Opinion
109393/09.
Decided October 27, 2009.
Robert J. Gumenick, New York, NY, Attorney for Petitioner.
Michelle Goldberg-Cahn, Corporation Counsel of the City of New York, New York, NY, Attorney for Respondent.
Petitioner Wilson Realty, LLC ("Wilson") brings the instant Article 78 petition/declaratory judgment action seeking an order from the court setting aside an Order to Correct ("OTC") issued by Respondent New York City Department of Housing Preservation and Development ("HDP"), which directs that certain repair work be performed at the premises of 441 Wilson Avenue in Brooklyn, New York ("the subject property"). The OTC was issued on June 27, 2008 pursuant to HPD's Alternative Enforcement Program ("AEP" or "the Program"), which is set forth in § 27-2153 of the New York City Administrative Code ("Admin. Code"). In addition, Petitioner seeks an order declaring Admin. Code § 27-2153 unconstitutional on grounds of vagueness, due process, and equal protection.
AEP was created by Local Law 29 of 2007 and was signed into law on June 14, 2007, whereupon it became codified in Admin. Code § 27-2153. AEP was created as a means to enforce housing maintenance standards in distressed buildings in the City of New York by compelling building owners to make effective repairs to alleviate emergency conditions and the underlying physical conditions which lead to housing code violations. To this end, HPD is required to identify no fewer than 200 distressed buildings for participation in the Program within AEP's first two years. (Admin. Code § 27-2153(a)). A building is "distressed" for purposes of the Program if the building (1) has 27 or more open hazardous and immediately hazardous violations issued by HPD within the two-year period prior to identification; (2) a ratio of five or more open hazardous and immediately hazardous violations per dwelling unit were issued by HPD in the two-year period prior to identification; and (3) unpaid emergency repair charges, including liens, were incurred in the two-year period prior to identification which amount to $100 or greater per unit ( id.).
Once a distressed building is identified for participation in the Program, HPD is required to notify the owner of the building, its occupants, and the council member whose district encompasses the building that the building has been identified for AEP participation and is subject to the Program's requirements (Admin. Code § 27-2153(g)).
After the owner is notified of the building's selection for AEP participation, the owner must respond in writing to HPD and advise as to whether the owner intends to correct the violations (Admin. Code § 27-2153(g)). An owner who wishes to correct existing violations must do so within four months after receiving written notification from HPD that the building was selected for the Program ( id.). When the owner believes that it has corrected all outstanding violations, the owner must request a re-inspection of the premises by HPD, which shall be performed within sixty days from the date of request ( id.). During reinspection, HPD will check for substantial compliance with AEP requirements ( id.). An owner will be found to be in "substantial compliance"where HPD determines that the owner has corrected all violations pertaining to the provision of heat and hot water, and at least 80% of all other open hazardous and immediately hazardous violations ( id.). HPD is also required to issue a notice of violation for any new violations observed during the course of the reinspection ( id.). Within 20 days after completion of the reinspection, HPD shall issue a written determination as to whether the owner has been found to have substantially complied with the Program ( id.).
Where HPD determines that the owner has substantially complied with the Program, the owner will be discharged from participation in AEP if and when the owner pays all outstanding charges, including liens, for emergency repair work performed by HPD; and properly registers the building in accordance with the Housing Maintenance Code, if it has not already done so (Admin. Code § 27-2153(j)(i)).
If either the owner fails to respond to the initial notification that its building has been selected for AEP participation; or HPD finds that the owner has not substantially complied with the Program, HPD must perform a building-wide inspection of the building (Admin. Code § 27-2153(k)(i)). After completing this inspection, HPD is required to issue an order to correct ("OTC") any existing violations, any violations newly discovered during the course of the inspection, and any "related underlying conditions" ( id.). A "related underlying condition" is defined by the Code as "a physical defect or failure of a building system that is causing or has caused a violation, such as, but not limited to, a structural defect, or failure of a heating or plumbing system" ( id.). Any OTC generated from the inspection is to be issued within 90 days of commencement of the building-wide inspection ( id.). Any OTCs generated as a result of the inspection are to be filed with the County Clerk of the county which encompasses the building ( id.).
In the event that an OTC is issued and filed with the County Clerk, HPD is required to (1) prepare a scope of work necessary to correct the violation and repair the related underlying conditions within 30 days of filing the OTC; (2) cause the repair work to be commenced and expeditiously completed; and (3) monitor the repair work as it is performed (Admin. Code § 27-2153(k)(ii)). HPD may discharge a building from AEP when (1) substantial compliance (as defined above) is achieved; (2) the owner has paid any fees accrued for inspections and other actions taken by HPD with respect to a building pursuant to the Program; (3) the owner has paid HPD for all outstanding emergency repair charges, including liens; and (4) the building is properly registered in accordance with the Housing Maintenance Code (Admin. Code § 27-2153(n)).
