Tuesday, June 13, 2006

A rude awakening: Violations issued for FCR's Pacific Street demolition

It’s not so sweet for rent-stabilized tenants living in the proposed Atlantic Yards footprint, despite a New York Times report about developer Forest City Ratner’s apparent generosity to condo owners. The developer has offered settlement terms a lawyer for several tenants dismisses as inadequate, and actions surrounding a demolition last week have led the lawyer to charge harassment and the Department of Buildings (DOB) to issue three violations.

Last Wednesday, Leigh Anderson, a tenant for eight years at 624 Pacific Street, was rudely awakened at 6:15 a.m. when contractors demolishing the adjacent 622 Pacific Street used a backhoe that sent vibrations through the wall of her building. "We thought the building was coming down," Anderson said, referring to herself and boyfriend David Gochfeld. "The building shook, and it felt like a wrecking ball was going through the side of the building." (Photo above right taken Wednesday, copyright David Gochfeld)

Gochfeld went outside to take pictures. "The demolition crew told him they had thought our building was vacant," Anderson said, and they crew further explained that the backhoe was delivered early, hence the early start. The DOB requires that work begin no earlier than 7 a.m., but has not yet issued a violation. DOB records show a complaint was made to 311 at 6:37 a.m. (Photo at right taken Wednesday, copyright David Gochfeld)

Anderson said that she and other residents of the building had not been informed that there would be demolition at the adjacent building, and their attorney, George Locker, said the Empire State Development Corporation (ESDC), which approved the demolition, failed to respond to his queries about demolition plans.

The DOB requires that a general contractor must provide a DOB borough office with proof of a five-day notification to owners of adjoining lots. In this case, it was Forest City Ratner's responsibility to notify itself--but not necessarily its tenants. Anderson said that, after Gochfeld returned, the couple started collecting valuables and sentimental items in case they had to make a quick exit and their building was declared uninhabitable.
(Photo above right taken last December by Norman Oder; 624 Pacific Street is in partial view at left, and 622 and 620 Pacific Street were demolished last week)

Violations issued

While DOB has closed or is still investigating some of the complaints filed, on Saturday, its Building Enforcement Safety Team (BEST) conducted an inspection and issued three violations, according to spokeswoman Jennifer Givner. The citations include: a defective fence; a failure to weatherproof the wall of the adjacent building (624 Pacific); and a failure to post DOT permits regarding the rubbish container on the street. The violations carry a penalty that ranges between $0 and $2500 each, imposed by an administrative judge after a hearing at the Environmental Control Board.
(Photo at right taken Thursday by Norman Oder)

Forest City Ratner's contractor apparently should not have been using a backhoe in the first place, though no violation has yet been issued. The DOB's Givner confirmed that no mechanical demolition permit had been approved for 622 Pacific Street. The ESDC’s Declaration of Emergency dated 4/12/06 said:
FCRC has stated that it will remove walls that abut the adjacent apartment building primarily with hand tools.

Locker has fired off a furious letter to Charles Gargano, chairman of the ESDC, calling the action—an apparent deviation from the plans to remove walls “primarily with hand tools”—“a desperate act of utter recklessness and a depraved indifference to law, safety, and common civic decency.” At right, workers use mechanical equipment to knock bricks loose from the remaining piece of wall at 622 Pacific.
(Photo taken Wednesday, copyright David Gochfeld)

The ESDC, which is supervising the Atlantic Yards project, had to approve the demolition as an emergency, as it did last December for five other properties within the Atlantic Yards footprint. While Forest City Ratner owns 624 Pacific, the tenants in the four apartments that remain occupied there are protected by rent stabilization laws. Locker, who represents those tenants and another 11 rent-stabilized tenants within the project footprint, calls the episode landlord “harassment.”

FCR's forceful response

Locker last Wednesday emailed Forest City Ratner to say that “FCR's conduct is reckless, outrageous and unlawful.” FCR attorney Jeffrey Braun responded that necessary permits had been received and the work had proceeded lawfully and properly. He continued combatively:
I find it very difficult to believe your assertion that “[w]orkers on the site report that they were advised that 624 was vacant.” The likelihood is that someone has misunderstood—or misrepresented—what a worker at the site said.
(Photo taken Wednesday, copyright David Gochfeld)

Braun called Locker’s assertion “completely mistaken and, indeed, preposterous,” and suggested that “future complaints about service issues” be directed to the managing agent.

Gochfeld, however, told me, "The foreman said to me: 'They told me that nobody lived there.'" He said that the workers knocked bricks onto the rear roof of 624 Pacific, in the process destroying the telephone junction box there. Four hours later, a repair worker from Verizon was able to fix it.

