2  CITY COUNCIL



             CITY OF NEW YORK






                       of the







         10                 December 10, 2003

                            Start:  1:12 p.m.

         11                 Recess: 5:55 p.m.


         12                 City Hall

                            Committee Room

         13                 New York, New York



                  B E F O R E:


                         MADELINE PROVENZANO

         16                                Chairperson,



                         COUNCIL MEMBERS:   Diana Reyna

         18                                 Tony Avella

                                            Gale Brewer

         19                                 Leroy Comrie

                                            Robert Jackson

         20                                 Melinda Katz

                                            Kendall Stewart








                         17 Battery Place -  Suite 1308

         25              New York, New York 10004

                              (800) 756-3410













          2  A P P E A R A N C E S



             COUNCIL MEMBERS:


             John Liu

          5  Bill Perkins

             Miguel Martinez

          6  Erik Dilan

             Charles Barron

          7  Helen Sears

             Domenic Recchia

















































          2  A P P E A R A N C E S (CONTINUED)



             Monsignor Donald Sakano

          4  Highbridge Community Development Corp.


          5  Suzanne Mattei

             NYC Executive

          6  Seirra Club


          7  Frank Anelante

             New York State Association for Affordable Housing


             Michael D. Lappin

          9  President

             Community Preservation Corporation


             John McCarthy

         11  General Counsel

             Community Preservation Corporation


             Kathleen Dunn

         13  Former Deputy Commissioner for Development

             Mayor David N. Dinkins' Administration


             Edward Korman

         15  Executive Vice President

             Small Property Owners of New York, Inc.


             Joanne Doroshow

         17  Americans for Insurance Reform


         18  Patrick Markee

             Senior Policy Analyst

         19  Coalition for the Homeless


         20  Donald Halperin

             New York State Association for Affordable Housing


             Andrew Hoffman

         22  President

             Community Housing Improvement Program


             Stan Michels


             Camille Rivera

         25  Representative for

             Michael McKee, Advocate for Tenants and Neighbors













          2  A P P E A R A N C E S (CONTINUED)



             Karen Chestnut Ozkurt

          4  Northern Manhattan Improvement Corp


          5  Matthew Chachere

             Northern Manhattan Community Development


             Nick LaPorte

          7  Executive Director

             Associated Builders and Owners


             Mary Spink

          9  Executive Director

             Lower East Side Peoples Mutual Housing Association













































          2                 CHAIRPERSON PROVENZANO: My name is


          3  Madeline Provenzano, and I chair the Committee on


          4  Housing and Buildings.


          5                 We thank you, again, for attending


          6  this hearing on proposed Intro. No. 101-A. This


          7  intro relates to childhood lead poisoning


          8  prevention. It's been the subject of numerous


          9  revisions since the introduction of this bill.


         10                 We're here today to conduct a hearing


         11  on the latest version of the bill, which is


         12  available to those of you that may not have it, this


         13  is the version -- not Friday, it's after that,


         14  right? December 5th, the latest version of the bill.


         15                 There were some changes made after


         16  Friday's hearing. The latest bill is dated 12/5/03,


         17  10:40 p.m.


         18                 The previous Committee conducted


         19  previous hearings on this matter, the last of which


         20  was conducted on December 5th.


         21                 On Friday, December 5th, there were


         22  some folks that were signed up to testify and we did


         23  not hear because of the weather. Those folks will be


         24  the first people that will be called upon to testify


         25  today. There were five groups. I'm joined by a crowd














          2  of people, as usual. It's always great to have these


          3  Committee hearings, everybody is so interested.


          4                 Council Member James Oddo, Council


          5  Member Tony Avella. And walking in is Councilwoman


          6  Gale Brewer.


          7                 The first person we'll be calling on


          8  is Monsignor Donald Sakano. Yes, come up. Sit. And


          9  Terzah Nasser, Counsel to the Committee, has a long


         10  list of the changes that have been made that must be


         11  entered into the record.


         12                 So, we'll just ask for a few moments


         13  of your patience. Thank you.


         14                 MS. NASSER: Hi. Terzah Nasser.


         15  Counsel to the Committee on Housing and Buildings.


         16                 I'm going to read the more


         17  significant amendments to the bill. I'm going to


         18  start with the significant amendments to propose


         19  Intro. No. 101-A since the November 17th hearing.


         20  Section 27-2056.1, statement of findings and


         21  purposes.


         22                 Legislative intent was amended and


         23  refined, and you'll get the exact details in the


         24  bill, which will be available for distribution


         25  shortly.














          2                 Section 27-2056.2. Definitions. In


          3  general, the definitions were amended and refined to


          4  better relate to physical conditions in apartments.


          5                 Notably, revisions were made to the


          6  definitions of chewable surface, common area,


          7  friction surface, impact surface, and underlying


          8  defects.


          9                 Section 27-2056.3. Owners


         10  responsibility to remediate. The provision was


         11  amended to require an owner to take action to


         12  prevent the reasonably foreseeable occurrence of a


         13  lead-based paint hazard in any multiple dwelling


         14  where a child of applicable age resides and to


         15  expeditiously remediate such condition and any


         16  underlying defect, except where lead contaminated


         17  dust is present in such multiple dwelling and the


         18  Department of Health and Mental Hygiene has made a


         19  determination that the dust did not emanate from the


         20  multiple dwelling.


         21                 Section 27-2056.4. Owner's


         22  responsibility to notify occupants and to


         23  investigate.


         24                 The provision was amended to require


         25  that a tenant who has notified an owner that no














          2  child of applicable age lives in the dwelling unit


          3  is obliged to tell a landlord if a child moves in


          4  during the period from the point that the initial


          5  lease was signed to the next year's annual notice,


          6  and from the point and time that the tenant last


          7  responded to the annual notice to the next


          8  provision, to the next notice.


          9                 If the tenant does not do this, the


         10  presumption of lead-based paint does not apply in a


         11  personal injury lawsuit relating to lead-based paint


         12  where those time periods are relevant.


         13                 Section 27-2056.7. Audit and


         14  inspection by Department, following Commissioner's


         15  order to abate. Prior language was removed and new


         16  language inserted, related to audit and inspection


         17  by HPD, following an order from the Commissioner of


         18  Health and Mental Hygiene to abate. In addition, if


         19  the owner does not provide HPD with the records that


         20  the owner is required to maintain, the Department


         21  shall within 45 days of such failure attempt to


         22  inspect dwelling units where a child of applicable


         23  age resides to determine whether there are any


         24  violations of Section 27-2056.6 of this article in


         25  such units.














          2                 Section 27-2056.8, violation in a


          3  dwelling unit upon turnover. This section was


          4  amended so that the turnover requirement apply to


          5  persons other than the owner or the owner's family


          6  in private dwellings that are not owner-occupied.


          7                 In brief, the provision requires the


          8  remediation of all lead-based paint hazards, the


          9  repair of deteriorated subsurfaces and underlying


         10  defects, and specifies the work required to address


         11  windows.


         12                 In addition, the prior Department of


         13  Health and Mental Hygiene schedule to address


         14  turnover was eliminated.


         15                 Section 27-2056.9, Department


         16  inspections. Amendments were made in response to


         17  HPD, including provisions for failure to gain


         18  access.


         19                 In addition, after the Department's


         20  receipt of a complaint describing peeling paint or


         21  deteriorated subsurface or underlying defects in the


         22  dwelling unit, HPD shall test utilizing an XRF


         23  device. HPD shall conduct a room by room line of


         24  sight inspection pursuant to subdivision A of this


         25  section within ten days.














          2                 Otherwise, when peeling paint is


          3  found during an inspection, then HPD has ten days to


          4  come back and use an XRF device.


          5                 HPD is required to issue a new


          6  pamphlet listing the work practices to be


          7  established pursuant to Section 27-2056.11 of this


          8  article. Such pamphlet shall be delivered by the


          9  Department in conjunction with all notices of


         10  violation issued pursuant to paragraph 1 of


         11  subdivision L of section 27-2115 of the code.


         12                 Failure to include such pamphlet with


         13  such notices of violation shall not render null and


         14  void the service of a notice of violation. Failure


         15  by HPD or DOHMH to comply with any time period


         16  provided in this article or 27-2115 of this chapter,


         17  relating to responsibilities of HPD or DOHMH, shall


         18  not render null and void a notice of violation


         19  issued by either Department.