Admin. Code § 27-2153(p) explicitly provides that the owner of a building designated an AEP participant "shall be subject to fees for any inspection, reinspection or any other action taken by the department in relation to such building during the time period that the building is in such program."
On or around November 13, 2007, HPD notified Wilson, owner of the subject 12-unit building, that the building was identified by HPD for participation in AEP. HPD records indicate that, as of that date, the subject building had 216 open violations. Of these violations, 41 were "Class C" violations (immediately hazardous violations); 139 were "Class B" violations (hazardous violations); and 36 were "Class A" violations. In addition, the subject building had $1891.22, or $157.60 per unit, in outstanding charges for emergency repair work.
On December 18, 2007, Wilson submitted an Owner Intent Form advising HPD of its intent to correct the violations, with the words "ALL VIOLATIONS ARE CORRECTE[D]" handwritten onto the form. On January 7, 2008, HPD received a Dismissal Request Form from Wilson requesting that HPD inspect the premises and setting forth January 16th, 18th, and 22nd of 2008 as inspection dates.
The first inspection by HPD was conducted on January 16, 2008. The HPD inspector accessed a number of apartment units on the second, third and fourth floors. According to HPD case notes pertaining the subject building, the owner requested that the latter two inspection dates "be cancelled until further notice [because] he needs more time to comply [with] violations."
Later, on January 30, 2008, HPD was contacted by a tenant in the subject building, who complained that there was no heat in the building. HPD received another complaint from a tenant on February 5, 2008, claiming that there has been no heat in the subject building for "several days." HPD subsequently conducted inspections and issued Notices of Violation against the subject building on February 6, 2008 (for no hot water), February 8, 2008 (for no heat and hot water), and February 26, 2008 (for no heat and hot water). A second reinspection was performed by HPD on February 29, 2008. In a teleconference between HPD and Wilson on March 12, 2008, Wilson indicated that work was still in progress to bring the building into compliance with the program.
A third reinspection was conducted by HPD on April 5, 2008, and a report was generated by HPD on April 10, 2008. The report noted that the inspection disclosed a total of 162 open Class B and C (immediately hazardous or hazardous) violations, and that, to date, Wilson had complied with 37.21% of the total open B and C violations. HPD notified Wilson that it had not substantially complied with Program requirements and that, accordingly, the subject building was not discharged from AEP. The notice has an "X" marked off to indicate that HPD's determination was based upon the following criteria:
100% of violations directly related to providing heat and hot water have not been corrected;
A minimum of 80% of class "B" (hazardous) and "C" (immediately hazardous) violations have not been corrected.
On June 2, 2008, an HPD Construction Project Manager inspected the subject building in order to survey what work would be required in order to bring the building into compliance with the Program and generated an Intake Inspection Report based upon his findings. The report found that the roof was in poor condition, the dumbwaiter shaft needed to be sealed, and that the apartments and public areas required new paint. The report further specified the problems with the roof as follows:
Type of membrane: 90Lbs cap sheet in poor condition
Dimensions: 55' X 25' (Approx. 1,600 SF excluding offset)
Conditions: POOR
Coping: POOR (Some missing terra cotta covers @ rear right side 16 LF)
Bulkhead: POOR CONDITION (Remove mastic cement provide stucco)
On June 27, 2008, HPD posted and served upon Wilson an OTC stating that Wilson shall FORTHWITH correct existing violations, correct underlying conditions as specified herein, comply with any other outstanding Departmental orders and restore the Premises to good repair in compliance with the New York City Housing Maintenance Code and the New York State Multiple Dwelling Law.
Paint All Apts Public Areas Seal all Dumbwaiter Shafts Replace Roof
The OTC further advises that
unless the violations and above described underlying conditions are corrected, [HPD] with no further notice may undertake whatever work it deems necessary to correct violations and repair related underlying conditions and obtain a lien for the cost of executing said work.
The OTC was filed with the Kings County Clerk on July 3, 2008.
On July 16, 2008, a meeting was held at HPD's office between HPD and Wilson at the request of Wilson's attorney. There, Wilson and HPD agreed that HPD would conduct a further reinspection of the subject building after Wilson had an opportunity to review the violations summary and complete the required work. The parties subsequently agreed that the reinspection would occur on July 31, 2008.
