Opinion
No. 3097/15.
04-10-2015
In the Matter of the Application of W.D. TURNER, Petitioner, v. NEW YORK CITY DEPT OF HPD, QUEENS DEPT. OF BUILDINGS, Respondent.
Opinion
This is an application by petitioner, W.D. Turner, for an order vacating the order of demolition issued by the City of New York Department of Buildings against his home located at 109–05 191st Street, St. Albans, New York, 11412.
The building in question is a two-family home owned by Mr. Turner which was severely damaged in a fire on January 7, 2014. In June 2014, the building was inspected by Peijiang Sun, Principal Engineer of DOB's Forensic Engineering Unit. In his affidavit Mr. Sun states that the building was in an advanced state of deterioration. The front roof was partially collapsed and the rear roof was missing. The rear wall was collapsing and leaning towards an adjacent building. He states that the combined facts of uncured violations, multiple fires, a collapsed and missing roof and collapsing wall led him to the conclusion that the building was unsafe and in danger of collapse.
On July 11, 2014, the City issued an “Emergency Declaration” stating that the residential building in question sustained damage from a fire and is in an advanced state of deterioration. The declaration states that the front roof is partially collapsed and the rear roof is missing, exposing the building interior to the elements. It also states that the rear wall is collapsing and leaning/bulging towards an adjacent building. The order states that the structural integrity of the building is compromised and the building is in danger of collapse affecting the safety of the adjacent properties and the public. The Emergency Declaration offered the owner an opportunity to take responsibility for immediate remedial action or the City would demolish the building and charge the costs to the owner. The petitioner submitted a contract from a construction company but did not undertake the work. On September 30, 2014 an architect submitted an alteration plan on behalf of the petitioner. Although construction timelines were submitted by the petitioner, the only work commenced by the petitioner was roof trusses which were placed without proper engineering design and appeared to have no structural integrity. The engineer states that the roof trusses were installed in a haphazard manner and would not be effective to prevent a building collapse.
Adam Wapniak, Registered Architect and Deputy Commissioner for the DOB's Queens Office, states in an affidavit that his decision to revoke the petitioner's general construction permit was based on his opinion that the petitioner does not intend to have the work done by a contractor who filed the application, but rather, that he intends to do the work himself. He states that this is a violation of the building Code and could lead to a building collapse.
The petitioner states that the City held the execution of the demolition order on several occasions and gave him time to obtain an architect, put up a safety fence, hire a contractor and obtain a permit for reconstruction. He states however, that he was not able to comply with the City's requirements within the time set by the Department of Buildings due to the weather and a delay in obtaining insurance funds. The petitioner now seeks a re-inspection of the home and an order directing the Department of Buildings to reinstate his building permits to allow him to reconstruct his home. The petitioner also seeks an order staying the demolition of the subject premises, reinstating a work permit that the City has revoked, and directing the DOB to allow petitioner to refute the results of the City's forensic inspections. By order to show cause dated March 17, 2015, Justice Raffaele granted a temporary restraining order preventing the demolition of the building by the City pending the determination of the petition.
In opposition to the petition, the New York City Department of Housing Preservation and Development(HPD) and the New York City Department of Buildings (DOB) by Assistant Corporation Counsel, Louise Moed, states that the building was seriously damaged in a fire fifteen months ago and is presently open to the elements and is in a deteriorated condition that is extremely unsafe to the public and to the adjacent property. The City asserts that to date, despite being given numerous opportunities to cure the condition since July 2014, the petitioner has failed to take sufficient steps to make the building safe. Respondent asserts that the Department of Building's determination that the subject building should be demolished was rational based on the fact that the building is in danger of collapse, and moreover, that the petitioner has not caused sufficient remedial work to be done on the premises despite having been given a permit to put the building in a safe condition.
Where, as here, an administrative agency takes action without an evidentiary hearing, the standard of review is not whether there was substantial evidence in support of the determination (see CPLR 7803[4] ), but rather, whether the determination had a rational basis, and was not arbitrary and capricious (see CPLR 7803[3] ; Gramando v. Putnam County Personnel Dept., 58 AD3d 842 [2d Dept.2009] ; Ball v. New York State Dept. of Environmental Conservation, 35 AD3d 732 [2d Dept.2006] ). Moreover, where the judgment of the agency involves factual evaluations in the area of the agency's expertise and is supported by the record, such judgment must be accorded great weight and judicial deference (see Matter of Rodriguez v. County of Nassau, 80 AD3d 702 [2d Dept.2011]. The determination of an administrative agency need only have a rational basis (see Matter of Senior Care Servs., Inc. v. New York State Dept. of Health, 46 AD3d 962 [3rd Dept.2007] ). “Further, in a proceeding seeking judicial review of administrative action, the court may not substitute its judgment for that of the agency responsible for making the determination” (Ball v. New York State Dept. of Environmental Conservation, supra, 733; Gramando v. Putnam County Personnel Dept., supra; Heintz v. Brown, 80 N.Y.2d 998 [1992] citing Matter of Pell v. Board of Educ., 34 N.Y.2d 222 [1974] ; Matter of Rogan v. Nassau County Civ. Serv. Commn., 91 AD3d 658 [2d Dept.2012] [this Court may not substitute its judgment for that of the agency responsible for making the determination and, as long as the administrative determination is not irrational or arbitrary and capricious, we may not annul it]; Fogelman v. New York State Dept. of Environmental Conservation, 74 AD3d 809 [2d Dept.2010] ; Matter of Jennings v. Commissioner, N.Y.S. Dept. of Social Servs., 71 AD3d 98 [2d Dept.2010] ).
Here, this court finds that the Department of Buildings had a rational basis to deny petitioner's permit renewal application and to issue the demolition order. Pursuant to the City Charter and Administrative Code the Department of Buildings is authorized to take whatever emergency steps are necessary to protect public safety (see Administrative Code §§ 28–215.1 and 28–215.8; Starik v. New York, 68 A.D.2d 936 [2d Dept.1979] [the City of New York, through its police power, has the authority to take summary action to order the demolition of a building in emergency situations, i.e., when a building is in imminent danger of collapse and an immediate peril to the public health and safety] ).
The evidence shows that the petitioner has been afforded numerous opportunities to reconstruct or demolish the building or retain a contractor of his choosing to demolish it. However, the evidence shows that the petitioner has not taken sufficient steps to shore up the building since the fire on January 7, 2014 and failed to provide a rational excuse for his failure to take corrective measures up to this time. The petitioner has not submitted any evidence whatsoever showing that he has made efforts to abate the danger to public safety created by the condition of the building. The pictures submitted by the respondent taken as recently as March 23, 2015 show that the building is completely open and severely deteriorated and in danger in collapse.
This court finds that the Emergency Declaration is rationally based upon the present unsafe condition of the building as well as the failure of the petitioner to take corrective measures sufficient to protect the public from the danger of a building collapse. The minimal steps taken by the petitioner to shore up the roof are not adequate in the opinion of the engineer who examined the building on behalf of the City to shore up the entire roof.
Accordingly, for all of the above stated reasons, it is hereby,
ORDERED, that the petition of W.D. Turner is denied and the Article 78 petition is dismissed, and it is further,
ORDERED, that the stay previously imposed by the Court in the order to show cause dated March 17, 2015 is vacated forthwith.