         20                 Section 27-2056.10. Department


         21  implementation and enforcement, training


         22  requirements were revised to link the training


         23  requirements with the specific work conducted by HPD


         24  employees.


         25                 HPD's rules are subject to DOHMH's














          2  approval.


          3                 DOHMH is to establish procedures to


          4  order or provide for the expeditious clean-up and


          5  removal of lead-contaminated dust when DOHMH


          6  determines that there is a lead contaminated dust in


          7  a dwelling unit, where a child of applicable age


          8  resides.


          9                 Such child has an elevated blood


         10  level and the Department of Health and Mental


         11  Hygiene determines the source of the lead


         12  contaminated dust is not a condition of the dwelling


         13  in which such dwelling unit is located.


         14                 Section 27-2056.11, work practices.


         15  The provision was clarified to require that when


         16  relocation is required, such relocation must be


         17  provided by the owner. While a landlord is still


         18  obligated to comply with the work practices, the


         19  previous language imposing a specific penalty on


         20  small job for dust clearance failure was eliminated.


         21                 Section 27-2056.12, reporting. The


         22  reporting requirements and the time frames were


         23  amended to reflect some of the recommendations of


         24  HPD.


         25                 Section 27-2056.14, inspections by














          2  Department of Health and Mental Hygiene and removal


          3  of code violations by the Department of Housing,


          4  Preservation and Development.


          5                 The previous requirement with respect


          6  to pregnant women was removed. The obligations of


          7  DOHMH were clarified, and the time period for HPD to


          8  conduct the required work under this provision when


          9  an owner fails to was raised from ten days to 18


         10  days.


         11                 Section 27-2056.15, waiver of benefit


         12  void.


         13                 A new provision was added to the bill


         14  to state that the provisions of this article, other


         15  than Section 27-2056.14, shall not apply to a


         16  dwelling unit in a multiple dwelling where: (i)


         17  title to such multiple dwelling is held by a


         18  cooperative housing corporation or such dwelling


         19  unit is owned as a condominium unit; and (ii) such


         20  dwelling unit is occupied by the shareholder of


         21  record on the proprietary lease for such dwelling


         22  unit, or the owner of record of such condominium


         23  unit as is applicable, or the shareholders or record


         24  owner family.


         25                 Section 27-2056.16, exemption for














          2  emergency conditions.


          3                 This is a new provision that was


          4  added to the bill.


          5                 Section 27-2056.17, recordkeeping


          6  requirements. Certain recordkeeping requirements


          7  were added with regard to work pursuant to this


          8  article. They'll be transferred to a successive


          9  owner and made available for HPD.


         10                 Owners must keep records for ten


         11  years from the completion date of the work.


         12                 Section 27-2056.18, application of


         13  this article based on age of child.


         14                 For at least one year the age of


         15  children covered by this bill is any child under


         16  seven years of age. For the purposes of this


         17  article, the term applicable age shall mean under


         18  seven years of age, for at least one calendar year


         19  from the effective date of this section.


         20                 Upon the expiration of such one-year


         21  period, in accordance with the procedures by which


         22  the Health Code is amended, the Board of Health may


         23  determine whether or not the provisions of this


         24  article should apply to children of age six, and


         25  based on this determination may redefine applicable














          2  age for the purposes of some or all of the


          3  provisions of this article to mean under six years


          4  of age but no lower.


          5                 Subdivision L of Section 27-2115. The


          6  time frame for an owner to correct the violation was


          7  increased from 14 to 21 days. The certification


          8  process has been amended to requiring an owner to


          9  include a copy of the dust clearance test.


         10                 The time frames for HPD enforcement


         11  were increased. The time frame for HPD to reinspect


         12  after the correction of a violation was extended


         13  from ten to 14 days. The time frame for HPD under


         14  ERP, Emergency Repair Program, to correct the


         15  violation if the landlord failed to do so, is


         16  extended from 14 to 30 days.


         17                 Amendments to Section 11-243. Under


         18  the J-51 provisions contained in the bill, the bill


         19  now prohibits the receipt of J-51 tax benefits when


         20  a violation of article 14 of Subchapter 2 of Title


         21  27 of the Administrative Code was issued.


         22                 Lead-based paint in day care


         23  facilities. Under Chapter 9 of Title 17, the day


         24  care provisions were amended and now apply to day


         25  care centers in non-residential centers. The














          2  definitions were revised to be consistent with the


          3  residential portions of this bill.


          4                 Additionally, significant amendments


          5  are contained in the December 5th version of


          6  proposed Intro. Number 101-A, that's the final


          7  version at this point in time, that's Aging. Section


          8  27-2056.2, definitions. The definition of chewable


          9  surface was narrowed to reference a surface that is


         10  readily accessible to children, and the definition


         11  of common area was narrowed.


         12                 Section 27-2056.9, Department


         13  Inspections. The HPD line of sight inspection


         14  requirements were clarified.


         15                 Subdivision H of Section 27-2056.4,


         16  owner's responsibility to notify occupants and to


         17  investigate. HPD can now audit the work that a


         18  landlord does in this area.


         19                 Subdivision L of section 27-2115. The


         20  time frame for HPD to collect the violation when a


         21  landlord does not was extended from 30 days to 45


         22  days.


         23                 And finally, bill section 12, the


         24  effective date was extended from 90 days to 180


         25  days. Thank you.














          2                 CHAIRPERSON PROVENZANO: Thank you.


          3                 We've also been joined by Council


          4  Member John Liu, Council Member Bill Perkins.


          5                 I am not starting out by putting on


          6  the clock. I may be foolish but I'm trusting those


          7  that will testify, they will keep their testimony to


          8  three minutes.


          9                 If it doesn't work, I will then put


         10  on the clock.


         11                 I totally know I can trust Monsignor,


         12  that's why we're starting off with him.


         13                 MONSIGNOR SAKANO: My name is


         14  Monsignor Donald Sakano, and I'm a Pastor of two


         15  parishes in Manhattan, and I come here representing


         16  the Highbridge Community Development Corporation of


         17  which I am president and chair, and for over 15


         18  years was the Director of Housing in Catholic


         19  Charities here in the archdioces of New York.


         20                 The Highbridge project was a major


         21  effort of ours, which was the rehabilitation of so


         22  many of those abandoned buildings that hung over on


         23  the Cross Bronx Expressway, and now we're also


         24  enjoying doing rehab in occupied buildings and new


         25  construction for senior citizens and small homes.














          2                 And I'm very proud of the work that I


          3  do, especially because it's a partnership with


          4  broad-based groups of people, all religions and


          5  races and particularly with the City government,


          6  with a public government such as New York that is


          7  attentive.


          8                 I'm always happy to tell our story,


          9  our housing story to people from outside of New York


         10  City. They're amazed at what we do, not only because


         11  of the scale, but of the attention to detail,


         12  including to the most poorest of our population.


         13                 But people outside of the City are


         14  also amazed at the cost of doing housing in the


         15  City, and that's really why I came, I came in a


         16  snowstorm on Friday, and actually I think there were


         17  more people there during the snowstorm on Friday


         18  than there are here today. I suppose that's a


         19  commentary on the strength of New Yorkers.


         20                 But what I wanted to say to you was a


         21  general statement. I don't have a prepared


         22  statement, and when I was given the card, whether


         23  I'm in support of this legislation or against it, I


         24  checked both boxes, but I'm always happy to be in


         25  support of legislation like this, that is protective














          2  of children, especially the most vulnerable.


          3                 But I ask you to pay attention of


          4  those aspects of the bill that do add to, not only


          5  the cost of doing housing, but perhaps could even


          6  cause us not to be able to rehabilitate housing,


          7  especially those provisions that would scare the


          8  underwriters, insurers, away from the work that we


          9  do.


         10                 I can't tell you how delicate and how


         11  complex the financing of housing is these days. It


         12  comes from usually a variety of sources, tax


         13  credits, grant housing, debt-free money, as well as


         14  money from lending institutions in the private


         15  sector. And it's very delicate. Insurance is key,


         16  and what we're concerned about is the passage of


         17  this legislation as is will make it very difficult,


         18  costly or impossible for us to finance housing. And


         19  with that, I don't know if there are any questions,


         20  but I have endeavored to keep my word to limit my


         21  remarks to three minutes.