Locker cited this in his communication to Forest City Ratner, to which Braun responded with doubt though not denial:
As to the assertion in your second e-mail… that phone service has been cut off… we have been advised that Verizon personnel were at 624 Pacific Street yesterday, so it is questionable whether any disruption of service is the result of the demolition.

Gochfeld, however, said he had a form filled out by the Verizon technician that attributed the damage to construction work knocking bricks onto the equipment. Phone service at the building was out during most of the period from Wednesday to Monday, Anderson added. While it was initially fixed within four hours, it went out again. Both Verizon representatives said that it was directly due to the demolition, she said.

Locker, in his letter to the ESDC, noted that a subsequent email message to Braun from FCR's Jim Stuckey, President of the Atlantic Yards Development Group, was copied to him as well, apparently inadvertently:
Incredibly but tellingly, this cynical, callous and dismissive response to me from FCR’s outside counsel received Mr. Stuckey’s approval as a “good letter”.

ESDC’s role

Locker asked ESDC “to suspend all consideration” of the Atlantic Yards project until the incident could be investigated. He raised the issue of the agency's posture toward the developer, as lawyers for the ESDC and Forest City Ratner have described their working relationship as collaborative. Locker added, “ESDC should determine whether its own integrity with respect to [Atlantic Yards] has been compromised and whether the entire process has been tainted and made legally suspect.”
(Photo taken Thursday by Norman Oder)

Locker noted that, though he sent two letters of concern and filed a Freedom of Information Law request and subsequent appeal, ESDC did not provide him with its 4/11/06 memo approving the demolition. (I requested a copy of this public document and when I received it last week, asked Locker for his analysis of it.)
[Update afternoon of 6/13/06: Locker now says he did finally get the documents from ESDC on 6/12/06, five days after the demolition had begun. It was mailed on 6/9/06.]

“By keeping these documents hidden and the pending demolition of 622 Pacific Street a secret, ESDC’s relationship with FCR seems to have progressed from collaboration to collusion," Locker wrote.

While Gochfeld was unable to take pictures of workers using the backhoe directly on the wall adjoining 624 Pacific Street--he says the workers stopped when he appeared--he did take pictures of them using the backhoe to dismantle the wall at the second Forest City Ratner building, 620 Pacific Street, which adjoined the extant 618 Pacific Street. He said the latter wall came down intact, while the wall abutting 624 was harder to dislodge. (Photo taken Wednesday, copyright David Gochfeld)

ESDC conducts more review

The ESDC's 4/11/06 emergency declaration shows several parallels—but one significant difference—with the agency's 12/15/05 memo approving the demolitions of five other properties, a decision challenged but upheld in court. In this case, Forest City Ratner again provided as evidence a structural survey by LZA Technology about the condition of the building, and LZA made a presentation to the ESDC, recommending that the building be demolished, stating that it “poses an immediate threat to the preservation of life, health, and property.”

However, the ESDC seems to have added an extra layer of review, as if to show that the agency did not merely rely on the developer's submission. In the previous case, Rachel Shatz, the ESDC's director of Planning and Environmental Review, said in an affidavit that she and another agency planner had toured the general project site.

Regarding the demolition of 622 Pacific, however, ESDC sent a two-person team of its own, including a professional engineer, to inspect the building on 3/6/06, and they submitted a report nearly a month later, on 4/5/06, concurring that the building presented hazardous conditions and should be demolished. Citizens' groups challenging the previous round of demolitions had been rebuffed in their effort to send an independent engineer to look at the buildings.

Ordinarily such demolitions are as of right for the owner, but once the state process of environmental review has begun for an agency project, only demolitions judged emergencies are permitted.

The memo states:
The ESDC report states that demolition would not be difficult and would not affect the buildings on either side of the property. The ESDC Report notes that the Building does not share party walls with those buildings, that FCRC has stated that it will remove walls that abut the adjacent apartment building primarily with hand tools, and that FCRC will monitor for any movement in the apartment building walls during the demolition process. Although LZA Technology does not expect the apartment building’s walls to be compromised, berms will be constructed to act as braces for those walls.(Emphasis added)

Also, the sequence again raises questions about the use of the terms “immediate” and “emergency” in the demolition process. The first declaration that the building posed an “immediate” threat was made more than seven months before the building was demolished—and no warning signs were posted outside it. And it took two months after the ESDC’s approval for FCR to get appropriate permits and organize the demolition.

