How could 303-unit 38 Sixth Avenue open without an on-site super, but rather one 1,100+ feet away? Has it been out of compliance for eight years?

This is the first of two articles about 38 Sixth Avenue.

Last July 24, City Limits published my article about troubles at 38 Sixth Avenue (B3), Despite New Owner’s Promised Upgrades, ‘100% Affordable’ Atlantic Yards Building Endures Hot Water Outages, Broken Door, Even Bees.

While some of the problems mentioned have been addressed, albeit belatedly, new issues have emerged, which I'll write about separately. 

Still, a fundamental question persists about 38 Sixth, which was built by Greenland Forest City Partners, the joint venture involving Greenland USA and original developer Forest City Ratner, and opened in 2017. 

(The building, along with similar "100% affordable" 535 Carlton Avenue, was sold by the joint venture in May 2022 to Irvine, CA-based Avanath Capital Management.)

Looking south at 38 Sixth. Photo: Norman Oder

Why no super?

How could a 23-story building with 303 apartments open without an on-site superintendent? 

It was never a secret, but evidence suggests the builder fudged the explanation of how it would provide such services, evading serious scrutiny.

Evidence also suggests that the building has long been out of compliance with a city rule that states that a super must live on-site or within 200 feet or one block of the building, whichever is greater.

However, it has not faced sanction for that. 

The lack of an on-site superintendent has exacerbated the response to maintenance issues, tenants have said for years.

Pending violation

As of now, in response to a June 28 resident complaint summarized as "no janitor site," the city Department of Housing Preservation and Development (HPD) on July 7 issued a notice of violation, ordering the landlord to post a sign with the name, address (including apartment number if any), and telephone number of a superintendent, janitor, or housekeeper. 

The landlord has until Oct. 14 to comply with a Class A, or non-hazardous, violation. As discussed below, I think that understates the issue. 

An obvious solution would be to install an on-site super in an empty apartment. That, however, affects the bottom line, so it likely wouldn't happen unless government agencies require it.

History of complaints

The lack of a super was clear well before Avanath took over. (The landlord didn't respond to my queries.) In July 2020, the building's Tenant Association--which has since been revived--sent a detailed letter to owner Greenland Forest City and building manager Pinnacle City Living, stating, in part:

Residents also discussed the lack of a live-in super despite the prominence of the building, high foot traffic and the persistence of construction defects that have repeatedly rendered elevator and hot/cold water systems inoperable throughout the building’s nearly three years of tenancy. Tenant Association has repeatedly raised these grievances with designated building management, with minimal response....

The letter, requested, among other things, "a live-in super." They didn't get one. In my article last year, I wrote:

[Tenants] noted 38 Sixth had its third building manager in two years, and the lack of a live-in super—the job was and remains shared with 535 Carlton, one long block away—hampered building upkeep and response to service outages.

That was imprecise, since it's a little more than a block away--and that's a key metric.

What the law says

New York State law requires a super/janitor living on-site or within 200 feet:

§ 83. Janitor or housekeeper. Whenever there are thirteen or more families occupying any multiple dwelling and the owner does not reside therein, there shall be a janitor, housekeeper or some other person responsible on behalf of the owner who shall reside in said dwelling, or within a dwelling located within a distance of two hundred feet from said dwelling, and have charge of such dwelling, except that where two or three multiple dwellings are connected or adjoining, one resident janitor shall be sufficient.

(Emphases added)

New York City's Housing Maintenance Code is more flexible, allowing that staffer to live within one block:

§ 27-2054 Residence of person performing janitorial services; limitation on number of dwelling units served.

The person who performs janitorial services for a multiple dwelling of nine or more dwelling units (other than where janitorial services are performed on a twenty-four-hour-a-day basis under paragraph three of subdivision b of section 27-2053 of this article) shall reside in or within a distance of one block or two hundred feet from the dwelling, whichever is greater, unless the owner resides in the multiple dwelling. 

A block, according to city law, is "a tract of land bounded by consecutive intersecting streets." The city's Zoning Glossary offers a similar analysis.

So 535 Carlton, on the east side of Carlton Avenue, is more than a block away from 38 Sixth, on the west side of Sixth Avenue. (Each avenue is 70 feet wide, according to the city's Zoning Map.) Were 535 Carlton on the west side of Carlton, it might qualify, despite a distance well more than 200 feet.

How much more? Using Google Maps' "measure distance" tool, I calculated 1,164 feet, as shown below. Even allowing for discrepancies, the distance surely exceeds 1,100 feet. (A quarter-mile is 1,320 feet.)

Screenshot: Google Maps showing distance between 38 Sixth and 535 Carlton

How big a load?