         22                 CHAIRPERSON PROVENZANO: And you did a


         23  very good job.


         24                 Do we have any questions?


         25                 We've also been joined by Council














          2  Member Leroy Comrie, and Councilwoman Diana Reyna.


          3                 COUNCIL MEMBER PERKINS: First let me


          4  express my appreciation for your return, and for the


          5  leadership you're providing in being brief to the


          6  clock.


          7                 MONSIGNOR SAKANO: I am in my sermons,


          8  too, you should know.


          9                 COUNCIL MEMBER PERKINS: So hopefully


         10  that will set the groundwork for those who follow


         11  you.


         12                 I think you are talking about a


         13  problem with insurance, by virtue of an aspect of


         14  the law that's being proposed that is really a


         15  repeat of the law that has already existed, and in


         16  which there has been the opportunity to get


         17  insurance in which you have actually been able to


         18  develop housing in the remarkable way that you and


         19  so many others have been able to do; why is it any


         20  different now?


         21                 MONSIGNOR SAKANO: I'm not sure,


         22  Councilperson.


         23                 I'm not an underwriter and I'm not a


         24  lender, you know, I'm a producer, a non-profit


         25  producer.














          2                 I guess I'm here to ask you to assure


          3  us, and with great scrutiny, before the bill is


          4  passed, you know, to collect experts around you, to


          5  really advise you that this bill will protect


          6  children, but will protect our endeavor to continue


          7  the rehabilitation of dilapidated housing in this


          8  City.


          9                 And I'm not sure I know how to answer


         10  your question, except to ask you to assure me that


         11  all is well in this bill.


         12                 I know you did that on Friday.


         13                 COUNCIL MEMBER PERKINS: I can only


         14  assure you as a layman in the sense that we feel


         15  confident that the sky will not fall and that you,


         16  and that we clearly have as our main objective the


         17  well-being of children and that includes, not just


         18  from the perspective of lead poisoning, but clearly


         19  we have a strong concern about making sure there is


         20  housing affordable to the families in this City as


         21  well.


         22                 And I just want to say I appreciate


         23  the fact that you don't know and you're not speaking


         24  from the perspective that you do know, rather from


         25  the perspective that you'd like some -- that you














          2  have some concerns.


          3                 MONSIGNOR SAKANO: Assurance.


          4                 COUNCIL MEMBER PERKINS: Thank you.


          5                 MONSIGNOR SAKANO: And know that the


          6  sky is clouded somewhat. There aren't clear clouds


          7  out there. Our insurance, the underwriters are


          8  already against (sic) to insurance because of 9/11


          9  has skyrocketed, so putting together housing


         10  financing is very, very difficult today, very


         11  skiddish and you really need to pay attention to


         12  that to make our job possible.


         13                 Thank you.


         14                 CHAIRPERSON PROVENZANO: Thank you.


         15  We've also been joined by Council Member Robert


         16  Jackson and Councilman Kendall Stewart. Do we have


         17  any other questions for the Monsignor?


         18                 Thank you very much.


         19                 MONSIGNOR SAKANO: Thank you very


         20  much.


         21                 CHAIRPERSON PROVENZANO: And thank you


         22  for making the trip back.


         23                 Suzanne Mattei, Sierra Club. Again I


         24  remind you of the three minutes.


         25                 MS. MATTEI: Okay? My name is Suzanne














          2  Mattei. I'm New York City Executive for the Sierra


          3  Club, which strongly supports Intro. 101-A.


          4                 We know how to stop the vast majority


          5  of cases of lead poisoning in our City. The Health


          6  Department acknowledges that other potential sources


          7  are dwarfed by exposure of young children to indoor


          8  lead paint hazards.


          9                 These children suffer irreversible


         10  brain damage that impairs their ability to read and


         11  succeed in school, as adults they're likely to


         12  suffer from higher blood pressure.


         13                 This, by the way, is a special risk


         14  for women who absorbed lead into their bones as


         15  children and then suffer thinning of bones at


         16  menopause. 101-A is a reasonable law developed over


         17  many years. Recently fine-tuned through a careful


         18  negotiation process with the Speaker and with the


         19  City Administration.


         20                 I'd like to point out an important


         21  improvement in the bill made by Speaker Miller.


         22                 He advocated that the bill establish


         23  a preventive inspection requirement that the City


         24  take a close look at buildings where a child has


         25  already been poisoned.














          2                 This is important because we know we


          3  have recidivist buildings in the City.


          4                 It's also cost-effective. You heard


          5  testimony at a prior hearing by Dr. Mary Jean Brown


          6  from the Centers for Disease Control. She authored a


          7  study which estimates conservatively that strict


          8  lead paint standards and enforcement saves the City


          9  over $45,000 per building at a minimum because of


         10  the benefits that occur when just one other child in


         11  the same building is prevented from being poisoned.


         12  This is exactly what the Speaker has advocated.


         13                 I'll be happy to answer any questions


         14  about six-year-olds, if you would like to know. I'm


         15  going to try to move through this.


         16                 Intro. 101-A is an improvement for


         17  landlords over the existing lead paint law, unlike


         18  Local Law 1 of 1982. It is not a full abatement law.


         19                 Landlords are allowed to leave toxic


         20  lead paint on the indoor surfaces of dwellings, even


         21  when a very young child lives there. This is a pact


         22  of trust between the City and the landlords. All the


         23  City requires is that the landlord take proper


         24  safety measures to make sure that this toxic


         25  substance in their buildings does not cause














          2  permanent brain damage to children and that is not


          3  too much to ask.


          4                 Also, the bill gives landlords


          5  guidance on what kinds of surfaces the landlords


          6  should monitor, to make sure that the apartment


          7  remains safe. Landlords who follow the requirements


          8  of 101-A will be in a very strong position to show


          9  that they have behaved responsibly, even if a child


         10  does get poisoned in their apartment.


         11                 And I just want to correct some


         12  misinformation. I seem to be hearing about a bill


         13  that's not before the Council, people keep talking


         14  about a presumption of causation of poisoning within


         15  the apartment and that's not in this bill.


         16                 The bill states that dwellings built


         17  before the City banned lead paint, 1960, should be


         18  presumed to contain lead paint unless the tests


         19  prove otherwise. This means landlords should use


         20  precaution, unless they're sure that the paint is


         21  not lead-based.


         22                 Obviously, if a child becomes


         23  poisoned, either the Health Department will test the


         24  unit's paint, or the landlord will do so. No


         25  landlord can be forced into liability for lead-based














          2  paint based on the presumption, because it is


          3  rebuttable, and there is absolutely no presumption


          4  about the cause of lead poisoning in any case.


          5  People have to prove that, and that's just the way


          6  the law works.


          7                 We've made more than a good faith


          8  effort to address concerns raised about this bill


          9  while still ensuring proper protection for young


         10  children. It's time for us to stop using children as


         11  though they were canaries sent down into the mine


         12  with their permanent brain damage serving as the


         13  belated warning that housing has become unsafe and


         14  unhelpful.


         15                 We thank Gifford Miller as Speaker


         16  for his leadership, we thank Deputy Majority Leader


         17  Bill Perkins for his leadership in moving this bill


         18  through the process over time very graceful, and we


         19  urge you to pass Intro. 101-A.


         20                 CHAIRPERSON PROVENZANO: Thank you.


         21                 With all due respect, you have


         22  presumption and liability, you obviously did not


         23  read the bill. But I will leave that to some of the


         24  folks here who I think will have questions for you.


         25                 Do we have any questions.














          2                 MS. MATTEI: Okay, well, I have read


          3  the bill, so that's not --


          4                 CHAIRPERSON PROVENZANO: Council


          5  Member Oddo.


          6                 COUNCIL MEMBER ODDO: May I just ask


          7  you --


          8                 MS. MATTEI: Yes, sure.


          9                 COUNCIL MEMBER ODDO: That you're


         10  hearing people talk about the presumption and


         11  causation, what exactly is it you're hearing?


         12                 MS. MATTEI: Oh, what I've heard,


         13  people have said to me, well, the presumption is


         14  that if a child is lead poisoned, it's presumed that


         15  they were poisoned in the apartment by the lead


         16  paint in the apartment and that is not in the bill.


         17                 That's a misconstruance that people


         18  have about what that presumption is.


