strong building code does not, in and of itself, eliminate building hazards. According to the federal government, only through proper building design, sound construction practices, and effective code administration and verification programs, can owners ensure safe and hazard-free buildings for occupants.1 A string of recent incidents and new empirical evidence collected by the Manhattan Borough Presidents Office (MBPO) indicate that New York City is not adequately carrying out code administration and verification protocols. These failures put the safety of buildings, including public schools and hospitals, and the public in jeopardy. Construction safety has received substantial media attention during the past two years because of a succession of building collapses in New York City. On April 30, 2009, a five-story building collapsed in Tribeca only days after DOB issued a round of violations.2 One year before, a crane collapsed in the Upper East Side, killing two people at a construction site with 14 ECB violations.3 The most deadly incident occurred on March 15, 2008, when a crane collapsed at a construction site in East Midtown, killing seven people. DOB had issued 13 violations for this site a number that Mayor Bloomberg described as not unusual.4 A lengthy backlog of open DOB and ECB violations prior to the collapse has been the common denominator in these and other recent disasters. As a result, advocates and elected officials have called for the City to be more stringent, to issue more violations, and to crack down harder on perpetrators. While some measures have been adopted to increase oversight for construction, demolition, and abatement projects, many contractors, building owners, and other industry representatives have expressed concern that building violations are often unfair, inconsistent, and issued without due cause.5 The fines and other negative repercussions associated with these
http://www.epa.gov/radon/rrnc/buildingcodes_primer.html#why%20have http://www.nydailynews.com/ny_local/2009/04/30/2009-0430_building_collapse_at_lower_manhattan_construction_site.html 3 http://graphics8.nytimes.com/packages/pdf/nyregion/20080530_VIOLATIONS.pdf 4 http://ny1.com/1-all-boroughs-news-content/top_stories/?SecID=1000&ArID=79456 5 http://council.nyc.gov/html/releases/deutsche_leg_5_11_09.shtml
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Manhattan Borough President Scott M. Stringer

penalties are significant, particularly in light of the economic realities of the current recession. The system does not seem to be working. Evidence presented in this report suggests that a shocking number of building violations have been ignored and remained open for extraordinary periods of time, leaving thousands of individuals unprotected and tens of millions of dollars in outstanding fines uncollected by the City. This research raises questions about whether New York City has been sufficiently rigorous in administering and enforcing its own building code. Clearly, there are multiple flaws in the way that the City issues, tracks, and collects fine monies for building violations. In Section II, this report explains the regulatory framework and enforcement system in place to preserve the Citys building stock while highlighting problematic aspects of the current system. Section III describes the research methodology employed in the writing of this report. Section IV details the findings from a review of DOB and ECB violations on 41,992 lots in Manhattan. Finally, in Section V this report proposes a series of recommendations meant to reduce the number of open building violations and increase oversight and accountability while promoting economic development.

Falling Apart at the Seams: A Critical Analysis of New York Citys Failure to Enforce its Building Code & A Roadmap to Reform

III.

REGULATORY FRAMEWORK FOR BUILDING COMPLIANCE

New York City has a comprehensive building code intended to preserve our built environment and to safeguard the health, safety and well-being of the people who live, work, and inhabit our buildings.6 DOB and ECB are the government agencies primarily responsible for ensuring that buildings meet the minimum standards set by the Citys building code. DOB enforces building code, zoning, and other rules related to the safe and lawful use of over 975,000 buildings and properties in the five boroughs. The departments responsibilities involve performing plan examinations, issuing construction permits, Certificates of Occupancy, and Place of Assembly permits; responding to complaints, conducting physical inspections, issuing violations, and licensing trades. DOB issues and enforces its own violations. DOB also issues ECB building violations, which are adjudicated by ECB. The ECB is an administrative tribunal that hears cases related to the health, safety, and cleanliness of neighborhoods, issues monetary penalties, and/or orders that violations be corrected. The current composition of the ECB includes a full-time chairperson, six public members, and six representatives of mayoral agencies.7 The mayor is responsible for all appointments to the ECB and is the only elected official that can potentially influence the decisions of the ECB. DOB violations are often issued for procedural matters and do not always involve a physical inspection by DOB personnel. ECB violations can be issued only as the result of a physical inspection. ECB violations, which tend to be more severe, involve a civil penalty and are adjudicated by the ECB.

