New York City Building Control 1800-1941 9780231887250

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New York City Building Control

New York City Building Control 1800-1941 By J O H N

P.

COMER

X*, '7*4 i fé

I 942 COLUMBIA U N I V E R S I T Y PRESS NEW

YORK

COPYRIGHT COLUMBIA

UNIVERSITY

1942 PRESS,

NEW

YORK

Foreign agents: OXFORD UNIVERSITY PRESS, Humphrey Milford, Amen House, London, E.C. 4, England, AND B. I. Building, Nicol Road, Bombay, India M A N U F A C T U R E D I N T U E U N I T E D STATES OF A M E R I C A

TO

L. G. C. AND H. A. G.

Preface I N 1930 a cooperative plan was formed for the purpose of making a study of the development of administrative control of building in six widely separated cities of the United States. The individual contributions were to have served as bases for a monograph which, in the opinion of the group, would be a contribution to the field of public administration. Since for various reasons the cooperative effort did not materialize, I have decided to present my research on the New York City building administration as a separate contribution in the hope that it will be of value not only in one specialized phase of administration but also in adding to the totality of experience upon which further generalizations may be made. My efforts to secure materials and ideas have necessarily been intermittent, though they have at the same time been persistent over a period of nearly twelve years. During that time I have become indebted to many persons. Especially do I owe thanks to New York City's Law Department for the use of its unique files; to the chief officials and their aids in the various borough building offices; to the Board of Standards and Appeals for access to its files and for the personal contributions of Henry L. Connell, formerly acting chairman, and H. H. Murdock, chairman; to the Department of Investigation and Accounts, which through the kindness of Commissioner Paul Blanshard and his able corps of assistants made accessible important documents; to the staffs of the New York Public Library and the Municipal Reference Library; to the Columbia University Library administration; and to many private citizens, the chief of whom is Rudolph P. Miller. For the use made of the data secured from the many and varied sources, I alone am responsible. J. P . COMER

Williamstown, Mass. February 2,1942

Contents 1. INTRODUCTION

1

2. THE FOUNDATION OF MODERN BUILDING CONTROL

8

3. SPECIAL CONSIDERATION OF THE APPLICATION OF THE BUILDING LAWS, 1902-16 48 4. BATTLE OF THE BOROUGHS AGAINST MOUNTING CENTRAL CONTROL 91 5. ORGANIZATION AND GENERAL POWERS OF THE BUILDING AGENCIES, 1933-36 145 6. SUPERSTRUCTURE OF THE BUILDING TION: PERSONNEL AND FUNCTIONS

ADMINISTRA195

7. THE CHARTER OF 1938: A MOVEMENT TOWARD THE IDEAL IN BUILDING CONTROL 235 8. RÉSUMÉ AND CONCLUSIONS

266

TABLE OF CASES

277

INDEX

279

i. Introduction I F THE nation-wide "New Deal" has to be accepted as bursting full-grown from the forehead of Zeus, then the state-wide "Little New Deal" must be represented as springing in full force from the forehead of Governor Lehman, and the city-wide "Eentsy Weentsy New Deal" as springing full-grown from the brow of Mayor La Guardia. This, at least, is the suggested natural ordering of governmental levels in terms of recent politics by a keen wit of the New York Sun. This recognition of the tendency for all levels of government to take on the same general characteristics is of great significance. Similar fundamental problems, at least those of an internal or domestic nature, appear in the totality of what is called government, whether national, commonwealth, or local. The social, economic, racial, geographical, and intellectual elements, though they occur in varying degrees of emphasis, give direction to the form and, more especially, to the substance of government. It is natural, then, that that portion of the whole of government, administration, has been made to conform in all the political areas. Since the turn of the century, the administrative process has become one of the chief problems for study in the modern state. Indeed, in total indifference to the consideration of government as a unit, some commentators have referred to administration in its present development as the "Great Leviathan." Perhaps, in their concentration upon one phase, they have seen administration looming on the nonetoo-far horizon in the habiliments of dictatorship instead of democracy. Research workers in the United States for many years have been observing closely the form and characteristics of administration, as it appears in the numerous mazes of governmental units, in order that they might uncover the universal laws of its being. For the most part, however, they have been naturalists rather than biol-

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Introduction

ogists. This work has been prosecuted at double quick time since the advent of the New Deals. Both private and governmental agencies have spent much money and effort in the search. Men, armed with assumptions as to administration per se, have caught incidentals and have "proved" their assumptions correct. Men, armed with unreflecting assumptions that administration cannot be developed outside the field of politics, have found more "proof" but not enough. Thus far the total effort has resulted in the promulgation of one or two generalizations that even the man on the street would accept as common sense observations. The writer does not deny the value of the work already done in the accumulation of facts, whether incidental or essential. It will be from such data that principles of administration, or better, perhaps, principles of politics, will ultimately come, provided that a sound theory of human nature will have been developed. There cannot be too many monographs presenting the practices of administration in its various manifestations. Description of national agencies has been kept up to date. In other units, there have been fewer facts brought to light. The writer has chosen a narrow field of New York City administration for description and he does not claim to be without predilections which will out at certain times. He believes that this city will yield data, under high pressure of an immense population, that will add something to the common pool of facts. The particular subject treated in this monograph is the administration of the highly technical field of building. The agencies have supposedly been organized around this special function, but as the history advances over a period of a century or more other and related functions have been included or excluded. Since the passage of the Home Rule Act in 1924, which implemented the constitutional Home Rule Amendment of 1923, New York City has become in part a kind of commonwealth within a commonwealth and, to that extent, it is our largest organized population area with the exception of that of the nation. Consequently it presents problems of administration that are being worked out under great population pressure. If one were to adopt the Spenglerian philosophy of history, as Lewis Mumford did in 1938, and

Introduction

3

were to follow the life history of New York, one would almost be persuaded to stick to the remote past and to consider the existing city as already in a dying condition. To express this philosophy in a paraphrase of a popular couplet, Harlem was a village when New York wasn't one And Harlem will be a village when New York is gone. In the life cycle of any large city, according to Mr. Mumford, 1 there are stages of growth and decay. New York could probably be said to have reached the third stage of "Metropolis" in 1831, when its population was just over 200,000 and its boundaries were confined to portions of the island of Manhattan. By the turn of the century it had, by natural accretion, by the absorption of outlying populations, by the sucking in of provincials, and by the monopolization of European immigration reached the multimillion mark, or the stage of "Megalopolis" in the life cycle. At the beginning of the great depression the population had jumped to the edge of 7,000,000 and had continued to move slowly toward an additional 500,000 by 1940. At this stage, according to Mr. Mumford, the dry rot of money economy, as expressed in terms of cultural bigness, had already appeared, and the big city was well on its way downward toward "Tyrannopolis," which in turn was soon to be followed by the death stage, "Nekropolis," after which not only Harlem village would reappear but all the other small towns would again emerge from the ruins. One may or may not agree with the "rise and fall" theory of the large city and its application to New York, yet one must accept the fact that the city of the Hudson has grown at an amazingly fast rate in terms of human beings and in terms of human relationships. Furthermore, one can follow through, in thought, the necessarily swift development of administration under pressure of the various social factors that play upon such development. Administration, in terms of personnel, must respond in some form to the economically successful; to the poor provincial and the half-starved European immigrant, ambitious for a place in the economic sun; to the com1

The Culture oj Cities, chap, iv, New York, 1938.

4

Introduction

petitive racial strains; to the religious sects; and to the political machines that combine such elements in ever-changing power groups. The building agencies were particularly hard pressed, since their functional control touched intimately the lives of the crowded city. Housing, together with food and clothing, is the sine qua non of the "good life" in the civilized portions of the world; housing is almost as essential for business as for homes. Real estate, as a result of the great demand, has become one of the main attractions for the investment of billions of dollars of capital; and the struggle for the shares of this capital by the professions and by labor have created the nastiest of situations. "Use your property as you will, regardless of what effects your use may have upon others," has been the traditional American support of individuals and corporations. Structures of all kinds have been built, anywhere, without regard for those who used, or were affected by them. Existing buildings, altered or not, have been devoted to purposes dangerous to life and adjacent property. And all of this through ignorance or greed. How could a subordinate agency be expected to conquer such forces, even when laws were passed with the purpose of bending the course of construction and use to the public welfare? Succeeding chapters will disclose repeated reactions against abuses in the building field. In New York City, contrary to the theory of inevitable dissolution, will be found at all times effective organizations of public-spirited citizens that have fought negatively and affirmatively for better administration of building matters. Whence comes this spirit, no person knows. It is, perhaps, Mr. Mumford's "if," which he posits to save New York from the fate which his theory demands. Many have been the ideas as to how more effective control of building conditions could be brought about. Laws, ordinances, regulations, and specific decisions constitute the record of both living and outmoded efforts. During the early part of the period under consideration, when the building agencies were developing their form, the task of the reformers seemed hopeless. By the middle of last century, the idealists thought that they could more effectively

Introduction

5

solve their problem by transferring the administrative control of the city's affairs to state agencies. Experience in the transfer of other public welfare administration, however, indicated definitely that the corrupt elements of city and state had combined at Albany against the best interests of the local public. Having learned that rural and urban political machines were one, the reformers turned to strictly local control, under some form of the strong mayoral type of government. It was their hope that popular opinion would force the elected mayor to preserve the public welfare. The centralization of building administration broke down shortly after the period of territorial expansion in 1897, due perhaps to both historical and selfish factors, and the borough became the center for direct enforcement. The only central agency left was an appeals board which represented, in fact, a group of interests whose chief aim was the promotion of its own purposes. Such an unsatisfactory situation was partially cured by the simple act of making the central agency a strictly governmental body, responsible to the mayor for the tenure of its personnel. In the course of time the central board was given additional over-all powers, but the localities were still the chief units for actual enforcement. The fear, however, of an arbitrary bureaucracy, in league with the selfish forces of the gilded 1920's, brought the reform organizations back to a more or less central and responsible building enforcing agency, under the terms of the popularly adopted Charter of 1936, which became effective in 1938. Behind the building laws and their application lies the neutral field of pure science. Less distant is the field of applied science. Within and touching intimately the actual control of building lies the choice of the various competing methods of applied science which are to be used in a particular building area, such as New York City. Where discretion is permitted or where the laws demand specific methods of construction without responsible inspection, it is possible for the architect, engineer, or builder to defeat the directions of the law and to serve private as easily as public interest. The intent of the law, however, has usually been clear. As Rudolph P. Miller, long New York's outstanding engineer-administrator, has

6

Introduction

said, most building laws "specify how buildings of various occupancies shall be constructed and arranged to secure at least a reasonable measure of safety with respect to stability, fire prevention, exit facilities, habitability and sanitation. That is the purpose of a building law and the aim of its requirements." 2 The test lies in the actual application of the scientific technics in fulfillment of this aim. The pressure engendered by the terrific speed of modern development has caused a continuing expansion of powers once enjoyed by the legislature and the judiciary and has reforged these powers into the form of administration. Under such conditions, the administrator's job must be more than ministerial. The legislature must imbed in its directive laws numerous delegations of powers to officials to control individual activities by keeping them within the framework of public interest. These delegations have taken the form of regulations with the force of law, the making of decisions, the interpretation and variation of all or certain provisions of the laws, and the issuing of specific orders. Since this extension of discretion and judgment may and does affect the interests of individuals outside the pale of officialdom, as well as that of the public, legislative prescriptions have usually called for regular procedures that must be followed. These are the only means by which the parties at interest and the onlooking public can pass judgment on the highly technical acts of the administrators and they serve as checks upon arbitrariness. The writer, limited by space and time and by the usual difficulties of securing pertinent materials, has chosen from the whole field of building activities what he considers may be of value, if not of interest, to the student of administration, the legislator, and the practical administrator. In the study of the history of the building agencies, emphasis has been laid upon the sources of law, state and local, affecting building control in New York City; upon the prescriptions found in such laws relative to organization and powers conferred upon the agencies; upon the development of law and organization by administrative officers; and upon the attitude and 2

Reprint of speech, 23d Annual Meeting of the National Fire Protection Association, 1919.

Introduction

7

ability of the more important members of the personnel. Original records and reports of investigations have been used for the most part, though they have been supplemented by interviews, to fill the interstices and to secure a deeper insight into the substance of administrative action. While administrative case law has been used at times for purposes of clarification and extension of material knowledge, there has been no attempt at an orderly development of the judge-made aspects of the city's administrative law. The study begins with the making of policy and ends largely with the field of legislative and official administrative law and practice. 3 3 Seymour Graubard, of the Comptroller's Office, has (book now in press) an excellent treatise on New York's building agencies, wherein may be found a discussion of all aspects of judicial control of such agencies.

2. The Foundation of Modern Building Control A B R I E F review of the organization and powers of the agencies for the administration of the building laws of the city of New York from 1800 to 1916 clearly indicates that the control of building operations originated in connection with fire control. As a matter of fact, much of that which came to be called public welfare, such as public health administration, developed within the fire organization and passed on into the building laws of the city. A cursory glance at the fire agencies would lead one to give credence to the following statement of an almost overardent journalistic admirer of the city fire-fighting force: A history of the fire department of the City of New York, to be worthy of the subject, should embrace the most important and interesting episodes of the municipal government. So intimately were these departments connected with, and so closely are they related to all that is worthy of mention in the history of our city, that the story of the Fire Department is, to an extent, the story of the rise, progress, and development of the City of New York.1 The fire department had the main part in enforcing the building laws of 1813, 1822, 1823, and 1830, laws dealing with the thickness of walls, materials, and manner of construction, and having as their purpose protection from fire. In 1831 the state legislature created a fire and building department manned by three commissioners, one called the superintendent of buildings, the others called, respectively, the chief engineer and the commissioner of the fire department. All were appointed by the mayor and the city council. Ward men, apparently the old firewardens, seemed to be held responsible for enforcing the building and fire regulations. 2 Under 1

Augustine E. Costello, Our Firemen, N e w York (1887), p. 1. Ibid., p. 77; and the N e w York City Fire Wardens, Proceedings, found in N e w York Public Library. 2

N e w York, 1860,

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Chapter 470 of the Laws of 1860, the state legislature provided for a nominating board, composed of the president and the treasurer of the fire department and the president of the trustees of the same department, and three representatives from the American Institute of Architects and the Mechanics and Traders Society of the city of New York. This board was to nominate to the mayor a superintendent of buildings, a deputy superintendent, and eight inspectors, all of whom were to have certain specified qualifications. Their removal, though the manner was not specified, was presumably on the recommendation of the nominating board. Without further ado, the nominees were to be sworn in by the mayor. The superintendent was to be ex officio a member of the board of trustees of the fire department. On the basis of the law itself, the mayor's part in choosing the personnel was merely nominal, and the private members of the nominating board controlled the choice of officials. The same law set up a more or less complete building code for a prescribed area of the city and imposed upon the deputy superintendent the tasks of examining all plans and specifications, of certifying that these were in accordance with the law, and of keeping a complete record of new buildings, alterations, uses, and current inspections. Section 48 of the law provided that all operations not specifically provided for were to be submitted to the "examination of a board of inspectors," who should have the power to determine whether the "contemplated building or alteration complies with the meaning and spirit of this act," in which case the board was to issue forthwith a certificate to that effect to the owner. This peculiar organization marked the beginning of a decade of corrupt and inefficient city administration. Some of the city's best citizens were beginning to suggest remedies, one of which was a shift to state boards and commissions, for the better administration of the more important functions of New York City! Perhaps the fear of corruption in the city council led the private interests to take over the appointment of the personnel of the building agency, as well as to attempt to consolidate the various building laws. At any rate, there was a new organization, free from the inefficient firewarden system of the past, but inextricably bound up with the fire department and with private-interest groups and provided with a

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legal system of control looking toward the future and flexible enough to satisfy the desires of most a n y p a r t y wishing to build or alter. In 1862 a still f u r t h e r change in the organization of the building agency was made. 3 T h e r e was set up a department, independent of the fire protection agency, called the D e p a r t m e n t for the Survey and Inspection of Buildings. T h e chief officer was to be the superintendent of buildings, appointed by the mayor for four years and removable by him for cause, and endowed with power to appoint all subordinate officers. T h e code was the same as that of I860, with the addition of clauses providing for materials. T h e d e p a r t m e n t 4 was to have full power, in passing upon any question relative to the mode, manner of construction or materials to be used in the erection, alteration or repair of any building in the city of New York, where the same is not specially provided for herein, to make the same conform to the true intent, meaning and spirit of the several provisions hereof; and shall also have discretionary power, upon application therefor, to modify or vary any of the several provisions of this act to meet the requirements of special cases, where the same do not conflict with public safety and the public good, so that substantial justice may be done; but no such deviation shall be permitted except a record of the same shall be kept by said department, and a certificate be first issued to the party applying for the same. Such certificate shall be issued only upon an order first being obtained therefor, upon a sworn petition setting forth the facts upon application to a special term of the supreme court of the city of New York, said supreme court being authorized to grant such order in its discretion. This section is quoted in full, since it contains clauses upon which the attention of legislators, administrators, investigators, and courts were focused for the next three-quarters of a century. Also this was the first time that the supreme court was given the power to act in the capacity of an administrative agency, in that it could act with discretion, not merely apply the law. James M . McGregor was appointed superintendent. H e was the first really great administrator in this office, honest, capable, farseeing as to the needs for which the law was passed. His first report to the Board of Aldermen 3 reviewed the past, emphasized the need 3 5

L . 1862, ch. 356. * Ibid., sec. 36. New York City Board of Alderman, Documents, 1863-65, No. 7.

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of the present, and reported upon the actions taken during the first six months of his incumbency. In his reorganized department, he appointed "picked men, non-partisan, superior to personal or partisan politics," after a thorough examination by a board of examiners selected by the American Institute of Architects. He then, under his power as provided in section 36, made a series of rules as to the mode, manner of construction or kind of materials, which rules were approved by the architects and builders of the city. This was to guide mechanics in carrying out building operations in accordance with the spirit of the law. McGregor complained of a shortage of helpers and said that he had added one at his own expense. Inspections were numerous and pertained chiefly to old buildings, for new operations were few, since the Civil War had put a halt to building expansion. He reported that the old buildings were wonderful to look at but were faulty; they concealed defects of construction so vital in character that they placed their occupants at the mercy of accidents liable to happen at any time; in fact, "many of such dwellings are complete man-traps, paint and putty edifices, with fair exteriors, where flimsy embellishment is an offset to solidity and durability, being usually erected by contractors and speculators for quick sales and large profits, who care only to protect their pecuniary interests." He reported, further, that the constant change of business, use, and purposes to which old buildings were being put, had led often to the alteration and enlargement of old and dilapidated dwellings, as well as others, "upon a system of patchwork wherein the safety of the lives of their occupants or of the passers-by has been entirely lost sight of." He stated that many of the most dangerous buildings were those which had been erected for dwellings and had been later enlarged and converted into stores, warehouses, manufactories, and the like; that they had been filled with merchandise, machinery, iron safes, and other business appliances, so that they were liable to fall at any moment and in case of fire their destruction, with loss of life, was almost inevitable. Recent instances of disaster were cited. Superintendent McGregor then turned to a detailed description of the tenement house situation. He said that "the tenement house system—that plan by which the greatest amount of profit is sought

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Modern Building Control

to be realized from the least possible amount of space, with little or no regard for the health, comfort, or protection of the lives of the tenants"—was one requiring the most stringent laws and their most rigorous enforcement. Many of those buildings were occupied on the first floor or two as shops, containing large quantities of oils or other highly inflammable materials, wherein the oven fires were fed night and day from piles of loose shavings lying in dangerous proximity to the flames; or as small groceries and feed stores, the latter filled with hay and straw. All these facts, he said, had long called for laws that would protect the inhabitants. To the rear of such houses were other houses of the same kind that were not "alley houses," but had to be reached through the hallways of the fronting structures; neither front nor back houses were provided with fire escapes and few had so much as scuttles or ladders for emergency escape. In commenting upon the past as well as the present laws he said that not all former laws were operative, since they were for the future, but the 1862 law was retrospective and under it the 180,000 imprisoned tenants would have a chance for protection, if sufficient inspectors were provided for the department. This report on the tenement house situation was in perfect harmony with the famous report made by the New York assembly's select committee to examine into conditions of "tenant housing" in New York City and Brooklyn, made on March 9, 1857.° This report, written by A. J. H. Duganne, was the first humanitarian note struck on the horrors of the tenement house situation. Its underlying moral tone, which Superintendent McGregor reflected, has stirred the better element in New York down to the present day and has been the guide to reform, as seen in the various laws passed since that time. Mr. Duganne stated the sociological principle that prevailed in a growing commercial city, then described the physical conditions of the underlying population, and continued as follows: The tenant house, with its pariah inhabitants, presents a field of missionary labor which, beginning at material necessities, may extend its influence to higher wants, in educational and religious points of view. . . . The tenant house is the offspring of municipal neglect, as well as of its primary 8

Assembly Document No. 205, 18S7.

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causes, over-population and distribution. As a city grows in commerce and manufacture, the store and workshop encroach upon dwelling house and dispossess its occupants. This was the time when lawful regulation should have entered but did not. . . . The tenant house is built upon speculative capital and its construction is economical of convenience. . . . The tenant house, I conclude and asseverate, is the legitimate point at which to commence the positive work of social reform. By 1862 there was a complete severance of the building department from the fire organization. This was fortunate, for, before the next reorganization of the New York City government, state agencies had taken over important aspects of the functions of city administration. Ardent city reformers had seen to the setting up of the Metropolitan Fire Department, the Central Park Board, the Metropolitan Police Board, the Metropolitan Board of Health, and other state agencies, despite the opposition of local money cliques, New York City officeholders sitting as legislators, and local officeholders who feared they would lose their positions if the reforms succeeded.7 In a letter to the New York State Constitutional Convention of 1867, the reformer, Peter Cooper, made a defense of state control over the New York City area. 8 He wrote that so far as New York was concerned, it would be found that it was entirely due to the state agencies that "our city has not been despoiled and ruined. . . . To destroy [them] would be to destroy all hope of our attaining good government." He went on to say that it was not the capitalist, the merchant, the banker, the honest laborer, and the largest taxpayer who opposed the state agencies; it was the professed politician, the place and power seeker, the trader in contracts and jobs. Most of the responsible citizens, he exaggerated, upheld this system and would be struck with terror if it were abolished. The Citizens Association in 1868, nevertheless, brought charges before Governor Fenton against the three Metropolitan Fire Commissioners. Evidently it had come to be realized that the same forces were at work in both state and local administration. 9 Then came the famous Tweed charter. 10 The Citizens Association 1 1 in 7 Citizens Association of New York, Reports, New York, 1864-71, No. 9 found in New York City Public Library. 9 Ibid., No. 20. 1 0 L. 1870, ch. 137. »Ibid., No. 11. 1 1 Citizens Association of New York, Reports, New York, 1864-71, No. 22, "Address to the Public," New York City Public Library.

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Modern Building Control

1871 addressed the citizens on the concentration of power in the hands of the mayor of New York City. It was said that the checks and balances, established in 1849, had been gradually whittled away and that the new charter had completely abolished them; and that since the concentration of power now rested with the mayor, the people could expect to hold him responsible for all actions, a principle which the association endorsed in the charter. So the reformers had completed a cycle. The new charter merely gave an elected mayor the power of appointment of all heads of the city departments except two, and among the appointed heads was the superintendent of buildings, the head of the department of buildings. No change was made in the duties and powers of the department or its officers. One new element was brought in, which was of interest: the mayor was not supreme in the removal of the heads of departments; he had to bring impeachment proceedings before the court of common pleas of the city. As a contemporary political pamphlet stated, that court evidently consisted of "Genet and Norton." 12 The writer heartily agrees in the centralization of power in the mayor, as did the Citizens Association, but he would never agree to the state's administration as it appeared in the decade 1860-70. Chapter 625 of the Laws of 1871 consolidated various laws pertaining to building. The only change in the administration lay in the more strict examination of all the officers of the building department, including the superintendent. Chapter 335 of the Laws of 1873 reorganized the local government of the city of New York, but left the department of buildings as it was in 1870. Commissioner of buildings became the title of the head of the department, and he was empowered to appoint a chief executive officer known as the surveyor of buildings, who was to have at least ten years' experience as architect or builder and who had to have the approval of the New York Chapter of the American Institute of Architects. There were also changes in the appointing and removal power of the mayor. That official had to secure the approval of the common 12

Pamphlet: an Act to Simplify and Reorganize the Government of the City 0/ New York, 1870, New York City Public Library, Ford Collection. A parody on the Genet and Norton charter.

