NEW YORK—Today, the 2nd U.S. Circuit Court of Appeals upheld a lower court’s ruling dismissing a lawsuit challenging the New York City Department of Buildings’ (DOB) scheme of issuing “unreviewable” code enforcement fees. Joe Corsini, represented by the Institute for Justice (IJ), first sued the city in 2020 after he racked up $11,000 in fines for building a pigeon coop on his rooftop.
“DOB continues to issue unjustly high fines against New Yorkers for harmless violations, many of which homeowners cannot appeal or even challenge,” said IJ Senior Attorney Bill Maurer.
Joe received a half dozen citations from the DOB over a seven-month period for building a pigeon coop on top of his home. Some of the violations came with hearings where he could ostensibly challenge the citations, while others did not. The citations that did not provide an opportunity to be heard did not say that; they simply demanded that Joe pay a hefty fine.
In today’s decision, the court ruled that Joe’s case should have been filed sooner because he should have known that some of the violations were not reviewable when the city issued them. Thus, the court said his filing of the lawsuit in November 2020 fell outside of the statute of limitations for these fines because the clock started ticking for the statute of limitations deadline at a January 2017 hearing that did not address the unreviewable violations. According to the court, Joe “should have known” then that he would not get a hearing for some violations. This is despite the U.S. Supreme Court holding in 2023 that the statute-of-limitations clock does not start until the government has provided all the process it is going to provide. In Joe’s case, the process stopped—and the statute of limitations started ticking—with the last hearing in November 2017. With that date, Joe’s case was within the deadline.
Joe was originally fined $3,000 for moving the coop because he was not aware he would need a permit to do so. Instead of giving up, Joe hired an architect and an attorney, and he vowed to work with the city to bring the coop into compliance. However, the city continued to demand that Joe meet unreasonable standards and continued to fine him as he attempted to work with them. By the time Joe finally gave up on his dreams of a pigeon coop and removed it, the city had hit him with $11,000 in fines. The fines that were heard in front of an administrative judge could be appealed—but only if Joe paid them all first and risked their increasing further on appeal.
“Even though my suit was unsuccessful, for the sake of all New York City homeowners, I hope that the New York City Department of Buildings starts treating people fairly,” said Joe. “They will continue to find themselves getting sued if they do not, and one day one of these suits will succeed.”
“New York City has created an impossible-to-navigate legal labyrinth that does not afford people the due process they are entitled to under the Constitution,” said IJ Attorney Diana Simpson. “It’s unfair to expect New Yorkers to know they will not be permitted the chance to appeal certain fines. Today’s decision unfortunately gives the city the ability to continue to issue opaque notices that force regular New Yorkers to not only read what the notices say but decode all the implications of what they do not say.”
IJ has another active case against DOB for fining a resident for a violation he did not commit and giving him no way to appeal. Additionally, every year, DOB issues thousands of tickets and fines for violations of the city’s codes and regulations, which are long, complex, and contained in three different sources. Some of these violations are issued for serious problems. No one denies that the city should protect public safety by enforcing its building code against skyscrapers and other major developments, but a growing number of tickets target ordinary homeowners who made inconsequential changes to their own property. For many of these tickets, the property owners cannot mount a defense and there is no appeals process. For other tickets, the property owner can defend themselves, but they cannot appeal a decision without first paying all fines the city has levied.
“We’re obviously disappointed in the result of Joe’s case, but we’re hopeful that through our other lawsuit against DOB we can get a win that will protect the due process rights of all New Yorkers,” said IJ President and Chief Counsel Scott Bullock.