DOB performs all building inspections, including routine scheduled inspections on all new construction and unscheduled inspections on major construction projects. Nevertheless, the majority of inspections are the result of complaints.8 The complaintdriven aspect of inspections is central to ensuring the compliance of existing buildings because DOB does not schedule inspections unless a new building or alteration is known to be underway. Therefore, DOB is dependent upon the public to identify problems not directly stemming from new construction or alteration. According to a memorandum issued by DOB, an inspector must attempt to inspect the building at least two times after a complaint is made. Inspectors typically gain access to buildings from building staff, such as building superintendents or doormen. Small
6

http://www.nyc.gov/html/dob/html/reference/code_internet.shtml Commissioners from DOB, Department of Environmental Protection, Department of Health and Mental Hygiene, Department of Sanitation, NYPD, and FDNY all have a seat on the ECB. 8 Mayors Management Report, pg. 66 http://www.nyc.gov/html/ops/downloads/pdf/2009_mmr/0909_mmr.pdf
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Manhattan Borough President Scott M. Stringer

buildings are harder to access as they often do not have onsite staff. If access cannot be gained or is denied, then DOB must evaluate whether the complaint justifies a search warrant.9 Without gaining access to the building, it is difficult to determine the severity of the incident that prompted the complaint, making it challenging to get the information necessary to justify a search warrant. Consequently, search warrants for inspections are rare. When access to a building is provided, the DOB inspector will determine if an ECB or DOB violation is warranted. If the property is found to be in violation, the owner must correct the violation and pay any associated fine by attending a hearing at the ECB. To prove that they have remedied building violations, building owners file a Certificate of Correction form a notarized self report with documentary evidence admitting that the violation existed and attesting to the fact that it has been remedied along with proof that any associated monetary penalty has been paid.10 If DOB accepts this proof, it makes the information publicly available through its online Building Information System (BIS). If the DOB dismisses a building owners proof that a violation has been corrected, the violation will continue to appear in BIS as open, even if the building owner has paid the associated fine. DOB is required to re-inspect several hazardous violation types following the submission of a Certificate of Correction, including all violations where the owner did not appear at the ECB hearing. DOB is also required to perform spot checks on all hazardous violations for which it has received a Certificate of Correction.11 However, the Mayors Management Report on DOB states that DOB received 45,234 Certificates of Correction, while making no references to audits of those Certificates, as required by DOB policy. Anecdotal evidence suggests that these inspections are not occurring, which calls into question the value of this self-certification process.

NYC DOB OPPN 5/88 and 16/90 http://www.nyc.gov/html/dob/downloads/pdf/aeu2.pdf 11 NYC DOB OPPN 31/88
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Falling Apart at the Seams: A Critical Analysis of New York Citys Failure to Enforce its Building Code & A Roadmap to Reform

IV.

METHODOLOGY AND LIMITATIONS

A. Methodology All DOB and ECB violations described in this report were issued by DOB. DOB, the sole entity charged with enforcing the New York City Building Code, is the only government agency with the authority to issue DOB violations. ECB violations can apply to a range of quality of life laws, including air quality, noise, and sanitation matters, which fall under the jurisdiction of other municipal agencies. Thus, other departments can also give out ECB violations. MBPO did not examine ECB violations issued by any City agency other than DOB. Information about open DOB and ECB violations was collected for 41,993 lots in Manhattan from BIS between September 9, 2009 and October 13, 2009. MBPO staff discovered 45,270 open ECB violations in Manhattan through this process. Between October 19, 2009 and November 12, 2009, MBPO collected a statistically significant random sample of 2,275 open ECB violations from the pool of 45,270 open ECB violations.12 Conclusions based on this random sample have a margin of error of +/- 2 percent. DOB discloses a minimal amount of information about open DOB violations on BIS. However, it does post a rich set of data about open ECB violations, which facilitated further analysis.13 The same quality of data is not made publicly available for open DOB violations; thus, MBPO could only rely on ECB violation data to measure the scope and severity of Manhattans backlog of building violations. MBPO staff collected information regarding eight data points from the available reports, including: violation severity, status, name, violation issue date, violation type, hearing status, penalty imposed, and amount paid. The length of open violations was calculated on November 13, 2009 based upon the time that elapsed between the date the violation was issued and November 13, 2009. MBPO staff collected information about open ECB violations in Manhattan hospitals and schools on December 8 and 9, 2009. All projections and estimates made in this report were formulated using simple algebraic proportions. B. Limitations Due to the size of the data pool and limited staff resources, data collection was conducted over a three-month period. DOB regularly updates the BIS database, adding new violations and removing open violations that have been corrected. The magnitude of the Citys open violation backlog combined with the fact that DOB is constantly updating

12 13

p = .05, Confidence Interval = 2 A typical ECB violation report this one associated with a public school on Manhattans east side can be viewed here: http://a810bisweb.nyc.gov/bisweb/ECBQueryByNumberServlet?requestid=2&ecbin=34586013L

Manhattan Borough President Scott M. Stringer

violation records made a static sample of building violations impossible to capture. Thus, some natural variations in the data are probable. In addition, several tax lots have multiple buildings. Due to the breadth of the data set 41,992 lots only the first building associated with the lot was recorded. As such, several buildings in larger complexes were not included in this search. 7.3 percent of the sampled open ECB violations had not yet been adjudicated. Receiving a citation for a building violation is an allegation, not a final determination. Thus, it is possible that a violation captured in the sample could be overturned upon their future adjudication. However, the vast majority of ECB violations result in a final determination consistent with the original citation. All conclusions and projections made in this report are based only on Manhattan data and may not be representative of the City as a whole. If all five boroughs were considered, the size of the Citys backlog of open violations and the magnitude of outstanding fines may be much larger than this report suggests. Furthermore, because calculations regarding the timeframe that violations are open do not account for the days after November 13, 2009, it is likely that many of the sampled violations still remain open. Thus, the actual average length of open violations may be longer than projected in this report.