         19                 COUNCIL MEMBER ODDO: So you're saying


         20  that the presumption previously spoke really to the


         21  HPD and the maintenance of the building. You're


         22  saying now under this bill the presumption is not


         23  extended in terms of liability?


         24                 MS. MATTEI: No, I'm saying the


         25  presumption is the same presumptions that exist














          2  under Local Law 1 over the years, and that


          3  presumption is that old paint, pre-1960 paint, is


          4  presumed to be lead-based unless tests prove


          5  otherwise, which means for the purposes of


          6  enforcement of this bill, also the purposes of the


          7  landlords personal responsibility to the child, for


          8  civil action purposes, the landlord should take


          9  precautions with very old paint, unless they've


         10  tested it and they've demonstrated that it's not


         11  lead.


         12                 So, what it is is, it puts the


         13  landlord on notice that they're supposed to be


         14  careful with old paint, treated as if it's


         15  lead-based, unless you know that it's not, because


         16  lead paint was banned for use in public housing in


         17  1960. So, post 1960 it doesn't apply.


         18                 COUNCIL MEMBER ODDO: So what that


         19  means is, if we're going back to the presumption as


         20  under Local Law 1, so there is a change in terms --


         21                 MS. MATTEI: It's in existence now.


         22  That's the law that we have now.


         23                 COUNCIL MEMBER ODDO: We had an


         24  interesting give and take between the Speaker and


         25  Dr. Frieden about what law and what portion of law














          2  is actually applicable today. So, I just want to be


          3  clear: So, you're saying the presumption is now


          4  expanded to liability, when you say we're going back


          5  to how it was under Local Law 1.


          6                 MS. MATTEI: Not for the purpose of


          7  proving whether or not the child, not for the


          8  purpose of proving how the child got poisoned.


          9                 In other words, there's no


         10  presumption. If you have a child who is lead


         11  poisoned, under common law, okay? The family, if


         12  they want to hold someone accountable for that, they


         13  have to make the case for causation, they have to


         14  demonstrate that their child was poisoned in that


         15  dwelling. They have to rule out other sources. They


         16  have to persuade the court that the child was


         17  actually poisoned in that apartment.


         18                 What the presumption does is it means


         19  that the landlord can't say, can't say, well, I


         20  didn't know and I didn't test and isn't this a good


         21  thing I didn't test my paint because now I don't


         22  know and I don't have to do anything.


         23                 If you don't have the presumption,


         24  what you have is an incentive not to be careful and


         25  not to test, because if you test, then you know that














          2  you've got a poison in your apartment and you have


          3  to take precautions.


          4                 So, that's really the reason for the


          5  presumption. If you don't have the presumption, then


          6  to protect the children you would need to require


          7  that all of the landlords go and test their


          8  apartments, which really isn't very efficient. It's


          9  better to go with the presumption, let the landlords


         10  decide if they want to test, or if they want to just


         11  use the precautions. It does give them that choice.


         12                 COUNCIL MEMBER ODDO: And just to be


         13  clear, without being circular here --


         14                 MS. MATTEI: Yes.


         15                 COUNCIL MEMBER ODDO: That


         16  presumption, that thing that you're praising right


         17  now, was or was not in play under the previous law,


         18  not Local Law 1, Local Law 38?


         19                 MS. MATTEI: It was totally in play


         20  under Local Law 1.


         21                 In Local Law 38, there was language


         22  that was inserted so that it only applied to the


         23  enforcement by HPD --


         24                 COUNCIL MEMBER ODDO: Right.


         25                 MS. MATTEI: If the landlord never














          2  tested the apartment, the child had no rights.


          3                 COUNCIL MEMBER ODDO: So, my point is,


          4  from Local Law 38, in my mind, and we could disagree


          5  what the starting point here is, from Local Law, in


          6  my mind it's Local Law 38, we are now expanding the


          7  use of the presumption, which we've heard testimony,


          8  certain instances that HPD three out of four times


          9  is wrong. But we're expanding that presumption from


         10  maintenance in the Housing Code now to liability.


         11  You say it rolls back to Local Law 1, I say it goes


         12  back to Local Law --


         13                 MS. MATTEI: Local Law 1 always was


         14  over that period --


         15                 COUNCIL MEMBER ODDO: Okay, fair


         16  enough.


         17                 MS. MATTEI: So it allows the child to


         18  have their rights.


         19                 Now, the one thing that is in this


         20  bill, which Speaker Gifford Miller wanted to have


         21  placed in there, was that if there's a complaint


         22  about peeling paint, when HPD goes and inspects they


         23  bring an XRF machine with them and they test the


         24  paint right there. So, a lot more paint will be


         25  tested under this bill, which I think is a good














          2  thing.


          3                 Personally I'd rather have all of the


          4  landlords testing all of the paint in all the


          5  apartments, but you know, they haven't wanted to do


          6  that.


          7                 COUNCIL MEMBER ODDO: Well, I think


          8  testing is much more preferable than a presumption


          9  that three out of four times is wrong.


         10                 MS. MATTEI: Well, I'm not sure if


         11  that's correct numbers, and often times in an


         12  apartment, the paint on the wall might not be lead,


         13  but the paint around the windows is often lead. For


         14  example, in the Reingal Houses, NYCHA tested there


         15  and they found that if all they tested were the


         16  walls, they weren't finding lead paint, but if they


         17  tested the heating pipes, the radiators, and around


         18  the windows, that was lead.


         19                 So, you know, there still may be lead


         20  in those apartments that you need to be careful


         21  with.


         22                 COUNCIL MEMBER ODDO: Thank you very


         23  much.


         24                 CHAIRPERSON PROVENZANO: Council


         25  Member Comrie, I think you had a question?














          2                 COUNCIL MEMBER COMRIE: Thank you,


          3  Madam Chair.


          4                 What is your definition of


          5  presumption as it related to Local Law 38?


          6                 I'm not clear on the differences


          7  here. And it sounds like it's --


          8                 MS. MATTEI: It's the same presumption


          9  language that existed under Local Law 38, and that


         10  existed under Local Law 1. The difference is that in


         11  Local Law 1 and Intro. 101-A, the presumption is not


         12  limited strictly to enforcement by HPD. It also


         13  applies for the children's rights if they've been


         14  poisoned, the landlord can't say I didn't know, I


         15  didn't test, and therefore you can't hold me


         16  accountable for not taking precaution.


         17                 COUNCIL MEMBER COMRIE: That opens up


         18  the whole liability issue.


         19                 MS. MATTEI: Exactly.


         20                 COUNCIL MEMBER COMRIE: And that's in


         21  addition --


         22                 MS. MATTEI: It's what existed under


         23  Local Law 1.


         24                 COUNCIL MEMBER COMRIE: Local Law 38,


         25  how was that defined?














          2                 MS. MATTEI: In Local Law 38, they


          3  added language for the purposes, it was something


          4  like solely for the purposes of enforcement of this


          5  article or something like that.


          6                 It was language that was added to


          7  limit the scope of the presumption so that poisoned


          8  children couldn't call upon it to say the landlord


          9  should have been careful and prevented me from being


         10  poisoned.


         11                 COUNCIL MEMBER COMRIE: So, how does


         12  the landlord prove that the paint was tested


         13  according to the --


         14                 MS. MATTEI: If they test it.


         15                 And actually, if you have a


         16  lead-poisoned child, oftentimes the Department of


         17  Health tests.


         18                 COUNCIL MEMBER COMRIE: Under Local


         19  Law 101-A, how does the landlord verify testing?


         20                 MS. MATTEI: The same thing. They test


         21  the paint, according to the standards that are used


         22  for testing paint, EPA I believe sets the standard.


         23                 COUNCIL MEMBER COMRIE: Does that have


         24  to be done annually?


         25                 MS. MATTEI: No.














          2                 COUNCIL MEMBER COMRIE: They have to


          3  be done every time there's a new --


          4                 MS. MATTEI: They don't ever have to


          5  test the paint unless they want to, unless they feel


          6  that it's in their interest to do so.


          7                 Obviously if a child has been


          8  poisoned, you know, most landlords are going to want


          9  to test the paint, especially if they believe the


         10  paint in their apartment was not lead.


