Which NYC Buildings Aren't Beholden to City Inspectors?

New York City landlords and small business owners know all too well just how strict the city’s army of inspectors can be. Over the 12 years of the Bloomberg administration’s rule, the city’s take from levying fines spiked from $479 million to well over $800 million. In fact, providing relief from the wave of hyper-enforcement was a major campaign issue for mayoral candidate Bill de Blasio.

Yet in a parallel universe in the very same city, owners of hundreds of buildings that belong to foreign governments and other levels of our government—even the Port Authority of New York and New Jersey—don’t have to worry about city fines for non-compliance. In some cases they are not even subject to the city’s codes and regulations. For this rarefied class, what for everybody else is black letter law is subject to negotiation.

These owners are protected by sovereign immunity, a legal concept that has its roots in the divine right of kings embedded in English Common Law. “Besides the attribute of sovereignty, the law ascribes to the king, in his political capacity, absolute perfection,” wrote 18th century English jurist and legal scholar William Blackstone. “The king can do no wrong.”

That New York City’s diplomatic corps has racked up $16 million in unpaid parking tickets has been widely reported. Yet it appears the city does not have a solid number for the unpaid fines related to the violations issued for consular buildings by the Environmental Control Board. And while globe-trotting parking scofflaws might make for great tabloid fodder, the issue of building code enforcement can be of much greater consequence to New Yorkers.

THE NAMIBIAN CONSULATE AND THE CONCRETE POUR THAT GOT AWAY

Consider the case of Dr. Robert Adelman, whose 133 East 36th Street townhouse suffered almost $400,000 dollars in structural damage back on Dec. 15, 2008. Contractors working on a major remodeling job at the Namibian mission to the United Nations, next door to Dr. Adelman’s residence at 135 East 36th Street, poured concrete for an interior wall, only to accidentally collapse an adjacent wall, undermining the support beams of Adelman’s townhouse.

Adelman’s insurance company paid the claim following the incident. In April 2010, however, the insurer brought suit in federal court against Namibia and the contractors the African nation had hired. According to court papers, the suit alleged that the Namibian government “had violated” the building code by failing to shore up the wall critical to the stability of Dr. Adelman’s townhouse.

In July 2010 the Namibian government moved for dismissal of the suit, on the grounds that the federal district court lacked jurisdiction over the mission because it was entitled to sovereign immunity under the Foreign Sovereign Immunity Act passed by Congress and signed into law by President Gerald Ford in 1976.

Yet the district court found that there are exceptions even to sovereign immunity when it comes to the responsibilities incumbent on all property owners, including foreign governments, and concluded that the “alleged failure of the [Namibian] mission to protect the party wall was a breach of the duty imposed upon it by the building code.” The U.S. Court of Appeals affirmed the finding.

An examination of New York City’s official website—which tracks all recorded violations on all properties—seems to indicate that on Dec. 15, 2008, Department of Buildings inspectors wrote up the collapse as a Class-1 violation, meaning “immediately hazardous.” The infraction is described “as failure to safeguard persons/property affected by construction operation.” Yet the ECB violation is listed as “dismissed,” and no penalty was assessed on that visit.

THREE STRIKES AND IT DOES NOT MATTER

According to city records, DOB inspectors must have known the location well: In the 24-month period before Dr. Adelman’s townhouse was badly damaged, they had been to the site five times to issue violations, some listed as “hazardous.” On three of those occasions, the city levied fines for a total of $4,500. To this day, those fines remain uncollected—along with the nearly $50,000 since amassed by the Namibian government in penalties.

The city’s Independent Budget Office reviewed the city’s books back in 2011 for the years 2007–09 and found at least $200 million dollars in outstanding DOB violations that had been registered with the Environmental Control Board. A spokesperson for the city’s Department of Finance confirms that agency is now in the process of getting a more granular view of precisely who owes what and triaging which violations levied on properties such as the Namibian mission are actually collectable.

The Namibian mission did not respond to an email sent to it following the instruction of a staffer who answered the mission’s phone. Richard Adam Hubell, the attorney representing Dr. Adelman, told City & State he would have to get clearance from his client before discussing the status of the litigation.