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Falling Apart at the Seams: A Critical Analysis of New York Citys Failure to Enforce its Building Code & A Roadmap to Reform

V.

FINDINGS

The Office of the Manhattan Borough President catalogued every open DOB and ECB violation for every property in Manhattan over a thirty-four day period in late 2009. The results were alarming. A total of 177,518 open DOB violations and 45,270 open ECB violations were found among Manhattans residential, commercial, industrial and public buildings. A startling 62.78 percent of Manhattan buildings have one or more open DOB violations and 32.19 percent of Manhattan buildings have one or more open ECB violations. Thats 26,362 and 13,519 buildings, respectively. Manhattans public schools and hospitals have some of the most serious backlogs of open violations. Because publicly available ECB violation reports contain a rich set of details, MBPO staff conducted additional analyses of 2,275 randomly selected open ECB violations. The results of this review raise serious questions about how effectively the City regulates its building stock. A. Violation Type And Severity The types of open ECB violations vary considerably. Nine ECB violation categories have been identified by MBPO as being the most serious, because they pose significant threats to health, safety and public welfare. These violation types include boiler, cranes and derricks, construction, elevator, local law, public assembly, plumbing, quality of life, and site safety.14 There are numerous subcategories of the violations types listed above. A sampling taken from the Citys ECB penalty schedule includes: Boiler Boiler installed, altered, repaired, or used without a permit; failure to maintain boiler; Cranes and Derricks Supervision or use of hoisting machine without a hoisting machine operators license; failure to use safety belts while working on swinging scaffold; Construction Failure to properly store combustible material; failure to comply with stop work order; failure to carry out demolition operations in a safe and proper manner; Elevator Failure to maintain elevator; operation of an elevator without an equipment use permit; failure to file a report of private elevator inspection;

14

Violations labeled as local law typically refer to problems with building faades; however, elevators and boilers problems may also be classified using this label.

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Manhattan Borough President Scott M. Stringer

Local Law Failure to provide/inadequate fire protection for escalators; failure to maintain exterior building; failure to provide stair signs in an office building; Public Assembly Failure to provide at least two means of egress; no fire alarm system; no emergency lighting; Plumbing No potable water in habitable building; potable water piping cross connected to non-potable water piping; insufficient water supply to standpipe; Quality of Life Residence altered for occupancy as a dwelling for more than the legally approved number of families; occupancy contrary to that allowed by the Certificate of Occupancy or Building Department records; and Site Safety Operation of defective Crane, Derrick or hoisting equipment; no standpipe system; no permit for sidewalk shed.

Clearly, some types of ECB violations are more severe than others. Hazardous and Class-1 violations are the most serious types of building violations, while Class-2, Class3 and Non-Hazardous violations pose less of a threat to public safety. According to 102-01 of the New York City Administrative Code, a Hazardous or Class-1 violation poses a threat that severely affects life, health, safety, property, public interest or persons so as to warrant immediate corrective action.15 One third of the randomly sampled open ECB violations in this study were either Hazardous or Class-1.

Randomly Selected Open ECB Violations Organized by Severity in Manhattan as of November 12, 2009
Violation Severity Number of Violations 479 275 301 51 1,147 22 2,275 Percent of Sample Projected Open Violations in Manhattan 9,529 5,473 5,989 1,014 22,825 439 45,269

Hazardous Class-1 Class-2 Class-3 Non-Hazardous No Available Record Total

21.05% 12.09% 13.23% 2.24% 50.42% 0.97% 100%

The table above shows the severity by type of the 2,275 randomly selected open ECB violations and, based upon these numbers, estimates the number of open ECB violations in Manhattans entire building stock. To put the figures above in perspective, there are an estimated 15,000 open ECB violations in the Borough of Manhattan that are classified as either Hazardous or Class-1. Additionally, 631 of the 1,936 unique buildings captured in the random sample of 2,275 open ECB violations have one or more Hazardous or Class-1 violations. Based on this data, MBPO projects that nearly one third of Manhattan buildings have open violations that pose a severe threat to public safety.
15

http://www.nyc.gov/html/dob/downloads/rules/1_RCNY_102-01.pdf

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Falling Apart at the Seams: A Critical Analysis of New York Citys Failure to Enforce its Building Code & A Roadmap to Reform

Map 1 illustrates the geographical distribution of all Hazardous and Class-1 violations collected in the random sample:

Source: New York City Department of Buildings, Buildings Information System, Oct - Nov 2009

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Manhattan Borough President Scott M. Stringer

In the random sample collected by MBPO staff, open construction violations accounted for 47 percent of the sample, followed by elevator violations (20.4 percent) and boiler violations (6.8 percent). In the figure below, violations are grouped into two categories of severity. Hazardous and Class-1 violations are shown in blue, and Class-2, Class-3 and Non-Hazardous violations are shown in magenta.