When HPD conducted its inspection on July 31, 2008, it further determined that repairs to the cellar were required, and documentation was required to show that the subject building was in compliance with lead paint hazards. These issues were apparently rectified. However, discussions continued throughout the summer between Wilson and HPD with respect to the need for Wilson to replace the roof. On September 8, 2008, HPD advised Wilson that it was required to replace the roof and seal the dumbwaiters in the building by September 16, 2008. After conducting a further inspection, HPD observed that Wilson had not commenced work to replace the roof.
HPD contractors commenced the process of replacing the roof at the subject building on December 1, 2008, when they brought equipment to the building. However, Wilson refused entry to the contractors on December 2, 2008.
HPD states that the subject building will remain in AEP until the roof of the building is replaced; all emergency repair charges, inspection fees, and liens are paid; and Wilson submits a completed HPD Property Registration.
HPD also contends that the subject building's Property Registration Form (mandated by Admin. Code § 27-2097) is incomplete.
Wilson commenced this proceeding on July 1, 2009. Wilson submits a verified petition/verified complaint and an affidavit in support of the petition/complaint. First, Petitioner alleges that HPD's issuance of the June 27, 2008 OTC was arbitrary and capricious, in that the OTC fails to advise Wilson as to the basis of the findings in the OTC; and that the OTC is "vague and incapable of comprehension," in that the mandate to "replace roof" does not identify the actual deficiency or deficiencies with the current roof. Second, Wilson argues that Admin. Code § 27-2153 is unconstitutionally vague, both facially and as applied to Wilson, in that the term "underlying condition" is so amorphous that it fails to give building owners fair notice as to what conditions fall within the purview of AEP. Third, Wilson alleges that the Program is violative of procedural due process in that (1) AEP's scheme of continued inspections and ordering the correction of related underlying conditions constitutes "unlawful successive and consecutive punishments;" and (2) no vehicles are available for bringing administrative challenges to the selection of a building as an AEP participant, as well as the imposition of an OTC. Fourth, Wilson alleges that AEP violates equal protection under the federal and state constitutions. Fifth, Wilson claims that HPD's actions pursuant to the Program violate Wilson's substantive due process rights. Lastly, Wilson claims that HPD improperly charged Wilson for emergency repairs on exterior walls which are not part of the subject building.
HPD cross-moves to dismiss the proceeding. HPD claims that Wilson's challenge to the June 27, 2008 OTC is barred by the four-month statute of limitations set forth in CPLR § 217. HPD also asserts that it is entitled to dismissal of Wilson's constitutional challenges on the grounds that Wilson has failed to state any claims for which relief can be granted. Finally, with respect to HPD's allegedly improper charging of emergency repair fees, HPD contends that the issue is not yet ripe for adjudication, as the matter has yet to be resolved at the administrative level.
The court finds that Petitioner's challenge to the June 27, 2008 OTC is time-barred. CPLR § 217(1) provides that "a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner. . . ." A determination becomes final and binding upon a party when the agency reaches a definitive position on the issue that inflicts actual, concrete injury, and no further administrative steps are available to petitioner to ameliorate the injury ( see Walton v. New York State Dept. of Correctional Servs., 2007 NY Slip Op 1384, *4 [2007]) (citations omitted).
Here, Wilson itself admits that there were no further administrative remedies available upon issuance of the June 27, 2008 OTC. Accordingly the OTC became final and binding upon its issuance and filing, since it ordered Wilson "FORTHWITH" (improperly, Wilson argues) to make the repairs specified therein. Wilson thus had until October 27, 2008 to bring the instant Article 78 petition, insofar as it seeks to challenge the merits of the OTC.
Turning to Wilson's constitutional challenges to AEP, "[i]t is well settled that legislative enactments enjoy a strong presumption of constitutionality," and that any party challenging the constitutionality of a statute "must overcome a very heavy initial burden by proving that the invalidity of the law is beyond a reasonable doubt" ( New York Charter Schools Assn. v. DiNapoli, 2009 NY Slip Op 5204, *8 [2009]) (citations and internal quotations omitted).
Principles of due process dictate that legislative enactments be "sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden," and that the statute "provides officials with clear standards for enforcement" ( People v. Stuart, 100 NY2d 412, 420) (citations omitted). Where a party challenges the validity of a statute on vagueness grounds both facially and as applied to the challenger, the court's first task is to decide whether the statute is impermissibly vague as applied to the challenger ( id. at 422). Where the statue provides the challenger with adequate notice and enforcement authorities with clear criteria, that is the end of the matter, and the court "will not strain to imagine marginal situations in which the application of the statue is not so clear" ( id.).