POST 9-11 EFFORTS AT TRANSPARENCY AND A DEAL AT THE UN

After the attacks on New York on Sept. 11, 2001, city officials tried to zero in on how best to get compliance from foreign governments as to essentials such as their building and fire codes. Although foreign missions could be potential targets for terrorism or even sources for credible threats, city inspectors could not take for granted that they would have easy access to any premises covered under sovereign immunity. “We just needed to know what the risks were,” recalled one former official who was part of the post-9/11 municipal response associated with several hundred buildings for which the city could be denied entry and code enforcement.

The responsibility of managing how the myriad municipal agencies interface with the 180 various nations that have a physical presence here in New York City and with the United Nations, falls upon the city’s Mayor’s Office for International Affairs. “The City of New York follows one mantra: They have to comply with building and fire codes,” says Deputy Commissioner Bradford Billet. “The goal is public safety. We are not concerned about the fine; we want compliance.”

Billet says the art of persuasion can be important to get access to confirm that compliance. In cases where the city has suspected something could be an emergent problem, he insists that they have always gotten access. “Some countries don’t see it in their best interest. We have to take their word they are compliant. But we have never not been able to get access when we thought there was a problem.”

The process can be frustrating. Years after the Sept. 11 attacks, the U.N. reportedly took nine months to permit the FDNY to enter its headquarters to conduct an inspection. With the U.N. undertaking a billion-dollar once-in-a-lifetime makeover, municipal officials considered their input essential. Indeed, once inside the building, inspectors flagged more than 800 fire code violations. Then-Mayor Michael Bloomberg actually threatened to suspend class trips to the United Nations unless the international body incorporated the advice of city code enforcement officials. Bloomberg’s gambit worked; the city and the U.N. reached a consensus.

Since then, says Deputy Commissioner Billet, “our coordination with the United Nations has improved dramatically. The Fire Department visits there monthly; they have done drills together and the U.N. is directly wired into the Fire Department.”

Thanks to the collaboration between the U.N. and the city, Billet says, response times will improve. “When a fire alarm goes off, there is an automatic notification that goes directly to the FDNY. Prior to our intervention that link did not exist. The U.N. did just the opposite. They used to send someone to first check out what tripped their alarm and then call the Fire Department.”

But some feel that in a post-9/11 world, there should be one system not subject to negotiations or exemptions. “Whether it be a federal facility like the Statue of Liberty, the Port Authority or these embassies, there should be a universal building and fire code,” says Glenn Corbett, an associate professor of fire science at the City University of New York’s John Jay College of Criminal Justice. “It is all a matter of dollars and cents, and there are real operational advantages for these entities to not having local inspectors looking over their shoulder. But ultimately it is going to be first responders from the same local government that are going to have to respond if there is a fire. That local code should be the law.”

SOVEREIGN IMMUNITY AND THE PORT AUTHORITY

For Corbett there is no better example of an instance where the conferring of the status of sovereign immunity on a facility puts public safety in jeopardy than the Port Authority and its new One World Trade Center complex. Expert analyses following two attacks on the site revealed serious flaws in the Authority’s fire safety preparedness and response on both occasions.

Tension between the FDNY and the Port Authority, which oversees One World Trade, over standards of safety has been well-documented over the years.

Today’s sprawling Port Authority is a vast network of bridges, tunnels, airports and commercial spaces such as the One World Trade tower. Created by an act of the U.S. Congress in 1921, the bi-state agency has evolved into a city-state governed by its own rules and regulations—not unlike the Vatican—with its own police force. For years politicians from both parties and both states have clamored for the agency’s reform. Now, thanks to the Bridgegate scandal, it is the subject of a Department of Justice criminal probe, one that has already sidelined its previous chairman.

Historically the Authority has always been playing catch-up as to fire safety, according to Corbett, who served on the U.S. Department of Commerce’s National Institute of Standards and Technology expert panel, which conducted an exhaustive analysis of the World Trade Center’s fire and collapse. “Had the Port Authority’s twin towers been built anywhere else, where adherence to the city fire and building code was mandatory,” says Corbett, “there [would] have been four stair towers for an emergency exit in both of those towers, not three.”

The tension between the FDNY and the Port Authority over standards of safety has been well-documented over the years. Authors James Glanz and Eric Lipton recount in City in the Sky: The Rise and Fall of the World Trade Center the largely lost history of a Feb. 13, 1975 fire that broke out on the 11th floor of the North Tower. The building’s inferior construction allowed the blaze to quickly jump to other floors, escalating the inferno into a three-alarm event that took 132 firefighters three hours to extinguish.