ECB Violation: Type and Severity Identified in Manhattan as of November 12, 2009
Hazardous & Class 1 100% 80% 60% 40% 20% 0% Class 2, 3, & Non Hazardous

Quality of Life

Construction

Public Assembly

Plumbing

Boiler

Elevator

Additionally, in the full survey of 41,992 properties in Manhattan, 1,647 stop work orders, 468 partial stop work orders, 51 full vacate orders, and 190 partial vacate orders were discovered. Critics of DOB have pointed out that stop work orders, when left in place without timely re-inspection after a violation has been corrected, put construction industry jobs in jeopardy. More than three out of four buildings for which stop work and/or vacate orders were issued have one or more open ECB violation.

B. Duration Of Open ECB Violations One of the most startling facts about Manhattans open ECB violations is the length of time they remain open. An ECB violation is considered to be open if the underlying condition that warranted the violation has not been brought into compliance. An ECB violation is also considered open if it has been brought into compliance but the fine has

Local Law (Faade)

Site Safety

Cranes & Derricks

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Falling Apart at the Seams: A Critical Analysis of New York Citys Failure to Enforce its Building Code & A Roadmap to Reform

not been paid. Here are key findings on the duration of open ECB violations captured in our random sample: Four out of five ECB violations have been open for more than one year. The average amount of time ECB violations have been open is 2,258 days, well over six years, while the median amount of time is 1,408 days, close to four years. Serious ECB violations, which are Class-1 and Hazardous, have been open for an average of 1,829 days, which is just under five years. The oldest open violation collected in the random sample dates back to June 2, 1988.

The figure below illustrates the number and time period associated with open ECB violations.

Duration that ECB Violations Remain Open in Manhattan as of November 13, 2009
1,002 450

546 278

> 1 year

1 - 3 years

3 -5 years

5+ years

C. Case In Point: Schools and Hospitals

The most alarming data on open ECB violations found by MBPO staff relate to the safety of public schools and hospitals. An astonishing 82.7 percent of Manhattan public school buildings have one or more open ECB violations. These 196 school buildings have over 1,000 open ECB violations, and well over one third of buildings have violations that are considered serious.

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Manhattan Borough President Scott M. Stringer

Additionally, each of the five hospitals in Manhattan operated by the New York City Health and Hospitals Corporation (HHC) has open ECB violations. Three of those hospitals Bellevue, Harlem Hospital, and Metropolitan Hospital have one or more open serious violation. Some of the most unnerving inspection reports from Manhattan public schools are described below:

The Kipps Infinity Charter School, Kipps STAR College Prep, and Roberto Clemente Intermediate School are located in the same building in West Harlem. Their building has 44 open ECB violations, 15 of which are serious. Comments from one violation report add context to these atrocious figures: interior structural cracking vertical and horizontal causing lateral movement throughout entire building.16 The School of the Future, located on East 22nd Street, has ten open ECB violations. Six are considered serious. The DOB inspectors comments illustrate the severity of this situation. In one violation, a structural concrete (beam) has approx 6ft long crack and another notes that the exterior roof skylight is leaking over the electronic motor for the elevator. 17,18 At Fredrick Douglass Academy and PS 200 which are both housed in a building on 148th Street and Adam Clayton Powell Boulevard in Harlem, the comments recorded by DOB inspectors speak for themselves. On one occasion, an inspector noted that a main structural support has pulled away and separated approximately 2 inches, and a separate comment notes that all expansion joints throughout the structure are showing signs of movementvarious cracks, bulging, missing cement and displaced concrete slab next to and along building lines.19, 20 At PS 290 on East 82nd Street, inspectors found a full length crack approximately 1/2 wide in a retaining wall.21 An inspector noted that the car gate [is] not working and cables very rusted on an elevator at a building used by the Chelsea Career and Tech High Schools and the NYC iSchool.22

http://a810-bisweb.nyc.gov/bisweb/ECBQueryByNumberServlet?requestid=3&ecbin=34526280L http://a810-bisweb.nyc.gov/bisweb/ECBQueryByNumberServlet?requestid=2&ecbin=34586013L 18 http://a810-bisweb.nyc.gov/bisweb/ECBQueryByNumberServlet?requestid=3&ecbin=34526021R 19 http://a810-bisweb.nyc.gov/bisweb/ECBQueryByNumberServlet?requestid=2&ecbin=34517322X 20 http://a810-bisweb.nyc.gov/bisweb/ECBQueryByNumberServlet?requestid=2&ecbin=34517323H 21 http://a810-bisweb.nyc.gov/bisweb/ECBQueryByNumberServlet?requestid=2&ecbin=34576904X 22 http://a810-bisweb.nyc.gov/bisweb/ECBQueryByNumberServlet?requestid=2&ecbin=38199163M