Battles over lease

The harassment charged by Locker should be seen in the context of Forest City Ratner’s interest in getting the tenants to leave the building--located within the path of the planned arena--to make way for the project. After the residents of 624 Pacific rejected Forest City Ratner’s terms, Locker said, the developer failed to promptly register the building with the NYC Department of Housing Preservation and Development (HPD) and register the rent-stabilized tenants with the NYS Division of Housing and Community Renewal (DHCR), as required.

Also, FCR “has regularly failed to return copies of signed renewal leases to my clients,” he said, adding that some clients have with leases that will expire in late 2008, "well beyond FCR’s publicly announced deadline for completion of the arena."

Rent regulations, Locker pointed out, don’t just limit rent increase, they also require the landlord to renew a tenant’s lease. Given that current version of rent stabilization laws post-date the creation of the ESDC, Locker contends that they are a brake on the agency’s use of eminent domain.

He added, "The press has ignored this category of tenant, although renters in over one million rent-stabilized apartments throughout the five boroughs share the rights of these tenants in the Atlantic Yards footprint and have an important interest in maintaining these rights."

What FCR offered

The 4/10/06 Times article stated:
As the company purchased buildings, it also became a landlord to many renters. Mr. Stuckey said that they were offered the chance to move back into units of comparable rent and size in the completed Atlantic Yards project, if it is approved. The company also paid moving costs and broker's fees for those tenants and covered any increase in rent for transitional housing. For those who declined the offer to move to Atlantic Yards, Mr. Stuckey said, the company paid a lump sum, "representing some value of what they would have gained coming back."

Despite the use of the past tense, the developer has not come to terms with many renters. Locker says FCR was less generous than professed. He says the developer—which doubled the money of some condo owners--offered $30,000 for tenants to surrender their leases and leave their apartments immediately. “This is considerably less than what the law requires,” Locker contended, adding, “Further, it is far less than my client’s economic loss.”

Locker says he analyzed for FCR the lifetime economic value to a young tenant of a rent stabilized lease with a rent, for example, of $600 a month, given a market where a comparable apartment is at least $1750 a month. (That $30,000 would pay the difference for only 26 months of rent.)

He disagrees with Stuckey’s statement that FCR is offering tenants more than ESDC is required by law. Also, he added, the offer of comparable rent in the Atlantic Yards project is less generous than it sounds, because rent stabilization allows spouses or children of rent stabilized tenants to take over the leases. “Someone who lives in a rent-stabilized apartment with low rent has a legal right that’s even more valuable [than the displaced condo owners]: low rent and they don’t have to invest a half-million dollars to have it,” Locker said he told Stuckey.

Moreover, he said that the temporary relocation agreement offered some tenants does not fully protect them, since the developer would have no further obligation to them if the project is abandoned or delayed for five years. Anderson said she wants to stay in her home, not a development of high-rise towers, and doesn't expect the arena to be approved. She has become involved with Develop Don't Destroy Brooklyn.

Locker said he’s had no further discussions with FCR since the end of 2004. While he usually works on an hourly basis, Locker said that, in this case, he’s compensated only if his clients reach an agreement with FCR. “My level of compensation, which begins below customary percentages, depends on the amount of litigation that ultimately is required,” he added.

War of attrition

Yesterday, Locker faxed FCR attorney Braun a letter warning that he was sending complaints about the “reckless and illegal use of a backhoe to demolish 622 Pacific Street at 6:15 AM and to endanger my clients asleep next door at 624 Pacific Street… is being raised at the highest levels of City and State government. FCR’s approval of such primitive and criminal forms of tenant harassment will not go unchallenged.” (Photo taken Thursday by Norman Oder)

Yesterday Forest City Ratner contractors used construction fill to stabilize the basement of 622 Pacific, and the lot appears "completely filled and leveled," Gochfeld said. Meanwhile, Locker sees continued pressure on tenants. "While in theory FCR might, in the appropriate circumstances (that I believe do not exist with Atlantic Yards), seek the use of eminent domain and the condemnation of residential leases for tenants in buildings that it does not own, FCR as landlord cannot opt to have ESDC use eminent domain on FCR’s own rent-stabilized tenants," he said.

"Our attorney had asked FCR to ensure that our building would be protected when and if they demolished 622," Anderson said. "I feel pretty firmly that they did not ensure our safety when demolishing 622. I think they would like us to leave… and this is essentially a war of attrition."

1 comment:

  1. Kudos for the tenants and their lawyers for standing up to Ratner. It's not an easy fight, and I have great respect for such courage.

    ReplyDelete