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council for his appointment of departmental heads and could not remove them until after a hearing had been held and until the written approval of the governor had been secured. This evidently was a reaction to the Tweed dictatorship of the city and a return, in part, to the state control of the preceding decade. This law was amended by Chapter 757 of the Laws of 1873, which changed the title of commissioner of buildings back to superintendent of buildings and "spotted" the current incumbent commissioner as the new superintendent. Evidently this was not a "ripper law." Chapter 547 of the Laws of 1874 further consolidated the building laws of the city. The building department remained and was provided with three bureaus, namely, the bureau of inspection of buildings, the bureau of violations and applications, and the bureau of fire escapes and iron work. This was evidence of emphasis upon at least three important functions of the department. This agency still retained the power of determining the mode, manner of construction, or materials, when not specified by the law, but all action thereunder must be in keeping with the spirit of the law. Discretionary power to modify in special cases was not taken away, but the supreme court lost, to a board of five examiners, made up of the superintendent of buildings, a member of the examining committee of the New York branch of the American Institute of Architects, a representative of the former presidents of the New York Board of Underwriters, and two members of the Mechanics and Traders' Exchange, the power to give final approval to such modification of the law. No member of this board, except the superintendent, was responsible to governmental authority—unless the various interest groups could be said to be incorporated into the governmental institutions—since the appointment of the members was entirely in the hands of the groups. The important point here was the setting up, outside the judicial system, of an appeals body for modifications. According to the provisions of Chapter 521 of the Laws of 1880, the building department was again subordinated to the fire department. Three commissioners of that department controlled four bureaus, one of which was the bureau of inspection of buildings. This bureau was to have charge of all matters relating to buildings

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Modern Building Control

and structures, but was subject to the rules and regulations and orders of the fire commissioners. The head of the bureau had the title of inspector of buildings, and to him could be delegated all the authority that had been exercised by the superintendent of buildings. All subordinates were appointed by the commissioners from a list of those who had certificates of proficiency as architects, carpenters, or masons. The Board of Examiners, created in 1874, was not changed as to personnel or function. A year later Chapter 687 of the Laws of 1881, section 30, amended certain provisions of the building laws by making a complete statement of procedure within the bureau. There were provisions for "definite specifications and a full and complete copy of the plans of such proposed building, erection, alteration or repair," which was to be accompanied by a statement in writing, sworn to "by the owner, his representative or lessee." However, the inspector of buildings might, "in his discretion, and for reasons to be stated in writing and filed with the plans and specifications, dispense with the making of said sworn statement in any case." There was no change of importance in the organization of the building agency by the Consolidation Act of 1882.13 The inspector of buildings had to have at least ten years' architectural or building experience, and his inspector aides, in addition to technical qualifications, were to be able to write "a fair hand and to make clear reports." To the clause granting power to the inspector of buildings as to mode, manner of construction, or materials and as to modification, another troublesome one was added: "In cases claimed by an owner . . . that the provisions of this title do not directly apply, or that an equally good and more desirable form of construction can be employed in any specific case than that required by this title, then such person shall have the right to present a petition to the Board of Examiners, through the inspector of buildings, and may appear . . . and be heard; and said board shall consider . . . such petition and render a decision." This act was amended by Chapter 456 of the Laws of 1885. The inspector again was to be known as superintendent; applicants for the construction, erection, or alteration of buildings were required to file com« L. 1882, ch. 410.

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plete or partial plans and specifications and were obliged to wait until approval thereof had been secured, before work could begin, unless the superintendent, in his discretion, waived such plans and specifications. An important exception to the modifying power of the superintendent appeared in section 504: he should have power to vary or modify the provisions of that title "only in case of alteration of old buildings, or the use of party walls belonging to different owners, where the same cannot be taken down, and where there are practical difficulties in the way of carrying out the strict letter of this law, so that the spirit of the law is observed, and the public safety secured, and substantial justice done." This provision introduced a phrase that was to be used in varying circumstances during the years that followed—the "practical difficulties" phrase in a structural context. The Board of Examiners was to function as in 1882, though its membership was increased by two. Evidently two private-interest groups had reached maturity by that time, namely, the Society of Architectural Iron Manufacturers and the Real Estate Owners and Builders' Association. The provisions of Chapter 275 of the Laws of 1892 dignified the existing bureau of buildings by reorganizing it into a department of buildings. The chief officer was the superintendent of buildings and his powers were extended to the making of rules and regulations for the better functioning of his department and he was given power to appoint subordinates of minimum technical training. His jurisdiction was increased by adding control over elevators, lighting, drainage, and plumbing. The superintendent was to be appointed by the mayor for six years, but he could not be removed until after a hearing and only with the approval of the governor. A restatement of his powers relative to matters outside the technical detail of the laws was made: (1) he had sole power as to the mode, manner of construction, or the materials to be used; (2) the limitation which appeared in section 504 of Chapter 456 of the Laws of 1885 as to his power to modify provisions of the law was omitted and the power which he had under the 1882 legislation was restored, though the phrase "where there are practical difficulties in carrying out the strict letter of the law" remained; (3) he was to serve as a clearing house, as in 1882, by delivering to the Board of

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Examiners all petitions of owners to the effect that the provisions of "this title do not directly apply, or that an equally good or more desirable form of construction can be employed in any specific case." The Board of Examiners gained two additional members, one from the New York Real Estate Exchange, the other the fire commissioner as ex officio member from the Fire Department, in order to maintain the close tie already existing between the fire and the building agencies. Such was the organization and powers of the building agencies that obtained up to the year 1897. Owing to the fact that the city of New York was a single unit and limited, in large part, to the island of Manhattan, it was natural that whatever agency was created was a unit and that control issued from a central base. However, consolidation of all activities within one department or bureau was not secured, and, even where there was apparent unity of control, there was in practice a kind of disparateness in administration, in that the various interest groups making up the personnel of the important Board of Examiners used their posts for political bargaining. The materials on record as to the actual workings of the building agencies between 1862 and 1897 are limited and incomplete. The reports of Superintendent McGregor, who held office from 1862 to the beginning of 1873, give some very pertinent information; an occasional court decision illuminates certain provisions of the current law; and the numerous investigations by the state legislature into the various departments of the government of the city of New York furnish some concrete material, but their value lies in the exposure of the undercutting of all departments and bureaus by the political majority. The professional magazine, Record and Guide, is of little value previous to the 1890's. The records of the Board of Examiners are incomplete, as an examination of the files in the office of the Board of Standards and Appeals has shown. The material found in the City Record for the earlier years gives little light on what was done. The press of the city announced actions only when they had news value. However, an attempt will be made

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to show some of the practical workings of the laws previous to 1897. Superintendent McGregor's accounts of his stewardship for the years 1862-72 were given with three purposes in view: the presentation of facts, his own comments on the set-up of his department, and the growing criticisms of the powers of the building agencies by builders and reform organizations. The criticisms of his personal powers centered around the "mode, manner of construction or materials" clause, which, as stated above, he tried to formulate in general rules. Peter Cooper, chairman of the Citizens Association, in 1868 expanded the complaints against the department. He charged that the conflict of authority was too great between the department and the Metropolitan Health Board in the matter of caring for the physical comfort of the underprivileged. But, above all, he asserted that the discretionary authority of the superintendent of buildings was too extensive as to what materials made up fireproof roofing; what timber should be placed in fronts of buildings at points usually occupied by stores; what wooden buildings might be erected as exceptions to the law, both inside and outside the fire limits; what amount of damage by fire would force the razing of buildings; what buildings might be permitted to be enlarged; what kind of fire escapes might be used in tenement houses; and what materials and manner of construction might be used in all cases not contemplated by law. This great power burdened the superintendent and placed all citizens at the mercy of his vast discretion. Cooper insisted that the law be freed from the clauses giving the superintendent discretionary powers and be made absolute and distinct in all its parts, as far as possible, so that the superintendent should be merely a ministerial officer and not a legislator and judge; that such discretionary power as could not be dispensed with be lodged in a board of experienced architects, who should serve as arbitrators to investigate and decide questions arising in the execution of the law between the superintendent and other parties. The superintendent agreed that the law should stipulate what materials might be used in construction, repair, and alteration of

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buildings, as well as the manner in which they should be put together if that was at all possible. He denied that the superintendent was the sole judge as to fireproof roofing, since the law named the materials to be used, or specified "other equally good material for roofing as the superintendent . . . may authorize, together with a majority of the insurance companies . . . which are incorporated under the laws of the state." He stated, further, that he shared with the owner of a structure damaged by fire the responsibility for the decision as to condemning it to be razed. He was opposed to the suggestion of having nongovernmental boards share in decisions, for no one could know what interests one or more of the members might have in the decisions.14 The superintendent's chief lament, as expressed in his 1868 report, was not his autocratic power but the weakness in the enforcement provisions of the law: ". . . the humiliating knowledge that the laws and orders from this department are willfully defied and treated with contempt by all parties who are well acquainted with the law's delays, and who generally succeed in their unlawful undertakings in a manner which renders this department powerless to act." He then outlined the procedure usually followed with respect to a "crook speculator in houses": he builds of inferior material; an inspector reports this fact to the department; notice is served to remove the violation within ten days; the notice is not complied with, and the matter is taken to a civil court; a summons is issued and the builder is given twenty days to answer it; a general denial is entered; the case is placed in its turn on the court calendar and is delayed several months on account of congestion of the calendar; meanwhile the "crook speculator" has continued his violation; the building is completed and sold to other and innocent parties, against whom no violation can be brought; the case has to be discontinued and the department has to settle the costs. This vivid statement of the weakness in the enforcement of the law was the basis of a plea for a more satisfactory procedure—one of an administrative type with power.16 14 Reports of the Superintendent of Buildings, 1862-72, 1868, N e w York Municipal Reference Library. 15 Ibid.

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The procedure set down in Chapter 356 of the Laws of 1862, section 36, for varying or modifying the law in special cases was highly praised in the reports covering the years 1862-71 and its necessity was shown. In 1862 the superintendent reported that a number of applications had been filed with the department and that they had been presented severally to the supreme court, and, "upon order of the court granting leave, the proper certificates were granted by the department." He mentioned several cases and praised the action of the court, showing its necessity. By 1863 such cases were arising frequently, calling for a remedy to enable owners to exercise a wider use of their property than was possible under a general provision of law applicable to every kind of structure. Care was taken to emphasize the fact that the court had the final say. By the time that Superintendent McGregor's tenure of office ended, however, the numerous modifications began to attract the notice of certain organizations. A committee of the Builders' Association made an investigation and came to the conclusion that the supreme court's role as administrator with discretion was not conducive to the efficient administration of the modifying clause of the law. Two cases illustrated the type of variation the court was permitting. A builder desired to place a sixteen-inch wall, six stories high, upon a foundation entirely inadequate and absolutely contrary to the law and regulations. An inspector forbade such construction. An application to the court for an order modifying the law was granted, with the additional provision that the floors should be supported with girders and columns in the center. In the other case, the superintendent had prohibited a party from proceeding with a building which was being constructed of improper material and had ordered that it be taken down in the interest of safety. Application to the court for a modification resulted in an order for the completion of the building on the illegal walls, provided the future work should be done according to law! The committee concluded as follows: "The absurdity of placing the execution of a building law in the hands of officers who are supposed to know their business and then permitting courts of law, who, it is equally certain, are ignorant of the matter in question, to exercise discretionary powers to abrogate or

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supersede the law and decisions of those entrusted with its execution, is also earnestly pointed out." Superintendent McGregor heartily approved this criticism, closing his last report, that of 1872, as follows: Confusion of authority has confirmed the opinion heretofore expressed, that the final decision of all questions of construction and violation, and discretionary power in cases of expediency, together with police powers sufficient to enforce, should reside in a commission of competent officers who should be held strictly accountable. Most of the investigations of New York City by the state legislature between 1860 and 1897 were concerned with functions of the government that were not assigned to the building department. However, inasmuch as a number of such functions were in time to be included in the group later administered by building agencies, their investigation gives some insight into the difficulties which beset the building administrators. The Proceedings of the New York State Commission created to devise a plan for the government of New York cities 10 found that the inspector's department of New York City had failed to remedy the terrible conditions found in tenements because the agents of that department were subjected to the same pressure as the inspectors of the building department. The New York State Senate Committee to Investigate the Several Departments of the Government in the city of New York 17 paid some attention to the building department. It found that this department was charged with the general supervision of the construction of buildings and their alteration and removal; with the securing and taking down of unsafe buildings; with the provision of fire escapes for hotels, theaters, churches, schoolhouses and tenements; and with the supervision of the policing of the entrances to theaters and public buildings and the seating and aisles therein. After stating that the department's duties were very important and that they should be discharged with great vigilance and extreme care, the committee admitted that no complaints had been received concerning the department and that a close examination of the superintendent had revealed no special defects of ad16 17

New York Senate Document, No. 38, 1865. Senate Document, No. 79, 1876.

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ministration. This was attributed, in large part, to the excellent qualities of Superintendent Adams, who had served under the direction of former Superintendent McGregor for some eight years before being promoted to the headship in 1873. The New York Senate Special Committee to Investigate the Departments of the City of New York 18 received a communication from the Board of Health which suggested that the law be so amended that the board could demand that its specifications be followed as to drainage, plumbing, ventilation, light, and obstructions. Under the existing law, the head of the board said, orders to make changes in tenement houses were too often delayed in the interest of moneysaving; and "all sorts of influences" were brought to bear upon the officers of the department to delay enforcement. When asked to interpret "all sorts of influences," he mentioned those that were "personal, social and political, and religious." 19 The head of the board said further that the existing law, though not oppressive, was so unpopular with real-estate owners that the 200 or more provisions of the sanitary code were in reality a dead letter. The New York State Senate Committee to Investigate the Aqueduct Commission, 1888, otherwise known as the Fassett Committee, was of importance, in that it furnished indisputable proof of the solidarity of the political machines of Albany and New York City in the use of tax money for the aggrandizement of private individuals. It made little difference that the legislature was Republican and the governor was Democratic or that the city government was wholly in the hands of the Democrats. The Committee's Hearings 20 recorded a letter from Mayor Hewett to Governor Hill, which read in part as follows: . . . in many ways too numerous to mention, the interests of the city have been sacrificed to the demands of the contractors and the requirement of party politics. It has been openly testified by one of the commissioners that the law whose repeal I now request was the result of a political deal, whereby the Republican Party secured patronage and it appears that the Democratic campaign debts incurred in the election of 18 Vol. I, 188S. This volume contains the Hearings, in fact, of the Committee and is found in the Columbia Library, city of New York. 18 The Trinity Church Corporation especially mentioned. 20 Vol. II, pp. 1424—25.

24 Modern Building Control 1885 were subsequently paid by the contractors and charged to the member of the firm who was at the head of the State Committee. This, of course, had nothing to do with the building agencies, but it indicates the all-inclusiveness of the political connection between the politician and the money-maker whose interests touched the field of administration. This relationship was further emphasized in city matters by the testimony before the New York Senate Committee on Cities, 21 where Richard Croker and his wife were the star witnesses. The New York State Special Committee of the Senate to Investigate the Police Department of New York City was set up in 1894, in response to the urgent demands of both commercial and municipal reform organizations of New York City. Those organizations made general charges against the police agencies but did not have a shred of "evidence" to back them up. When a bill was passed by both houses of a Republican legislature appropriating money for expenses, Governor Flower sent a wordy message with his veto. After mentioning, as a fact, that the city was superior to all others in the state in administration and after admitting that bad men sometimes were able to secure office with the result that maladministration was rampant, he stated that it was the fault of administration rather than legislation by the state and that such an evil could not be cured by passing more laws; that more regulation by Albany would but lead to more political graft in the city: It is a matter of particularly jealous regard for the people of New York City, for sad experience has demonstrated to them that the most corrupt periods of their city government were those in which, for divisions of political plunder and patronage, the Legislature at Albany and municipal officials . . . combine to set at naught the will of the people and by corrupt legislation turn the city over to political vultures. That is the inevitable outcome of such dual government."2

The committee proceeded with the investigation, with funds guaranteed by private individuals. It was found that the coordination of all departments of city government under the sway of the 21

Senate D o c u m e n t , N o . 80, Vols. I and II. Report of the Committee, I (1895), 9-11, found in the N e w York City Public Library. 22

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dominant Democratic faction (Tammany) had produced a harmony of action that rendered it impossible for oppressed citizens to obtain redress. It seemed that Tammany had impressed itself so strongly upon the police force that that agency served as the chief money-gatherer for the politicians of all ranks. Hence it was inevitable that the building agencies should be affected. 23 Builders who had legal permits to build "bridges" along the sidewalk where construction was going on (at that time from the Department of Public Works) were obliged to pay the captain of the ward $250 for each bridge. One of the more powerful builders of the city always refused to pay graft. He testified as follows: It is the common custom, so far as I know, with other builders in the city of New York to buy his [sic] way, both with the police and with the inspector of buildings. I know for the inspector would come to me and say, "There is nothing in this for me and I will hold you to the strict letter of the law." I refused to listen and it cost me $60.00 instead of the $5.00 or $10.00 to pay him. This same builder, on second thought, remarked that Superintendent Brady tried to rid the department of such inspectors, but that it was impossible. 24 The most revealing of the investigations of the state legislature as regards the building agencies of New York City was that of the Mazet Committee. 25 Although most of the material related to conditions following the implementation of the Greater New York Charter in 1897, a significant part of it reached back at least to the period of the establishment of the Board of Examiners and its development as an appeals body for modification and "wherethe-law-does-not-apply" cases (1874—92). The majority report of the Committee 26 stated, in effect, the following, relative to the building agencies: that the dominant theory of the existing government (Richard Croker Era) was corruption, where pull and favoritism for private gain was the rule; that grave effects in administration were everywhere in evidence; that where discretion was 23

24 Ibid., pp. 19-27. Bearings of the Committee, II (1895), 2320-27. Special Committee of the New York Assembly to Investigate the Public Offices and Departments of New York City and Counties Therein, created 1899, New York City Public Library. 29 New York Assembly Documents, No. 26, pp. 18-22, 1900. 25

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lodged in the department of buildings, it was exercised for the benefit of favored individuals and against others not so favored; that a large amount of testimony had been produced, disclosing inferior and dangerous work, in progress and completed, which could only mean improper inspection, due to both inefficiency and corruption; that for such evils there was no legislative remedy; that some degree of discretion had to be lodged in a department having control of the building interests in so diversified a territory as the city of New York; that the remedy was to be found either at the hands of the criminal authorities or in the action of the people at the polls; that the discretionary power vested in the building commissioner had been applied to so many sections of the law that it practically meant that there were no fixed or determined building laws, but that all buildings might be erected, altered, or repaired at the discretion of the head of the building department; that the existing provisions of the law continued, from the old law, power of appeal from the ruling of the commissioner to a so-called Board of Examiners, which was a self-perpetuating body, composed, for the most part, of delegates appointed from various associations, a method of appointment that begot irresponsibility and free exploitation of business and position by members of the board. When the record of the hearings of the committee was carefully examined, evidence was found that the commissioner of buildings had great power and that he had surrounded himself with incompetent aides both before and after the passage of the law of 1897. The most striking evidence, however, pointed to the inefficiency of the Board of Examiners. One witness testified that the members of the board had been for years engaged as copartners and officers in a private building and land association, called the New York Building and Land Development Company, with headquarters in the Havemeyer Building. W. J. Fryer, C. O'Reilly, and Samuel McMillan, and formerly Thomas J. Brady, were the examiners. 27 Mr. Fryer himself was a witness before the committee. He admitted that he had been for years a member of the above-mentioned company ; that he had been on the board for twelve years; that no member of the Board of Examiners was prohibited from carrying on his 27

Report,

III, 3489-90.

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private advisory business, it mattered not what the business was, and that only in cases in which he was serving as architectural or general adviser was he prohibited from voting; that experts could well afford to be on the board for ten dollars a sitting because they learned a great deal and got business aplenty. Mr. Fryer was then asked whether or not a member of the board, in acting for a builder, would not be apt to influence unduly the other members of the board, especially when he was associated with them in an outside business.28 He replied: There is no doubt about that. I am looking for business, for architectural business, and intend to. And if necessary I will present my own appeals before the board of examiners of which I am a member. I consider that right absolutely. And I consider it a right which the building laws . . . give me. I have not a degree as an engineer. I have not a degree as an architect. . . . I started in as a very young man in an engineer's office and later on in an architect's office.

A case was brought up of an alteration in 1895, in which Peter J. Brennan was builder and Constable Brothers the architects. Mr. Fryer said that at the outset Mr. Brennan consulted him, but the architects did not; that after the superintendent of buildings and the Board of Examiners had rejected the application, he, knowing what was in the board's mind, advised the architects for a fee of $750; that when the application came before the board again, it was passed; that he did not vote, but gave no reason for not doing so; that Brennan and finally the architects had secured his services because he was a member of the board; and that neither in this case nor in any other case, in which he had acted as consultant or architect, had a plan been rejected by the board. Ernest Flagg, noted architect of the day, was one of the witnesses before the committee.29 After criticizing the wide discretion permitted the superintendent of buildings and the Board of Examiners, he gave what he considered the attitude of the better group making up the building profession: Those I have talked to think that the present arrangement is very bad: First, because the board of examiners is responsible to no one; second, because the training of the men thereon is not what it ought to be; such 28

Ibid., I, 720-70.

29

Report of Hearings, IV, 4409-11.

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a board should be composed entirely of architects and engineers and be amenable to civic authority. His further observations were to the effect that the members of the Board of Examiners formed a sort of never-quit-till-death group; that they were all closely associated in private enterprises and passed out favors, in the form of decisions, to themselves and others; that builders and architects were under great difficulties in coming out publicly against the system, for to do so was to invite annoyance beyond endurance; and that he expected to be harassed for the statements he was making. Minna D. Clark, secretary of the Board of Examiners for years, wrote a brief history of the board. 30 Among other things, she said that the board was established as a reform measure to check the free discretion of the superintendent of buildings and to put the supreme court back in its place; that it served as oral examiner for all candidates for the position of inspector, down to the year 1896; that its procedure was brief to a fault, as it transacted its business on the first and third Tuesdays of each month; that its membership was never entirely separated from the bureau or department of buildings until the early years of the twentieth century, in that the superintendent of buildings was always ex officio chairman. Miss Clark then went on to show how much the procedure covered up: the chairman presented the petition of Mr. A and, on the motion of Member X, the motion was (unanimously) adopted that the "application of Mr. A for permission to alter and enlarge building No. 47, E. 27th Street, as per plans of Alteration No. 828, filed June 15,1874, be granted." Chairman William Crawford, in his specially requested report to Mayor Mitchell for the year 19IS,31 made the following statement in discussing a major decision adverse to the board: "This is the first adverse decision (at the hands of a high court) since it was organized in June, 1874." This may well have been true, but the appellate division did pass upon the jurisdiction of the board during that period. Section 8 of Chapter 547 of the Laws of 1874 80

Real Estate Bulletin, Oct., 1916, pp. 80-81. "Report" to the mayor, giving a résumé of operations and decisions rendered during the year 1915, by Chairman William Crawford, March 16, 1916, typescript in Municipal Reference Library, New York City. 31

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provided that the Department of Buildings should "have discretionary power, upon application therefor, to modify or vary any of the several provisions of this act to meet the requirements of special cases where the same do not conflict with the public safety and public good, so that substantial justice may be done"; that there should be limitations upon this discretion of the department, namely, a complete record kept in the department, the issuing of a certificate to the party applying for the same, setting forth the facts as sworn to by the applicant, and the passing favorably on such application by the Board of Examiners. The appeals division of the supreme court 3 2 held in effect that the Board of Examiners could not assume review authority over the negative action of the inspector of buildings, then in the fire department, in that its jurisdiction was limited to reviewing and checking the affirmative action of that authority in exercising its discretion. From the wording of section 8, the interpretation seemed to be reasonable, but it left the inspector perfectly free to negate applications and at the same time prevented possible favors from the board, made up of interest-appointed members for the most part. In the amendments of the 1874 law, the phrase "in his discretion" gave way, by 1885, to "he shall have power" in varying the laws, a distinction without a difference. Section 504, as amended by Chapter 456 of the Laws of 1885, limited the modifying power of both the superintendent of buildings and the Board of Examiners by restricting it to cases involving alteration of old buildings, to multiple-owned party walls, and to cases in which practical difficulties in such alterations made it difficult to apply the law literally. This same section continued the power of the Board of Examiners, independent of the superintendent of buildings as such, to hear and decide upon petitions of owners to the effect that the provisions of the law did not apply or that an equally good and more desirable form of construction could be employed in a specific case. The case of Tucker v. D'Oench 33 had to do with an alteration involving both provisions of section 504. Superintendent D'Oench, also a member of the Board of Examiners, refused to issue a permit allowing the raising of a non-fireproof building to 32

Purdy v. Esterbrook, 26 Hun 401, 1882.