17

16

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Falling Apart at the Seams: A Critical Analysis of New York Citys Failure to Enforce its Building Code & A Roadmap to Reform

Map 2 illustrates the geographical distribution of public school buildings, highlighting those with open Hazardous and/or Class-1 ECB violations.

*- serious violations are defined as Hazardous or Class-1 Environmental Control Board violations issued by Department of Buildings inspectors.

Source: New York City Department of Buildings, Buildings Information System, Oct - Nov 2009

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Manhattan Borough President Scott M. Stringer

It is clear that New York City is not doing enough to ensure the safety of the public buildings that house our most vulnerable populations.

D. Lost Revenue To The City

Unpaid ECB fines represent a substantial untapped revenue source that the City should pursue. We estimate that the City is owed between $59.3 and $59.9 million in uncollected ECB fine money for violations issued by DOB in Manhattan alone. Some $3 million in overdue fines were discovered in the randomly selected sample of open ECB violations. Unpaid fines for serious ECB violations in the sample equal $2,634,429. Fine amounts vary by violation type, with construction violations amounting to some $877,000 in outstanding fines and Crane and Derrick violations generating over $142,000 in outstanding fines. Although they do not pose a direct safety hazard, sign violations accounted for $150,000 in uncollected fines. Amounts owed in Manhattan also vary by Community District. The figure below illustrates projected fine delinquencies by Manhattan Community District.

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Falling Apart at the Seams: A Critical Analysis of New York Citys Failure to Enforce its Building Code & A Roadmap to Reform

Projected Outstanding ECB Fines by Manhattan Community Board District as of November 12, 2009
$10 $9
Outstanding Fines (in millions)
-L 1
2 -G

$8 $7 $6 $5 $4 $3 $2 $1
M -E an as ha h tV -C V tta ill ill he n a ag ge lse e & a 5 /L & 6 So -M ow -E Cl H i i er as o dt n to ow tM E n/ as n id t H /F Si to ell de la wn s tir /M K on itc ur /U he ra ni n y on H il l Sq /G ua re ra m 7 er -U cy pp Pa er rk W 8 es -U tS id pp e er Ea st 9 Si -W de e s 10 tH -C ar 12 lem en -W tr a lH as 11 hi ar ng le -E m to as n tH He ig ar ht lem s/ In w oo d 4

re e

nw ic

ow er

Community Board District

Although these amounts are seemingly minuscule relative to the Citys annual budget, it is difficult to argue that ignoring these potential revenues is in the Citys best interest. For example, the projected amount of Manhattans unclaimed fine money could be used to stave off almost all of the $62 million in proposed MTA pay cuts23 and is equal to the full amount needed to continue funding more than 3,000 Section 8 vouchers that the New York City Housing Authority distributed and then terminated in mid-December.24 There are scores of other urgent and constructive uses for funds waiting to be collected on these overdue debts.
23 24

http://www.nytimes.com/2009/12/12/nyregion/12mta.html?ref=nyregion http://www.nytimes.com/2009/12/18/nyregion/18vouchers.html

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Manhattan Borough President Scott M. Stringer

VI.

RECOMMENDATIONS

The extent and magnitude of the outstanding open building violations discovered by MBPO staff is unacceptable. The data compiled for this report represents only the Borough of Manhattan. The City-wide figures are surely even more alarming. To address this problem, we must create a new inspection system that can effectively issue and enforce violations, and we must immediately focus on bringing the most serious violations of this massive backlog into compliance. To that end, Borough President Stringer has formulated the following eight-point plan to reduce New York Citys backlog of open building violations.

