Local Law 48: The Creeping Horror

(With apologies and thanks to Edgar Allan Poe and H.P. Lovecraft)

You may call me mad – other men have. Yet a story is no less true for having driven its hearer into the mouth of madness. You will understand when I report to you of a creeping unknown more dark and fearsome than Cthulhu or Shuma-Gorath … the entity known as Local Law 48 of 2006.

I first heard of Local Law 48 – which amends Section 26-118 of the New York City administrative code to increase the fines for violations of stop-work orders at construction sites – when a gentleman I shall call T. relayed to me his tale of horror. His small, self-managed Manhattan co-op was having plastering and waterproofing done on one of its façades. Their contractor had inadvertently neglected to obtain a Saturday work permit. A small thing, ’twould seem, no more loathsome than a pedestrian crossing ’gainst a stoplight – a technical violation of no noise or bother. Yet when, at 10 A.M. on Saturday, May 20, 2006, Department of Buildings (DOB) Inspector Patel Satish, Badge No. 2271, noted the site’s lack of an “after-hour” permit, the contractor and the co-op accepted his stop-work order, dutifully stopped work, and moved to “cure” this violation.

Scoff if you will; I have seen the results of their remedy firsthand, with my own tortured eyes. There, on the DOB’s online “Building Information System” (BIS), two years later almost to the day, it is plain for all to view – ringed in red, the hideous phrase, “A Stop-Work Order Exists on This Property.”

Curiosity compelled me, and with trembling fingers, I clicked on those words; the mouse ’neath my hand fairly seemed to scream, but I deterred not. And, what I found, happily, filled me not with dread but with surprise and a sense of cosmic justice. For there, on the Environmental Control Board “Overview for Complaint” page, was the solitary word “Resolved.”

I clicked further for details. “Hearing Status: Cured.” “Amount Imposed: $0.00.” “Amount Paid: $0.00.” “Compl[etion] Status: C – Cure Accepted.”

And more! My friend T. had shown me a hard-copy letter! Nicole Hudson, of the DOB’s Administrative Enforcement Unit, wrote on July 3, 2006, “Your Certificate of Correction for the above Notice of Violation (NOV) has been received and approved by this department. … Since your Certificate of Correction has been approved, you do not need to appear at the hearing or pay any fines.”

Virtue rewarded? Mistake forgiven? My friend, one would imagine so. Yet, as if my mind were harkened back to that fateful day itself – six months before the creeping unknown would be signed into law on December 5, 2006 – I swear that I heard the sound of hollow laughter emanate from something within the womb of the city council itself.

Time passed for T. and his co-op. On a recent day, the treasurer, a Mr. K., made use of the newly upgraded BIS to ensure all was well with the property entrusted, in part, to his care. Seeing the red banner still in place, K. grew troubled. A responsible man, he telephoned the Department of Buildings to discern the meaning of what appeared to be a strange contradiction on the site. He was told that, following tradition, the certificate of correction letter his co-op had received must now be hand-delivered to the DOB’s Environmental Control Board.

And there his troubles began.

T. himself went as instructed to the DOB’s third floor, where he was sent to the fifth floor, where he was sent to the fourth floor. There, he told me, the clerk, whom we shall call Mr. C., disregarded the certificate of correction letter, disregarded the department’s own BIS, demanded payment of a $5,000 fine as the minimum imposed by Local Law 48 of 2006, and became verbally abusive.

“What does ‘I.M.’ stand for?” T. asked when the clerk wrote those initials before a name on a document.

“What does it matter to you?” the clerk snarled.

“Does it stand for Internal Manager?” T. asked.

“Oh, you’re a smart guy, aren’t you?” the clerk replied.

It is ironic that a Lovecraftian horror tale should suddenly turn Kafkaesque, yet that is what happened. Although zero fine had been imposed, and the incident had occurred six months before Local Law 48 even existed, the clerk vowed to keep the building stamped with a scarlet letter since the co-op had not paid a $5,000 fine that had not been imposed nor had even been on the law books at the time. Yes, and more irony: Local Law 48 involves the violation of a stop-work order – yet there was no violation! Work had stopped when the stop-work order was given!

The co-op remains at the Gates of Hell, with the DOB becoming that selfsame GOH. Trying to make sense of this, I spoke with a number of attorneys and with an architect. I tried for over three days to speak with DOB Press Secretary Kate Lindquist, importuning her through both telephone and e-mail and receiving neither respect nor response from a troubled department where, as one respected, longtime attorney told me not-for-attribution: “A lot of envelopes [of money] change hands.”

None of these professionals knew, offhand, about this law in any detail; not all had even heard of it. When told more, they agreed in principle.

“They should [raise the fines],” Edward Braverman, senior partner at Braverman & Associates, told me. “Stop-work is stop-work. The reason a developer doesn’t stop work is that he doesn’t want the expense involved and wants to beat the system.”

“There are times where owners weigh the cost of the fine if they get caught versus the cost of complying,” said Stephen Varone, a principal of Rand Engineering & Architecture, one of New York City’s busiest architectural and engineering firms. “I think the DOB is trying to take away or reduce the number of times owners would do that calculation. It’s not necessarily that owners are nefarious,” he pointed out, mentioning “scope creep” and other incremental ways that construction details on paper can evolve in the field.

Is it equitable that the same $5,000 minimum applies to giant developers doing massive construction and a small building doing small repairs? “That’s subjective,” attorney C. Jaye Berger told me. “A small building may cause just as much irritation as a big building. On a block with a couple of thousand people being awakened on a Saturday morning, they may feel $10,000 is more appropriate.”

“Even a small building with a serious violation can cause public harm to an adjoining building,” agreed another attorney – a former city planning director for whom the creeping unknown causes such trepidation that he would speak only with a guarantee of anonymity. “An enormous building will have more impact because it touches more properties, but a small building can also have potential for large problems. It’s hard to be generic with fines.”

Yet what if it is not, in fact, the creeping unknown that is so dangerous? What if it is the minions of Local Law 48 of 2006 – those clerks and bureaucrats who are not lawyers and misinterpret the law, who let stubborn pride and obstinacy keep them from reason and understanding, and who refuse to accept even the word of their own online and paper documentation?

“Let’s say the BIS says a violation has been removed, and you still get a default notice,” said Varone. “You go to a hearing and say, ‘The BIS showed it was clear.’ Judges listen to reason.”

And when two years have passed without notice from the city, and a violation stamped as cured is suddenly, inexplicably, horribly not so?

“Sometimes,” Varone advised me, “it’s a matter of, ‘Keep asking until you get the answer you want.’ As soon as you get a dead end, you should speak to another clerk. Instead of speaking to a supervisor, you find someone else in management and ask them to clear it up.” In the clerks’ defense, he said, “it’s like parsing the constitution at a certain point, and the clerk doesn’t necessarily know.”

Nor, it grieves me to say, will he admit that he does not know. Regardless, all we have left is the wisdom of experience – and the sanity of madness. “Be aware,” said Varone, “that the fines have increased, and [that fact is] not on the industry radar for some reason.” Indeed, if reason – at the DOB – exists.