" 44 Hun 33, 1887.

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twice its height without ¿reproofing the whole, according to the definite terms of the law. Appeal was then made to the Board of Examiners, on the basis of "the laws do not apply" and "an equally good or more desirable form of construction" clauses. The board granted the appeal in the form of a petition, by a five-to-two vote. The superintendent opposed it and refused to issue a certificate, a mere ministerial act. The court had before it a mandamus to force the issuing of the certificate. It was held that the application for the writ could not be maintained, since the provisions of the act did apply and the case was controlled by law. The explanation was that "equally good or more desirable form of construction" was not intended to authorize the board to allow wood to be used in place of incombustible substances, but only to permit some material equally good, such as iron or brick. This would indicate that the court felt that some check upon the board was necessary, lest it use its discretion in destroying the building laws. However, the court showed how the end could have been accomplished! Had the petitioner asked under the modifying clause of section 504, which provided affirmative action by the superintendent, approved by the board, in cases of alteration, the trick could have been turned. But even here, said the court, the petitioner would have failed, because the superintendent had acted in the negative, an implied reference to the decision in the Purdy v. Esterbrook case. The remainder of this chapter will be devoted to the organization, powers, and practices of the chief building agency from January, 1897, to October, 1916, although some mention will be made of other building agencies, such as the Tenement House Department. In fact, the whole decade of the 1890's saw the reform elements of the New York City area agog with ideas of how to make democracy work successfully among the teeming millions contiguous to the harbor of New York. The main idea was that by welding together the several municipal corporations, villages, and towns into one great city, administration of the social, physical, and economic needs of the unit could be successfully brought about. To this end, a municipal consolidation commission was set up by the state legislature in 1890 to investigate the possibilities. That body reported favorably, and in 1894 the people, in a referendum, were

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allowed to vote on the question according to their respective areas. Despite the fact that every unit of the press, except one, was against consolidation, a majority for it was obtained in each locality. Finally a bill was passed providing for such consolidation.34 A charter commission was then appointed to frame a constitution for the new city and its work resulted in the Greater New York Charter of 1897.35 The five-borough system, including Manhattan, the Bronx, Brooklyn, Queens, and Richmond, necessarily involved some phase of the problem of centralization versus decentralization. Under the charter, the administration of the building laws could be described as centralized, with a slight diffusion of authority at the lower extremes of administration, though practice might well modify this statement. The mayor, elected for four years, could appoint most heads of departments and remove them, after a hearing and with the written consent of the governor. The head of the Department of Buildings was plural, the Board of Buildings, which consisted of three members, known as commissioners of buildings, with sixyear tenure. The mayor designated the chairman, who was to have jurisdiction over Manhattan and the Bronx in particular and general supervision of the central office, to be located in Manhattan. The other two commissioners were designated respectively as administrators of the building laws in Brooklyn and in the combined boroughs of Queens and Richmond. The board could set up local offices in the latter two jurisdictions, if it so desired. Each commissioner could appoint and remove at his pleasure a superintendent of buildings and as many inspectors, engineers, and clerks as were necessary to carry on the work. The technical qualifications for all officers above the inspectoral level were the same, ten years' experience as architect or builder ; the local inspectors had to have at least five years' experience in some special field connected with building. That diffusion appeared in administration lay in the fact that both the lower-level men and the commissioners were really local men and jealous of their jurisdiction, especially in Manhattan, the Bronx, and Brooklyn. The Board of Examiners, with the same organization as in 1892, 34

L. 1896, cb. 488.

35

L, 1897, cb. 378, Vol. 3.

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was retained as an appeals authority for the boroughs of Manhattan and the Bronx, and was headed by the president commissioner of the Board of Buildings, who was, at the same time commissioner of Manhattan and the Bronx. In fact, the board was made up from this area. But the price which the charter makers had to pay was inherent in the borough system, namely, a yielding to locality. The local prejudice of the Brooklyn and Queens-Richmond areas also necessitated an appeals board which would reflect more exactly the attitude of those units in the application of the building laws. The legal embodiment of that local spirit was found in the Board of Buildings, which was constituted as an appeals agency in certain important matters. This bifurcation of the appeals machinery was in theory not complete, however, for the reason that the mayor was the executive head of the building administration. The Department of Buildings was empowered to make rules and regulations by majority vote for the administration of the department and was to accept as its own those regulations that survived in the areas that had been annexed to the city of New York, so long as the board should not see fit to change them. The charter admonished the central agency to bring about uniformity in the regulations in the not-too-distant future. The department was obligated to enforce the rules, as well as the existing laws that had to do with construction, alteration, or removal of buildings or other structures. Section 647 of the charter added to the administrative power of the Board of Buildings and the separate commissioners in juturo by providing that the Municipal Council should appoint a commission of experts for recommending a set of building rules, to be known as the Building Code, when converted into ordinances by action of the assembly. The Charter Revision Commission in its Report of February 18, 1897, made the following statement of the reasons for delegating to the municipal assembly the making of a code: In connection with the Building Department, the Commission has done this, partly because it was clearly impossible to extend the building laws of the present City of New York over territory presenting such widely different conditions, and partly because the Commission were unwilling

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to venture upon original legislation as to a subject at once so intricate, so technical, and yet so important.36 Thus the Board of Buildings, by section 649, was made the appeals agency in specific cases for outlying boroughs except the Bronx. The refusal of the borough commissioner, who was also a member of the board, to approve the applicant's request relative to mode, manner of construction, or materials to be used was technically the only basis for an administrative appeal. The same section, however, provided that the applicant could also appeal to the board in specific cases in which it was claimed that the rules and regulations or the provisions of the law or the ordinances did not apply, or that an equally good or more desirable form of construction could be employed. The writer, on the basis of history, has interpreted those words to mean that the action of the commissioner in such cases was merely pro forma and that the real procedure was an original petition to the Board of Buildings. In other words, the commissioner could not pass upon such a request but could only deny it, and the matter went to the board. The Board of Examiners, whose chairman was also the chairman of the Board of Buildings, had exactly the same jurisdiction in the ManhattanBronx area. The modifying power appeared in the provisions of section 650. Each commissioner was to have the power, with the approval of the "board," to vary or to modify any regulation of the "board" or provisions of the charter, or any existing law or ordinance relating to the construction, alteration, or removal of any building or structure, upon application to him therefor by the owner or the owner's agent, where there were practical difficulties in the way of carrying out the letter of the law, so that the spirit of the law should be observed and public safety secured and substantial justice done. The procedure of the "board" required that the applicant be given a hearing and that the decision, which was to be administratively final, be reached by a majority vote. The "board" was the "Board of Buildings," an interpretation easily deduced from the context. The set-up violated the accustomed rule 88

Birdseye, The Greater New York Charter, annotated (1897), p. xrrii, as quoted in A. W. Macmahon, Statutory Sources of New York City Government, New York (1923), pp. 97-99.

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for an appeals agency, in that the administrators, as interested parties, formed "another" and "different" group than the individual commissioners. Sections 649 and 650 of the new charter rearranged and somewhat modified the powers of the commissioner (superintendent) of buildings as found in section 504 of Chapter 410 of the Laws of 1882 and amended by the Laws of 1885 and 1892. Under section 649 the commissioner had power to pass upon any question relative to the mode, manner of construction, or materials to be used in any kind of construction within his jurisdiction, provided always that he keep within the laws, ordinances, and regulations. But whenever such a proposal should be submitted to him and he should refuse to approve the mode, manner of construction, or materials suggested therein, the owner or the owner's representative might appeal from the decision to the Board of Buildings or to the Board of Examiners, according to the borough in which the proposal was made, provided, that the amount involved by such decision should not exceed the sum of $1,000. The former sole power of the commissioner (superintendent) over mode, manner, and materials was thus limited. Section 650 bestowed upon each commissioner the power, with the approval of the Board of Buildings—that is, with the consent of his fellow commissioners—to vary or to modify any regulation of the central agency, provisions of the charter, or any existing law or ordinance relating to the construction, alteration, or removal of any building or structure. Application for such modification had to be made to him in writing by the owner. The physical basis for such action was "practical difficulties in the way of carrying out the letter of the law"; the moral standard was that "the spirit of the law should be observed and public safety secured and substantial justice done." The American Bar Association of the city of New York, in its "Proceedings relative to the Progress of the 1897 Charter and Report," stated the "principles" that were to govern throughout that document: (1) as much home rule as practicable; (2) distribution of power among the branches or departments of governments, in order to prevent abuse of power; (3) the organization of the government in such a manner as to make it possible to trace responsi-

Modern Building Control

35

bility for both good and bad administration. The implementation of those "principles," insofar as the agencies that had to do with all matters touching the field of building were concerned, can be stated briefly: home rule appeared in the grant to the municipal assembly of the power to make its own building code, which was done in 1899, and in the wide discretion of local officers in applying the laws; the distribution of powers and functions among five or six departments and agencies was so made that overlapping was the rule and blocking was the result; responsibility was secured by centering appointing power of the chief officers in the mayor, whose removal power was at the mercy of the governor, and by bestowing upon nongovernmental associations the power to appoint and remove all but one of the members of the Board of Examiners. Little more than two years had passed before the New York state assembly had a committee in New York City investigating public offices and departments.37 The committee, known as the Mazet Committee (referred to above), took a special interest in the building agencies and in the new Building Code passed in 1899. The majority report 3 8 found, in general, that the government administration was dominated, as usual, by the common human imperfections of corruption, pull, and favoritism in the interest of private gain and agreed with the sentiment recently expressed by President Ortiz, of Argentina, 39 that imperfections in democratic government do not result from any institutional condition. The criticism of the new Building Code seemed to be the key to the criticism of the 1897 set-up. It was said of the code that it continued two of the striking defects of the old system: (1) the discretionary power vested in the building commissioner and the Board of Buildings as the head of the Building Department had been applied to so many sections in such a way that it practically meant that there were no fixed and determined building laws in the city, but that all buildings might be erected, altered, or removed at the discretion of the head of the building department; ( 2 ) it continued the power of appeal from the ruling of the commissioner 37 Report of the Special Committee of the Assembly to Investigate Public Offices and Departments in New York City, 1900, New York Public Library. 3 8 Assembly Document No. 26, 1900. 3 9 See New York Times, Aug. 23, 1940, 1 : 4 .

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to the Board of Buildings, as an appeals body, or to the Board of Examiners (for Manhattan and the Bronx), a self-perpetuating body composed of delegates appointed from various associations, plus the president commissioner of the Board of Buildings and the chief of the Fire Department. The committee's Report indicated the part that was played by the commissioners of buildings in their separate jurisdiction. Affirmative action on the mode, manner of construction, or material to be used, plus the power of interpretation, gave each commissioner, or his appointed superintendent of buildings, a wide field of discretion. It was brought out that Commissioner Guilfoyle, of Brooklyn, stated that he would not permit any appeals body to interfere with the building operations within his jurisdiction and that if he was not competent to handle the affairs in his borough, he would resign.40 The same was true in the Manhattan-Bronx area, where Commissioner Thomas J. Brady left much of the work to his superintendent, John Dooner. 41 The testimony that ran throughout the hearings indicated that violations of the building laws were numerous, owing to the action of commissioners or the corruption of inefficient inspectors, superinduced by the desire of owners and fly-by-night builders and architects for their own peculiar private gain, or by that of political gangs that had worked their way into companies producing building materials.42 The bad practices revealed by the reviewer of the work of the Board of Examiners as an appeals agency before 1897, continued unabated under sections 649 and 650 of the charter of Greater New York. The members of the building groups of the city, often allied as individuals with architects, had found close cooperation within the political milieu a very profitable source of income. So remunerative was it that a sort of feudal system was established, in which the great families tended to pass on their position in some form to members of their respective households. The same process was going on in the political field. The committee called this inner building group of families the building ring, in honor, perhaps, of the Philadelphia Gas Ring. 43 New blood was added now and then and opposite the report of the collapse of an apartment house in the Bronx at East Mosholu Parkway and 206th Street, indicated the stirring of the cooperating financial institutions: 7

= C-1624, 1937. Memorandum to Commissioner Blanshard re C-1671, 1937. Memorandum to the Commissioner of Accounts re C-1665, 1937. 75 Vol. 137 ( J u n e 27, 1936), p. 5.

73

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Organization and Powers of Agencies

191

The savings banks have been conscious for some time of the importance of preventing bad building in Brooklyn and Queens, and a year ago set up minimum requirements for new construction. They are not willing to invest their depositors' money in construction which is not of a grade to insure future dependability. They believe that supervision and inspection of new structures will be a safeguard to both the builder and the future purchaser, as well as the tenants.

Self-help had appeared, not because the government had entered the field of supervision, but because governmental agencies, set up for such purpose, had failed to function properly. The engineering staff of the commissioner of accounts made a preliminary report to the mayor on the condition in Queens, in order that immediate steps might "be taken to prevent further exploitation of home purchasers by jerry-building practices." 76 After reviewing a number of important Queens housing developments, the investigators gave a list of twenty-five violations of foundational requirements in both houses and garages, of plumbing and drainage regulations, of almost all of the provisions of the code relative to walls, windows, roofs, and leaders. The report did not hesitate to locate each building examined. The only defense offered in behalf of the builders was that it was the common practice in Queens! That continuous and consistent negligence by the building department of Queens and the misrepresentations made by developers to potential purchasers could be cured only by the action of some outside agency, was the only tentative hint as to the remedy. The last paragraph read as follows. "The Federal Housing Administration is taking an active interest in this investigation and is cooperating in attempting to eliminate the evils disclosed." A month later the mayor's special committee made a majority report on small-home construction in Queens. 77 The facts presented by the Department of Accounts were found to be true. Eight specific violations of the code and ten specific violations of the Plumbing Rules of the Board of Standards and Appeals increased by some 76

Preliminary Report to the Mayor Concerning Building in Queens, Aug. 10, 1936, found in New York City Municipal Library. 77 Report to the Mayor Concerning Violations of the Building Laws in Small Home Construction in the Borough oj Queens, Sept. 10, 1936, filed in the Department Accounts and Investigation.

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72 percent the number already found. The general findings and recommendations were as follows: 1. The general disregard of builders and contractors of the requirements of the Building Code point to lax and inadequate inspection by the building department, but further search may lead to a more adequate explanation. 2. Purchasers of homes have been badly deceived by the use of inferior materials and violations of the Building and Plumbing Codes; many purchasers have been confused by the use of the word "Federal" in the name of the mortgagees of their houses, though such mortgagee firms have no connection with the Federal Housing Administration—a matter curable by Washington or Albany; the Federal Housing Administration has been effective in preventing inferior construction by enforcing its three compliance inspections before making loans. 3. Recommendations: Legal requirement that all plans filed with the department of buildings or other city departments should be prepared by and bear the seal of a registered architect or professional engineer; that the owner or builder should place the supervision of construction in the hands of a similarly qualified and registered expert and make a sworn statement that such has been done. The minority of the committee (two) attempted to exculpate all persons responsible for the "few" violations found and agreed with the majority that supervision of construction was absolutely necessary; but the supervisor must be a local man, whether licensed or unlicensed. 78 Commissioner Blanshard's Report to the mayor 79 emphasized the responsibility for violations uncovered in Queens. The commissioner of buildings and several of his inspectors were examined under oath. The conclusion was that Commissioner Keller alone was responsible, in that he assumed power to act freely under the liberal clause of the code,80 the undeveloped-street-system clause of the code,81 and the power to modify under section 411 of the charter. When pushed, he excused himself by saying that he was merely following in the footsteps of his predecessors. All this defense was knocked out in the report. The mayor promptly sent a 78 79 80

Filed Sept. 17, 1936. Mayor 8973, Nov. 20, 1936, filed in Department of Accounts and Investigation. 81 Sec. 1 subdiv. 3. Sec. 1 subdiv. S.

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copy of the findings to the borough president.82 In December, 1936, the commissioner of accounts filed a supplementary report on apartment house construction with the mayor.83 A. W. Karnopp and L. Lange, private experts, cooperated in the investigation. The commissioner's engineers found some thirty-five violations in several large apartment house developments, and many of the violations were important. In addition, they found that amendments to plans had been filed by steel contractors without the knowledge or consent of the architect and that such amendments had been freely accepted by the building department without the required seal of the architect. The special representatives of the mayor duplicated the findings of the regular examiners and added a formidable list on their own account.84 The commissioner's report ended with these words: The warning of Mr. Karnopp that "If something is not done, we are faced with the possibility of another disaster such as took place in the Bronx last summer," needs no emphasis. Though it cannot be said that in any single instance any building can definitely be called unsafe, it is evident that apartments are being constructed in Queens which are not affording the full structural safety required by the law, and by sound structural practice. The margin of safety demanded by law is not present in any case, nor is the full factor of safety provided.

On December 12, 1936, Mayor La Guardia sent the following communication to Borough President George U. Harvey, Queens: Supplementing my letter [not available to the writer], I enclose a report from Commissioner Blanshard, supplementing report on same subject heretofore submitted. I am sure you will take appropriate action.

The last sentence was that of a willing but impotent executive, whose time was yet to come. The words of the mayor had no effect in remanning the Queens building department. The commissioner of accounts, however, kept up the fight. A brief report to the mayor 85 questioned Mr. Keller's original qualifications as 82

Nov. 25, 1936. MR 8976—Supplementary Report to the Mayor on Queens Building Department, Dec. 10, 1936, filed in Department of Accounts and Investigation. 84 Letter to Commissioner Blanshard included in the Supplementary Report. 86 Memorandum to the Mayor, No. 89872, April 27, 1937, taken from the files of the Commissioner of Accounts. 83

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chief buildings officer under section 407 of the charter. The most satisfactory result of the investigation was his admission of entire responsibility for the numerous violations, when he broke out with "I am the law," a borough counterpart of "L'état, c'est moi."

6. Superstructure of the Building Administration: Personnel and Functions Board of Standards and Appeals and the Board of Appeals constituted an over-all central organization and were endowed with sufficient powers to satisfy the forces that were constantly pressing for more and more city-wide control of the building administration. 1 It took some nine years 2 to bring home the lesson that the sufficiency of powers granted could not be considered as unity of enforcement when there were two boards, each exercising one or more phases of the administrative process. That was true, regardless of the fact that the personnel of one board penetrated that of the other. The efficient element was the expertise, that is, the appointed members, and, in contemplation of the legal ideal, was more completely represented in the Board of Appeals. The 1925 amendment emphasized the expertise idea and the future kept it in store for more perfect implementation. The top body, whether bifurcated or not, had to have a whole-city view, whether it was making rules with the force of law, deciding specific administrative appeals from a borough superintendent or from a fire commissioner representing a department covering the entire city, modifying the Labor Law and the Building Zone Resolution, approving materials, or giving wholesome advice on policy to the lawmaking agencies of the city or the state legislature. In view of personal discretion as practiced by the original enforcers of the building laws, it would seem that the two boards (later the one board) would have had little to do in the way of carrying out the ideal expressed in the preceding paragraph. Such 1

G.N.Y. Charter, 1916, ch. XIV-A.

2 Local Law No. 13, 1925.

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was not the case, however, for many of the duties of the higher agencies were original rather than appellate in character. The Board of Standards and Appeals could adopt, amend, or make original sets of rules on its own initiative. A large number of the socalled appeals from the board or boards did not really fall into that category but were treated "as if" they did.3 Furthermore, whenever there was dissatisfaction with a lower-level decision, the directly interested party could appeal, and the same privilege was extended to any person, official or private, who was aggrieved.4 Evidently there was much work to be done. Did the board or boards seize on to the opportunities granted? Was the work carried on efficiently and in harmony with the spirit of the law? Was the atmosphere of the great city conducive to success? Were rumors of war, actual war, and war's aftermath to hinder? The character of the personnel and its stability were to determine, in large part, the scope and efficiency of the work which fell to the organization both in its infancy and in maturer years. The author of a recent legal treatise on the building agencies of New York City practically summed up his work with the following statement: The criterion of a good administrative tribunal and of good administrative results still is and will continue to be, regardless of such powers of review as the courts may exercise, the quality of the personnel.0

That the real-estate owners and builders were aware of this phase of the problem was well illustrated, insofar as their own interests 3 E. g., "appeals" for variations from the Zoning Resolution or from the Labor Law. Support of this position was presented directly for the first time in Kesbec v. Cambell, 104 N.Y.L.J. 399, Aug. 20, 1941. The court ruled in a stay proceeding that an application to the Board of Standards and Appeals for variance of the BZR was not an appeal from a decision of a borough superintendent and that therefore such an application did not act as a stay to proceedings provided by ch. 27, sec. 668-c of the charter. The court said: "Motion denied. The pending proceeding before the Board of Standards and Appeals of the City of New York is not an appeal from a refusal of a borough superintendent of the Department of Housing and Buildings to issue a certificate of occupancy of premises in question for the parking of more than five motor vehicles. It is an application for a variance under section 7 of the BZR. Such an application is not directed to procuring a reversal of the decision of the superintendent, but to procuring a dispensation under the discretionary power vested in the board." * L. 1916, ch. 503, sec. 719, subdiv. 2. 5 Seymour Graubard. Book now in press.

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were concerned, by a sentiment expressed in one of their official journals: "It is to be hoped that there will be no misunderstanding over the appointment of the Board of Standards and Appeals. Care should be taken to preserve the character (which its predecessor, the Board of Examiners, had consistently possessed) separate and distinct from all political ends." 6 This feeling was still dominant when Mayor Walker's Social Committee made its findings in 1931.7 Mayor Mitchel honestly believed that the reform spirit had so tightly gripped the city that both "5th Avenue" and "1st Avenue" would combine in sanctioning a first-class personnel for the original Board of Standards and Appeals; that such a personnel, under his general guidance during the next six, or perhaps ten years, would be able to organize and give a direction to the building activities of the city that would extend indefinitely into the future. Upon the basis of his own personal knowledge of available men, supplemented and adjusted by the ready suggestions of the building and related interests, he picked his men. The chairmanship went to Rudolph P. Miller, the able, professionally trained engineer, brought up in the Manhattan building bureau, unselfish in sharing his broad knowledge of building conditions with his official superiors and with laymen alike, experienced as head of the most important local building agency, nonpartisan, and a servant of the people through the application of scientific principles. In brief, he had the confidence of all who could appreciate his qualifications and served as representative of the engineering talent of the city. Second to him was Howard C. Baird, of the consulting engineering firm of Boiler, Hodge, and Beard. Lansing C. Holden was the distinguished architect who best represented the American Institute of Architects. William Crawford represented the legal demand for a successful and experienced builder. He had served as chairman of the building code committee of the Merchants' Association and was a member of the Building Trades Employers' Association. Both he and Mr. Holden had served on the disestablished Board of Examiners 8 and, doubtless, with the experienced fire chief, John Kenlon, passed on whatever a 8

Record and Guide, IIIC (1916), 619. Record and Guide, IC (1917), 43.