I. Overhauling Building Enforcement Recommendation 1 The New York City Office of Inspection A. Mismanagement and general dysfunction at the Department of Buildings have been widely discussed and documented in the past. The most significant complaints relate to DOB inspections, specifically the quality of inspectors, lack of training for inspectors, inconsistent inspections, and a lack of enforcement capability. In fact, DOB Commissioner Robert LiMandri remarked during questioning at a September 21, 2009 meeting of the City Council Committee on Housing and Buildings that what this department consistently needs is stronger enforcement policies.25 Moreover, there is an inherent conflict between DOBs mission to promote development and also enforce adherence to the building code. In order to bring building code enforcement back to an acceptable state, the City has no choice but to drastically revamp its regulatory structure.
The Mayor should restrict DOBs mission and responsibilities and instead create a new Office of Inspection (OOI). The OOI will be a quasi-public entity that will house the entire Citys building inspectors and will be responsible for the issuance and remediation of all building violations.26 Funds that are currently apportioned to the DOB for building inspection operations will be shifted to the OOI. Most importantly, the revenue collected from OOI violations and enforcement will go directly into OOIs budget, as opposed to the current system where revenue raised from DOB violations goes into the Citys general fund rather than back into the DOB budget. This type of revenue scheme will require state legislation. The ECB will still adjudicate all building violations issued by OOI so that there is a check on OOIs power and to help prevent overzealous issuance of building violations as a revenue generator.

http://legistar.council.nyc.gov/View.ashx?M=F&ID=748684&GUID=1BE79A1E-ABEE-4B0C-AFD6B8FA31B0F7E8 26 Ontarios Technical Standards & Safety Authority and Quebecs Commission de la construction du Quebec (CCQ) employ similar models.

25

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Falling Apart at the Seams: A Critical Analysis of New York Citys Failure to Enforce its Building Code & A Roadmap to Reform

This streamlining of government resources will allow OOI to pay building inspectors at markedly higher rates, thereby attracting inspectors with greater qualifications, talent, and consistent training. In addition, the office would demand higher levels of accountability among the Citys building inspectors.

B. As an additional measure, one of the first priorities of OOI should be to convene a commission of experts to review building violation classifications to ensure that those violations labeled as hazardous are truly hazardous. This will address a frequent criticism that many of the hazardous building violations issued by DOB are hazardous in name only. This perception, fair or not, helps nurture the casual attitude that some tenants, some building owners, and the City have when it comes to remedying and enforcing outstanding building violations. When open building violations are left to linger in staggering volumes, the most crucial violations are bound to get lost in the crowd and the results can be damaging. The City must ensure that violations that pose a true threat to public safety are unequivocally identified as such and that the enforcement of those violations are approached with urgency.

II. Creating a System that Works

As discussed above, the best way to improve the Citys building violation and enforcement structure is to create a new Office of Inspection that implements the recommendations proposed in this report. If the City chooses not to create this new entity, the following recommendations should still be adopted by DOB.

Recommendation 2 Improve information management and transparency A. A frequent criticism that emerged from stakeholders during the preparation of this report is that DOB uses antiquated, hand-written violation records which prevent timely and efficient transmission of information between inspectors, property owners, other branches of DOB, the ECB, and the public. Inspectors should implement the latest technology and be armed with handheld computer devices when they are out in the field. With these devices, inspectors could enter violations electronically into a centralized and continuously updated database, which would house all information in DOB and ECB records.
This recommendation is realistic and easy to accomplish. In fact, in the past the New York City Department of Sanitation faced similar problems as DOB, but has now equipped its Sanitation Enforcement Agents and Sanitation Police Officers with handheld computer devices. Sanitation violations are issued using these devices, and the devices also give agents and officers access to previous violation histories and other relevant information in real time. When agents and officers return to their offices at the end of the day, they plug their handheld devices into a mainframe computer which then immediately transfers information about that days violations to the ECB. In turn, new information from the Department of Sanitation, the ECB, and other sources is uploaded to the handheld device in order to ensure that the information is kept current.

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Manhattan Borough President Scott M. Stringer

This facilitates a nearly seamless transfer of information from inspectors to their home agency, the ECB, and other branches of City government. With pen and paper violations, simple issues like illegible writing and document transfers add time and potential errors to the process. DOB should immediately confer with colleagues at the Department of Information Technology and Telecommunications and the Department of Sanitation to learn how to adopt simple technology for all personnel charged with issuing violations.

B. More information regarding violations must be made publicly available in an easily accessible format. The Citys BIS website contains a dearth of information about open and closed DOB violations. This opacity makes it impossible to gauge the scope and severity of Manhattans 177,518 open DOB violations. In preparing this report, MBPO staff used DOBs online database for ECB violations to obtain detailed information about open ECB violations. In contrast, basic information such as violation type, violation severity, and violation status typically present in the DOBs online database for ECB violations was routinely blank in DOBs online database for DOB violations.
DOB should shift to a more transparent reporting protocol for all DOB violations and begin posting detailed violation reports similar to those that are available for ECB violations. DOB should also make a concerted effort to improve the quality of its online records. MBPO estimated that 1,990 open violations in the BIS database were uncategorized by violation type, making it impossible for the public to interpret the meaning of those open violations that exist in their neighborhoods and homes. Additionally, because of the extraordinary lengths of time that some building violations have remained open, DOB should make a focused effort to examine and verify the reliability of their historic records in order to ensure that buildings where violations were issued are still standing and to confirm the accurate ownership of buildings with outstanding open violations.

