Home, Sick: The Health Hazards of ‘Harassment by Construction’
BY EILEEN STUKANE | Staying healthy while staying put is an unseen battle raging within the community.
Now that Chelsea and Hell’s Kitchen have emerged as high-rent, luxury neighborhoods, many landlords, seeing dollar signs, are determined to transform their rent-regulated apartments into market-rate units. The landlord/developer drive to vacate apartments seems unstoppable, even though residents frequently decline to move, and refuse to be bought out. A landlord will commence with demolition and construction plans regardless, knowing that a certain number of tenants will eventually leave. The ones who remain in their homes exist in an environment of dust and debris that has given rise to the term “harassment by construction,” an insidious assault on their health.
Tenants can organize to form activist groups to stand their ground and remain in their homes. They can battle the bureaucracy as the landlord practice of falsifying NYC Department of Buildings (DOB) permit applications for construction is exposed, and tenants learn that their occupied buildings are filed as “unoccupied” in order to eliminate the need for required Tenant Protection Plans. Tenants can enlist elected officials and community leaders to pursue legislation against unethical landlords. The real fight to save their homes, however, may be the struggle to remain healthy enough to withstand the environmental stress heaped upon them.
In one Chelsea building, four of 13 tenants were committed to staying in their homes in 2014 when a new owner commenced construction renovations.
“People couldn’t walk into the building with the white dust coming out. I had asthma, and immediately had to get a mask just to walk in the front entrance,” says one of those residents who continued to live in his home. “The apartments looked white inside, the way the streets looked after 9/11. You could see footprints on the floors and a lot of people were having breathing problems. I myself was having breathing problems and I’m a healthy athletic guy. I go to the gym, run track — and I started getting sick. If I, a healthy person in my thirties, was suffering, I can’t imagine what a senior citizen would suffer.” (Those who live in buildings with ongoing construction, and are in dispute with their landlords, spoke on the condition of anonymity in order not to further jeopardize their situations.)
Two of the four tenants who originally committed to stay moved out.
As Chelsea Now interviewed residents who are experiencing, or who have experienced, harassment by construction, it became clear that an abundance of the still rent-regulated apartments (the ones that landlords would like to convert to market-rate) are occupied by seniors who have lived in their homes for decades. These men and women have found refuge within their apartment walls. They have roots in the community and have no desire to relocate. At ages where their peers are relaxing in warmer climes, they are breathing in dust, mold and toxic fumes, living with insect infestations and mice, and enduring the noise of jackhammers outside their apartment doors, suffering panic attacks from fear of intruders entering unsecured premises. The requirements of the DOB’s Tenant Protection Plans, even when they are posted as being in place, may be ignored by the landlords who are supposed to be fulfilling them.
WHAT PEOPLE ARE LIVING WITH
The Community Health Profile 2015, recently released by the NYC Department of Health and Mental Hygiene (DOHMH), reports that the air in Manhattan Community District 4 (Hell’s Kitchen/Clinton, Chelsea and Hudson Yards), when measured for levels of particulate matter (PM2.5), the most harmful pollutant, ranks third highest in the city at 11.4 micrograms per cubic meter. According to the US Environmental Protection Agency’s (EPA) National Ambient Air Quality Standards (NAAQS), the primary standard — which is set to protect the health of asthmatics, children, and seniors — is 12 micrograms per cubic meter. The air in construction sites in Chelsea and Hell’s Kitchen does not have far to go to surpass the EPA’s acceptable level of pollutants.
PM2.5 is made up of fine particles and liquid droplets often found as a result of construction, in dust (which may contain lead), organic chemicals, and metals. Children — who breathe more rapidly than adults and often through their mouths — can inhale more of these fine particles into their lungs. Long-term exposure to fine particles, for adults and children alike, can irritate the airways, affect lung function and cause coughing which is sometimes chronic, difficulty breathing, and asthma. Of the residents interviewed for this article, all reported coughs, some lingering well after construction was completed.
In 2014, Healthy Building Network, an organization dedicated to reducing the use of hazardous chemicals in building products, published “Asthmagens In Building Materials: The Problem and Solutions,” a compilation of studies that correlated a link between asthma risk and volatile compounds called phthalates and isocyanates that are found in a variety of building materials such as insulation, paints, adhesives, wall panels and floors.
Although it would be difficult to undertake in New York City, Jim Vallette, Research Director at Healthy Building Network, says that the practice in the green building industry is to empty a residence for two days, with doors and windows open, to “flush out into the air” the toxic effects of paints, adhesives, and even the polyurethane in foam insulation, to reduce the environmental impact for residents. Using paints certified as being low in volatile organic compounds is also recommended.