7

Supra, pp. 148 ff.

Personnel and Functions they considered of value to the new board. The "general public" was represented by two men: Alfred K. Kirkus, who was the leader of the realty fraternity and who, impressed with the need of a uniform building authority in the city, succeeded in amalgamating the divisive forces in favor of the Lockwood-Ellenbogen Act; Alfred J. Boulton, politician of Kings County and supporter of Mitchel's candidacy under the temporary Independence League, represented the strong labor interests of the city. One might well think that there was really no difference between the personnel of the new board and the old Board of Examiners. The New York Times made the following comment on this point: Although the different interests connected with building matters are represented on the Board of Standards and Appeals, the appointments have been made free from recommendations and influence of interested organizations. That is, these organizations have not the right to present names to the Mayor from whom selections must be made. The limitations upon the Mayor's appointment right was one of the faults of the early draft of the bill and it was fortunately eliminated.9

The seven additional members were of the ex officio class. Robert Adamson was fire commissioner and as such was responsible to the mayor. John Kenlon sat as fire chief, but was assigned from a fire department career class by his superior. The five superintendents of buildings, responsible to their several borough presidents, were: Alfred Ludwig, Manhattan; R. J. Moorhead, the Bronx; P. J. Carlin, Brooklyn; J. W. Moore, Queens; W. J. McDermott, Richmond. Theoretically, the mayor had a bare majority of the membership of the Board of Standards and Appeals under his direct control. All the members of the Board of Appeals, except one, were his direct appointees. The liberals of the nation had taken the reforms of Mayor Mitchel as a sign and promise of a better municipal life for America. The mayor had, indeed, aroused New York City editors, officials, and employees, and many private citizens to greater energy in civic matters. By 1917, however, Tammany, officially his political enemy, nominated John F. Hylan of the in-group for mayor, took advantage of the many political mistakes which the 9

-Vew York Times, July 12, 1916, 7: 2.

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199

somewhat aristocratic mayor-reformer had made and was continuing to make, assumed control of the city government in January, 1918, and maintained it in one way or another until the beginning of 1934. The people, through their leaders, had again returned to the fleshpots of Egypt. 10 The idealists, as well as those who felt that the Mitchel personnel was harmonizing private interests and public welfare, feared the change that was inevitable. Mayor Hylan called for the resignation, at his pleasure, of the appointed members of the board, but denied that he intended to wreck the new set-up. He merely wanted to rid the administration of the "Mitchel crowd" and put in his very own friends. 11 Alfred E. Smith, while acting as mayor, carried on a long correspondence with officials of the City Club in the same vein. He argued that the mayor must take the entire responsibility in enforcing all the laws and that it was natural that he should want to have his own party friends in office, but that, in doing so, he did not intend to allow the boards to destroy the intent of the various building laws. The City Club argued that the state legislature intended that the mayor should not remove more than two of the six appointed members at any one time, but Acting Mayor Smith felt that the law did not so specify, although he stated that he would put the question to the Corporation Counsel. 12 Rudolph P. Miller advised the anxious citizens that they should not feel that the board's work was at an end merely because the mayor had changed its personnel. He stated categorically that there was no possibility that the worst would occur. His view, however, was based upon his supreme faith in the ultimate good sense of the citizenry he was addressing, as the following reminder indicated: At the same time, it is a good thing for the public to keep its eyes open to what a change in personnel might mean in the enforcement of the zoning law. The greatest safeguard in the treatment of appeals for exceptions from the law lies in the obligation to hold public hearings, and thus in the interest shown and kept up by the public. An inefficient 10 For summary, see Institute of Public Service, "Civic Lesson from Mayor Mitchel's Defeat," 1917, New York City Public Library. 11 Record and Guide, CI (1918), 204. 12 New York Times, March 10, V, 20: 1, 1918.

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or too lenient Board of Standards and Appeals [sic] could to a great extent, negative the efficacy of the Zoning Resolution, unless a sufficient check were imposed by public interest.13 Mayor Hylan announced a tentative list of his appointments early in 1918, though the slated men did not take office until the end of March or later. John P. Leo succeeded R. P. Miller as chairman. He was a graduate of Cooper Institute and by profession an architect and builder of long experience. He had served on the old Board of Examiners in 1911 and had been street cleaning commissioner. The real-estate and building groups gave him their endorsement. 14 Alfred J. Boulton was the only hold-over and served as representative of political labor interests. James P. Holland, who did not take office until July, was an important local A.F. of L. official, and was destined to head its state organization by 1921. His position was charged chiefly to the close relations between the craft unions and the prevailing political machine, and quite secondarily to his special skill and knowledge as a brick mason. 15 J. J. Beatty was a Brooklyn politician and builder, who took the place of William Crawford. John de Hart and James Kearney were appointed without comment. Robert Adamson gave way to the more friendly T. J. Drennan as fire commissioner, though the latter refused to change the much despised fire chief, John Kenlon. Several nowfamiliar names appeared among the borough superintendents: William E. Wralsh, builder, Manhattan; P. J. Reville, builder, the Bronx; Albert E. Kleinert, political administrator and builder, Brooklyn. Tammany's first slate of board appointees did not, as a whole, measure up to the high professional standards of their predecessors. Mayor Hylan blotted out the chance for a stable board of the "Miller class" and, at the same time, did not indicate that he would promote stability of personnel in the board. He could not do this, for the bases upon which he built his personnel were personal and political friendship, blood and marriage relationship, whim, and personal spleen.10 Between January 11, 1921, and October 6, 1925, 13 14 16 16

New York Times, March 10, 1918, V, 20: 1. Record and Guide, CI (1918), 204. New York Times, 1921, April 2, 3: 2; Aug. 26, 2: 4. E. g., see New York Times, April 21, IV, IS: 1, 1918.

Personnel and Functions

20I

when the consolidated l a w 1 7 actually was implemented, one total change, together with one or two individual changes, took place. Nevertheless, while he did not promote total stability in the board's appointed personnel, he did lay the foundation for a continuing political in-group solidity of policy. William E . Walsh succeeded John P. Leo as chairman early in 1921, after spending a year in preparation as a private citizen. Chairman Walsh was the efficient and consistent force that directed the Tammany board ("perhaps he was the board) for nearly nine years, that is, until he had to resign under high pressure on June 28, 1930. His immediate associates, as well as those who came in later, were either his willing tools or were helpless in trying to resist his rule. Chairman Walsh's chief fitness lay in his executive ability, his close personal and political friendship with Mayor Hylan and the more powerful Tammany leaders, and in his seeing eye to eye with such leaders. He had proved himself as fit for his position during the six years of his superintendency in Manhattan. As the months advanced, however, his technical qualifications began to be questioned. The New York Society of Architects challenged his qualifications as chairman under the law in 1924, inasmuch as he had not been able to secure a state certificate as architect until December. 1922, and the Societv asserted that he could not have fulfilled the legal demands until December, 1937!The mayor admitted the charge. 18 The chairman's immediate associates were varied in preparation. John E . Kerby, who at one time was a student at Cooper Institute, had gained a wide reputation as a church architect and had entered the construction and real-estate fields as side lines. Henry L. Connell was a practical construction engineer, familiar with the construction problems in Manhattan. John Dowd represented the labor group and was president of the Maritime Association of the Port of New York. J . B . Gunnison was a local Bronx builder and president of the Gunnison Construction Company, while J . S. Kennedy was a local Brooklyn architect. 19 James P. Holland had Local Law No. L3, effective June 19, 1925. New York Times, June 27, 1930, quoting W. H. Allen, of the Institute of Public Service. 1 9 Material secured from items in the New York Times when appointments were announced. 17 18

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Personnel and Functions

appeared on the board again by January, 1925, as successor to Mr. Kerby. During the period, Thomas P. Flanagan had become superintendent in Brooklyn; R. P. Miller had returned as superintendent in Manhattan for two years, to be succeeded by Charles Brady in 1922. The consolidation of the two boards into the new Board of Standards and Appeals 20 carried with it a reduction of the appointed personnel to four members, but retained the ex officio fire chief. When the new board took up its work in the fall of 1925, there began to appear a more regular pattern in the Tammany personnel. Mayor Hylan continued Mr. Walsh as chairman and seasoned architect, and Henry L. Connell was retained as the representative of the construction engineering interest. John Guilfoyle, the ancient product of the Fifth Ward Democratic Association of Brooklyn, was chosen as the building expert. Before 1897, he had served his city as member of the Board of Education and as alderman; under the consolidation act of 1897, he was Brooklyn's representative on the central Board of Buildings. Joseph Flanagan was the last of Queens' "formally dressed" politicians and incidentally played the real-estate game. He had served his borough in several minor political positions, as secretary of the borough and Democratic alderman. At the time he was chosen as a member of the board, he had been retired on pension, but found the $7,500 position highly satisfactory. Evidently he served the "public." 21 When James J. Walker became mayor in 1926, he substituted the persistent Mr. Holland for Commissioner Flanagan. The board's work was carried on by Commissioners Connell, Guilfoyle, and Holland under the guidance of Chairman Walsh, until June 28, 1930. Upon Mr. Walsh's resignation, Commissioner Connell became acting chairman and did the best he could with his two fellow commissioners and the fire chief, until Acting Mayor Joseph V. McKee appointed a chairman, in compliance with an order of Supreme Court Justice McGoldrick, an order issued as a result of certain litigation over the absence of a charter-required chairman. 22 20 21 22

Local Law No. 13, 192S. New York Times, Sept. 30, 1925; June 26, 1935. New York Times, Dec. 1, 1932.

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The acting mayor, ignoring the Tammany practice, named Harris H. Murdock as chairman on the basis of merit. Mr. Murdock graduated from Harvard in 1901, joined the Jardine firm of architects in 1910, and at the time of appointment was a member of Jardine, Murdock, and Wright, Architects, with a number of large Manhattan buildings to his credit. The board had at last been given a recognized professional architect similar to the "Miller class," who, in addition, was a first-class executive. The appointment was made on the recommendation of leading architects, builders, and real-estate men of the city. 23 At a dinner meeting of the various building and allied industries and professions a few days later, the acting mayor was congratulated on his "wise selection," wise in that the city could again put its "confidence in the decisions of the Board." The appointee ended a brief speech with the words, "I was appointed to proceed without fear or favor." In other words, the new chairman had won, through his various writings, his work as member of the Real Estate Board. Building Congress, and the Merchants' Association, and through his performances as a professional architect the esteem of his fellows. A new set was given to the board at once, though Commissioners Connell, Guilfoyle, and Holland continued on the board until February, 1934, when Mayor La Guardia appointed a "nonpartisan" set of commissioners, headed by Mr. Murdock. Vincent C. Peppe took office in January as the representative of the real-estate interest; his qualifications consisted in his long experience as real-estate broker and reconditioner of old dwellings below Fourteenth Street in Manhattan. B y June, the mayor was considerably embarrassed by the report that charges had been brought against his appointee, relative to the diversion of certain funds that had been turned over to him as broker. His resignation was demanded. 24 Bernard A. Savage, of Brooklyn, took the place of Mr. Connell, and was considered as a promising young engineer of independent Republican persuasion. Charles M. Blum did not take his place on the board until the last of April. His duty was to guard the labor public, since he was a carpenter and had managed to reach the chief executive 23

New York Times, Dec. 1, 1932. *New York Times, April 27, 1934; New York Herald-Tribune, April 27, 1934.

2

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Personnel and Functions

position of the local Bronx union of his craft. Fire Chief McElligott had been on the board as ex officio member since March, 1931. The new personnel which Chairman Murdock was to direct was not especially distinguished, but it represented the newer forces that were back of the "Little New Deal" administration and the new charter of 1938. When the ideal of a smaller technical board was further approached in contemplation of the law, 25 Mayor La Guardia's membership nnttern seemed to be good, until the last of 1941 at least— Murdock. Savasre. Blum, and the ex officio fire chief.2® The factual conclusions to be drawn from the history of the personnel of the highest building agencies during the years 191638 may be quickly summarized: 1. Where the mayor had discretion in appointment and removal, stability of personnel was impossible when succeeding administrations held contradictory ideologies as to the public interest. Where the same administration held for two terms, a recognizable pattern began to appear, if not at first, then later in the regime. Each pattern represented the prevailing ideas of the administration in power, whether good or bad. 2. The personnel of a reform administration represented the UDner crust of that reform movement, whether the reform was backed bv the upper bourgeoisie or bv the small bourgeoisie and the labor group. The first appeared in the Mitchel board, the second in the La Guardia board. The personnel of the old machine politics corresponded to that of the Tammany machine, as seen during the administration of Mayor Hylan and Mayor Walker.

The theoretical conclusions to be deduced from the history of the personnel of the board are neither so clear cut nor so simple. The theory of responsibility to the voters for administration cannot be given up, if government is to keep the very essence of democ25

Local Laws Nos. 26 and 27, effective Jan., 1935. The Board of Standards and Appeals has existed as a single board since 1925, though its membership has been frozen at four (charter, 1938, sec. 461). Its jurisdiction over materials, the making, amending, or repealing of rules and regulations had been theoretically complete. Its formal power to modify had rarely been impinged upon (charter, 1938, sec. 666). Variance by the superintendent of buildings on the basis of practical difficulty has been specifically limited as to certain matters, in order that the board's jurisdiction might be better protected from the enforcing officer (charter, 1938, sec. 6 4 5 - [ 2 ] ) . The board's appellate power had really been increased. Therefore, it seems best to consider the work of the board through 1940 and into 1941, without first considering the reorganization of the building agencies, a matter chiefly affecting the enforcing agencies. 26

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racy. Where officers exercise broad discretion, as they do in the higher building agencies, the permanent civil service does not answer the question. Neither does judicialization. If the ideal of civil service could be made to work perfectly in the city of New York, and everyone knows that it does not, there would be little need for curbing the mayor in appointments and removals of officers on the discretionary level. In any case, it is the people's opinion that permits the abuse of both appointment and removal. Until that opinion is educated to the need of a first-class and stable personnel in the building agency under discussion, there seems to be little use in nuttine restraints upon the chief executive. The solution suggested in the 1938 charter 2 7 names the causes for which the mayor may remove members of the board and requires written charges and a hearing before the mayor. This may make a machine mayor more wary, but he will be likely to get what he wants. There are no restraints in appointments that cannot be got around in some way. 28 The chief task now is to examine critically the functioning of the higher agencv or agencies in the administration of the various laws that deal with building matters within the environment that is New York City. Just before the Lockwood-Ellenbogen Act 29 went into effect, its originator, the Real Estate Board, approved the Mitchel personnel, but in doing so uttered the following caveat: The new regime will not immediately end all the troubles of property owners and tenants. It will have little effect upon the existing violation orders and none upon the court cases. But it will, in the near future, eliminate the existing unsatisfactory conditions that really have stood in the way of effective fire prevention work.50 In October, 1916, the same board 31 again commented on the excellent work that was being done in the initial stages by the Board of Standards and Appeals, which contained, of course, the Board of Appeals: [It] has been in session for several weeks. It is sifting out, under the able and conscientious chairmanship of former Superintendent of Build27 30 31

28 Sec. 662. New charter, sec. 661. New York Times, July 16, 1916, III, 3: 3. Real Estate Bulletin, IV (Oct., 1916), 83.

29

L. 1916, ch. 503.

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ings, Rudolph P. Miller, the reasonable from the unreasonable. As time goes on, satisfactory existing rulings and practice of the various departments which are concerned with building in New York, or which issue violation orders, will be confirmed, and those which are unreasonable or work unnecessary hardship will be amended, modified or repealed. Thus an effective, satisfactory code of local law will be built up, which property owners will respect and obey. Both expressions were based largely upon wish-thoughts, but the second indicated that the high building authority was at work, endeavoring to meet the opportunities and assuming the duties discoverable in the laws and practices. The Board of Standards and Appeals anticipated the functioning of the Board of Appeals by some nine weeks. In a series of meetings, beginning July 28, 1916, it formulated a set of rules of procedure for both boards and initiated other proceedings which it held to be necessary for clearing the stage for action in October. The rules of procedure, adopted at its first meeting, 32 contained mandatory as well as discretionary material, which affected all building officials and private parties appearing before the boards. 3 3 The most important procedural provisions were the following: 1. The Board of Appeals: (1) A definite weekly period set aside for regular meetings and the chairman was empowered to call at will special meetings. (2) Five members constituted a quorum. (3) A minimum of five votes was required for affirmative action.3* 32

Bulletin B.S.A. 3 - 5 , 1916. M a y o r Hylan's n e w Board of Standards and Appeals offered a new set of Rules of Procedure, Cal. N o . 115S-181S, 3 Bulletin B.S.A. 697, June 11, 1918. Article IV, on Final Disposition of Cases, provided for five affirmative votes in the Board of Appeals and eight in the Board of Standards and Appeals for granting appeals or petitions, while a less number dismissed appeals or petitions. A vote to dismiss, with less than five or eight, left cases on the Calendar. After an elaborate hearing, at which representatives of the Real Estate Board, Forty-second Street Association, the Macy Establishment, and the Bureau of Municipal Research, together with a number of engineers and attorneys, participated, the rules were adopted and became effective June 13, 1918. N o t e 34 refers to the new rules. 34 See Peo. ex rel. Cockcroft v. Miller, 196 N.Y. Supp. 206, 1918: 187 App. Div. 704, 1919; 228 N . Y . S6S, 1920; 1314 C. and P., (1920), I f f . Among other things, this case involved t w o orders of the fire commissioner, made under sec. 83 of the Labor Law. Whereas the Board's rule required five affirmative votes to grant an appeal, the actual v o t e of the board, March 8, 1917, was four to one for granting, t w o members being absent. Hence the appeal had to be dismissed and the orders allowed. The supreme court dismissed a request for certiorari to review the appeal. 33

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(4) Appeals had to be taken within twenty days after action of the superintendent of buildings or the fire commissioner on threat of laches. (5) A calendar was required to be published weekly, giving in orderly sequence the following matters for the board to act upon: (a) Appeals from any action of the (i) superintendent of buildings; (ii) the fire commissioner; (iii) the State Department of Labor; (iv) the Board of Standards and Appeals. (6) Reopening of a determination was possible only on the basis of new and material evidence. 2. Board of Standards and Appeals: (1) Provision was made for both weekly and special meetings. (2) Eight members were named as a quorum, three of whom were to be appointed members. (3) Notice before hearing was provided in an official bulletin of (a) petitions for variation of the Labor Law, ten days; (b) intention to adopt, amend or repeal rules and regulations with the force of law, ten days; (c) intention to amend the Rules of Procedure, three days. (4) The number of votes necessary for affirmative action on (a) the variation of the Labor Law, the adoption, amendment or repeal of rules and regulations and the amendment of the procedural rules, eight; (b) the setting aside of a rule of procedure for only one sitting, a unanimous vote; (c) miscellaneous actions, seven. (5) A calendar was required to be published weekly, giving in orderly sequence the following matters for the board to act upon: (a) Proposed rules and regulations on (i) the Building Code, (ii) Fire prevention matters, (iii) the Labor Law, (iv) General administration; The appellate division sent the case back to the board for a rehearing before the whole board, on the theory that it was possible for the appellant to secure the necessary five votes, if the seven members of the board had been present at the hearing. The court of appeals approved this action of the appellate division. Consequently, the Board of Standards and Appeals, Cal. No. 277-19-S, amended Article IV, sec. 2 of the Rules of Procedure as follows, in order to protect the rights of appellants more rigidly: "Final disposition of any application before the Board of Appeals shall be in the form or a resolution, reversing or modifying the order, requirement, decision or determination appealed from and granting the application or appeal, or affirming the order or denying the application or appeal. The concurring vote of five members shall be necessary to a decision. If a resolution fails to receive five votes in favor of the applicant or appellant, the action will be deemed equivalent to a denial, and a resolution denying such application or appeal shall be formally entered on the record, unless there be members absent at the roll call and unless the number of such members absent added to the number voting for the applicant or appellant would equal five, in which case the matter will be laid over for rehearing before the board. 4 Bulletin B.S.A. 318, 1919." The same principle was adopted relative to the action of the Board of Standards and Appeals. This principle prevailed, with the change in the size of the board as reorganized from time to time.

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(b) Petitions for the variation of the Labor Law; (c) Approval of new material or forms of construction; (d)Recommendations of proposed legislation; (e) Miscellaneous matters. 3. Rules common to both boards: (1) All actions were to take the form of resolutions. (2) The minutes of each meeting were to be taken in full and published in the Bulletin of the Board of Standards and Appeals in brief or in full, at the discretion of the chairman. (3) Rule Number 41 required that an assistant engineer examine and report upon all petitions and appeals; prepare all rules and revision of rules proposed by outside agencies and individuals, together with reports giving reasons and necessity for the proposals; supervise and witness tests conducted under the auspices of the Board of Standards and Appeals; and assist generally in all technical matters coming before the board. (4) Parties could appear in person or through representatives, who were not required to be members of the bar. It was evident that the boards had anticipated, to the best of their ability, the conditions under which justice could be done in all cases; it was plain from the calendars that the scope of their powers had been recognized. A reading of the procedural rules and the pertinent provisions of section 718 of the charter indicated that the work of the boards would be likely to take on the color of the chairman: he was the one "all-time" member; he controlled the calenders; he was in constant touch with the permanent personnel of the boards; he appointed and acted as the head of each inspection committee of the Board of Appeals and supervised the making of reports; he was the mouthpiece of the boards at all hearings and voted first on all resolutions; and he was the person who received representatives of the public and who had the ear of the city officials. Chairman Miller 35 gave an account of his stewardship which covered the life of the boards through December 31, 1917, though the report fell short by three months of covering his incumbency. Of the 3,617 estimated items of all kinds presented to the two boards for action, 2,565 had been disposed of, 522 were on the calendars for 1918, and 530 had not reached the calendar stage because of the great rush of business. The larger board had adopted 35

3 Bulletin B.S.A. 262, 1918.

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ten sets of rules, or amendments thereto, and had seven additional sets in process of adoption; had granted 563 petitions for variation from the Labor Law, with many more pending; and had 14 items of miscellaneous business to its credit. The Board of Appeals had accepted 349 appeals from the various superintendents of buildings, of which only 47 were pending; 356 appeals from the fire commissioner, of which 139 were pending; 579 applications (sometimes called "appeals") for variation from the Zoning Resolution, of which 98 were pending. This brief summary of the activities of the Miller regime indicated that the boards were not only theoretically aware of the scope of their jurisdiction, but that they were striving to realize such jurisdiction in practice, though the immensity of the volume of their tasks prevented the completion of many separate items. A closer analysis, however, must be made of the work done by the expert corp of the Mitchel personnel, since such work formed in broad outline the basis of much that was to be done in the future. The Greater New York Charter, as amended in 1916,39 made the Board of Standards and Appeals the city-wide administrative legislature in the construction field and in matters closely related thereto: the making, amending, and repealing of rules and regulations, theretofore vested by law and ordinance in the borough presidents, borough superintendents, and the fire commissioner, were transferred to the board; similar jurisdiction was extended over the rules and regulations theretofore made by the department of labor and the industrial commissioner "regarding the enforcement of those provisions of the labor law and other laws which relate to the construction, alteration, structural changes in, plumbing and drainage of, elevators, fire escapes on, adequacy and means of exit from and fire alarm systems in all buildings, except tenement houses, within the city of New York"; and power was given to adopt such rules and regulations as seemed necessary to carry into effect the provisions of the Building Zone Resolution.37 All legally adopted rules and regulations of the agencies mentioned above, which were in force at the time the 1916 charter went into effect, 88

Sees. 718-a and 718-b. Sec. 20 of original Resolution, now sec. 21; sec. 21 of original Resolution, now sec. 22; sec. 24 of original Resolution, now sec. 23. 37