         11                 If it was a pre-1960 apartment, it


         12  may be lead, and they would want to test it. But as


         13  I said, also if a child is poisoned, the Health


         14  Department may go in and test.


         15                 COUNCIL MEMBER COMRIE: Say there's a


         16  pre-1960 apartment, how often does the landlord have


         17  to do the test? Does he ever have to --


         18                 MS. MATTEI: They don't ever have to


         19  test the apartment if they don't want to. They can


         20  simply use the precautions that they have a child of


         21  applicable age.


         22                 COUNCIL MEMBER COMRIE: With this new


         23  law you're saying that there's a presumption that's


         24  leading into liability, so wouldn't it require the


         25  landlord to be more aggressive with pretesting in














          2  checking the apartments in your opinion?


          3                 MS. MATTEI: What it requires is if


          4  they have a young child of applicable age, right now


          5  it's under age seven, but the Health Department can


          6  choose to lower it after a year, okay?


          7                 What they have to do is they have to


          8  presume that in that old painted apartment the paint


          9  is lead-based, and take precautions. If there's


         10  peeling paint, you don't just dry-scrape it and


         11  sweep. You have to use proper safety cautions that


         12  control the dust.


         13                 That's what you have to do. If you


         14  don't want to take those safety precautions, if you


         15  don't want to wetscrape the paint, lay down the


         16  plastic and have people that have some training in


         17  lead safety to do the abatement, then you should


         18  test, and then if you find out it's not lead paint,


         19  then you don't have to use those safety precautions.


         20                 COUNCIL MEMBER COMRIE: And according


         21  to 101-A, this has to be done as the child moves


         22  into the apartment or as the person has notification


         23  that there's a child in the apartment?


         24                 MS. MATTEI: There's a notice


         25  requirement that the landlord sends a notice. It














          2  follows the window guard law, you send the notice to


          3  the tenant to find out whether or not a young child


          4  is present in the apartment. If there's no young


          5  child in the apartment, you don't have to do


          6  anything.


          7                 If you got a notice back from the


          8  tenant saying there's no child in the apartment, you


          9  know, there wasn't and then maybe halfway through


         10  the year a child moves in but you don't know, the


         11  presumption does not apply under those


         12  circumstances. That was a change made in the bill.


         13                 The only time it applies is when


         14  you've gone through the notice process and you now


         15  have notification that a child is present in the


         16  apartment. You're not supposed to get caught


         17  unawares (sic) in other words. So the presumption


         18  does not apply if the tenant told you there's no


         19  child --


         20                 COUNCIL MEMBER COMRIE: What if that


         21  non-notification child gets lead poisoned?


         22                 MS. MATTEI: Then, you know, that's a


         23  problem. I mean, this was a compromise that was made


         24  in the bill.


         25                 In that situation then, a poisoned














          2  child would have to find some other way to prove


          3  that the landlord knew that the paint was


          4  lead-based. They might be able to do that under some


          5  circumstances, they might not be able to do it in


          6  other circumstances. So, that was something that was


          7  sort of lost by the advocates in the process of


          8  negotiating the bill.


          9                 I can understanding the reasoning for


         10  it and the rationale and hopefully we won't have


         11  situations like that, and children in that situation


         12  will be able to find some other way to demonstrate


         13  knowledge.


         14                 COUNCIL MEMBER COMRIE: Right now it's


         15  up to the landlord to either pre-test or pre-clean


         16  the apartment, and if they do it on an annual basis,


         17  does that eliminate their presumption? I mean --


         18                 MS. MATTEI: If they follow the


         19  requirement of Intro. 101-A?


         20                 COUNCIL MEMBER COMRIE: Right. But


         21  like vis-a-vis the window guard law when they had to


         22  physically look at a building, if they physically --


         23                 MS. MATTEI: If they're dotting their


         24  i's and crossing their t's and doing everything


         25  they're supposed to do under this bill? Then in that














          2  situation, if a child gets poisoned, they're going


          3  to have to prove two things. They're going to have


          4  to prove not only that lead paint in the apartment


          5  caused them to become poisoned, but they're going to


          6  have to prove that the landlord's negligence in


          7  maintaining the apartment is the cause for them


          8  getting exposed and being poisoned.


          9                 Now, if a landlord is doing


         10  everything that they're required to do under Intro.


         11  101-A. They're going to have a hard time proving


         12  that landlord's negligence. This is why I say that


         13  this bill is good because Local Law 1 set a standard


         14  that nobody was willing to follow. Local Law 1 said


         15  take all of the paint off all of the walls, all of


         16  the windows, all of the radiators, take it all out.


         17  Well, nobody was doing that. A lot of landlords said


         18  we can't afford to do that, it wasn't enforced. So


         19  you have this very open ended situation of how you


         20  define responsible behavior by the landlord.


         21                 With Intro. 101-A, it says, no, you


         22  don't have to remove all the paint. You only have to


         23  deal with the forms of paint that cause exposure to


         24  kids. The peeling paint, the dust generation, what's


         25  generating dust, what's generating chips, you know,














          2  if you've got a chewable surface, you know, that


          3  kind of thing, you've got to deal with those


          4  hazards, but you don't have to take all of the


          5  things out.


          6                 So, if you do your things as a


          7  landlord and you follow this bill, they're going to


          8  have a real hard time proving that you were


          9  negligent. How can you say you were negligent? You


         10  followed the law, and that law is definitely going


         11  to have an influence on the court.


         12                 I've been an environmental lawyer for


         13  22 years, and the courts look to the laws, they look


         14  to the statutes and what the statutes require when


         15  they are determining questions of negligence. So,


         16  this law is going to be ultimately helpful to


         17  landlords, it's finally going to give them a


         18  template for what is responsible behavior as you


         19  manage an apartment.


         20                 COUNCIL MEMBER COMRIE: Okay. But,


         21  also, what if you don't know the condition of the


         22  apartment because you can't get access? HPD, when


         23  they testified Friday seemed to indicate that they


         24  were not favorable of the law as it stands, because


         25  the presumption we give the City undue disadvantage














          2  in being able to monitor and access places that they


          3  can't get into.


          4                 So, does this resolve that at all?


          5                 MS. MATTEI: The bill was changed to


          6  address the issue of access, and we actually took


          7  the language on access the City gave to us, so the


          8  bill has been amended to set up a provision for what


          9  the Department does, if they can't get access to the


         10  apartment. So that's been dealt with based on


         11  language that the City supplied to us.


         12                 In the situation with the landlord,


         13  the bill does say that the tenant has a duty to


         14  provide access to the apartment. So, if the tenant


         15  is blocking access to the apartment, and the


         16  landlord has made reasonable attempts to access the


         17  apartment, they've done what they can do. They


         18  behaved reasonably, and that's the standard in the


         19  court.


         20                 So, we built that kind of language in


         21  throughout the bill to point the way and give


         22  guidance to the landlord and to the court for what


         23  we're talking about in terms of the respective


         24  responsibilities.


         25                 COUNCIL MEMBER COMRIE: Okay, thank














          2  you.


          3                 Madam Chair, are we taking a lot of


          4  testimony today?


          5                 CHAIRPERSON PROVENZANO: Yes, we are.


          6  And I would like to think that the members will be


          7  here with me as we listen to this testimony. Which


          8  hasn't happened in the past.


          9                 COUNCIL MEMBER COMRIE: You know I


         10  like to stay with you, but my school just called and


         11  I have to go and pick up my daughter, an emergency.


         12  So, I would humbly ask your permission, and even if


         13  you don't give it, I've got to go anyway.


         14                 CHAIRPERSON PROVENZANO: Well, I was


         15  just going to say something kind, but now I won't.


         16                 COUNCIL MEMBER COMRIE: Yes, I know,


         17  I'm just trying to bring a little levity. It's been


         18  a strange day.


         19                 I still have some concerns about


         20  fairness and equity in this entire process, and you


         21  know, I don't think that the City who is the primary


         22  person that has to deal with these cases, who has an


         23  impeccable record in servicing, in trying to access


         24  apartments and trying to deal with these things, is


         25  not being given a fair and equal opportunity to do














          2  this in a manner that would make them continue to be


          3  the best City in the world to handle lead paint


          4  issues.


          5                 I'm concerned about that. It's not


          6  like any coalition member is going to go out and do


          7  lead paint testing, or do these other things. If


          8  we're dependent on the City who has an impeccable


          9  record of doing this to provide these services, we


         10  have to give them all of the means and tools to do


         11  it in an effective manner.