Another clause in the above law (§ 27-2054) suggests--though it's likely inapplicable--that one super for 601 apartments in separated buildings is way too much. The clause states:

Where two or three multiple dwellings are connected or adjoining, it shall be sufficient, however, that the person who performs janitorial services resides in one of these, but no person who performs janitorial services for more than one multiple dwelling may service more than sixty-five dwelling units. Regardless of residence the janitor must have a telephone where the janitor may reasonably be expected to be reached.

This is not directly analogous to the combination of 38 Sixth, with 303 apartments, and 535 Carlton, with 298 apartments, including one for the super.

However, if the janitor/super overseeing more than one connected/adjoining building shouldn't service more than 65 apartments, it stands to reason that no one servicing two disconnected buildings should have a larger load. This one is more than nine times larger. (38 Sixth does have janitorial staff, but not a super.)

From NYC HDC

Cutting corners

What were public agencies told?

According to June 2, 2015 board materials from the New York City Housing Development Corporation (HDC), which provided low-cost financing, the building would have 303 apartments and no superintendent unit, as shown in the screenshot at right.

A separate June 17, 2015 regulatory agreement involved HDC, HPD, and Empire State Development (ESD), the state authority that oversees/shepherds the project. It states:

The Project shall contain 303 units in total. The Project will not have a live-in superintendent; superintendent services will be provided by staff shared with another building or buildings in the Pacific Park development.

From regulatory agreement

It's unclear if HPD was formally told from where those superintendent services would be provided, much less whether that location would be within 200 feet or one block. 

What were the candidates?

Where might those "building or buildings" be?

The closest building with same ownership--the joint venture Greenland Forest City Partners--was 535 Carlton, which had the same affordability configuration as 38 Sixth.

The only other building built by the joint venture--but with, ultimately, resident ownership--was the condo tower 550 Vanderbilt Ave., even farther away from 38 Sixth. That surely wasn't a candidate.

The phrase "building or buildings" suggests multiple options. At that time, the only other building in the project was 461 Dean St. (B2), around the corner from 38 Sixth. It was built and operated by Forest City, without Greenland.

However, 461 Dean was never publicly discussed as supplying services to its neighbor. Given the limited ownership overlap, it wouldn't have made much sense.

The same "building or buildings" language was repeated in an updated regulatory agreement Nov. 5, 2019. That was more than a year after Forest City sold 461 Dean to Principal Global Investors.

At that point, with no overlap in ownership and a track record of sharing the superintendent responsibility with 535 Carlton, it was sloppy and misleading to maintain such language in the updated agreement.

Responding to complaints

On July 7, HPD issued a notice of violation in response to a 38 Sixth tenant complaint regarding a lack of a janitor, ordering the landlord to post a sign with the name, address (including apartment number if any), and telephone number of a superintendent, janitor or housekeeper.

If the matter is not corrected and certified by October 24, the violation will remain on record, and  tenants can bring a case in housing court. The landlord is subject to fines for a Class A (non-hazardous) violation of $50-$150, plus $25/day.

However, while a signage issue has a 90-day period for correction, an absent super--I believe, based on inconclusive information--should be at least a Class B (hazardous) violation, which has a 30-day period for correction.

That pending violation relates not to § 27-2054 of the administrative code, as mentioned above, but rather the adjacent § 27-2053:

§ 27-2053 Obligations of owner.
a. The owner of a multiple dwelling shall provide adequate janitorial services.
b. In a multiple dwelling of nine or more dwelling units, the owner shall either:
(1) Perform the janitorial services himself or herself, if he or she is a resident owner; or
(2) Provide a janitor; or
(3) Provide for janitorial services to be performed on a twenty-four-hour-a-day basis in a manner approved by the department.
c. The owner of a multiple dwelling or his or her managing agent in control shall post and maintain in such dwelling a legible sign, conspicuously displayed, containing the janitor's name, address (including apartment number) and telephone number. A new identification sign shall be posted and maintained within five days following a change of janitor.

Some building owners request waivers, as allowed in 27-2053 b.(3), HPD's Matt Rauschenbach told me. "To be eligible for such a waiver, the owners must adequately describe a plan to provide 24/7 response should a need arise. We are not aware of any waiver requests."

Past violations

HPD has, under the previous ownership/management 38 Sixth, issued three violations for missing signage containing contact information for the super/janitor and one for not providing janitorial service. Those related to § 27-2053, the owner's obligations, not § 27-2054, the residence of the person performing janitorial services.

All four violations were closed on re-inspection, suggesting correction, I was told. I have not yet been able to get information about what the re-inspection found.