January 21, 2021

What does the Empire State Building have in common with a rooftop pigeon coop in Queens? Both are overseen by New York City’s Department of Buildings (DOB)—and subject to the department’s nightmarishly complex regulatory system and unconstitutional enforcement processes. The DOB uses its code enforcement power to raise revenue, stacking fine after fine on property owners for often trivial violations. In recent years, most of these skyscraping fines have fallen not on politically powerful developers but on small property owners like IJ client Joe Corsini.

Like thousands of New Yorkers, Joe likes keeping pigeons and started building a coop on the roof of his duplex in Queens. Urban pigeon keeping is a long and storied tradition in the Big Apple. Throughout the mid-20th century, hundreds of coops dotted rooftops in all five boroughs, and Joe’s father and grandfather also cared for the birds. But when Joe decided to build his own coop, he didn’t realize he was supposed to get a permit first. 

For that oversight, the DOB cited Joe for work without a permit. To bring the coop into compliance, Joe hired an architect to file a formal permit application—which the city repeatedly denied for reasons like not including an overhead sprinkler in the coop. Meanwhile, the city’s fines continued to accrue because Joe did not have a permit, even though it also refused to give one to him. Finally, Joe gave up and disassembled the coop.

All told, the city issued Joe eight tickets totaling $11,000—all for attaching chicken wire to a few pieces of wood.  

Joe’s fines pale by comparison to those of his fellow Queens resident Emilene Petrus, who was fined more than $1 million for renovating her house without a permit—more than her home is worth. Yet another owner received more than $400,000 in fines for an unpermitted garage and bathroom—even though they were installed by the home’s previous owner. The city typically seeks the maximum penalty for every fine, making no distinction between an experienced midtown Manhattan developer and an unlucky new homeowner in Staten Island.

This system is not just abusive and irrational—it is unconstitutional. New York may ensure that buildings are safe places to work or live. But it cannot ignore the 14th Amendment. A DOB violation provides no opportunity for property owners 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 the 14th Amendment requires. Moreover, the Constitution demands that fines be proportionate—not driving people into poverty for harmless or minor violations.

In December, IJ joined Joe in challenging New York’s constitutionally deficient system in federal court. The suit is the latest in our nationwide fight against taxation by citation on behalf of property owners who have been fined thousands of dollars for violations ranging from curtainless windows to unmowed grass to unpermitted flower boxes (see page 8). In representing Joe against New York City’s building bureaucracy, IJ will make clear that no city—no matter how big—is above the Constitution.

William Maurer is managing attorney of IJ’s Washington office.

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