         12                 I hate to speak and run, but I really


         13  have no other choice.


         14                 I hope that also, that we can give


         15  those people who are primarily responsible for


         16  resolving this, because it's all nice for us to be


         17  policy wonks and dictate policy, when out in the


         18  real world it can't be done. And I think that we all


         19  need to take some real considerations on that and


         20  bring that into, bring that to the table before we


         21  make final decisions on something that's going to


         22  effect this entire City, and also the ability of the


         23  City to continue to be very effective in reducing


         24  lead paint hazards.


         25                 Now, clearly we need to protect our














          2  children, clearly we need to have notification, but


          3  clearly also we can't tie the City's hands and make


          4  them primarily liable for something that they're


          5  trying to aggressively resolve.


          6                 Thank you.


          7                 CHAIRPERSON PROVENZANO: I appreciate


          8  your concerns. Some of them are my concerns.


          9                 And I think one of the unfortunate


         10  things that is happening today is that it appears to


         11  be the 11th hour and a lot of eyes are only being


         12  opened at this 11th hour. But, you know, it's never


         13  too late. And I wish you could stay, but go get your


         14  kid.


         15                 Okay, thank you very much.


         16                 Wait, what? I'm sorry, come back.


         17                 We've also been joined by


         18  Councilwoman Tracy Boyland, who has a question.


         19                 COUNCIL MEMBER BOYLAND: I have been


         20  able to, at least as I see Stanley Michels in the


         21  group, be part of the initial movement in this


         22  discussion on lead paint and the lead poisoning


         23  issue, but the real concern, and I apologize for


         24  coming in late, I was in another hearing, in terms


         25  of the time frame, is it between the time that the














          2  child who was preferably I assume in school, or the


          3  Department of Health has notified the parent that


          4  the child has been lead poisoned or whatever the


          5  situation may have been, between that point and the


          6  point that HPD has notified the landlord that this


          7  is going to occur, or the time period, the 45 days


          8  or so it takes to really go in and address the lead


          9  issues that you're concerned really, is it towards


         10  the City, or is it between the landlord itself?


         11                 MS. MATTEI: Well, there are two kinds


         12  of time frames. The first is prevention, which means


         13  the child has not been poisoned yet, we hope. All


         14  you know is that there's a peeling paint condition


         15  in the apartment, and in that case HPD needs to


         16  respond to that complaint, get out there and


         17  inspect. They've got I believe ten days to do that,


         18  they have to issue a violation, and the landlord


         19  needs to correct that violation. They've got 21 days


         20  initially that they can ask for, that's essentially


         21  three weeks, they can get two more weeks, just if


         22  they ask for it, if they need more time, for


         23  example, if they're planning to actually replace a


         24  window and they want to actually order a window,


         25  it's going to take a little more time, they can get














          2  another two weeks, but they have to stabilize the


          3  condition. So you don't leave the child sitting


          4  there in an apartment with hazardous peeling paint,


          5  while you're waiting for the windows to arrive.


          6                 We obviously wanted shorter


          7  deadlines, but, you know, in meeting with the City


          8  and talking all of this through, we did agree to


          9  some flexibility on those deadlines. We're trying to


         10  craft a bill that will be practicable but


         11  protective. And that was the effort that we made


         12  trying to balance those two interests as best we


         13  could.


         14                 As far as other aspects of


         15  implementation of the bill, especially the question


         16  of access, et cetera, we really took a lot of that


         17  language directly from the Administration and


         18  substituted it for language in the bill, because


         19  when it came to nuts and bolts, you know, we wanted


         20  to give the City Administration as much as they


         21  needed, but on the basic issues of protection we


         22  needed to hold firm.


         23                 COUNCIL MEMBER BOYLAND: In regards to


         24  the pre-1960 homes, some of us have the misfortune,


         25  obviously, of representing districts that are














          2  considered the lead that are in areas that have


          3  been, that development has not moved in terms of


          4  housing as fast as we should in terms of also


          5  rehabbing some of the houses. The question on


          6  liability with the pre-1960 houses in terms of how


          7  do we do what we need to do to really look at those


          8  to address that issue, and to really begin to do the


          9  rehab of all of -- are you implying, or has there


         10  been an implication at some point that every home


         11  that is pre-1960 is indeed lead infested, or that


         12  there is some movement or some room for us to assume


         13  that we will wait that there is a situation of lead


         14  poisoning that has happened before we step in.


         15                 MS. MATTEI: We can't use children


         16  like that. Lead poisoning causes permanent


         17  irreversible brain damage. My own son was lead


         18  poisoned, and I live with the results of that, so


         19  it's a personal issue for me, too.


         20                 You just can't use the kids that way.


         21  It's not right. It's so much better to be safe than


         22  sorry, because if the harm is caused, it's done. A


         23  kid who is poisoned at two is poisoned for the rest


         24  of their lives. They lose intelligence, they lose


         25  reading ability, they have behavioral problems they














          2  have to deal with. It's a permanent deficit that


          3  they live with for the rest of their lives. So, we


          4  really are talking about children's brains, and


          5  there's nothing more important than that.


          6                 So, all that the bill says is, you've


          7  got to be better safe than sorry. If you know the


          8  paint is pre-1960, chances are some of it's lead,


          9  maybe not all of it.


         10                 COUNCIL MEMBER BOYLAND: Okay, so


         11  that's the point, you said "not all of it."


         12                 MS. MATTEI: So, use the precaution.


         13  That's right. So, you use the precaution, if you


         14  don't want to use the precautions, and quite


         15  frankly, I think they ought to use the precautions


         16  even if the paint isn't lead, because it's always


         17  good to control dust with the asthma problems we've


         18  got in this City, if you don't want to use the


         19  precautions, test the paint and you can get out of


         20  it. That's all there is to it.


         21                 COUNCIL MEMBER BOYLAND: Thank you.


         22                 CHAIRPERSON PROVENZANO: We have two


         23  other Council members that I'm going to hold off


         24  questioning, Suzanne, because I'm sure you could ask


         25  your questions, because I want to let Suzanne go. I














          2  have to bring up, we have as it turns out a whole


          3  list of folks.


          4                 MS. MATTEI: And there will be other


          5  witnesses who can speak to these issues, too.


          6                 CHAIRPERSON PROVENZANO: That was my


          7  point. I didn't want to actually come out and say


          8  that, but you said it.


          9                 MS. MATTEI: I don't want to hog the


         10  mic.


         11                 CHAIRPERSON PROVENZANO: Right. That


         12  there will be folks that you can address these same


         13  issues.


         14                 COUNCIL MEMBER ODDO: Madam Chair, my


         15  question is sort of specific for this witness,


         16  though. And I'll say it out loud and you tell me if


         17  I'm out of order.


         18                 I was just going to ask you, it sort


         19  of hit me, I've heard the personal pronoun "we" very


         20  often.


         21                 MS. MATTEI: Yes.


         22                 COUNCIL MEMBER ODDO: "we" did this,


         23  and "we" negotiated that, and "we" got language from


         24  the Administration, and I'm sitting here thinking,


         25  who wrote this bill? Did you guys write this bill?














          2                 CHAIRPERSON PROVENZANO: Okay, you


          3  read my mind and I couldn't ask that question. So,


          4  I'm allowing you.


          5                 COUNCIL MEMBER ODDO: Who wrote the


          6  bill?


          7                 Maybe the first sponsors should be,


          8  instead of Bill Perkins, should be the Sierra Club.


          9  Did you guys write the bill.


         10                 MS. MATTEI: No, absolutely not.


         11                 The bill was developed over -- you


         12  know, the bill was developed over a period of years,


         13  Stanley Michels was the original author. And the


         14  bill went through many changes.


         15                 CHAIRPERSON PROVENZANO: We're talking


         16  about 101-A.


         17                 MS. MATTEI: And 101-A went through


         18  many changes.


         19                 COUNCIL MEMBER ODDO: I heard "we" and


         20  "we" negotiated with the Administration, and "we"


         21  got language, "we" did this and "we" did that, and I


         22  hear the Mayor complaining about who wrote the CFB


         23  bills, which is more egregious to me than the


         24  advocates writing a piece of legislation.


         25                 COUNCIL MEMBER PERKINS: The














          2  Administration was here at the last hearing, they


          3  indicated that they were a part of the process.