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were to be considered as rules and regulations of the board and were to be enforced as such until amended, repealed, or superseded. The Corporation Counsel was given the task of compiling such regulations for the use of the board. 38 A large part, then, of the rule-making power of the Board of Standards and Appeals was to be based upon rules already in existence in the city building bureaus, in the fire department, and in the agencies that had been responsible for supplementing the state Labor Law. All such rules, whether city or state, had evolved over the years out of the struggle between man and his environment. The building bureaus during the period 1910-15 had revised and codified most of their rules and, under the leadership of Rudolph P. Miller, had generalized the important ones where the same conditions prevailed throughout the city. The fire prevention bureau had begun the publication of its unknown-to-the-public rules by 1915.39 The state agencies had usually been systematic in the publishing of their rules and regulations. Consequently, by the end of 1917, the Corporation Counsel had completed piecemeal the compilation of all existing rules.40 The board's Bulletin was crowded with reviews of the regulation of all the building bureaus of the Fire Department and the State Industrial Commission.41 On the basis of the local and state regulations, the Board of Standards and Appeals, on its own initiative or at the request of outside interests, proposed, and in several cases, adopted individual rules or sets of rules that applied to the entire city.42 38

39 Charter, sec. 718-b. 96 Record and Guide, 322, 1915. 2 Bull. B.S.A. N o . 51, Dec. 20, 1917. 41 I I , 1917. E . g . , Manhattan rules relative to plastering, fireproofing, elevators, N o . 19, and fire extinguishing appliances, No. 26; Brooklyn rules relative to wood floors and roof beams, sewers, vent shafts, dumb-waiters and hollow tile, No. 26; Bronx rules relative to elevators, plastering, hollow concrete blocks, N o . 38; regulations of the state Industrial Board under sees. 5 and 51-a of the Labor Law. 42 E . g . , Rules for Fire Extinguishing Appliances, Cal. N o . 370-16-S, 2 Bull. B.S.A. 293, 1917, effective June, 1917, No. 26; Plumbing and Drainage Rule 153, 2 Bull. B.S.A. 507, 1917, effective Aug., 1917; Fire Retarding Construction Rules, notice of intention, 2 Bull. B.S.A. 562, 1917, under Cal. 822-171, adopted Aug., 1917; Fire Exit Rules, notice of, Cal. N o . 842-17-S, 2 Bull. B.S.A. 603, 1917, approved Sept., 1917; Interior Fire Alarm Rules, proposed, Cal. No. 108-16-S, 2 Bull. B.S.A. 634, 1917, adopted Oct., 1917; Elevator Rules proposed, Cal. N o . 340-16-S, 2 Bull. B.S.A. 713, 1917; Rules for Installation of Oil Separators, notice of, 2 Bull. B.S.A. 214, 1917. 40

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The Board of Standards and Appeals approached its new field of rule-making under the Building Zone Resolution more cautiously. Section 20 gave the board carte blanche to adopt rules for effectuating the provisions of the resolution, but specific power appeared in section 21, which dealt, among other things, with temporary certificates of occupancy; and in section 24, which involved enforcement by the superintendent of buildings and the tenement house commissioner, "under the rules and regulations of the Board of Standards and Appeals." Conflict of authority had arisen between the superintendent of buildings and the fire commissioner in the administration of the Zoning Resolution, relative to certificates of occupancy. The board, under section 24, proposed a rule that would resolve the conflict,43 and, according to Calendar Number 107,44 a rule was announced which required the superintendent to deliver a copy of each certificate of occupancy to the fire commissioner. Again, many private individuals and corporations had been attempting, and with some success, to secure permits for noncomforming uses of premises by deceptive practices under section 6 of the resolution, which exempted such noncomforming uses in existence on July 25, 1916. The board adopted a rule to cure the evil,45 which read as follows: Affidavit as to Use. Any applicant for a permit for the reconstruction or alteration of any building under section 6—shall submit with his application an affidavit setting forth the use of the building in question at the time of the passage of the Building Zone Resolution and further setting forth any and every change in use which has been made since the adoption of said resolution.

In granting to the Board of Standards and Appeals the rulemaking power, the 1916 charter 46 laid down the following mandatory provision: At least ten days' notice of intention to adopt, amend or repeal any rule or regulation shall be given by publication in the bulletin of the board, and a public hearing shall be given before any action is taken thereon. The adopted rules and regulations and amendments and changes « 1 Bull. B.S.A. 4, 1916.

" 3 W . B.SA., Feb. 7, 1918.

** 1 Bull. B.SA. 18,1916. 46

Sec. 718-b, subdiv. 1.

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thereof, shall take effect not less than twenty days after publication m the bulletin of the board. Similar procedural requirements have been the potential governmental key to a theoretic democratic society. At the same time, they have been the result of a society's moving toward democracy. Hearings, with or without formal notice, developed as an important part of the political mores of modern democratic governments and later became written in certain jurisdictions. Laws or ordinances have continued to come from Congress, state legislatures, and many city councils, in whose basic laws there have been no specific written requirement for notice and hearing. Yet one could hardly conceive of such legislative bodies passing laws or ordinances without some formal or informal notice and without some kind of hearing for the numerous interested individuals and groups. Only in some great emergency in some highly technical field would nonparticipation of the "people" be permitted. Since the modern democratic state has become, in large part, the administrative state, the mores as to notice and hearing have been extended very generally to the making of rules and regulations with the force of law.47 In fact, the legal mandate has appeared in many of the laws and ordinances delegating to the administrative the power of rulemaking. American courts, in general, have served as the guillotine for regulations made contrary to the procedure laid down by law. The writer, however, has been unable to find a case in which the New York judiciary has voided a set of rules or a single rule made by the Board of Standards and Appeals for failure to follow the procedure quoted above. The initiative of rules or amendments was left free. Outsiders frequently made the original requests.48 Much of the rule-making originated within the board itself as a result of the review of existing rules; 49 as the consequence of the conflict of the rules of two or more agencies; 50 or as a result of a pressing need for better en47

N.Y.C. exception—Fire Department rules. E. g., rules for the prevention of fires in school buildings and for hand-power elevators, 2 Bull. B.S.A. 246, 1917; plumbing and drainage rule N o . 153, 2 Bull. B . S A . 507, 1917. 49 E . g . , rules relative to fire extinguishing appliances, Cal. N o . 370-16-S. 60 E . g . , Cal. N o . 236-16-S, a case of "if the fire department orders it, it is disordered by the superintendent of buildings." 48

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forcement of new laws. 51 Joint initiation by "ins" and "outs" undoubtedly was common. Whatever the source of rule-making projects, the minimum procedural requirements for enacting them into administrative legislation were carried on by the board, as the reading of any series of numbers of the official bulletin would show: the public hearing was always held in accordance with its announcement and interested parties took advantage of such hearing, it mattered not how technical was the character of the proposals. But the minimum requirements, properly recorded, failed to give the whole story of the really important rule-making procedure. Preconsultation with individuals and group interests was common, for the board felt that its most valuable advice could thus be secured before the required public hearing was held. 52 One of the earliest sets of rules proposed was that dealing with fire-extinguishing appliances. 53 The New York Real Estate Board, the group with the greatest economic interest in the regulations, kept up a running report as to the part it played in whipping the board's tentative proposals into shape for the public hearing. 54 It was disclosed that the very tentative rules were presented to the realty group for analysis and criticism; and that, as a result, many of such rules were deleted and many new ones were substituted before the public hearing took place. It seemed that the fundamental criticism offered was that the proposals delegated too much discretionary power to the fire commissioner. I t was argued that such delegation was illegal under both the charter 55 and the Building Code, 50 in that one of the fundamental reasons for the enactment of the Lockwood-Ellenbogen Bill 5 7 was to rectify the serious evils surrounding building inspection in the city by greatly limiting, if not entirely removing, the individual discretionary power of the enforcing authorities. The Real Estate Board reported that it had succeeded in deleting most of the proposals giving the fire commissioner power to order sprinklers and standpipes in any build61

E. g., 2 Bull. B.S.A. 190, 1918. Cf. the procedure of the United States Department of Agriculture, J. P. Comer, Legislative Functions of National Aministrotive Authorities, New York (1927), pp. 202-19. 63 Cal. No. 370-16-S. « 9 8 Record and Guide, 79S, 862-63, 1916; 99 Record and Guide, 6SS, 1917. 55 50 57 Sec. 718-b, subdiv. 1. Sec. 580. L. 1916, ch. 503. 62

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ing deemed by him to be dangerous to life and property; had caused to be substituted rules that confined orders for such appliances to buildings specifically named in the law; and had later at the public hearing been able to hold the gains made in the preconsultation period. 58 As the details above recited show, the Miller board had launched a program of adopting or revising rules under the general power delegated to it under the new provisions of the charter. A serious beginning was made in the direction of removing from the enforcing agencies the important function of making, amending, or repealing specific rules and regulations, though in a few instances it had redelegated certain minor powers to such agencies. Furthermore, the board had made its initial attempt to carry out the overall supervisory function under the provisions of the Greater New York Charter as amended in 1916. 69 When it became desirable, in the opinion of the board, that a law or ordinance should be amended in the interest of better administration, that body was to make recommendations in the form of a resolution to the mayor and the Corporation Counsel for presentation to the state legislature or to the local council. Great difficulty had resulted in the administration of the Labor Law within the city because of the lack of a legislative definition of "factory building." The matter was taken up and recommendation was made to the proper authorities for initiating action. 6 0 Thus by the end of March, 1918, the first board's personnel had set the pace for the assumption of all rulemaking power and for the perfection of laws and ordinances. Rule-making and moves for the correction of the law were carried on by the board until the effective date of the new charter, but rule-making was not pushed as rapidly as some of the experienced administrators would have desired. The sets of rules adopted by the Miller board were reviewed, those already in the making were completed, and a few sets added under the leadership of John P. Leo and William E . Walsh. Chairman Murdock spent much time in revising existing rules, but added very few new ones. In 1938 all 5 8 Cf. argument presented in the Mazet Committee Report, 1900, supra, chap, ii, pp. 25-28, 3 5 - 3 6 . 5 9 Sec. 718-a, especially subdiv. 5. 60 1 Bull, B.S-A. 175, 1916; 2 Bull. B.S.A. 30, 1917.

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other building agencies were more definitely shut off from the field of administrative rule-making, but the specific power of recommending revision was omitted from both charter and administrative code.61 Chairman Murdock early emphasized the increased importance of rule-making under the new charter and code. The latter, he admitted, was formulated on the theory that general requirements alone would be made and that supplementary rules would be the task of the board. However, in 1939 he asserted that the theory had not been implemented to the extent desired by the board; the Board of Aldermen had inserted the former rules of the board as absolutes with regard to plumbing, standpipes, sprinklers, and elevators, together with others. He argued for the restoration of freedom of the board to make and unmake such rules in lieu of requesting the new city council to make specific changes. The complaint was that the 200 or more changes that would have to be made in local law made flexibility almost impossible where it was most needed. This freezing of the code requirement, for example, both as to making of rules and the adoption of materials, appeared in rules of construction: metal lath simply had to weigh three pounds per square yard, though satisfactory metal of the weight of a little more than two pounds might well be used on the basis of new discoveries.62 Nevertheless, the last published list of sets of rules examined by the writer contained thirty-four sets.63 The power of policy-making was not limited to the sweeping jurisdiction of the Board of Standards and Appeals in the matter of rules with the force of law, that is, "administrative rules." Both branches of the bifurcated final administrative authority 04 had the duty of varying specific laws or ordinances and the Board of Appeals had the general appellate jurisdiction arising from the actions of the individual enforcing agencies. According to the charter, 65 61 Apparently the task fell to the mayor, charter, sec. 5, aided by the Board of Statutory Consolidation, Adm. Code, sec. 397-1.0, and by the Corporation Counsel, Adm. Code, sec. 394a-5.0. This arrangement, to be sure, did not destroy the influence of the board. 82 Annual Report, B.S.A., 1938, 24 Bull. B.S.A. (1939), 370-72. 63 Bull. B.S.A., Vol. XXVI, No. 212, 1941. 64 Restating of some of the material of chap, iv, pp. 97-98, is demanded for clarity of approach. 5 • Sec. 718-a, subdiv. 4.

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the Board of Standards and Appeals was given "by reference" the power of the Industrial Board to vary the provisions of the Labor Law or regulations of the Industrial Board itself in specific cases where practical difficulties or unnecessary hardships were pleaded, provided the spirit of such laws and regulations should be preserved and public safety secured; and provided, further, that in granting such variations, they should be in the form of a resolution and should apply to all buildings, installations, or conditions where the facts, as stated in the petition, were substantially the same. The usual requirement of recording, indexing, and publishing each variation also appeared.68 This was an injunction that could be nullified in practice only by clearly distinguishing the facts of one petition from those of all others. Section 20 of the original Building Zone Resolution bestowed the power of variation upon the Board of Appeals. 87 The bases of variation were "practical difficulties" or "unnecessary hardships" in carrying out the letter of the provisions of the resolution, and the only standard was preservation of the general purpose and intent in the interest of health, safety, public welfare, and justice. Specific applications only were to be considered, and there was no demand that stare decisis should be followed. 88 Under section 7, the Board of Appeals might, in ap66

See L. 1915, ch. 719, amending L. 1909, ch. 36 by adding sec. 52-a. Since L. 1914, ch. 470, as amended by L. 1916, ch. 497, did not give legislative sanction for this delegation by the Board of Estimate and Apportionment, Justice Benedict, People ex rel. Beinert v. Miller, 100 Misc. 318, 1916, held variations illegal up to the time when the legislature amended the Enabling Act, sees. 242-a and 242-b. L. 1917, ch. 601, validating all future modifications by the Board of Appeals. w The Board of Estimate and Apportionment protested against the use of the variation power it had delegated to the Board of Appeals in connection with Cal. No. 2305-17-BZ. The board had permitted the construction of a business building in a residence district on Madison Avenue. The delegating board went no further, however, than to ask the opinion of the Corporation Counsel on the following facts: The Astor real-estate interests had asked the Board of Estimate and Apportionment, May 4, 1917, to change the area under consideration from a residence to a business district by amending the Zoning Resolution. The request was again refused. While the second request was pending, the Board of Appeals granted the variation, thereby, according to the Board of Estimate and Apportionment, nullifying the negation. 67

Board of Estimate and Apportionment: "Is the action of the Board of Appeals legal in view of the facts given?" Corporation Counsel's reply: "a. You have power to name use districts and amend them under sections 242-a and -b of the Charter. "b. The same sections of the Charter, by amendment introduced by L. 1917. rh AO1

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propriate cases, and after public notice and hearing and subject to appropriate conditions and safeguards, determine and vary the application of the use of district regulations, in harmony with the general purposes and intent under several exceptions.69 Sections 9 and 19 gave exceptions from the height and area districts, but apparently these exceptions were often a matter of right, provided a particular case actually met the exceptions. The general power of the Board of Appeals to review on appeal the decisions made under the building laws, ordinances, and regulations by the superintendents of buildings and the fire commissioner could take the form of a de novo action. 70 Where practical difficulty or unnecessary hardship could be shown in an appeal, the board had power to vary any rule, ordinance, or law within its jurisdiction.71 By a later amendment, 72 the variation power might include all appeals authorized you t o delegate to the Board of Appeals the power to determine a n d v a r y t h e Building Zone Resolution. . . . "c. T h e Building Zone Resolution, section 20, gives the Board of Appeals t h a t power in a specific case. Also, section 7 permits the Board of Appeals to extend a building i n t o a restricted district, if the character of the more restricted district is safeguarded. " d . Y o u r decision of M a y 4, 1917, admits t h a t it is difficult to define lines clearly in t h e area concerned a n d t h a t t h e B o a r d of Appeals has power in specific cases t o g r a n t a variation. Y o u would have m a d e the use general, h a d you granted t h e request. The B o a r d of Appeals merely a d j u s t e d the building to both kinds of districts . . . there is no conflict of a u t h o r i t y . " T h e supreme c o u r t sanctioned this general opinion in Flegenheimer v. Leo, N . Y i J . , M a y 18, 1918, in connection with Cal. No. 32S-18-BZ. 69 B u t see Mazzarell v. Walsh, 13S N.Y. Misc. 719, 1930. In this case, the c h a i r m a n of the board i n f o r m e d the petitioner that he had established his case under sec. 7-e of the zoning l a w . T h e b o a r d then, according to the court, denied the application f o r the extension of a garage on the sole basis t h a t there were no practical difficulties or unnecessary hardships on the basis of sec. 21. T h e board argued before t h e court as follows: "Section 7-e merely gives the Board a foundation upon which t o consider a n application f o r violation of the Zoning L a w ; it does not make it m a n d a t o r y f o r t h e Board to g r a n t the application, merely because a garage or a stable existed in t h a t street prior to e n a c t m e n t of the Zoning Law. The m a t t e r still remains discretionary with the B o a r d . " T h e court agreed b u t made this statement: " I do n o t think the law requires t h a t t h e applicant, a f t e r establishing a basis of appeal under sec. 7-e, to go f u r t h e r a n d present in addition a basis of appeal under sec. 21. Once a basis of appeal is established under 7-e, t h e presentation of proper proof thereunder is sufficient to w a r r a n t exercise of the Board's discretion. I do not subscribe to the view t h a t a denial of a n application u n d e r section 21 presupposes of itself a denial under 7-e. I think each independent of the other." 70 Sec. 719, subdiv. 2 ; see statement of court in Peo. ex rel. Beinert v. Miller, special term, J u n e 21, 1917; 188 App. Div. 113, 1919. 71 72 Sec. 719, subdivs. 1 a n d S. L. 1917, ch. 601.

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from the orders, regulations, and rulings of the tenement house commissioner which were made under the Zoning Resolution. Whatever character a decision might take, it should, so far as practicable, be in the form of a general statement or resolution which should be applicable to cases similar or jailing within the principles passed upon in such decision. T h e theory upon which the varying power was given to the two agencies of city-wide jurisdiction was that such discretion to act in specific cases was a necessary intermediate step in the protection of the vested rights of the building interests from the rigors of general rules of law—an ameliorative action serving to make the police power more palatable to the judiciary. Further results hoped for by the proponents of such power were (1) that stare decisis, on the analogy of judicial action, would be forced by the cautious injunction to generalize similar cases either by general interpretation in advance or by following a precedent in a series of cases; (2) that common-sense law, made possible by the interpretations of the technical experts, would be recognized and applied by the enforcing authorities, with the important result that the appeals agencies would be relieved of much time-wasting and repetitious actions. T h e theory of quasi-judicial check by the Board of Appeals upon the various enforcing agencies was thought to be more perfectly implemented under the 1916 charter than at any time in the past. T h e results hoped for were those indicated under the varying power. During the first two years of the new set-up, the Board of Appeals used every legitimate means to absorb the powers of the Board of Standards and Appeals. Indeed, the group of appointed experts, as represented in the smaller board, were pushing toward the unification of subordinate lawmaking, whether by administrative rules or by interpretation, a condition that was partially realized in 1925." Rudolph P. Miller, chairman of both boards, had studied the problem of generalization of specific decisions or modifications during his two periods of incumbency as superintendent of the Manhattan bureau of buildings. Though he was an engineer, he had the temper of the judge when opportunity offered for making general 73

Local Law No. 13, 192S.

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interpretations for all future and smiliar situations or for forcing specific cases under a general rule. He carried this temper over into the Board of Appeals with a vim. Under appropriate calendar numbers, at least twenty-six general resolutions, that is, interpretations, were passed in 1916 and 1917. In addition, several general opinions were given, outside the calendar list.74 On the basis of the examples cited above, it seems that the board preferred, whenever possible, to make general resolutions in cases involving appeals from enforcement officers, that is, where the lower officers had or had not interpreted properly the provisions of the several building laws and regulations. It was possible in that way to generalize pertinent parts of the Zoning Resolution without having to go through the long procedure involved in granting variations, to seize upon the power of the Board of Standards and Appeals in varying the Labor Law, and to turn the Building Code to the progressive demands of science. As an illustration of the way the Miller board dodged section 20 of the Building Zone Resolution, which provided that where there were practical difficulties or unnecessary hardships in the way of carrying out the strict letter of its provisions, the Board of Appeals should have power in a specific case "to vary any such provision in harmony with the general purpose," on condition that public notice and a hearing should precede, was the resolution relative to laundries in business districts. 75 A transcript of the hearing showed that the case was 74 The estimate given above was based upon the writer's own examination of the board's calendar for the duration of the Miller regime, checked by an incomplete list furnished by the board's assistant engineer, Oct. 16, 1930. The two enumerations did not agree in every respect, but the writer decided to use the following: 164-16-(BZ) ; 185-16-A (BZ) ; 233-16-A (LL) ; 236-16-A ( B Z ) ; 262-16-A ( B Z ) ; 324-16-A (BC) ; 328-16-A (BC) ; 361-16-A (BC) ; 362-16- ( B Z ) ; 378-16-A (BC) ; 390-16-A ( L L ) ; 440-16-BZ; 445-16-A ( B C ) ; 162-17-A (BC); 381-17-S-A (LL) ; 54917-A ( B Z ) ; 613-17-A ( B Z ) ; 616-17-A (BC) ; 1010-17-A (BZ) ; 1037-17-A (BC) ; 1106-17-A ( B Z ) ; 1737-17-A ( B C ) ; 2268-2269-2272-2273-17-A (BZ). The board's official list includes three general resolutions without calendar numbers: June 26, 1917: a resolution setting the time limit for securing permits and for completing a project granted under the zoning regulations; April 19, 1917: an adoption of an opinion of the Corporation Counsel as its own, relative to the rule to be followed in dealing with the width of outer courts, when there was an apparent conflict between the Building Code and the Zoning Resolution; Jan. 29, 1918: a resolution setting forth the approximate bounds of the consent areas under sec. 7-g of the Building Zone Resolution. 76 Cal. No. 549-17-A (BZ).

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originally on the calendar as a " B Z " variation case. The board then decided that it did not care to treat it as such, since it wished to reach a general interpretation rather than to grant a variation. After repeated communications, the applicant was persuaded to leave out his argument of "practical difficulties and unnecessary hardships" and to secure a refusal of the superintendent of buildings for the approval of his plans on the ground that, in his opinion, section 4 of the Zoning Regulation prohibited laundries in a business area, and the case was accepted as an appeal from an enforcement officer.78 In other words, the board recognized that it had no real appellate power under the zoning law, merely an ameliorative power on application or petition in a specific case and that a long procedure of notice to adjacent property owners and public hearing would have to follow. In the case of an appeal on the basis of wrong interpretation, only the superintendent would have to be notified. Commissioner Holden remarked, " I don't see what the public has to do with it; it is just for us to make a decision." Accordingly, a double-header resolution was adopted (the usual form of the Miller board) as follows: Resolved, That the appeal, to permit the erection of a laundry building partly in a business district . . . , be and it is hereby granted and Resolved, further, That, in the opinion of the Board of Appeals, a laundry is not a prohibited use in a business district under the Building Zone Resolution.77 Early in 1917 a petition was made to the Board of Standards and Appeals 7 8 for the modification of section 79-b-l of the Labor Law, on the ground that conformity thereto, as ordered by the fire commissioner, would result in great hardship. Chairman Miller, after conference with the Corporation Counsel and the fire commissioner, wrote the petitioner that the case would be presented to the Board of Appeals as an appeal, 79 in order that a general interpretation might be made. At the hearing 8 0 he stated that he had 7 8 The special term, in the Ridine Acadcmv case, stated that even in variations from the B Z R the B o a r d of Appeals could not act until the enforcing officer had refused a permit to the a p p e l l a n t — N . Y . L . J . June 18, 1917. 7 7 Other Building Zone Resolution appeal cases: 1 8 5 - 1 6 - A ; 236-16-A; 262-16-A; 6 1 3 - 1 7 - A ; 1 0 1 0 - 1 7 - A ; 1 1 0 6 - 1 7 - A ; 2268-, 2269-, 2272-, 2 2 7 3 - 1 7 - A . ™ 381-17-S. i« I. e„ as 3 8 1 - 1 7 - A ( L L ) . 8 0 Transcript of the Minutes of the Hearing, April 10, 1917.