Here, the court finds that Admin. Code § 27-2153 is sufficiently clear to give notice to all persons as to (1) what indicia may place a building owner within the purview of AEP; and (2) what is required to successfully comply with AEP and be discharged from the Program. Specifically, the term "related underlying condition," the basis of Wilson's vagueness challenge, is clearly defined in the statute as "a physical defect or failure of a building system that is causing or has caused a violation, such as, but not limited to, a structural defect, or failure of a heating or plumbing system" (Admin. Code § 27-2153(k)(i)). The owner of a building which has been designated an AEP participant is given clear notice that all conditions which are, or have been the underlying cause of building code violations must be rectified as a prerequisite for compliance with, and subsequent discharge from the Program. To the extent that Wilson challenges the alleged vagueness of HPD's directive to "Replace Roof" in the June 27, 2008 OTC, this is a challenge to HPD's exercise of authority pursuant to Admin. Code § 27-2153, and not to the statute itself, ( see Rosenthal v. City of New York, 283 AD2d 156, 158 [1st Dept 2001]), and such a challenge is time barred, as stated above.
Wilson's procedural due process challenges also fail. It is well settled that
Due process . . . is a flexible concept that generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail
( People v. David W., 95 NY2d 130, 136-37 ( citing Mathews v Eldridge, 424 U.S. 319, 335 (internal quotations omitted))). Here, a building owner's interest in avoiding unnecessary and potentially costly expenses from either undertaking work, or compensating HPD for contracting work pursuant to an erroneous OTC is sufficiently alleviated by the availability of Article 78 review, which provides for judicial oversight to ensure that OTC's are not issued by HPD in an arbitrary or abusive manner ( see CPLR § 7803(3); Pinder v. City of New York, 2008 NY Slip Op 1861; Campo v. New York City Employees' Ret. Sys., 843 F.2d 96, 101-02 [2d Cir. 1988]).
As for Wilson's allegations of "unlawful successive and consecutive punishments," Admin. Code § 27-2153 provides for a regimen whereby buildings identified as "distressed" are subject to periodic inspections. There is nothing on its face that renders AEP unconstitutional or otherwise unlawful, nor is there any evidence that HPD was withholding certain violations in bad faith, and choosing to report them to Wilson at a later date.
Wilson's equal protection claim also fails as a matter of law. Wilson, as owner of a building designated "distressed" and therefore selected for AEP participation, is not a member of a suspect class. Accordingly, Admin. Code § 27-2153 does not run afoul of equal protection under either the United States Constitution or the New York State Constitution so long as the classification is rationally related to a legitimate state interest ( see Henry v. Milonas, 91 NY2d 264, 267-68). Here, the court finds that the selection of "distressed buildings" such as the subject building owned by Wilson for participation in AEP is rationally related to the City's legitimate interest in ensuring that buildings with histories of building code violations are in good repair and kept safe for occupancy by their inhabitants.
Wilson's substantive due process claim similarly fails, since Admin. Code § 27-2153 does not implicate a fundamental right, and is reasonably related to "the promotion of the health, comfort, safety and welfare society" ( Montgomery v. Daniels, 38 NY2d 41, 54).
Finally, with respect to Wilson's challenges to charges for emergency repairs made, HPD states, and Wilson does not dispute, that administrative channels exist for challenging the allegedly improper charges levied upon Wilson, and that Wilson has yet to avail itself of these channels. Specifically, Admin. Code § 27-2129 provides that a building owner which seeks to contest charges for expenses purportedly incurred by HPD for "the repair of a dwelling or for the elimination of any dangerous or unlawful conditions therein" must submit a written objection within 30 days of being served with HPD's statement of account ("SOA") for said repairs; and that "such owner may not in any subsequent judicial or administrative proceeding contest any item contained in such statement" without first making its written objection to HPD. According to HPD, and not disputed by Wilson, Wilson has not submitted written objections with respect to the allegedly improper charges for repairs to the exterior walls, which Wilson states are not even part of the subject property. Indeed, HPD states in its memorandum of law that "the time to protest the charges has not yet passed." Accordingly, Wilson has not demonstrated that the issue of expenses for emergency repairs to the exterior walls is ripe for judicial review at this time.
Wherefore, it is hereby
ADJUDGED that the petition is denied and the proceeding is dismissed.
This constitutes the decision and order of the court. All other relief requested is denied.