          4  That's part of the we. You know that my office has


          5  been part of the process, you know the Speaker's


          6  Office is part of the process, and --


          7                 COUNCIL MEMBER ODDO: I asked the


          8  question --


          9                 COUNCIL MEMBER PERKINS: Okay, but you


         10  used my name. Because I want to make it clear, it


         11  seems beneath you to suggest that you don't know how


         12  this bill or the bill-making process is done --


         13                 COUNCIL MEMBER ODDO: And I don't


         14  appreciate you making a value judgement of what's


         15  beneath me or what's a bad thing. I heard the


         16  witness say "we" or "we" did this or "we" did that,


         17  and I just simply asked the question.


         18                 COUNCIL MEMBER PERKINS: You know


         19  better. You know better. You know better.


         20                 COUNCIL MEMBER ODDO: Bill, don't make


         21  a judgment on my question. I don't just you when you


         22  ask questions.


         23                 COUNCIL MEMBER PERKINS: You've been


         24  involved in this process for enough time.


         25                 CHAIRPERSON PROVENZANO: I can also














          2  throw out Council members, I think. I think the


          3  issue being that it's usual for Council members,


          4  Council staff, the Mayor's Office to be involved in


          5  drafting a bill. That was not the point.


          6                 The point was, is the Sierra Club


          7  usually involved in drafting a bill. That was the


          8  point.


          9                 MS. MATTEI: Can I just say --


         10                 CHAIRPERSON PROVENZANO: No, I think


         11  --


         12                 COUNCIL MEMBER PERKINS: No, Madam


         13  Chair, that's not what was said.


         14                 You did not say was the Sierra Club


         15  usually involved in drafting.


         16                 CHAIRPERSON PROVENZANO: All right,


         17  this is the end of the issue. You are excused. I


         18  will call up the next person.


         19                 MS. MATTEI: No, I didn't write it.


         20                 CHAIRPERSON PROVENZANO: This is the


         21  end. They weren't involved in drafting. Let's get


         22  beyond this.


         23                 COUNCIL MEMBER PERKINS: Who was


         24  involved in the negotiation process --


         25                 CHAIRPERSON PROVENZANO: Council














          2  Member Perkins, let's get beyond this now. We have


          3  listened to everybody that testified, including


          4  parents, opponents and proponents. And we will


          5  continue to do so.


          6                 Frank Anelante. And I am putting on


          7  the clock. Where's the clock person? We now have a


          8  three-minute clock.


          9                 MR. ANELANTE: Thank you, members of


         10  the Council.


         11                 My name is Frank Anelante. I'm the


         12  President and CEO of Remley and Wolff. We are


         13  managers and developers of affordable housing. My


         14  buildings are in, I have 300 buildings in my


         15  portfolio in Washington Heights, Inwood, Harlem and


         16  the Bronx. All of my buildings were built prior to


         17  1960. In fact, most were built prior to 1930. But


         18  all of them have been rehabilitated. Many of them


         19  gut rehabilitated, most of them moderate


         20  rehabilitations. And my concern is two-fold: My main


         21  concern is, the bill as written in my opinion will


         22  preclude me from continuing rehabilitation of


         23  occupied buildings.


         24                 In my portfolio, which consists of


         25  over 7,000 apartments, we have had since the 1980s














          2  only a handful of lead cases. I attribute that to


          3  the fact that the buildings were rehabilitated and


          4  that we keep the buildings in good shape.


          5                 If I can't rehabilitate a building,


          6  if I'm precluded from it, I think the lead problem


          7  will get worse and not better, and it will get worse


          8  in the areas that need it most.


          9                 Buildings don't get better with age,


         10  as they get older we have to replace systems and on


         11  a very nuts and bolts real life level, it's


         12  impossible to comply with 101-A requirements and


         13  rehabilitate a building.


         14                 For example, if I want to go in and


         15  replace the plumbing of a building, I have to start


         16  and do a line of apartments at the same time. So,


         17  that means I have to get access and I have to get


         18  into work. The work often takes more than one day.


         19                 If I'm disturbing these surfaces and


         20  I cannot allow the tenants back into these areas


         21  like the bathrooms until I finished the work, I'd be


         22  forced to relocate tenants, which would be


         23  impossible in this type housing market.


         24                 So, on a very practical level, I


         25  simply will not be able to do rehabilitations with














          2  tenants in occupancy, and that's a big problem.


          3                 I'm also concerned with the court


          4  issue where the burden of proof is not on a tort


          5  attorney in suing in a lead paint case.


          6                 In 1986, for example, I renovated, I


          7  did a gut renovation of 509 West 179th Street. A gut


          8  renovation. And at the time my insurer offered me


          9  lead insurance or not, and I took it. And I'm glad I


         10  did because two years later, even though it was a


         11  gut rehabilitated building, I got sued because a


         12  child was lead poisoned.


         13                 As it turned out, the lead poisoning


         14  did not come from my building, and my insurance


         15  company defended me.


         16                 If insurance is dropped and a


         17  landlord like me, or a developer like me, does not


         18  have insurance, I would have to defend that suit


         19  myself, which I would ultimately prevail, but at a


         20  great cost.


         21                 So, this is my concern. I really do


         22  not want to see rehabilitation with tenants in


         23  occupancy made impossible. Because that I think


         24  again would be more harm than good, and I think the


         25  Council is really charged with writing a bill that














          2  protects children, which is very important, and as a


          3  landlord I think we do need a lead bill, but we want


          4  to protect children and enable our housing to be


          5  renovated because we are an older housing stock


          6  City.


          7                 Housing doesn't get better with age.


          8  You have to rehabilitate buildings, we have to keep


          9  our buildings and communities safe, and we have to


         10  keep our children safe, and that's what the Council


         11  is charged with.


         12                 Thank you.


         13                 CHAIRPERSON PROVENZANO: Thank you.


         14                 Do we have questions?


         15                 Diana, okay.


         16                 I would also like to recognize


         17  Council Member Erik Dilan and Councilman Martinez.


         18                 Go ahead.


         19                 COUNCIL MEMBER REYNA: Thank you,


         20  Madam Chair.


         21                 I just want to have a clear


         22  indication as to what the landlord can do in


         23  addressing the lead bill and being practical about


         24  it.


         25                 As a proactive landlord, you have the














          2  right to go certify, you, HPD, I believe, correct me


          3  if I'm wrong, Councilman, to get a certification


          4  that your building is lead-free, by making sure that


          5  someone comes in and performs the XRF testing. You


          6  are aware of that?


          7                 MR. ANELANTE: No, I'm not aware of


          8  all of the statistics, quite frankly.


          9                 COUNCIL MEMBER REYNA: So you're not


         10  aware of that?


         11                 MR. ANELANTE: I'm not aware that I


         12  would have -- HPD can come in and test the whole


         13  building?


         14                 COUNCIL MEMBER REYNA: As a proactive


         15  landlord you can receive, am I correct? You can


         16  receive a certification through HPD that your


         17  building has been certified as a lead-free building.


         18  That means they have gone through your whole


         19  property, unit by unit, and they've taken this XRF


         20  device and tested each unit, certifying the unit and


         21  you are -- now the presumption will not be


         22  applicable because you know that you've done the --


         23  you've taken the proper measures to make sure that


         24  you have a lead-free environment.


         25                 MR. ANELANTE: And then what happens














          2  if you don't have a lead-free environment?


          3                 COUNCIL MEMBER REYNA: I wanted to ask


          4  you a question.


          5                 MR. ANELANTE: Yes.


          6                 COUNCIL MEMBER REYNA: Were you aware


          7  of that?


          8                 MR. ANELANTE: No.


          9                 COUNCIL MEMBER REYNA: Okay. Please go


         10  ahead and ask me your question, because I'm trying


         11  to get a clear indication as to how much do we


         12  really know about this bill, so that our worries are


         13  really being answered, instead of creating a frenzy,


         14  and not acknowledging that we have created, we have


         15  drafted, and I say "we" as in the Council staff that


         16  has taken the time to do this, to actually look at


         17  different examples.


         18                 Go ahead.


         19                 MR. ANELANTE: I just don't


         20  understand. My question to the Council is, how, on a


         21  practical level, will I be able to rehabilitate


         22  buildings? And I just finished 200 units last year


         23  of moderate rehabilitations with tenants in


         24  occupancy, in buildings that are fully occupied,


         25  there are no vacancies. How do I renovate a building














          2  on a very practical level and comply with 101-A? I


          3  don't think I can do it.