Recommendation 3 Audit Certificates of Correction

DOB should conduct audits of randomly selected violations in order to determine whether the self-certified Certificates of Correction that DOB receives from building owners are legitimate. This is in line with DOBs current policy; however, anecdotal evidence suggests that audits are not happening.27 If audits are indeed being conducted by DOB, then results are not being reported and the audits are not being made publicly available. The City relies on these self-certified Certificates of Correction as testament that a violation - a potential public safety hazard - is remedied. Accordingly, the public needs to have the utmost confidence in the veracity of these self-certified Certificates of Corrections that DOB accepts and must be assured that any building owner charged with submitting fraudulent claims in these documents will be exposed and punished.

27

NYC DOB OPPN 25/87

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Falling Apart at the Seams: A Critical Analysis of New York Citys Failure to Enforce its Building Code & A Roadmap to Reform

Recommendation 4 Rapid follow-up on violations and stop work orders

For the most serious violations, DOB should conduct systematic follow-up inspections within a reasonable time period after issuing the original violation to ensure that building owners have adequately remedied the violation. In cases where building owners neglect DOBs required remedy or show a clear pattern of violation recidivism, DOB should issue an identical violation but with a more severe and escalating monetary penalty and/or additional restrictions, such as refusal to grant a work permit for any purpose other than the remediation of existing violations. DOB inspectors must also be more vigilant in quickly re-inspecting buildings and construction sites for which stop work orders have been issued. Untimely follow-up for stop work orders has serious consequences for construction industry workers, the economic development of our City, and the quality of life for our residents. Failing to lift stop work orders that have been brought into compliance can result in lost wages or even lay-offs for construction workers, can leave communities blighted with idle construction sites, and can create disincentives for building owners to rapidly correct violations.

Recommendation 5 Improve the complaint system

The DOB complaint system is inherently flawed. Because DOB does not have guaranteed access to buildings without a search warrant, many complaints go unverified when inspectors realize that they cannot gain access to the buildings. To improve the system, when a complaint is received, the complainant should be asked if s/he can provide access to the building and if s/he would be willing to do so. If the complainant is willing and able to provide access to the building, DOB should take his/her phone number so that inspectors do not need to rely solely on building superintendents, onsite staff, or search warrants in order to gain access to buildings with alleged violations. DOB should also create a system that allows the public to electronically submit photographs along with their complaints. This would allow DOB to better assess the danger of the potential violation and more efficiently prioritize the use of its resources.

Recommendation 6 Adjust the composition of the Environmental Control Board

The current composition of the ECB includes a full-time chairperson, six public members, and six representatives of mayoral agencies.28 The mayor is responsible for all appointments to the ECB and is the only elected official that can potentially influence the decisions of the ECB. This creates the potential for conflict of interest and inappropriate influence by the current and future mayors.

28

Commissioners from DOB, Department of Environmental Protection, Department of Health and Mental Hygiene, Department of Sanitation, NYPD, and FDNY all have a seat on the ECB.

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Manhattan Borough President Scott M. Stringer

All appointments of public members to the ECB should be made by the five Borough Presidents and the Speaker of the City Council, rather than the Mayor. Each of these new appointees should have a broad general background and experience in fields that are relevant to the ECB as mandated by the New York City Charter for public appointees to the ECB.

III. Bringing Existing Violations into Compliance Recommendation 7 Use federal job creation funds to alleviate the massive building violation backlog
In a speech at the Brookings Institution on December 8, 2009, President Obama announced an additional $50 billion in federal spending for infrastructure, citing an urgent need to accelerate job growth in the short term.29, 30 The construction industry in New York City faces a projected unemployment rate between 30 and 40 percent and a 20 percent decline in construction spending in 2010.31 A jobs program aimed at the construction industry would temper these dim projections and could simultaneously reduce the Citys massive backlog of open building code violations.32 Some funding from this new pool of federal dollars should be channeled to the New York City Department of Education and the New York City Health and Hospitals Corporation. These funds should be earmarked specifically for the creation of new construction jobs focused on bringing outstanding building violations at New York City schools and hospitals into immediate compliance. Additionally, the Obama administration should fund a Cash for Construction program which would provide rebates to offset 50 percent of the cost of complying with outstanding DOB and ECB violations at residential buildings with a significant number of affordable housing units. Multi-family buildings that are still in the Mitchell-Lama program and buildings with Section 8 or rent-regulated units at or above 50 percent of a given buildings total units should be eligible for this program. Violations whose remediation will create the largest numbers of short-term construction jobs, such as those relating to faades, masonry and plumbing, should be the immediate focus of the Cash for Construction rebate program in order to put unemployed members of the construction industry back to work as soon as possible. New jobs created by this bill should include Davis-Bacon provisions and pay prevailing wage.33