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f r a m e d a double resolution, according to which the specific appeal w o u l d be granted and a general resolution would be passed which would free the board of m a n y of the "stairs to the r o o f " cases. In elaborating his argument for such a resolution, he said, " T h e B o a r d wants . . .

to t a k e into consideration that we are laying down an

interpretation of the law that is guiding and in doing so it is assuming responsibility for that interpretation; and the fire commissioner will be guided b y it; and cases within these limitations will no longer come to us. Responsibility rests with the B o a r d . " A f t e r emphasizing the fact that the Corporation Counsel had admitted that the board, as a body of experts, had a perfect right to give its meaning of any provision of the L a b o r L a w , he added: In other words, the Board has been selected with the idea that here are men who will look at this from a practical standpoint and put a practical interpretation upon the law—the idea that was probably intended by the framers, as against the interpretation of lawyers, who consider perhaps more exactly the language rather than the technical intent. So I say again that the Board is entirely within its rights in considering this. Commissioner Holden interrupted the chairman with, " I f we h a v e the right to m a k e a decision in an individual case, we certainly h a v e a right to m a k e a rule [general r u l i n g ] . " T o this C h a i r m a n Miller replied: We are interpreting the law. Of course, we could interpret the law for each individual case, if we prefer, as they are brought to us. It cannot be brought to us in most cases, because orders or decisions would be so old they could not come to us. If we are passing on this as a modification of the Labor Law, we have no jurisdiction (except as members of the Board of Standards and Appeals). But this is presented [upon the insistence of the chairman] as an interpretation of a provision of the law and as such we can consider it (as members of the Board of Appeals) and lay down a general interpretation. In concluding the case, a resolution was made not to sustain the order of the fire commissioner and to grant the appeal. T h e n followed the general resolution: Resolved, further, that when employees or other occupants of a building are unable easily to escape from the roof of such building to an adjoining roof or structure . . . and where there is no other adjoining

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or nearby structure to which easy access from the roof of an existing building in the meaning of section 79-b-l of the Labor Law, the Fire Commissioner shall require stairways to be extended to the roof. . . . 81 A "green" superintendent of buildings had placed a violation upon a new tenement house, on the ground that the division walls (which he interpreted to mean "fire partitions") dividing the floor area in excess of 2,500 square feet had not been carried up above the roof. 82 He had arrived at his conclusion by construing section 72-1-c of the Building Code in connection with some three or four other sections. In the appeal to the board, the owner's architect placed his own construction upon the same provisions of the law and asked the board to grant relief from the violation and to make a general ruling to the effect that partition walls in a residence building were sui generis and not fire walls or fire partitions. The chairman, who had been the technical adviser to the Board of Alderman during the revision of the Building Code, settled the matter once and for all by saying, " I think I can explain the difference, [one] really made on purpose. 'Interior partitions' was deliberately used for residence buildings in contrast to 'fire wall' and fire walls must be shot up three feet above the roof." The petition was granted for the removal of the violation, and a general resolution was made as follows: Resolved, further, That interior partition walls in non-fireproof tenement houses, provided for purposes of limiting the area of the sections of the building to less than 2500 square feet to comply with the requirement of section 72-1-e of the Building Code are not required to be extended to the roof.83 The professional building interests recognized the value of the Miller board in attaching general interpretations to cases on appeal. The following comment appeared in one of their magazines: 8 4 [The Board] has ruled that existing stables and existing garages are in the same category; that a stable may be converted into a garage or Other Labor Law appeal cases: 233-16-A; 390-16-A. = 361-16-A. 8 3 Other Building Code appeal cases: Cal. Nos. 324-16-A; 328-16-A; 361-16-A; 378-16-A; 445-16-A; 162-17-A; 1737-17-A. 84 Record and Guide, Feb. 3, 1917, p. 43. 81 8

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3

vice versa, provided structural alterations required for the changed use are within limits, and that all other laws and ordinances affecting the use are complied with. The decision in the case which brought out this ruling was mailed not only to the applicant, but to each of the Superintendents of Buildings, with the information that similar cases need not be sent to the Board of Appeals; that the ruling thereby established should be deemed to govern without further individual appeals. . . . [This indicates that] the policy is being followed to save not only the time of the Board, but of the various Superintendents . . . and the public, as well as the patient, long-suffering, taxpaying real estate owner.85

The Board of Appeals, under direction of its chairman, was pushing forward the movement for city-wide uniformity of the laws dealing with matters relating to building. The burden of the legal provisions was that the board should build up generalities out of numerous specific cases. In the opinion of the board, that was too slow a method for meeting the instant and pressing demand. General interpretative regulations, as defined previously,88 at the best, were made by the local borough superintendents in conjunction with the borough presidents. There simply was no general agency in existence for making interpretations that would cover the entire city. 87 Hence the board used, wherever possible, an appeal as a significant notice of a need for a general illumination of a particular "dark continent" provision of the law and proceeded to notify all interests concerned, as well as the enforcement officers, that it would act upon that interpretation until it should see the need for changing it or until the courts should nullify it as contrary to the intent of the law. In other words, the second resolution, regardless of what decision was made as to the specific appeal, was 85 Owing to the fact that the Board of Appeals for the period 1916-17 failed to publish many of its resolutions or published them in later Bulletins, it has been difficult to place this particular one, but it might well be Cal. No. 164-1916 or No. 400-1916. 86 See supra, ch. v, p. 168. 87 The board's official list of general resolutions did contain one general interpretation of the Labor Law made by the Board of Standards and Appeals, Cal. No. 343-16-S, which involved a petition for a variation. The wording was as follows: "It is the opinion of the Board of Standards and Appeals that an establishment in which the persons employed therein are employed in the coloring of photographic prints or work of a similar nature is not deemed to be a factory." This board's generalizations have generally rested on stare decisis, as commanded by the terms of the law itself.

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the law until superseded. The board, however, did not feel itself bound to this method of generalization. Occasionally, at the direct request of the superintendent of buildings, it gave a general ruling as to the meaning of a section of the law. For example, it responded to the request of the Brooklyn superintendent for a declaratory statement as to the meaning of section 4 of the Building Zone Resolution relative to the percentage of a business building that could be used for factory purposes.88 This general function, one altogether desirable, in the opinion of the writer, was given up in large part by the immediate successors of the Miller board. It was to meet this need, in part, that the McCall Act came into existence, which set up the Board of Buildings.89 John P. Leo succeeded R. P. Miller as chairman of the Board of Appeals late in March, 1918. His associates were good Tammany men, subject to the usual pressures of their political chief, Mayor Hylan. The city administration, in turn, was being more and more subjected to the demands of the national war machine, more especially to the National War Industries Board in the field of building. At a dinner speech 90 Leo announced his attitude as to the functions of the Board of Appeals: "I am convinced that the Board is a court of equity rather than one of law and that common sense and good judgment should be the keynote of all [its] rulings. The result of this is that attorneys and others cite legal opinions and quote the law only as it applies to the cases at issue." He was merely repeating the attitude of Chairman Crawford of the old Board of Examiners, of which he used to be a member. What he really meant was that each case would take care of itself, that no general rulings would be made for the future, and that whatever general principles might be developed out of specific cases would have to evolve in the future. His criticism of the Miller board was that it had failed to publish 98 of its resolutions in the exact form required by law and that 197 had never been published at all. Not a word of direct criticism was uttered against former chairman Miller's general resolution policy. But within the limits of his general pronouncement, he was determined to go ahead, regardless of local or national 88 90

Cal. No. 362-1916-BZ. Record and Guide, April 27,1918.

8

»L. 1933, ch. 764.

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policies. When the Broadway Association petitioned the mayor to call a halt upon the enforcement of the building laws, his response was quick and ready: "It is not the policy of the Board to adopt a general policy of setting aside laws and going on a moratorium. . . . Individual cases alone can be considered from this standpoint. The Board of Appeals is a legislatively created body with duties and powers named. It is not within the power of any city body to order a discontinuance or modification of law covering such cases." 91 Chairman Leo, however, did not adhere strictly to his "decision in each case" policy. During his incumbency, the board passed at least four general resolutions which involved the Building Code, the Zoning Resolution, and the Labor Law.92 Regardless of the particular designations, three of the general resolutions were appeals of the kind the Miller board passed upon. One 0 3 was rendered as an interpretation of section 3 of the Zoning Resolution, at the request of the Brooklyn superintendent. It read: "It is the sense of this board that bill boards are within the purview of the objectionable and prohibited features under the Building Zone Resolution in a residence district." All such resolutions were sent to the various superintendents, on the understanding that they were to act upon them without coming to the board.94 The Leo board introduced a practice, inherent in the interpretive resolutions, of reconsidering such resolutions. The board recounted its action in response to a request for an interpretation of a reinterpretation which the board had made in connection with the Miller board's Calendar Number 549-17-A (BZ), relative to the 01

Record and Guide, June 29, 1918. Cal. Nos. 1150-18-A; 1486-18 ( B Z ) ; 1548-18 (BZ) ; 1690-18-A. Cal. 1548-18-A. 84 Jan. 28, 1941, the clerk of the Board of Standards and Appeals allowed the writer to examine a single extant copy of a small book styled Rules Board Standards and Appeals, Board oj Appeals, 1920, by J. P. Leo, Chairman. This booklet was published for the two boards alone and, among other things, contained all general interpretations made by the boards up to the time of publication. It was intended as a guide to action in the future and, according to the clerk, still served that purpose. It evidently was used as the basis for the assistant engineer's manuscript list of general interpretations, since the regulations listed above were almost identical for the period covered. This was additional evidence of the trust which the Leo Board placed in the general rulings on the building laws. 82 83

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meaning of section 4 of the Zoning Resolution. The request was granted in the following words on March 16, 1920: Whereas the Board of Appeals at its regular meeting, December 16, 1919, unanimously rescinded an opinion incidentally expressed and incorporated in a resolution adopted May 5, 1917, in acting on Cal. No. 549-17-BZ. This opinion was that a laundry is not a prohibited use in a business district under the Building Zone Resolution. The Board unanimously rescinded this expression of opinion, in as much as a laundry is a factory within the meaning of the Labor Law and must be so construed under the Building Zone Resolution in the absence of any definition therein to the contrary. Resolved, That this shall not be construed to include within the prohibited uses specified under sec. 4 of the Building Zone Resolution a community or neighborhood laundry located in the basement or ground floor of a building within a business district and containing not more than eight rotary washing machines with inside cylinders not more than 30" in diameter by 30" in length over all nor more than two twenty-inch extractors, the twenty-inch measurement being the diameter of the inside basket, which machines and extractors shall be operated solely by electric power and do not require the installation of a steam boiler for the plant. By this reinterpretation, the board, troubled by the terms of the competing Labor Law, created out of whole cloth a theretofore legally unknown category of laundries, namely, a "community" (or "neighborhood") laundry, which might be set up in a business district regardless of the Labor Law. The type of laundry which brought about the reversal of the Miller board's general resolution and which was adumbrated in the definition of a community laundry was designated by Chairman Leo as a "wet wash" laundry. 95 Thus the board's conscience was satisfied by the compromise rather than by the absolute overturn of the original general resolution. 90 The Leo board did not seem called upon to change, on its 85 The two categories of laundries, community and wet wash, were clearly brought out in Chairman Leo's correspondence with a certain interested party between Feb. 24, 1920, and the reinterpretation of March 16, 1920. See Folder for Cal. No. 54917-BZ. 96 Chairman Miller had recognized the apparent contradiction which caused the Leo board to compromise, but he solved it by giving the applicant the following advice: "That does not give you, Mr. Higginson, any rights under the factory or Labor Law and I understand you recognize under the Labor Law that a laundry is a factory? . . . For that reason you must still comply with the Labor Law. While it is a factory within the meaning of the Labor Law, lor certain purposes, this action says it is not a factory within the meaning of the Building Zone Resolution."

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own action other of its predecessor's general interpretations. They were added to the law and became the basis of action, modification, or reversal of the future boards. Direct general interpretations did not appear with any great frequency under the chairmanship of William E. Walsh. The view which the new chairman took of the character of the work of the Board of Appeals appeared off and on in the administrative hearings and in the board's defense of its decisions before the court during the period 1921-30. He made a reasonably clear statement of this view in a colloquy with an attorney at one of the hearings: Your objection is entered. We are not guided by rules of evidence. We are laymen. The cases are more like cases in equity—proceedings for reasonable relief.97

This conception followed in part that held by the old Board of Examiners, the provisions of the law, and, in theory, the view of the Leo board. The interpretation of "reasonable relief" signified that the board had, or ought to have, complete freedom in adjusting property rights of individuals on the basis of what its members considered just in each case, rather than that the board should follow a general standard set up in the law. This practice, however, went beyond the intent of the law. Uncontrolled by the courts, this free basis of decision in particular cases might have led to certainty, in terms of stare decisis, but the original administrative decisions did not so indicate.98 Despite the emphasis upon the specific decision, the Walsh board recognized the existing general resolutions, for the most part, and happened to run into the field of general interpretation on its own account. Calendar Number 987-26-A was an interesting case, in that it represented both a general interpretation and the general attitude of the board toward general resolutions. A superintendent of buildings had interpreted a section of the Building Code 99 to mean that a fireproof floor construction was really not fireproof when it was topped with non-fireproof cork and linoleum. The ap87

Cal. No. 14S0-24-BZ and Minutes, 1707, C. and P. E. g., Peo. ex rel. Lovett v. Walsh, 220 App. Div. 756, 1927, and 1707, C. and P.; Pounds v. Board of Standards and Appeals, 129 N.Y. Misc. 676, 1927, aff'd, 223 App. Div. 861, 1928, aff'd. 248 N.Y. 591, 1928, and 1725, C. and P. In re Forman v. Walsh, 217 App. Div. 1926, and 1659, C. and P. »» Sec. 356. 88

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plicant on appeal stated that he was not asking for a variation in order to be allowed to use the completed building, but that he was calling upon the board to make a general interpretation of the provisions of the code involved. The decision was that any affixed topping would have to be tested out before it could be approved, since such finishing was part of the required fireproofing. This was, in fact, a broad and costly interpretation of an important provision of the law.100 Immediately following the decision, the president of the borough concerned asked the board that he be advised of the ruling in the matter of finished flooring and all other interior finish and trim specified in section 356 of the code, in order that the building department might be guided aright in the future. Chairman Walsh's reply was in part as follows: This Board, of course, gives no general interpretations of any law. Very occasionally, a resolution of the Board, adopted in a specific case, the Board designates as a "General Resolution," applicable to all similar cases. . . . The authority of this Board is limited by law to decisions in specific cases on appeals from the orders of administrative officials having jurisdiction. . . . Therefore, in reply to your letter, I would say that the Board of Standards and Appeals has made no change in the application of the law regarding floor covering or flooring, and the question raised is a question of fact, in my opinion, rather than a question of law. . . .

Upon the basis of this statement, it was evident that the chairman either denied that general resolutions were not general interpretations or that such general resolutions had been made or might be made, subject to change at the will of the board. His position was a defense of the action taken in Calendar Number 987-26-A, on the ground that it was merely a question of fact as to whether the finishing of the floors was fireproof. The case, on appeal to the courts, was affirmed by special term, but was thrown out by the higher court in that the board had made a broad but incorrect interpretation of the code.101 In the same year, however, it was revealed 100

For Hearings, see 1695, C. and P. Peo. ex tel. 475 Fifth Ave. Corp. v. Walsh, 221 App. Div. 100, 1927. This decision might have made the board more wary of making general interpretations in the future or of applying existing interpretations of like kind. 101

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in connection with a garage case 102 that the board on November 12, 1922, had established a definite policy relative to a certain area in upper Manhattan. At the hearings leading up to the instant case, Chairman Walsh remarked: "This Board has held [that] because of the uninvaded area north of 181st Street, the west side of Amsterdam Avenue should be reserved, because there is evidently sufficient accommodation on the east side." More emphatic was Chief Kenlon: "The Board went so far as to give voice to a general expression and that was that the west side should not be invaded with garages, and. that we want to hold to." Though the appellant argued that he had failed to secure his variation because of the board's general arbitrary resolution, he found the court deaf to his appeal. Again, on the basis of the quotation cited above, the board might follow or refuse to follow existing general interpretations. Regardless of the legal technicalities later involved, the board actually gave its sanction in 19 2 9 103 to the famous "community laundry" resolution 104 made by the Leo board in the form of an amendment to an amendment. A superintendent of buildings had issued a permit for a community laundry, but upon finding that the machinery to be installed was that of a wet-wash laundry, had revoked it. The applicant appealed to the board to restore the permit, but was denied on the ground that the machinery did not correspond to the general resolution of 1920, which was the basis of the superintendent's action. 105 The appellant did not ask special term for an order of certiorari, but applied for a writ of mandamus to compel the superintendent to reissue the permit. The court denied the writ, on the ground that the appellant should have exhausted his administrative rights by an appeal to the board upon the specific question of the legality of the basic general resolution. Said the court, "It is not to be presumed [as the appellant had] that if the resolution was erroneous the Board would now have adhered to it." 102 Peo. ex rel. Third Ave. R.R. Co. v. Walsh, N.Y.L.J., April 7, 1926; 220 App. Div. 760, 1927; 1711, C. and P. 3 i° Cal. No. 967-28-A. i°< Cal. No. 549-17-BZ, 1920. 105 On Jan. 23, 1929, Chairman Walsh had interpreted Cal. No. S49-17-BZ, as asserted, to include all factories of a similar nature. See letter in Calendar folder from C. P. Connella, architect, and Walsh's reply.

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The appellate division reversed the lower court and ordered the permit to be issued, on the ground that the general resolution, as amended in 1920, was contrary to law. The original Miller resolution was to all intents and purposes good, since any kind of laundry might legally be placed in a business district. 106 The board's only part in killing the resolution was its attempt to enforce it. Another general resolution of the Miller board successfully ran the gantlet of both the board and the judiciary. 107 It was rescinded as a general resolution, to be sure, but it was embedded safely in the codified rules governing factory exits. 108 In the opinion of the writer, continuing and successful interpretations might well be included in codes of rules or in local or state law. Every general interpretation of the Miller board did not turn out to be sound in practice. As early as 1927, Chairman Walsh's attention was called to the encroachment of office buildings in residence districts. Upon inquiry, he found the encroachment to be based upon an early interpretation of the zoning law, relative to doctors' offices. 109 The board took the following action: Whereas, the resolution was based on an appeal taken from an administrative determination of a question as to the conduct of a doctor's office with professional practice; the question being raised at the time, the outset of the Building Zone Resolution, which had only then been enacted, Whereas, under misapprehension and unwarranted interpretation between a doctor's personal practice and accessory uses and an office building for doctors (commercial characterization only), permits have been issued by the several bureaus of buildings, the Board deems that in harmony with general administrative integrity of the zoning resolution, that resolution should be rescinded; and Whereas it was the intention of the Board to adopt the resolution only as to the conduct of a doctor's office with accessory practice as being permissive in a residence district, but at no time to embrace, include, recognize or permit an office building for doctors, as there can 100

Stein v. Flanagan, 228 App. Div. 668, 1929. >n" Cal. No. 381-17-S or -A. Cal. No. 67-27-SR.: "Whereas, under Cal. No. 381-17-S, the Board adopted, April 10, 1917, a general resolution affecting the extension of stairs to the roof where there is no safe egress therefrom; Whereas this resolution has been superseded by factory exist rules under Cal. N o . 6 4 - 2 7 - S R ; be it Resolved that the general resolution is rescinded." 109 Call No. 262-26-A, rescinded Jan. S, 1928. 108

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be no difference between an office building for doctors and a doctor's office building, it becomes a business building; therefore, be it Resolved, that the resolution adopted under Cal. No. 262-16-A be and it hereby is rescinded as a general resolution.

A reading of the original resolution would force one to agree with the Walsh board as to the intent of the framers. Perhaps the danger of generalizing on the basis of a single administrative appeal was one of the points the rescission brought out. The interpretation of the several enforcement officers had made a good start in undoing the intention not only of the original board personnel but also of the zoning law itself. This was one case in which the incumbents of the board held to the strict meaning of the law. It was too evident that large office buildings had begun to appear in residential areas. The enforcing officers had been able, through their interpretation of the general resolution, to create a highly privileged group that did not hesitate to demand that the fait accompli be recognized by the board or, in lieu thereof, that the Board of Estimates and Apportionment allow doctors' offices in residential districts. But the board was adamant. It even went so far as to kill the generality of the original resolution and, by inference, to demand that each practicing physician who wanted to set up a sanitorium, within the meaning of the Miller resolution, should come to the board and give reasons therefor. 110 After the resignation of Mr. Walsh from the board, Acting Chairman Connell was wary of making general resolutions. He was perhaps influenced by the Wet Wash Laundry decision, as well as the results of the practice in the private sanitorium cases. Time and again he avoided the very appearance of what he considered an evil—that is, general interpretations. In one case 111 the appellants insisted upon a general ruling in connection with the Zoning Resolution, but the acting chairman held that such a request could not possibly be considered, since a general resolution could not possibly come before the board in connection with an appeal from an enforcement officer. This, of course, was in direct opposition to the practice of the Miller board, whose general interpretations were 110 For the demands of two powerful groups of the medical fraternity, see letters of May, 1929, in the folder of Cal. No. 262-16-A. 111 Cal. No. 592-30-A.

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enforced by the Walsh board, whose work Acting Chairman Connell was carrying on. When the Fire Department insisted that all exits to the roof of school buildings remain unlocked, despite the insistence of the school authorities, the board was asked to make a ruling in favor of schools. I t was recognized as a difficult problem to solve, but the acting chairman remarked, "Whatever you do, it will only apply to one case. You will have to get the law changed for a general rule." 112 Insofar as the writer's knowledge goes, the refusal to make a general resolution had no relation to the particular type of "appeal," administrative or petitionary. There was a falling back to the special cases and possibly to stare decisis. At the close of 1940, Chairman Murdock had entered his ninth year as director of the Board of Standards and Appeals. His incumbency covered five years under the old charter and at the time of this writing he had entered well into the fourth year under the 1938 charter. Under his leadership the board had accepted the general interpretations of his predecessors, except insofar as they had been superseded by changing conditions, by laws, or by judicial action. The clerk of the board, on the initiative of one of his subordinates, had kept a file of "general interpretations" made since the passing of the Leo chairmanship. An analysis of this file, however, indicated that it represented both positive and negative actions that somehow represented several phases of administrative lawmaking. Some resolutions were either amendments made to rules formerly established by lower administrative officers or simply rules made by the board itself under delegated rule-making power; 113 others were more or less hortatory prescriptions made in the furtherance of good procedure; 114 still others indicated the refusal of the board to make general interpretations of particular provisions of the law except upon appeal from an administrative decision. 115 The remaining resolutions that had the appearance of being general involved the Administrative Code, the Building Zone Resolution, and the Multiple Dwelling Law. 1,2

113 Cal. N o . 542-30-A. E. g., Cal. N o . 809-40-GR; Cal. N o . 1139-39-SR. E. g., the resolution without calendar number, dated Jan. 6, 1933, 18 Bull. B.S.A. 48, requesting the fire commissioner to have present at all hearings on fire orders a member of the Fire Department. 115 E . g . , Cal. N o s . 886-921-922-39-GR. 114

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The Administrative Code classified lath as "combustible" or as "metal" and named the conditions under which each might be used. 116 The board ruled that the former could be used instead of the latter under given general conditions.117 An administrative decision clarified the code as to the point at which a solid masonry wall might be reduced in thickness.118 In 1935 an early general resolution requiring moving picture theaters to install standpipes was rescinded for all theaters devoted exclusively to such activity. 119 Under the Building Zone Resolution, the board gave a standard interpretation of the space permitted for manufacturing purposes in retail district structures; 120 permitted the replacement of signs, which had existed on noncomforming uses prior to the effective date of the zoning regulation, with those "similar in quantum and quality"; 121 and reinstated the Miller board's general resolution permitting hospitals and sanitoriums in residence districts. 122 The Multiple Dwelling Law, 123 with its numerous obscure provisions, had given enforcement officers trouble from the beginning.124 The state legislature endeavored to clarify the law during the period 1930-40 by making forty amendments or additions. 125 The general resolutions of the board were, for the most part, merely 117 « • C26-458.0 and C26-459.0. Cal. No. 122-40-GR. 118 Cal. No. 308-38-A, interpreting sec. C26-427.0, subdiv. c. 118 Cal. No. SS4-20-A, as amended, 20 BuU. B.S.A. 235. 120 Cal. No. 228-36-BZ, clarifying Art. II, sec. 4-a. 121 Cal. No. 375-38-GR; same Cal. No. used as basis for decision in Cal. No. 105840-A, interpreting Art. II, sec. 4, subdiv. 49 of BZR. 122 Cal. No. 262-16-A, rescinded by the Walsh Board as a general resolution, 1928, because of its distortion by enforcing officers. 128 L. 1929, ch. 713. 124 See Annual Report of the President of the Borough of Manhattan, 1930, pp. 147-48; First Annual Report of the Department of Housing and Buildings, 1938, p. 9, wherein the plaint against the wording of the M.D.L. was kept up, ending with, "If the man power were employed to enforce the law fully and promptly, then so many dwellings would be closed that thousands of people would be put out on the street and would be unable to find shelter of any kind." 125 See The Multiple Dwelling Law, New York, 1939, edited by William Wilson, Commissioner of the Department of Housing and Buildings, with inserted amendments for 1940. According to State Senator Thomas C. Desmond, at least fourteen bills emending the M.D.L. were passed by the N.Y. state legislature and were before Governor Lehman for approval or veto in April, 1941. The bills were designed to permit economies in construction and planning, to insure fire protection, and to clarify the existing MJD.L. New York Times, April 20, 1941, XI, 5: 1.