While scientific research to identify pollutants has not been conducted in buildings under construction in our community, Stand for Tenant Safety (STS), a coalition of community organizations fighting to protect tenants from harassment by construction, has been gathering data. STS published a 2015 Summary of Data that identified health-related situations created by construction.
In the STS survey of 150 residents who were living in buildings where construction was ongoing, 87% reported excessive dust, which stood as the greatest complaint, followed by excessive noise at 82%. Overall, 71% stated that construction was a threat to their health and safety. Excessive fumes, vermin, construction debris, and building doors left open or unlocked, were all listed as issues.
A breakdown of the 2015 STS Summary of Data to Document Construction as Harassment in Rent Stabilized Buildings (undertaken by STS with Research Support from the Community Development Project at the Urban Justice Center), looks like this:
- 71% reported that construction was a threat to their health and safety.
- 82% reported excessive noise.
- 87% reported excessive dust.
- 42% reported excessive fumes.
- 44% reported problems with vermin.
- 73% reported construction debris in the hallway.
- 74% reported doors to building left open or unlocked.
- 14% reported fire escapes were not accessible.
Councilmember Corey Johnson, who represents the area and is chair of the City Council’s Health Committee, is well aware of the harassment by construction health issues, and has responded with support and proposed legislation to combat this egregious situation. In an email statement to Chelsea Now, Johnson wrote: “It is undeniable that unsafe construction causes conditions that impact the health of tenants. Too often, landlords perform construction work without proper permits and without basic safeguards. Every week, my office hears from tenants who are negatively impacted by construction in their buildings, and we respond aggressively to every report. Unfortunately the Department of Buildings currently lacks the resources and bandwidth to fully enforce tenant protection laws. Luckily, in Chelsea we have great community activists that have been working with me and my colleagues to reform the system so that tenants are protected in all cases.
“In September, the City Council unveiled a [12-Bill] package of legislation that would comprehensively reform the Department of Buildings and help protect victims of ‘harassment by construction.’ A bill I co-sponsored with [Councilmember] Helen Rosenthal takes aim at the practice of landlords falsely claiming on permits that their buildings are unoccupied. This legislation would require the DOB to review these claims in certain cases, rather than simply accepting the landlord’s word. Protecting the health and safety of tenants is one of my top priorities.”
Although it may seem to work slowly, the legislative process is moving along. The office of Councilmember Rosenthal reports that on Monday, April 18, the legislative package designed to end the use of hazardous construction as a form of tenant harassment had its first hearing before the Council’s Housing and Buildings Committee. The package now moves on to a second hearing of the same committee, and then it will be eligible to be presented to the entire Council for consideration.
STRESS AND ANXIETY TAKE THEIR TOLL
Mental health is jeopardized in these situations as well. “I was never anxious [before]. I think I have a wonderful life, and I was having nightmares,” says a male resident of the community. Chelsea residents have learned that the stress of fighting for survival in one’s own home creates an anxiety that can damage and sometimes destroy a marriage, but this is only one example. One Chelsea resident, after undergoing chemotherapy, had to move to a relative’s house in another state to be able to strengthen his immune system away from the worry of what each day would bring in terms of harassment. Another Chelsea tenant who had a fragile immune system, due to cancer treatment, was faced with a home not habitable for healing — one with burst pipes and mold that could cause infection when inhaled.
“When they started working on apartments, they tore out windows and left them open,” says a female resident of Chelsea. “I used to walk up and down the stairs with pepper spray ready to use. I was one of four left in the building and I was the only woman. I live on the fifth floor. I was terrified walking up the stairs at night. It felt desolate, scary, being in a building that’s empty like that.” When construction ended in her building she became calmer. “I can sleep at night,” she said. No longer does she have to worry about debris falling from a floor above and hitting her in the face when she climbs the stairs, as has happened during construction.
Marilyn Hemery has lived peacefully in her third floor apartment at 15 W. 55th St. for 45 years. Today, she is battle weary. Two years ago, her building and its adjoining 19 W. 55th St. property were purchased by Assa Properties Inc., renovated, and turned into The Branson. Hemery’s building had 37 apartments on 10 floors. Today there are only seven occupied apartments.
“I am the only tenant on the first five floors,” says Hemery, who refused to take buyout money of $225,000, when, according to her, Assa was leasing its renovated apartments for $6,000 a month. “I have mice in my kitchen and have to leave lights on 24/7,” she says. She also has to deal with constant layers of dust, and a cough, and is herself recovering from chemotherapy.
“There was asbestos in the building, and the owners never put a notice where anyone could see it,” she continues. “It was hidden. There is supposed to be a tenant protection plan but they do not live by it. They have their own plans.”
