Joe Corsini is a born and bred New Yorker. He lives in Queens with his wife and works by day as a building manager. Like many New Yorkers, he has an affinity for pigeons. They are smart and calm animals and have been a fixture in New York since the 17th century.[c] Carmen Nigro, How Did the Pigeon Get to NYC?, New York Public Library (Aug. 23, 2012), https://www.nypl.org/blog/2012/08/23/how-did-pigeon-get-nyc.[/c]
Joe’s interest in the birds traces to his childhood and memories of feeding pigeons with his grandfather and father, who also cared for the birds.
Seeking to build on those memories, Joe decided to build a pigeon coop on the roof of his home. His house is a beautiful duplex with a roof the right size to accommodate a coop. Shortly after he finished building it, one of his neighbors complained to the New York Department of Buildings (DOB). Joe came home one day to find a notice of violation posted on his front door: The DOB accused him of building the coop without a permit, demanded he fix the violation, and assessed a walloping $3,000 fine.
Joe had not known that he needed a permit to build a coop. After all, it was not particularly large or complex. Nevertheless, he tried to fix the problem and get a permit for his coop. He anticipated getting the permit would be complicated, so he hired an architect who, for $3,000, submitted plans to the DOB. But the DOB demanded a slew of changes, without which it would not issue the permits. After several rounds of back-and-forth, it became clear that the only way the DOB would grant him a permit was if Joe spent an inordinate amount of money installing fire sprinklers on the coop.
Joe spent thousands of dollars to build the coop, and thousands more to attempt to bring it into compliance. In the end, what he got was around $11,000 in fines. If he wanted to appeal the fines, he would have needed to pay them all before he did so. So instead of risking being exposed to the full range of fines, Joe instead hired a lawyer and negotiated a reduced amount.
New York City’s Department of Buildings oversees essentially every building and construction site, from midtown skyscrapers to Brooklyn brownstones. It is tasked with enforcing the city’s construction and zoning codes and protecting New Yorkers, whether they are construction workers, office workers, residents, or passersby. But the DOB’s realm is incredibly complex, and the agency pursues small property owners with an unfathomable heavy-handedness.
To start with, the laws covering building and construction form a byzantine latticework that overlap, sometimes conflict, and are extremely difficult to understand—even for attorneys used to complex city codes. The city’s construction code supplies many of the laws, including the substantive requirements such as which boilers must have shutoff valves[c] N.Y.C. Mechanical Code § 28-1005.1.[/c] and how much stress each type of bedrock can bear.[c] N.Y.C. Building Code § 28-1804.1[/c] The construction code also supplies the administrative and enforcement provisions. That code is supplemented by administrative rules that the DOB itself created. And then there are the DOB’s own policies, which are not always reflected in the official code or rules.
From this milieu have emerged two related, but distinct, processes that property owners face if the DOB alleges they have violated the code: (i) the DOB’s own, unreviewable proceedings, and (ii) administrative hearing proceedings run by the Office of Administrative Trials and Hearings (OATH).
Both processes start when a DOB inspector issues a notice of violation to a property owner. The notice identifies the alleged code violation by describing the conditions and the applicable section of the code, and it details the possible penalty. It also contains a demand that the owner fix the violation—oftentimes without explaining what needs to be done—and file a notarized certificate proving that the work was done. Every day that passes is a new opportunity for another fine, as each day a violation continues is itself a separate violation on top of the initial violation and subject to more fines. [c] N.Y.C. Admin. Code § 28-202.2.[/c]
Violations are sorted into three categories, ranging from the most severe, a Class 1 “immediately hazardous” violation, to a Class 2 “major” violation, and ending with the least severe, a Class 3 “lesser” violation. The category dictates the level of penalties that applies and what options a property owner has upon receiving the notice of violation.
A property owner facing a DOB violation must fix it. The DOB will sometimes waive or reduce penalties for certain violations, but others require payment in full. Critically, DOB citations are internal to the Department of Buildings and do not feature any opportunity for appeal—that is, they are not reviewable by any court or neutral adjudicator. [c] See, e.g., N.Y.C. Buildings, Resolving Violations, https://www1.nyc.gov/site/buildings/business/resolving-violations.page (“[T]here is no court appearance associated with a DOB violation.”); N.Y.C. Buildings, Department of Buildings Guide to Violations, https://www1.nyc.gov/assets/buildings/pdf/violations-guide-english.pdf; (DOB inspectors issue two types of violations: “One type of violation is heard at the City’s Environmental Control Board . The other can generally be resolved administratively by working directly with us.”). The only time a neutral adjudicator is available is if the City institutes legal proceedings to force a property owner to correct the violation. N.Y.C. Admin. Code § 28-219.2.1.[/c] Property owners have no process available to protect their rights; the DOB simply demands that they comply. And there are dozens of violations subject to this “system.”[c] N.Y.C. Buildings, Types of DOB Violations, https://www1.nyc.gov/site/buildings/safety/types-of-dob-violations.page.[/c]
The other track property owners face for alleged code violations at least provides hearings, but it still suffers from many flaws. For these violations, a property owner may admit the violation, fix it, and avoid attending a hearing. If fixed quickly enough, some penalties can be waived or reduced.[c] 1 R.C.N.Y. § 102-01(d), (k).[/c]
But sometimes property owners do not agree with the notice of violation and wish to contest it. If so, they attend a hearing before the city’s Environmental Control Board (ECB), where hearings are quick and need not comport with the rules of evidence or civil procedure that apply to traditional hearings. Property owner faces a stacked deck and many, particularly those without adequate representation, fail.