At the time Fire Commissioner John O’Hagan faulted both the tower’s construction and the lack of sprinklers. “After assuring the New York City Fire Department that the fire protection systems in the twin towers were first-rate, the Port Authority had to contend with the clear evidence they were not,” wrote Glance and Lipton.

The ’75 fire—alongside the pop culture impact of the then–recently released blockbuster movie The Towering Inferno—added to pressure on the Authority to spend $14 million for additional fire doors and emergency communication equipment. Still, even after a raging conflagration, the agency was paralyzed by sticker shock when it came to installing the sprinklers. Glance and Lipton recount that the “estimated $43 million it would cost to install fire sprinklers,” in the words of late Port Authority Board Chairman William J. Ronan, was a “figure that at this time is not feasible.”

It would not be until March of 1981 that the Authority would finally commit to spending the now– $45 million necessary to install sprinklers, a project estimated to require three to five years to complete.

Today the standing memorandum of understanding (MOU) between the city and the Authority leaves too much room for standards to be weakened through negotiation, believes Corbett, who is concerned history may be repeating itself. He cites a 2011 WABC-TV report revealing that the Port Authority had convinced the city’s Department of Buildings to let it cut $25 million worth of fireproofing it had initially planned to apply to the World Trade Center Transportation Hub.

The Port Authority backed up its application for the waiver, says Corbett, with an outside engineering study asserting that thanks to the sheer size of the space, and the strength of the steel being used, the site could withstand a blaze created by a car fire involving two or three vehicles. “Given the fact that this is such a large building, and [it] is a terrorist target,” Corbett told WABC at the time, “a small fire in this building is not something I’d be planning for—I’d be planning for much larger worst-case scenario.”

The issue of cost overruns trumping safety concerns has plagued the Authority in the years since Sept. 11, 2001. In a 2009 press release, the agency announced a new transparency initiative for code compliance: “Under the new initiative, the Port Authority—which has a long-standing policy to meet or exceed New York City building and fire code standards—will publish an annual report documenting its code conformance efforts and facility inspection records.” Contacted for this article, Peter Zipf, the Port Authority’s chief engineer, responded to Corbett’s critique with virtually the same words: “The Port Authority’s policy is to meet or exceed New York City code that has been in place for years.”

The DOB also voiced its support for the agency, echoing this sentiment in a statement. “The Department of Buildings retains an MOU [Memorandum of Understanding] with the PA World Trade Center site that maintains construction will meet or exceed standards set out in the New York City Building Code. We disagree with the premise of this question [i.e., that a decision against proper fire protections was made] and stand by our determination that the Port Authority’s design of their structure met or exceeded the NYC fire resistance ratings requirements.”

Responding to a query that raised the issues brought up in WABC’s 2011 report, the FDNY said it was not in the loop on DOB’s decision. “The FDNY was never requested to render any opinion or approval regarding any level or levels of fire protection involving the Transportation HUB at the World Trade Center,” it said in a statement. “This is not an FDNY function [Fire Code] but a DOB function [Building Code].”

In 1993, four Port Authority employees lost their lives in the first World Trade Center bombing. On Sept. 11, 2001, 37 Port Authority officers were killed, along with 47 civilian Authority employees.

In 2005 a New York State civil trial jury held the Port Authority 68 percent liable for the damages done in that first WTC attack in 1993, when terrorists successfully parked and detonated an explosive-packed truck in the World Trade Center’s underground garage. Jurors were troubled by Port Authority officials’ decision to reject the recommendations of a 1985 report done by a Port Authority mechanical engineer who advised the garage be closed because it left the “most attractive terrorist target” wide open for just such an attack. In those halcyon years before the first terror attack and the catastrophic collapse, it is likely that commercial considerations trumped security concerns.

In 2011 a closely divided New York State Court of Appeals panel overturned the lower court ruling, which had held the Port Authority liable, as the private landlord of what was primarily a commercial building. The state’s highest court ruling countered that the Port Authority was shielded from liability by sovereign immunity.

Bob Hennelly is an investigative reporter and contributor to City & State. Follow him on Twitter @stucknation. Aspiring whistleblowers are welcome to write him at rhennelly@yahoo.com.