She and the other tenants have filed over 100 complaints with the city, and lived anxiously as Assa Properties turned their building into what has come to be known as “the city’s worst illegal hotel.” Thanks to the involvement of NY State Senator Liz Krueger, a lawsuit against the owners was filed by the Mayor’s Office of Special Enforcement in 2015, which closed down the hotel activity.
Today 15 W. 55th St. — the entire building — has been leased from Assa Properties by the fashion designer Domenico Vacca, who intends to open an 8,000-square-foot store, and create a members-only club, barber shop, café, beauty salon, rooftop terrace, and, in the apartments, have long-term residence stays of 30 days or more — all this in a building that had cooking gas shut off for seven months, from August 2015 to March 2016.
“We’re invisible to them,” says Hemery.
THE “NO GAS” TACTIC
According to the NY State Attorney General’s “Tenant’s Rights Guide” (ag.ny.gov/sites/default/files/pdfs/publications/Tenants_Rights.pdf): “Under the warranty of habitability, tenants have the right to a livable, safe and sanitary apartment, a right that is implied in every written or oral residential lease…Examples of a breach of this warranty include the failure to provide heat or hot water on a regular basis, or the failure to rid an apartment of an insect infestation.”
What seems to be a widespread landlord tactic, as corroborated by every tenant interviewed, is the cutoff of cooking gas for months. The situation at 15 W. 55th St. is not unusual. Landlords are not providing “a livable, safe and sanitary apartment,” which is every tenant’s right to have.
Usually there is a reason for Con Edison to turn off gas — a leaky pipe, a broken stove, an unexplained gas smell. It is up to the landlord to hire a master licensed plumber to come in and do whatever repair is needed, and then call in Con Ed for inspection. Landlords, either because they are trying to convert the buildings to all-electric, or because they simply want to harass tenants, do not hire the plumbers or make the repairs in a timely fashion.
Tenants inquire and are told various reasons for the delay, but in the meantime they are forced to order out, or use their own creativity with microwaves and hot plates in order to eat. Hemery did what she could with an electric skillet.
At the end of March, Manhattan Borough President Gale Brewer, who was appalled by the frequency of cooking gas shutoffs in Manhattan, wrote a letter requesting a full report of all buildings without gas service to: John McAvoy, CEO of Con Edison; NY State Attorney General Eric Schneiderman; the NYC Commissioners of Housing Preservation & Development, the Department of Buildings, and Homes and Community Renewal; and the New York State Public Service Commission. Brewer brought Chelsea Now up to date in this recently emailed statement:
“My office is following up with Con Ed and the city and state agencies that received our letter. In the meantime, I’m pleased my colleagues in the City Council have acted by introducing several bills that could help significantly.
“I’ve heard that many gas shutoffs stem from heightened caution and scrutiny on Con Ed’s part, and that Con Ed is finding hazardous, illegal conditions in too many Manhattan buildings’ gas systems. I agree with the carrot-and-stick approach taken in two bills introduced by my colleague Councilmember Jumaane Williams, Int. 1101 and Int. 1102, which would respectively give landlords an incentive to quickly fix illegally installed or modified gas piping systems, and would reclassify many gas-related code violations as ‘immediately hazardous.’ If passed, these changes will spur landlords to act more quickly to fix hazardous gas systems, removing an obstacle to Con Ed restoring service for many tenants.
“My colleague Councilmember Rosie Mendez also sponsors Int. 1093, a bill that would require the Department of Buildings to be notified within 24 hours when gas service is suspended for safety reasons. This bill is common sense. I sent my letter in part because of the lack of public information on these gas service shutoffs — Councilmember Mendez’s bill would solve that problem.”
WHAT TO DO FOR HEALTH ISSUES
The NY State Attorney General Eric Schneiderman’s hotline for problems is: 1-800-771-7755. The Attorney General’s “Tenant’s Rights Guide” contains four pages of state and city resources for tenants. The NYC Rent Guidelines Board also has information on tenants’ rights and resources: nycrgb.org/html/resources/attygenguide.html.
Calling the city’s 311 number should lead to a complaint reaching the NYC Housing Preservation and Development (HPD), which can then either investigate the complaint or direct it to the appropriate agency, which may be the DOB, the NYC Department of Environmental Protection, or the DOHMH.
Jeremy House, spokesperson for DOHMH, said, “When there are pollutants in the air or dangerous materials, we would definitely issue a violation. We also coordinate with HPD. As part of the Healthy Homes Program, we take more aggressive steps if children are involved. If HPD notifies that there are children in a building, there will be a cease and desist and move the child.”