A property owner may appeal within the administrative system if they wish, but they must first pay all penalties owed unless a narrow exception applies. In other words, the city conditions the right to appeal on the ability to pay a fine that frequently reaches to tens and even hundreds of thousands of dollars. Worse yet, an administrative appeal may result in penalties that are higher than those issued by the DOB.[c] R.C.N.Y. § 6-19(g)(1). [/c] From the administrative system, an unsuccessful property owner may appeal to the New York state court system, but such proceedings are extremely limited and do not permit constitutional challenges to the Building Code.
The penalties for violating the Building Code are astronomically high.
The most severe category of violations entails a civil penalty of $25,000 for each violation, as well as an additional penalty of $1,000 a day for each day the violation is not corrected. In addition, if the violation remains after sixty days, the DOB will issue another summons to the tune of $6,250 for not complying with the initial summons. If the initial summons concerned work without a permit, the DOB levies more penalties. But correcting a violation requires the Building Commissioner to issue a permit for the work. While the Commissioner considers the request—which typically takes 60 days—penalties continue to accrue, and the Commissioner’s failure to issue the permit is not a defense to the accrued fines.
Many property owners wrack up fines for failure to comply and failure to correct and certify because they do not understand that the order to correct and certify requires both fixing the problem and properly certifying that correction with the Department. The order to correct and certify requires the respondent to correct the condition and file a notarized affidavit with the DOB that the respondent has corrected the condition. The failure to certify the correction is itself a new violation that may be subject to penalties in addition to the penalties associated with the underlying violation. The penalties for failing to certify can be between $1,500 and $5,000 (again, with each day a new violation). In addition, the Building Commissioner will not issue a building permit or certificate of occupancy or rescind a stop-work order until the respondent pays the penalty for failing to certify.
The result is that penalties can build to hundreds of thousands, if not millions, of dollars and can exceed the cost of the property. For example, if the DOB sees key-locks on bedroom doors and suspects someone is using a four-bedroom single-family home to house four families, the initial fine would be $60,000, with $15,000 per summons with one summons per bedroom. This amount can rise even higher if the property owner does not immediately correct the violation or try to fix the violation without a permit.
The system in which Joe found himself entangled is abusive and cruel. Without sufficient processes and protections, it is unconstitutional as well.
New York City’s building code enforcement mechanism fails the most basic standards of due process. The Due Process Clause of the Fourteenth Amendment prohibits the government from depriving people of property interests without sufficient procedural protections. The constitutional text is concerned with the risk of erroneous deprivation—an obvious problem under the city’s system. A DOB violation provides no opportunity for a property owner to defend themselves and no right to judicial review. That cannot be described as a process at all, let alone one meeting the standards of due process. And although ECB violations provide hearings, the absence of a procedure for a property owner to halt the accumulation of penalties while trying to comply results in further inescapable penalties.
The system conditions a property owner’s ability to obtain review from a neutral adjudicator on the payment of thousands of dollars of fines. A property owner may also face additional fines if he or she does appeal. Although judicial review is technically available for those who can pre-pay the fines and risk even higher ones, review is extremely limited. In other words, the city’s proceedings could be (and likely are) rife with error, but the result is the same: the city collects massive penalties.
The Due Process Clause requires more.
The case is being litigated by IJ Senior Attorney Bill Maurer and IJ Attorneys Diana Simpson and Jaba Tsitsuashvili. They are assisted by Jimmy Lathrop of The Law Offices of Jaime Lathrop, P.C.
Founded in 1991, the Institute for Justice is the national law firm for liberty and the nation’s premier defender of private property rights. IJ litigates in the courts of law and in the court of public opinion to defend free speech, property rights, economic liberty, and educational choice. This includes IJ lawsuits against New York City’s unconstitutional “no-fault” evictions, unconstitutional code enforcement practices, as in Pagedale, Mo., and eminent domain, as in National City, Calif., and the United States Supreme Court case Kelo v. City of New London.