          4                 COUNCIL MEMBER REYNA: Are you also


          5  aware that there's a J-51 attached to this bill as


          6  well, as a program to facilitate the rehab?


          7                 MR. ANELANTE: We employ J-51 as part


          8  of our programs. We've been using J-51 since the


          9  seventies.


         10                 COUNCIL MEMBER REYNA: That's not


         11  going to help you.


         12                 MR. ANELANTE: J-51 doesn't help us.


         13  I'm talking about the practical, physically going to


         14  the building, how do we renovate and comply with


         15  101? For example, how do I renovate a bathroom and


         16  during the renovation I can't allow the tenants to


         17  use the bathroom until I have a dust wipe and the


         18  results come back from the testing laboratory.


         19                 When we renovate bathrooms --


         20                 COUNCIL MEMBER REYNA: No streamline


         21  in the process.


         22                 MR. ANELANTE: No.


         23                 When we renovate bathrooms in these


         24  buildings, which were built in the 1920s, we're now


         25  replacing beams in apartments, in occupied














          2  apartments we're replacing beams. It's a big job, it


          3  takes several days. The beams are generally on the


          4  wetwalls in the bathrooms and the kitchens. If I


          5  have to close off the bathroom, finish the work, get


          6  a dust wipe, get the results back before I let the


          7  tenants, it takes more than one day. I would have to


          8  relocate the family while I do that work.


          9                 COUNCIL MEMBER REYNA: How many units


         10  do you operate?


         11                 MR. ANELANTE: Seven-thousand.


         12                 COUNCIL MEMBER REYNA: Seven-thousand


         13  units.


         14                 MR. ANELANTE: And each one has been


         15  renovated. All of my portfolio has been renovated.


         16  Either gut renovation or moderate rehabilitations


         17  with tenants in occupancy.


         18                 And in this town moderate


         19  rehabilitation of tenants and occupancy are the most


         20  important renovation that this City needs. Because


         21  you have no place to move people out while you're


         22  renovating a building.


         23                 COUNCIL MEMBER REYNA: I just have to


         24  comment on the fact that, I find it very difficult


         25  to understand how you have 7,000 units and you can't














          2  temporarily remove a family, place them in a


          3  temporary unit, while all this work is -- the


          4  non-profits do it, and it's under much stricter --


          5                 MR. ANELANTE: But it's not relocating


          6  one family at a time. It's relocating --


          7                 COUNCIL MEMBER REYNA: A whole line.


          8                 MR. ANELANTE: At least a whole line,


          9  if not more than a whole line at a time. And what


         10  happens to the children --


         11                 COUNCIL MEMBER REYNA: This is once


         12  that you've already started performing?


         13                 MR. ANELANTE: I've renovated


         14  thousands of apartments.


         15                 COUNCIL MEMBER REYNA: Have you tested


         16  all these units before you start all this?


         17                 MR. ANELANTE: No, we haven't tested.


         18                 I have had less than half a dozen


         19  lead cases in 20 years in my portfolio, because we


         20  renovate our buildings and we maintain our


         21  buildings. We're good landlords.


         22                 COUNCIL MEMBER REYNA: And I'm glad


         23  that that portfolio is very good. And the bottom


         24  line of this bill is --


         25                 MR. ANELANTE: I agree. And you should














          2  protect, this bill should protect children. The bill


          3  should protect children but also enable good


          4  landlords who want to maintain their properties and


          5  renovate them to be able to do that.


          6                 COUNCIL MEMBER REYNA: And what do you


          7  suggest we do differently? Because I'm curious, I


          8  want to understand what is it that would make it


          9  much easier for you to establish and perform so that


         10  we can get the same goal, which is protecting the


         11  children, making sure that there's a lead-free unit?


         12                 MR. ANELANTE: I think that if you


         13  renovate your buildings, and it's been my


         14  experience, and it's been proven out, because I've


         15  been in the business over 25 years, I think if you


         16  renovate your buildings, that could improve lead


         17  problems. You have to renovate and you have to


         18  maintain the property. That does it, and I've done


         19  it for the last 25 years, and I do not have a lead


         20  problem in my portfolio, it --


         21                 COUNCIL MEMBER REYNA: You just said


         22  you don't test.


         23                 MR. ANELANTE: Excuse me. I don't


         24  test, but I don't get sued either. And insurers give


         25  me insurance because we maintain our buildings, and














          2  it has not been a problem. But if I can't renovate


          3  buildings, and buildings we've renovated in our


          4  portfolio in the seventies that we're re-renovating


          5  now in 2001 and 2002 because they're 20 and 25 years


          6  older, so now we have 90-year-old buildings with


          7  beams failing, this segment of our market has to be


          8  addressed. People live there. There is not that many


          9  vacant apartments where you can just relocate


         10  people.


         11                 COUNCIL MEMBER REYNA: So you would


         12  prefer no testing?


         13                 MR. ANELANTE: I would prefer to


         14  renovate my buildings, like I've been doing the


         15  renovation, and when I'm finished the people are in


         16  a totally renovated apartment, it's not a problem.


         17                 We use safe practices. We cordon off


         18  areas, okay? We HEPA vac after the work is done, we


         19  take serious precautions.


         20                 Our men are certified --


         21                 COUNCIL MEMBER REYNA: You're a


         22  responsible landlord.


         23                 MR. ANELANTE: Yes.


         24                 But if Intro. 101 passes, I will not


         25  be able to renovate buildings anymore with tenants














          2  in occupancy. I won't be able to do it. And that's


          3  the biggest part of the portfolio in the City of New


          4  York, this is the biggest portfolio that has to be


          5  addressed. We have to renovate occupied buildings.


          6  But if this bill makes it impossible, you're going


          7  to have more of a problem, not less.


          8                 COUNCIL MEMBER REYNA: And it's


          9  impossible only because you can't physically move


         10  one line of families within those units?


         11                 MR. ANELANTE: I did 200 units last


         12  year. How do I move 200 families? Even on a


         13  scattered basis, you start moving someone, it


         14  uproots the family, you have to find an apartment


         15  that has furniture in it, it has to be in the school


         16  district that the child is in. The logistical


         17  problem, on a theoretical level it's fine, on a very


         18  practical level it doesn't work. We just renovate.


         19  We just started a renovation on 125th Street, there


         20  were 27 families in a building.


         21                 It took us six months to find enough


         22  apartments to relocate them, and apartments that


         23  people would expect. On a very, very practical level


         24  it just doesn't work, and if we can't renovate our


         25  older housing stock, the housing stock will decline.














          2  It doesn't get better as it gets older, it gets


          3  worse and it has to be renovated. And I think you're


          4  charged with producing a bill that protects children


          5  and allows renovation to proceed, and that's a very


          6  hard charge. And I don't have any magic answers, but


          7  I am saying there's a definite danger to moderate


          8  rehabilitation with tenants in occupancy. And I am


          9  saying from my experience, I do not have a lead


         10  problem in my portfolio, because we renovate our


         11  buildings and after we renovate them, we maintain


         12  them.


         13                 COUNCIL MEMBER REYNA: Madam Chair,


         14  thank you very much. And I appreciate you being a


         15  responsible landlord. I hope many others could


         16  follow the line of work the way you have done so for


         17  the past 25 years, you mentioned?


         18                 MR. ANELANTE: Yes.


         19                 COUNCIL MEMBER REYNA: I hope you can


         20  understand why we need to move forward with the text


         21  that's in this bill to protect the children.


         22                 At the end of the day we're not


         23  trying to make it more difficult, we want and we


         24  need more affordable housing, but at the same time,


         25  it can't be at the expense of the children that are














          2  being affected.


          3                 MR. ANELANTE: No.


          4                 COUNCIL MEMBER REYNA: Thank you.


          5                 MR. ANELANTE: And that's why I say


          6  the bill has to be balanced, and I don't know,


          7  frankly, how you do that, but I don't want to see


          8  renovation stopped, and if the bill passes, I will


          9  be unable to renovate apartments.


         10                 COUNCIL MEMBER REYNA: But I can


         11  assure you, and I believe I'm speaking on behalf of


         12  all our colleagues, that we will be working on these