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statements of the pertinent provisions of the statute. 128 Two resolutions, however, were interpretations of a general nature. A superintendent of buildings had ruled that old-law tenement houses over three stories in height should have all doorways opening on public halls provided with approved, one-hour fireproof, self-closing doors. The board on appeal reversed this decision and resolved that such requirement was not necessary, unless structural changes were actually made. 127 On October 6, 1936, the board, by general resolution, established what constituted a cellar or basement and. therefore. the number of stories and maximum height of a building. 128 In this way, order, for the moment, was brought out of the chaos wrought by administrative practice. This review of the efforts of the Board of Standards and Anneals since 1916 to add to the law by general resolutions shows that the method was commonly used during the first two years of its existence, but gradually diminished during the following years; that the original internretations, based upon common sense and experience, were adhered to wherever possible. Among the causes that worked to slow down the process were, perhaps, the "settling down" of the basic laws and regulation, the sharpening of the provisions in the Administrative Code of 1938, the finding of the case by case method more satisfactory, and the fear of judicial action. Back of all these was the often-expressed desire of the groups affected for stability and certainty in the laws and regulations touching the vast field of housing and building. This statement, it must be remembered, applies only to the board's generalizing resolutions, though such resolutions seem to combine both the particular and the general. 126 127 128

See e . g . , Cal. N o . 2 - 3 9 - G R and Cal. No. 98-38-A. Cal. N o . 203-36-A, interpreting sec. 258, subdiv. 4. Sec. 141 in connection with two subdivisions of sec. 4.

7. The Charter of 1938: A Movement toward the Ideal in Building Control main result of the various state and local investigations of the New York City administration during the first half of the 1930's was the complete overhauling of the charter of 1901. Owing to the doubtful constitutionality of the first Commission set up by the legislature, 1 a new Commission was created, 2 the personnel of which was named by Mayor La Guardia. The members, though thev were for the most part persons trained in law, represented the various city interests. 3 The Commission was organized for work late in January, 1935, and, after a series of public hearings, released a preliminary report and a proposed new charter on April 27, 1935. Hearings were then held on the new proposals, but no fundamental changes resulted. The final draft was filed with the city clerk on August 17, 1936, and on November 3, 1936, was submitted to and approved by referendum of the people of the city. The approved charter did not go into effect, however, until January 1, 1938. This was due to the fact that the legislature had been persuaded to adopt a novel plan for reorganization, of which the charter itself was only one part. This new plan had been urged by the Charter Revision Commissions of 1907 and 1908. The scheme originated in the desire to check the extreme interference by the state legislature with the New York City organization and 1 L. 1934, ch. 689. See also C. W. Tooke, "The New York Charter Commission," New York University Law Quarterly Review, II (1934), 1-16. 2 L. 1934, ch. 867, as amended by L. 1935, ch. 292. ' T h e list follows: Judge Thomas D. Thacher, Chairman, S. J. Black, Mrs. W. P. Earle, Jr., Fred L. Hackenburg, Charles E. Hughes, Jr., Joseph D. McGoIdrick, Charles C. Meyer, Thomas L. Parkinson, Judge Joseph M. Proskauer.

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administration and was based upon the analogy between the fundamental law of the state and Federal Constitutions and the passing of statutory law to effectuate such fundamental law. In fact, it was closely connected with the demand for home rule. Said the Charter Commission of 1907: 4 The foregoing review of the evils of continual legislative interference in matters of local government and of the extremely complicated character of the present city organization, suggests the necessity for dividing the charter into two parts, one to constitute the organic law of the city's being; the other, an administrative code for the guidance of the departments created by law. . . . The administrative code, if this plan be adopted, should contain all of the purely administrative provisions of the present charter, amended so as to harmonize with the revised organic law. The Legislature should enact this code in the first place. Thereafter its amendment should be in the control of a local legislative body, and should be made so difficult of enactment by the State Legislature as to prevent expenditures, improvements, increases of salaries and other interferences in local affairs without the clearest possible demand from the responsible authorities, or the people of the city as a whole. T h e same method was proposed by the Charter Commission of 1908 and with f a r greater elaboration. 5 T h e legislature rejected both proposed charters, and in J a n u a r y , 1910, the Legislative Committee on the C h a r t e r of N e w York City reported specifically against the division of the city law into two bodies, as contrary to "the chemistry of modern legislation." 6 T h e period intervening between the adoption of the new charter and its effective date was devoted to the working out and adoption of an official code, which was to make the charter whole by setting forth all directions for administering its organic provisions. Evidently the passing of the 1923 H o m e Rule Amendment and the City H o m e Rule Law 7 cleared the way for the introduction of the method. T h e board of Statutory Consolidation, composed of high 4 Separate edition of the Report of the Charter Revision Commission of 1907 to the governor of N e w York, ch. 600, pp. 18-20, N e w York City Public Library. 6 Separate Report of the N e w York Charter Commission to the legislature, March 8, 1909, pp. 5-6, N e w York City Public Library. 6 N e w York Assembly Document N o . 5, pp. 7-8, 1910. 7 L. 1924, ch. 363.

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city officials, was the agency for carrying this great task to completion.8 The code contained all the living state laws and all the city IRWS and ordinances dealing with the details of city administration. They were placed under their proper titles without rewording or were restated in the light of judicial interpretation and administrative practice.9 For purposes of this discussion, chapter 26. especially Title C. which is the Building Code passed by the Board of Aldermen in 1937, and chapter 27 are of chief interest. In considering the main problems posed before the Charter Commission in working out the new charter, one of the most important, as regards the building agencies, was the ever recurring one of centralization versus decentralization. The idealists had deprecated the boroughized charter of 1901 and had held to the idea of a top city-wide body in the vague form of the Board of Examiners, which they were able to turn into the better institutionalized form of the administrative process between 1916 and 1934. Some felt that the Board of Buildings better represented the centralizing tendency and supported the law creating it. 10 In all the public hearings 11 a few reformers were anxious to make centralization absolute, but most of them were willing to yield something to locality, especially 8 Board created by L. 1936, ch. 483. sec. 2 especially. See Report to the Legislature, pp. xxxix-lxxvi, The Administrative Code of the City of New York, Albany, adopted by the legislature, L. 1937, ch. 929, effective Jan. 1, 1938. B "A further question arose as to whether or not the rules and regulations of the various agencies of the City should be incorporated as a part of the Code. For two reasons these rules and regulations were omitted. In the first place, the reason for delegating to any agency the power to promulgate any rules and regulations is to give that agency the administrative power. Its rules should be subject to change by the agency to meet changing conditions and the necessities of administrative efficiency. Therefore, such provisions were excluded. It was thought, moreover, that the Code should contain only law enacted either by the local or state legislature and which should be separate and apart from matters covered by administrative rules and regulations." The Administrative Code, 1938, p. Ixvi. However, in the enforcement of the Building Code, the Board of Standards and Appeals was given power to accept uniform rules, and this control was extended by the following provision: "Where not inconsistent with specific provisions of this title, the rules adopted by the board before January first, nineteen hundred and thirty-eight, by the former superintendents of buildings, and by the former board of buildings are hereby confirmed and they shall remain effective until amended or repealed [by the board]." Ibid., sec. C26189-0, paragraph b. 10 L. 1933, ch. 764. 11 Charter Commission "Hearings," Vols., I-V, 1935-36 typescript, New York City Municipal Reference Library.

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in the organization of the enforcing agencies. Rudolph P. Miller insisted that the Board of Standards and Appeals be left undisturbed, but he was anxious that all other building agencies be centralized in a building department headed by a commissioner appointed by and responsible to the mayor; that local offices be established in the boroughs for the actual enforcement of the laws and regulations, under the direction of civil service superintendents who would be responsible to the commissioner according to the terms of the civil service laws. Under questioning of Judge Proskauer, Mr. Miller said that he was willing that the existing Tenement House Department be made a separate division of the proposed central department, since so many civic organizations felt that there should be a distinction between the functions that had to do with the proper erection of buildings and those that dealt with their proper use after erection. In other words, he admitted that the old line of demarcation still held between the scientific building functions and those that emphasized the human element. 12 Chairman H. H. Murdock, of course, wished to retain the Board of Standards and Appeals, together with all its existing functions, but he would further clarify certain existing clauses of the charter. He stood for the Miller idea of centralizing the enforcing agencies and the déconcentration of detailed enforcement in the boroughs.1"1 Both witnesses agreed that the function of general interpretation should be placed in the central department, in order that uniformity might prevail. The plea for locality ranged from extreme decentralization in organization and function to something like the then existing set-up. The borough presidents, the dominant, perhaps dominated, politicos of the boroughs, were, each in his own way, insistent upon the retention of the control of borough building by the superintendent of buildings. Samuel Levy, of Manhattan, favored the existing ex officio Board of Buildings, apparently on the ground that corruption in administration could not be cured until human nature was changed! He went on to explain that all the functions of the Board of Standards and Appeals should be absorbed by the Board of Buildings, a policy, if carried out, which would throw all 12

"Hearings," Vol. IV, 1935.

13

Ibid., Vol. I, 1935.

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final administrative decisions, all variations, all rule-making, and all approvals of materials and devices into the hands of locally appointed superintendents acting pro-forma as a commission. A centrally appointed commission might be set up in some form to handle all functions of building, but the Board of Buildings was not such a commission. George U. Harvev of Q u e e n s , through his representative. fought centralization on the basis of city history and on the fact that all large European cities had been forced to recognize locality in administrative organization and function. 1 4 Borough President Ingersoll, of Brooklyn, warned that the new charter proposals had gone beyond the limit of centralization for which the political and economic interests would stand. 1 5 There was unmistakable evidence, regardless of borough jealousies, that the political chiefs sensed a popular opinion that would have to be considered in the final draft of the charter or in its practical workings. Edward H. Thatcher, Commissioner of Buildings, Brooklyn, seemed to represent the Board of Buildings before the Charter Commission. His argument was that the existing Board of Buildings was the almost perfect combination of unity and diversity in building enforcement. It had been a great boon to architects, engineers, contractors, and owners, in that it made possible the securing of permits for construction by dealing with only one central department; it had unified and simplified the method of filing plans and applications; its administration had been most simple, direct, economical, and efficient of any board in the city. The diversity end of the argument was that the five commissioners constituting the board came from their several boroughs, that they lived there and knew their constituency personally. The second point emphasized was that, under the proposals, the local superintendents would be under the jurisdiction of the city-wide and political mayor, who was backing the proposed New Deal Charter. His reasoning was that inasmuch as the mayor would have the power to appoint the head of a centralized department of buildings—who, in turn, would appoint two assistants for the divisions of housing and buildings—the lower officers, such as the superintendents, would be at the mercy of the mayor's own political necessities, even though " Ibid.,

Vol. II, 193S.

1= Ibid., Vol. V, 1936.

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they were under civil service rules.16 Commissioner Thatcher's further observation was in effect as follows: A civil service superintendent, under the proposal, would naturally wish to make that job his career. It would be expected that he would be the slave of the regulations of the centrally appointed commissioner and would send an applicant to the main office for a final decision upon any problem concerning which the superintendent was at all in doubt. As a result, the proposed scheme to save citizens of the outlying boroughs from making a trip to Manhattan would vanish into thin air and all action would lie in the central agency.17 Without exception, the various local-interest organizations, such as the borough real-estate boards, the local architects' societies and building leagues, favored the existing or some other form of local autonomy. Several of these interests stood for one central building agency in the form of the existing Board of Buildings and would give the local commissioner even more discretionary power. Only one outstanding scholar in the field of administration, Luther Gulick, of the Institute of Public Administration, wanted the local superintendent to have a real part in the building activities, since New York had already gone "beyond the limits of fruitful centralization." He insisted that the mayor would have to be provided with as many assistant overseers as there were centralized agencies. He perhaps was thinking in terms of the organization of the federal office of the President. 18 The solution of the problem, on the basis of the arguments pre18 Later events seemed to bear out the commissioner's prophecy. Some evidence was brought out during the Civil Service Investigation on Nov. 28, 1940. Edward W. Kleinert, who had acted as superintendent of buildings in Brooklyn for five years, stood fourth in rank in the examination given for superintendents of buildings. He was passed over by the Commissioner of Housing and Buildings, on the order of the mayor, in favor of men who ranked nineteen or more, purely on the basis of an oral examination taken after the written one. The reason offered was that he was too close to the Democratic machine. A Mr. Moran was fired by the department when it was erroneously reported to the mayor that he was a cog in the Kelly machine. New York Sun, Nov. 29, 1940. The Telegram and the Sun also accused the mayor of using the Department of Investigation to get rid of numerous inspectors in the department, who were later replaced by good New Deal men. New York Telegram, Nov. 9, 1940, and Jan. 14, 1941; New York Sun, Jan. 18, 1941. There is no doubt that the mayor has used all possible means in his effort to increase the efficiency of the department. " "Hearings," Vol. V, 1936. 18 Ibid., Vol. IV, 193S.

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sented, seemed to depend upon some kind of compromise acceptable to the two schools of thought, namely, that of centralization and that of local autonomy. Mayor La Guardia, in a speech before the Commission relative to this problem, 19 remarked, " I understand fully . . . the condition, the historical background, the custom and the popularity of borough government. We cannot get away from that." Commissioner Hughes 20 stated that the unique question that dogged the Commission was that having to do with the supervision of building plans. "On the one hand," he said, "there was a great desire of the builders to have single-standard, uniform conditions throughout the city; on the other hand, there was the natural desire to obviate the necessity of having people in each borough to go to Manhattan for the approval of their plans." His best guess at the solution of this recurrent problem was that there should be a civil service superintendent in each borough, whose decision should be final except on appeal to the Board of Standards and Appeals. Another question of organization, supplementing the main one, was whether or not the city-wide organization should consist of one or more agencies, the members of which should be appointed by and made responsible by the removal process to the mayor. The two viewpoints were presented at the hearings both before and after tentative charter provisions had been agreed upon by the commission. Some of those who argued for only one top agency urged, as indicated above, the retention of the Board of Buildings as then constituted, with powers augmented by absorbing those of the Board of Standards and Appeals. One or two fanatical reformers wished to have a single-headed department, responsible to the mayor and exercising all functions in building matters. The advocates of two general agencies wished to have the functions of the existing Board of Buildings vested in a single agency, headed by a commissioner responsible to the mayor, and wished to retain the Board of Standards and Appeals with its powers clarified and its members slightly more protected from arbitrary removal. While the organizational fight involved the mayor's power, the chief argument centered around the functions that were to be exercised. 18

Ibid., Vol. V, 1936.

20 Ibid.

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1938

The political and interest-group elements, for the most part, based their statements upon mere expediency, while the more objective participants in the battle grounded their reasoning upon what they explicitly or implicitly called "administrative principles." The former corresponded rather closely to the single-agency plan and the latter advocated the two-agency scheme. The "principles" set forth for the allocation of functions were roughly as follows: ( 1 ) general interpretative functions should be exercised only by the general enforcing agency; (2) the function of varying the laws and regulations should never be in the hands of the enforcing agency; (3) the function of hearing administrative appeals should not be vested in the enforcing agency; ( 4 ) the enforcing agency, as such, should never be permitted to exercise the function of rulemaking for supplementing the law. One should not have to do much searching to discover that at the bottom of the so-called principles was the good old American doctrine of separation of powers. Such a doctrine would prevent the concentration of all functions of administration in one agency, as it has prevented, in the past, the allocation of all major functions of government to a single agency. It would seem that neither the doctrine nor its corollaries should be accepted as principles of administration, since such doctrine, together with its derivatives, should be considered as a cover for political expediency or political prudence. The exercise of functions involves power over individuals, and democracy abhors concentrated power. The new charter, effective January, 1938, did represent a decided step toward centralization in the building field. The Charter Commission was of the opinion that the Board of Buildings, created by the McCall Act of 1933 and composed of five commissioners responsible to their several borough presidents, was an anomaly in the organization of the city government; and, further, that the functional relationships of that board and its borough commissioners to the Tenement House Department and to the problem of fire protection presented jurisdictional conflicts and absurdities in the regulation of building construction that were unjustifiable. The solution was a further move toward centralization and consoli-

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dation by bringing into a single general enforcing agency all functions relating to the regulation and control of planning, construction, inspection, and occupancy of most of the buildings and structures within the city limits. However, the Board of Standards and Appeals, because of its record, successfully ran the gantlet. The central enforcing agency, then, was the Department of Housing and Buildings, which absorbed the building departments in the five boroughs, the Board of Buildings, and the Tenement House Department. The internal structure of the department exposed the tenderness with which the old tenement house agency was insulated from the non-human business of actual construction : the housing division represented the former, the buildings division, the latter. 21 The Administrative Code 22 provided for two bureaus, inspection and records, the first of which had two sections corresponding to the two main divisions. In addition to the main office of the department in Manhattan, there were to be branch offices in each borough which corresponded, in organization, to a kind of administrative déconcentration.23 At the head of the department was a commissioner, whose tenure was at the will of the mayor and who represented the political-executive element in the enforcing agency. The commissioner appointed two deputies, one of whom, as a highly skilled technician in the building arts, directed the buildings division, the other of whom, perhaps as a skilled social engineer, led the housing division.24 All other persons in the department were subject to civil service regulations. Among such employees of the department were the superintendents of buildings in the five boroughs. According to Commissioner Wilson, 25 an examination had been conducted for the position of superintendent of buildings in the several boroughs and, as a result, the borough building departments had been named by high-grade civil servants, all of which 21

Charter, sec. 642, and Annual Report of the Department of Housing and Buildings, 1939, p. 7. 22 Administrative Code, sec. 641-3.C. 23 Charter, sec. 654. 24 The housing division administered the Multiple Dwelling Law, which Commissioner Rheinstein defined as "a legal interpretation of a social viewpoint on a physical condition." First Annual Report of the Department of Housing and Buildings (1938) p. 9. 25 Annual Report of the Department of Housing and Buildings, 1939.

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was done in harmony with "the intent and purpose of the Charter and the policy of the Mayor." 26 The powers granted to the Department of Housing and Buildings were numerous. It was to enforce the Multiple Dwelling Law, the Labor Law, and such other laws, rules, and regulations as might govern the construction, alteration, maintenance, use, occupancy, safety, sanitary conditions, mechanical equipment, and inspection of buildings or structures in the city; it was to have charge of the removal of buildings and other structures and of the location, construction, alteration, and removal of signs of every description located outside buildings, together with all surface and subsurface construction within the curb line, including curb cuts and driveways, the coverings thereof and entrances thereto, and the issuing of permits in reference thereto. City-owned water-front property, bridges, tunnels, or subways, or structures appurtenant thereto, were the only exceptions to its jurisdiction. As a result of the incorporation of the old tenement house administration, the duty of working in close cooperation with various housing authorities and the city planning commission had been imposed upon the department. 27 The department, through action of its chief, was given power to issue regulations in certain cases for governing the orderly enforcement of the laws, as well as the regulations made by the Board of Standards and Appeals. The commissioner was to prescribe the manner in which records were to be kept; 28 to make regulations in relation to the division of housing, which the appeals board could not vary or modify; 29 to discipline employees for violation of rules; 30 and to lay down rules for the registration of plumbers. 31 Two further powers of rule-making were of greater import: (1) "The plumbing and drainage of all buildings, both public and private, . . . shall conform to the rules and regulations adopted by the commissioner." This was in direct opposition to the general power by the Board of Standards and Appeals to make rules with 26 Mayor La Guardia boasted that he had injected scicnce into New York government by setting up a nonpolitical administration, by covering into the civil service key positions as well as minor positions. He was sure that political civil servants had been kicked out the front door and would never return through the rear entrance. New York Advancing, New York (1939), pp. xv ff., Rebecca B. Rankin, editor. 27 28 Charter, sec. 643. Administrative Code, sec. 641-5.C. 29 30 31 Ibid., sec. 666-(6) -2.0. Ibid., see. 642-3.0. Ibid., sec. C26-210.0.

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the force of law, as given in paragraph 3, section 666, of the charter. Consequently, the legislature 32 harmonized the code and the charter by leaving such power to the board. (2) The statement "Subject to the regulations of the department, the superintendent shall have exclusive power" 33 involved a possible serious conflict between the central enforcing agency and its local agents. "The term 'superintendent' shall mean the administrative official in charge of the branch office of the department of housing and building in a borough of the city." 34 On the basis of this relationship to the department, the superintendent was subject to the general disciplinary power of the commissioner for disregarding the internal rules of the central office. Also, the phrase "subject to the regulations of the department" would imply the same control, unless the term "regulations" implied a wider regulatory power than mere internal control of inferior officers. Even then, their violation, as a part of the building laws, could bring punishment to the superintendent. Whatever this phrase was intended to mean, there was an apparent contradiction between the phrase and the remainder of the clause, "the superintendent shall have exclusive power, which shall not be subject to review except by the board of standards and appeals." 35 The charter bestowed wide powers upon the borough superintendent. He was to examine and approve or disapprove plans for the construction or alteration of any building or structure in his borough and to direct the inspection of such building or structure during the course of construction or alteration. He was to require that the construction or alteration should be in accordance with the provisions of law, regulations, and orders applicable thereto; but when there was a practical difficulty in the way of carrying out the strict letter of any provision of law relating to buildings in respect to the use of prescribed materials or methods of construction, and when equally safe and proper materials or forms of construction might be employed in a specific case, he might permit the use of such materials or of such forms of construction, provided that the spirit of the law should be observed, safety secured, and « L. 1938, ch. 460. 34 Administrative Code, sec. C26-149.0.

33 35

Charter, sec. 645-a. Charter, sec. 645-a.

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substantial justice done. The term "practical difficulty," owing to the insistence of Chairman Murdock, of the Board of Standards and Appeals, excluded any "difficulty" in relation to the height or bulk of any building, required open spaces, dimension of open spaces or of yards and courts, means of egress or of sanitation, or devices for prevention or alarm in case of fire. The superintendent was specifically prohibited from exercising the power to vary the provisions of the law in any other respect, "except as allowed therein, or of any rule, regulation or order of the fire commissioner or of the board of standards and appeals." After the completion of a building or structure, the superintendent could issue a certificate of occupancy, under stated conditions, which was to remain binding and conclusive upon all state and local officers until it was set aside or vacated by the Board of Standards and Appeals or by a court of competent jurisdiction. The commissioner could, however, assign additional duties other than those that involved the work of the division of housing.30 The Administrative Code gave the individual superintendent limited rule-making powers relative to projections beyond the building line 37 and to the superintendents, as a group, the power to formulate rules for the examination of applicants for the positions of welder, and standpipe and boiler operators.38 The Board of Standards and Appeals was reestablished, in the form which it had attained in 1934, as the highest nonenforcing agency in the building hierarchy. The three appointed members were unable to persuade the Charter Commission to eliminate the ex officio representative of the Fire Department. Three changes, however, were important: the appointed personnel were required to give all their time to the work of the board; their salaries were not to be reduced except as a result of a city-wide reduction of salaries; and no one of them could be removed by the mayor until proof had been established at a hearing to the effect that he had committed certain named illegal acts. 30 Stated negatively, the board differed from the department in that it was not an enforcing agency; stated affirmatively, it had the general power to test, as 30

37

C h a r t e r , sees. 645 and 646; A d m i n i s t r a t i v e Code, see. C26-4.0. 3 Ibid, C26-220.0. Ibid., C26-211.0 to 13.0. '-> C h a r t e r , sees. 661, 662.