29 30

http://online.wsj.com/article/SB126028857157682051.html?mod=WSJ_hps_LEFTWhatsNews http://www.whitehouse.gov/the-press-office/remarks-president-job-creation-and-economic-growth 31 http://www.buildingcongress.com/outlook/102109.html 32 http://www.crainsnewyork.com/article/20091204/FREE/912049982 33 http://www.dol.gov/whd/regs/statutes/dbra.htm

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Recommendation 8 Extend the penalty relief program

The findings in this report indicate that a large number of open violations remain unremedied and pervasive. The apparent cause for these troubling numbers is the absence of enforcement or other incentives for building owners to expeditiously repair violations issued by DOB. As it stands now, building owners are only required to clear their violation backlogs when they seek modifications to their buildings. A modification is initiated by obtaining a Certificate of Occupancy which will be granted by the City only when outstanding DOB and ECB violations are remedied. There are no other circumstances where building owners in New York face severe consequences if violations are not remedied and fines are not paid. In effect, violations issued by DOB can be ignored with impunity. The status quo will remain unchanged unless the City introduces new carrots and sticks to persuade building owners that it is in everyones best interest to clear their violation backlogs. The City recently created a temporary penalty relief program that allowed building owners with delinquent ECB fines to correct the condition and pay the base fine for the outstanding violation without additional penalties, late fees, or interest.34 The program, which lasted from September 21, 2009 to December 21, 2009, resulted in the collection of $11.1 million in outstanding ECB fines.35 The City should re-establish this penalty relief program for an additional nine months to ensure that building owners have adequate opportunity to close open ECB violations without excessive financial burden during a time of national recession.

34 35

http://www.nyc.gov/html/dob/downloads/pdf/penalty_relief_program_flyer.pdf http://www.nypost.com/p/news/local/city_haul_nyc_pulls_in_with_penatly_zFSPZkAkxcwWd5k5S636i K

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Manhattan Borough President Scott M. Stringer

VII.

CONCLUSION

The empirical evidence presented in this report demonstrates a tangible need for the drastic reorganization of New York Citys approach to building regulation. Blue ribbon panels, public hearings and policy recommendations from previous mayoral administrations have all reached similar conclusions, yet actual change has been too slow. The data and recommendations presented in this report must be viewed as a call to action for the City to correct a system that has operated in a dysfunctional state for far too long. The safety of New York Citys citizens, the integrity of New York Citys building stock and New York Citys economic vitality are all at stake.

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VIII. APPENDIX - A

Source: New York City Department of Buildings, Buildings Information System, Sept - Oct 2009

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Manhattan Borough President Scott M. Stringer

VIII. APPENDIX - B

Source: New York City Department of Buildings, Buildings Information System, Oct - Nov 2009

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Falling Apart at the Seams: A Critical Analysis of New York Citys Failure to Enforce its Building Code & A Roadmap to Reform

VIII. APPENDIX - C
Some notable Manhattan collapses in the last three years include:

On April 30, 2009, a 50-foot by 60-foot section of a five-story building at 71 Reade Street in Tribeca collapsed into an adjacent lot. DOB inspectors had issued a new round of violations for the building just days before the collapse.36 On May 30, 2008, a crane collapsed at a construction site at 354 East 91st Street killing two people. According to a DOB press release from later that day, there were 14 previous ECB violations for the construction site although none were crane violations.37 On March 15, 2008, a crane collapsed at a construction site at 303 East 51st Street killing seven people. The DOB had issued 13 violations for the site, a number that Mayor Bloomberg described as not unusual.38 On January 14, 2008, wooden concrete form at a construction site at 246 Spring Street collapsed, causing a construction worker to plunge forty-two stories to his death. The building had 11 previous ECB violations for unsafe construction.39 On July 25, 2007, a retaining wall at a construction site at 784 Columbus Avenue collapsed, temporarily displacing hundreds of residents living adjacent to the site. The DOB had issued 97 violations for the site over the two years prior to the accident.40 On March 28, 2007, a vacant residential building at 1861 Lexington Avenue collapsed.41 The incident affected Metro-North service and five nearby buildings had to be evacuated in the immediate aftermath.42

http://www.nydailynews.com/ny_local/2009/04/30/2009-0430_building_collapse_at_lower_manhattan_construction_site.html 37 http://graphics8.nytimes.com/packages/pdf/nyregion/20080530_VIOLATIONS.pdf 38 http://ny1.com/1-all-boroughs-news-content/top_stories/?SecID=1000&ArID=79456 39 http://Cityroom.blogs.nytimes.com/2008/01/14/scaffold-collapse-at-trump-soho-tower-kills-1/ 40 http://www.nydailynews.com/news/2007/07/27/2007-07-27_hey_that_walls_gonna_fall.html 41 http://www.nytimes.com/2007/03/28/nyregion/28collapse.html 42 http://www.nysun.com/new-york/chaotic-day-officer-shot-building-collapses-fire/51307/

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