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well as to lay down general rules for testing and approving materials and appliances, to make rules with the force of law, to vary certain laws and regulations, to hear appeals from decisions of the building superintendents, and to view premises in the furtherance of its functions. 40 The materials available to the writer on the functioning of the Department of Housing and Buildings within the framework of the new charter were limited. However, certain tendencies could be charted and certain squeaks in the administrative machinery could be located. 41 Commissioner Rheinstein, in addition to an elaborate description of the internal organization and manning of the department, stated, almost incidentally, that the five borough superintendents met weekly with the first deputy commissioner of buildings and the deputy commissioner of housing to exchange experiences and to maintain currently a uniform interpretation of the rules, regulations, and laws which the department enforced. Furthermore, he said that the chief inspectors in charge of housing met monthly to coordinate the business of the housing division.42 Commissioner Wilson, in reviewing the work of the department for the year 1939, was more outspoken. He used section 645-a of the charter as the beginning, if not the end of the enforcing process. His general interpretation of that section was as follows: "The department is required to adopt various regulations for the proper administration and interpretations of the laws governing the use, occupancy, construction, alteration, and maintenance of structures in New York City." 43 The commissioner was merely stating his regulatory power in terms of the rulemaking power of the Board of Buildings under the McCall Act. 44 The duties of that board were clearly recorded: it was to formulate city-wide rules regulating the methods of the departments of buildings and the interpretation of all laws and ordinances affecting the city. In other words, the commissioner considered that it was the 40

Ibid., sees. 665-66. For the work of the Board of Standards and Appeals, see chap. vi. 42 First Annual Report of the Department of Housing and Buildings (1938), p. 11. " Annual Report of the Department of Housing and Buildings (1939), p. 7. 44 L. 1933, ch. 764, sec. 406. 41

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duty of this one department to make rules governing its business affairs, as well as those interpreting the laws and administrative rules touching the building field. The concept of uniformity of enforcement in the interpretation of laws had been stressed at the hearings before the Revision Commission. Rudolph P. Miller, H. H. Murdock, R. V. Ingersoll, and E. H. Thatcher had, in one way or another, emphasized the need for such uniformity in any new set-up of the building enforcement agency. Indeed, all the advocates for the retention of the Board of Buildings had stressed the same idea. 43 The commissioner, therefore, must have felt that he was on solid ground. According to his statement, the joint meetings of the superintendents and the deputy commissioners had been changed from a weekly to a monthly basis. He insisted that the work done at the meetings had effected economies in administering the building laws and had increased the allaround efficiency of the department. More specifically, the conferences had resulted "in the establishment of city-wide uniform rules and regulations governing all such matters, together with a uniform interpretation of all building laws, the various state and local laws ordinances and rules and regulations pertaining thereto, including, among other things, the New York Charter, the State Labor Law, the Building Code and the Multiple Dwelling Law." 46 Rumors were afloat as to the details of the process by which the department secured uniformity of action in the divisions of buildings and housing. Since there were no written records open to the public as to such details and since there were no published uniform rules resulting from the whole process, it appeared that whatever was done remained the secret of the department and its employees. 45

See especially Hearings, Vols. I, IV (1935) and Vol. V (1936). Compare the following similar statement, accepted and signed by Mayor La Guardia: "However, the benefits resulting from the consolidation of departments and the adoption of the new [Building] Code are, first, the saving of time and money for all those concerned with matters pertaining to building construction, real estate, and the maintenance and use of property; second, it provides the City of New York a method by which it may save money in the administration of functions concerning inspection of buildings and property, equipment thereof and appurtenances thereto; and, third, it makes possible the establishment of city-wide uniform rules and regulations governing all such matters, together with a uniform interpretation of all building laws." New York Advancing, New York (1939), p. 84, edited by Rebecca B. Rankin for the mayor. 46

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249

Therefore, it would seem, the builder would have to learn the department's generalizations through the application of them in specific cases by the superintendents or the housing inspectors. To the writer such secrecy did not seem fair, since it was contrary to the announcement that general rules were being made for the city-wide enforcement of the law in individual cases, without an objective standard to which the affected interests could appeal. Because of the excellence of the personnel of the department and the general attitude of the mayor, the desire of the enforcement agency to retain arbitrary discretion under guise of uniformity was discounted. The real clue seemed to appear in Commissioner Wilson's 1939 Report. In spite of the fact that he boldly interpreted section 645-a of the charter as giving his department full power to make general rules, especially those relative to interpretation, there appeared immediately a series of complaints, one of which belied the very power which he claimed. 47 The complaint ran back to the decision of the Revision Commission to insert a definite compromise between the principles of centralization and those of local autonomy. The statement "Subject to the regulations of the department, the superintendent shall have exclusive power, which shall not be subject to review except by the board of standards and appeals as provided by law" 48 effectively nullified any positive power of the department to make general rules binding upon the superintendent. The commissioner's specific complaint was, in effect, as follows: In the present Charter, the superintendent of buildings in each borough is practically an independent commissioner, for 1. An appeal can go only to the Board of Standards and Appeals. 2. The commissioner, "full of experience in discretion and judgment," and liable for the efficient administration of the department, is so restricted by the Charter in using this experience that he cannot render prompt and adequate service to the building industry or the public, in that he cannot review an action of a superintendent, a subordinate, in the application and interpretation of laws pertaining to building construction and maintenance, nor can he overrule such subordinate in granting variances in cases involving "practical difficulties." " See Annual Report of the Department of Housing and Buildings (1939), p. 8. Charter, sec. 645-a.

48

2$o

The Charter of 1938

The remedy offered by the commissioner was to amend the charter in such a way as to allow an appeal from the superintendent to the commissioner, and then to the Board of Standards and Appeals, if the applicant was not satisfied. If such provision were made, the commissioner would have complete control over his subordinates and could issue general rules of business or interpretation, which the public would accept. The purpose, then, of the secret rules was to persuade the borough officers, rather than to place them in compulsory obedience. The rules were made with their consent, even with their advice. To be sure, the ever-present threat of punishment, which the commissioner had over all employees and which was strengthened by the well-known attitude of the mayor, had some effect upon keeping the superintendents in line, but such a threat was in the background. It was the friendly conferences and the development of official esprit de corps that produced whatever uniformity there was. A conference with Chester W. Cambell, superintendent of buildings in Manhattan, held January 31, 1941, was of great help in elucidating this anomalous situation. He was perfectly frank in saying that the department felt that the general regulations that involved the enforcement of the laws could not be legally binding upon the superintendents; that whatever was done resulted from the cooperation of all officers concerned in the making of regulations ; and that it would have been foolish for the commissioner to publish a set of departmental rules that might or might not be followed. The greatest courtesy which Superintendent Cambell showed the writer was in making accessible a few samples of the recorded Minutes of the action taken by joint conferences of central and local officials and certain conclusions sent out by the commissioner to the local enforcing officials.49 The essential membership of each conference consisted of the first deputy commissioner and the five borough superintendents, though the problems dealt with frequently demanded the presence of the deputy commissioner in charge of housing and occasionally 49 The samples were typewritten, indexed and filed for the superintendents' use and had to be examined by the writer hurriedly in his presence or that of his secretary. The Minutes were representative of the crowded weekly conferences of 1938, though the Memoranda to the Borough Superintendents covered the years 1939 and 1940.

T h e Charter of 1938

251

the chief inspectors of that division. The matters taken up were, for the most part, presented in the form of questions that could originate either from a politically appointed officer or from a civil servant. Usually the inquiry followed a short statement of fact. The problems, according to the records, grouped themselves around general policies and more or less specific provisions of the various laws and regulations. Question 9 50 had to do with the handling of interpretations: There are issued periodically from the Commissioner's office interpretations of certain sections of the Code. There are also issued within the departmental offices in the boroughs certain interpretations of various clauses of the Code. It has been the practice to make these interpretations available to the public, except in so far as the particular question is raised in the examination of a specific plan. Is it the desire that this information be handled as a public bulletin or shall we continue to treat it as an intradepartmental affair? Conclusion: Interpretations, orders, etc., issued by the department are not for public consumption. T h e borough superintendents, however, can convey the substance of same to the public in any convenient form, if so desired.

Evidently both secrecy and publicity had been practiced during the first three months under the new charter, but the future policy was to be one of secrecy. This was contrary to the best practice of some of the former superintendents of buildings, though it harmonized well with that of the Board of Buildings for the most part. From the records of the joint meetings, it was clear that the same policy was extended to all the laws and regulations that were to be enforced by the department. Interpretations of the code usually resulted from questions propounded by the lower enforcement officers. Regardless of area, onestory buildings were held to be free from all standpipe requirements. 51 The rules and regulations of the old tenement house agency were adopted as a policy to be followed with regard to certain waterproof construction; rules relative to sand-pit excavations, while indirectly a part of the code, were adopted for the reason that they constituted departmental policy which the superintendent must enforce. Despite the power of the superintendent B0

Minutes, March 9, 1938.

51

Ibid., Feb. 23, 1938,

252

The Charter of 1938

to vary the law in case of practical difficulty, the first deputy commissioner stated that all such matters should be submitted at the conferences, in order that a definite policy might be reached.52 The rule that the superintendent could vary the terms of the charter and the Administrative Code in cases of unnecessary hardship, where applications for equipment were made after January, 1938, though the plans for the buildings involved had been approved before that date, was readily agreed upon. Where the code called for the protection of masonry from freezing, the request for borough rules was denied and the superintendents were asked to submit plans to the commissioner, who would formulate rules of general policy.53 Though the code required that one-car garages be constructed of ten-inch hollow blocks, it was decided that eightinch blocks might be used, since that had been the custom in Brooklyn and since the code requirement was evidently an error. The legal definition of "illuminated sign" was either distorted or extended when the joint group agreed that "any sign artificially illuminated" should be considered an illuminated sign, if illumination were caused "by reflection cast from another location." 54 The Building Zone Resolution came in for its share of interpretation and, perhaps, manipulation. As a matter of departmental policy, it was agreed that residences might house doctors, dentists, and music teachers, though certain other professional groups were ruled out.55 The zoning regulations prohibited sawmills and planing mills from business districts, but the departmental conference interpreted the prohibition as not including small establishments carrying on such work; and "accessory uses" were made to exclude swimming pools and gymnasiums.50 The first deputy commissioner, after warning one of his superintendents that he must investigate carefully a charge that illegal parking was going on in his borough, recalled attention of all his local agents to the "current policy of the department relating to parking lots." He said that where illegal parking lots existed and were not in destructive competition with adjacent garages, the department would not oppose a motion be5 3 Ibid., March 9, 1938. Minutes, March 2, 1938. Ibid., March 18, 1938 ; cf. definition in Administrative Code, sec. B26-5.0. paragraph 2. 65 ¡bid., Feb. 23, 1938. 5 6 Ibid., March 2, 1938, 52

54

The Charter of 1938

253

fore the Board of Standards and Appeals for curing the illegality, especially where congested traffic conditions made their existence desirable. The procedure given was a bit novel to the outsider, but not to the initiated: the owner or his agent should file the usual application in the proper borough office, whence it would be sent to the central office; there the police commissioner would render his judgment as to whether the parking lot was really needed or whether it was destructive to available garage facilities; if the lot use was approved by such nonbuilding officer, information would then be passed on to the borough superintendent concerned, who was to contact the owner immediately and advise him to file an appeal for a variance of the zoning law; and if the lot use was not so approved, the superintendent was to prosecute at once. In cases of this kind, neither the superintendent nor the commissioner of housing and buildings could grant permission for a parking lot in prohibited areas, for that power rested in the appeals board. However, under such procedure, cases would have already been "tried" and the owner might well have had perfect confidence in a favorable decision from the higher board. 57 The Multiple Dwelling Law, which placed the housekeeping control of both "A" and "B" classes of dwellings under the direct supervision of the housing division, gave the deputy superintendent and his own inspectoral force cause to watch closely the building agencies. At one of the conferences, 58 the head of the housing division called attention to the departmental policy formulated at an earlier meeting to the effect that a basement in a three-story dwelling would make the building more than three stories. He said that such policy would, under the law,59 require fire-retarding in all public halls of such dwelling and was a false reading of the phrase, "more than three stories," as evidenced by the intent of the drafters of the law and by the general interpretation of the old tenement house agency in 1936. He admitted, however, that the earlier interpretation was made and followed in all the boroughs, for the reason that owners of such buildings did not have funds to meet the fireretarding requirements. His plea was that a three-story dwelling " Ibid., March 18, 1938.

68

Ibid., March 18, 1938.

254 The Charter of 1938 should not be made into a four-story structure by adding the basement and that the department should revert to the 1936 meaning, because of the continuing harsh economic conditions. One of the superintendents remarked that inasmuch as both the code and the Multiple Dwelling Law had defined a three-story building and basement as four stories, the department would be severely criticized for not holding to the letter of the law. One member of the conference suggested that such buildings be passed over until the legislature could cure the doubt. This was rejected and the agreement was that the 1936 interpretation be accepted with the following reservation: "If public entrance to or exit from a dwelling is through the basement, the basement shall be considered a story and the fire-retarding of the hall and cellar ceilings shall be required as per . . . the Multiple Dwelling Law." 60 Aside from the general interpretations that were made with the intention of governing the actions of the superintendents, there was evidence that those officers were encouraged to bring specific decisions for group determination. This appeared to be a practice outside the law, but one which might result in general rules by the process of stare decisis. Where violation of the law was condoned, it appeared that the group was acting as a varying body in specific cases. By error, a builder had extended the steps of a house beyond the permissible invasion of the building line. The superintendent asked what he should do about it and was told that the removal of the violation would be too great a hardship on the person involved and that he should be permitted to enjoy the extension for 80 Memoranda to the Borough Superintendents began to appear in typewritten form in 1939 as general announcements of the department. They included court decisions, changes of laws and regulations, restatements of sections of the law for correcting errors of enforcement, notice of organizational changes in the department, and occasionally statements of the conclusions of law arrived at in previous conferences, the proceedings of which were not available to the writer. Examples of the last category follow: Memorandum N o . 27, 1940, refused to apply to old tenement houses the new code plumbing requirements beyond SO percent because of hardship to the owners; Memorandum N o . 5, 1939. permitted in the replacement of w o o d stairs with those of steel, the use of steel inferior to the code requirements, in order to encourage fire proof stairway construction; Memorandum N o . 46, 1940, announced that, since the M.D.L. did not include the height of legal penthouse, the department would require the penthouse to be included in the height of a dwelling in accordance with the provisions of the code.

The Charter of 1938

255

a t least five years. 6 1 T h e requirements of the Multiple Dwelling L a w relative to fireproofing stairs h a d been discarded by a previous borough officer in Brooklyn, a n d his successor desired to enforce such provisions in a particular instance. H e brought his case to the group for decision and was accommodated. 6 - A superintendent wanted to know whether he should grant a certificate of occupancy for the illegal use of premises under the zoning regulations, and the decision was made for him. 6 3 F r o m the few examples obtainable as to method of securing general interpretations either directly or by specific decisions, it would seem t h a t the central enforcing agency had found a means of securing some uniformity without violating the actual powers delegated to the superintendents of buildings in the boroughs, regardless of the complaint voiced by the commissioner in his 1939 account of the working of his department. T h e delayed publication of the commissioner's Report for 1940 prevented a judgment as to how that officer felt about the success of his general regulations of an interpretative nature after another year's trial. A tribute to the success of the method employed came from another source, however. C h a i r m a n Murdock seemed very much pleased with the smooth functioning of the D e p a r t m e n t of Housing and Buildings, in F e b r u a r y , 1941. 04 In his discussion of appeals from administrative agencies, he indicated that they had dropped to 408, a decline that had been progressive since the new charter went into effect. Note his words of explanation: This may indicate that the provisions of the Building Code are becoming better understood and that the controversial provisions have been clarified by the regulations of the Commissioner, which he is empowered by the Charter to make to ensure uniform interpretation throughout the city. . . . This function, together with the issuance of regulations to provide uniform administrative methods in all branches of the Department of Housing and Buildings, is among the most important envisaged by the Commission when formulating the Charter. . . . As distinguished from such regulations, whether termed regulations or 81

83 Minutes, Feb. 23, 1938. 8 2 Ibid., March 18, 1938 . Ibid., Feb. 23, 1938. See Annual Report of the Board of Standards and Appeals (1940) ; 26 Bull., B.S-A. 323, 1941. 84

256

The Charter of 1938

rules, are rules of the Board which serve a different purpose, namely, to add to, supplement or clarify the Building Code or other chapters of the Administrative Code relating to buildings and occupancy, the Labor Law, the Zoning Resolution, and in certain respects, the Multiple Dwelling Law. Whether the department had really overcome the inconsistency found in the charter relative to general rules of interpretation or not, there was perhaps a still more fundamental complaint by the end of 1939 relative to the relationship of the department to other agencies, the functions of which touched the building field. The most important complaint by the commissioner was the inconsistency between sections 643 and 666 of the charter. 65 One of the most serious problems, according to the commissioner, was the distribution of functions between the enforcing agency and the Board of Standards and Appeals as the nonenforcing agency. 06 The inconsistency was set forth in the following form: . . . under Section 666 of the Charter, the Board of Standards and Appeals has authority to make, amend, and repeal rules and regulations for the enforcement of the Labor Law and other laws which relate to construction, alteration, structural changes in, plumbing and drainage of, elevators in, fire escapes on, adequacy and means of exit from or fire protection in all buildings within New York City. Yet, under Section 643 of the Charter the Department of Housing and Buildings is directly charged with and is solely responsible for construction, alteration, maintenance and use of all buildings in New York City. The full implication of this statement was that if the enforcing agency were not to be allowed to exercise all the functions involved in the administrative process, it should be represented on the board that made administrative building rules, the kind that Chairman Murdock carefully distinguished from all other rules."7 The plans suggested were found in the following recommendation: Section 666 should be so revised that either the Commissioner or Deputy Commissioner of the Department of Housing and Buildings will be appointed as an official of the Board of Standards and Appeals 65 68 67

Annual Report of the Commissioner of Housing and Buildings (1939), p. 9. See statement of the Board of Appeals, 1 Bull. B.S.A. (1916-17) 417. See supra, p. 255 f.

The Charter of 1938

Z57

or that the Board be organized so that there will be one Board for "Standards" and one for "Appeals." Such an amendment to the Charter would greatly expedite examination of plans and issuance of permits to alter existing or erect new buildings in the city. . . . Simplification of rules and regulations and cutting of red tape attached to present procedure should be an incentive to alteration and erection of buildings for new industries in the City of New York. It must be taken for granted that the department would be represented on the "Board of Standards," if the alternative scheme were adopted. The commissioner's plan for eradication of a bothersome administrative difficulty seemed to have the backing of the superintendents of the boroughs and represented a problem that had been recurring almost as regularly as that of the proper relationship of the center to the circumference. This was the basis of the struggle of the 1898 Board of Buildings against the Board of Examiners; certain ideas of Mayor Walker's Social Committee were involved in the alternative plan; and it certainly was the practice of the 1933 Board of Buildings for three years, even though that practice was illegal. The essential argument back of the plan or plans was that the making of rules with the force of law should be up-to-date, living, and practical, instead of involved, formal, and somewhat lagging behind the times; and that one or more men, fresh from the task of enforcement, alive to the specific and general needs of the day, would accomplish that result, if added to the board. Political prudence had already shattered the unity of the administrative process in the realm of building control: one fragment to the department, two to the board. The first plan might well mean the sharing of both legislative and adjudicative power of the board by the department, while the alternative scheme would mean the absolute shift of the legislative to a new board in which the department would participate. 68 It would seem, however, that the existing set-up could function more satisfactorily, if both agencies would mutually consider their problems within the framework of democratic theory and practice. 68 Cf. the relationship of the State Commission of Labor to the various boards and commissions as of 1937, L. 1926, ch. 343, as amended by L. 1937, ch. 819, art. 2, sees. 10-a-12-a and 27-30.

258

T h e Charter of 1938

In closing this necessarily summary review of the organization and important functional aspects of the enforcement agencies under the 1938 charter, it seems fitting that some order be introduced into the discursive material already given on the administrative enforcement of compliances in connection with violations. The consideration of this problem is closely related to the practice under the new regime, for two reasons: first, the orderly procedure developed in Manhattan under the old regime has been adopted by the Department of Housing and Buildings and extended in all five boroughs; second, the problem which most annoyed Commissioner Wilson in 1939, namely, his inability legally to control the actions of his employee-superintendents, has come into the foreground once more. Prosecution in the courts had long been the method of forcing compliance with the laws and regulations, but the superintendents or commissioners of buildings had found it to be ineffective. Consequently, administrative methods had been created in the various boroughs for avoiding court actions to the greatest possible extent. Some of the administrators had undertaken the task in special instances by the assertion of their presumed prerogatives. Superintendent Miller, however, initiated a method that was caught up by his successors in Manhattan and more or less perfected. In 1921 he began to issue personal letters to violators, with a view to further discussion and understanding of the particular violations involved, in the hope that voluntary compliance could be obtained. In this way, he found that a large proportion of the violations listed were complied with without going to the courts.0" In 1922 Superintendent Brady further developed and institutionalized this procedure. He set aside certain days of the week for preliminary office hearings on violations, under the chairmanship of the assistant superintendent. Mr. Brady gave his reasons for and a partial description of the procedure 70 in these words: Because of the congestion of the Calendar in the Municipal Term Court, caused by the great number of actions brought by the various 69

Annual Report of the Manhattan Bureau of Buildings, 1921, p. 85. Ibid., 1922, p. 135, as f o u n d in the Report of the President of the Borough of Manhattan, 1922. 70

The Charter of 1938

259

city departments in that court, it was found advisable to hold preliminary office hearings before the prosecution of a case was commenced. . . . Following this procedure, office subpoenas were issued returnable at a stated time, requesting a party or parties to a violation to show cause why prosecution should not be commenced under Section 719-b of the Greater New York Charter. The hearings are reported stenographically, transcribed and made a part of the record. If it develops at a hearing that there is cause for a reasonable extension of time to comply with an order, an extension of time is granted, where there are no dangerous or hazardous conditions. . . . A reinspection is made before the adjourned day, and if it is found that substantial progress has been made toward compliance, a further extension is granted. According to the Reports of Superintendent Brady for the periods 1922-30, compliances attempted by court action dropped to 40 percent in 1922 and thereafter ranged from about 2 percent to 15 percent. This meant that after 1922 the bureau, under its formal procedure, handled practically all the cases, many of which were important. It was the typewritten hearings of such cases to which the writer was denied access. However, investigations carried on by the Commissioner of Accounts in 1931 and 1932 brought out data which did not question the propriety of the procedure but excoriated the imperfection of the organization of the inspectoral agents of the bureau of buildings and cast doubt upon the integrity of some of the men at the top and the bottom. 71 Superintendent (Commissioner) Fassler reported annually the number of preliminary office hearings held by the violation division of the bureau. The fact that compliance was secured, without resort to prosecution, in many more cases where such hearings were not held than where they were, indicated that satisfaction was secured at the mere suggestion of an official or that violations were written off.72 In 1935 the superintendent paid special attention to the violation division, which, he said, was organized to secure compliance with and to enforce all orders of the commissioner of buildings, under the code, ordinances, Labor Law, Multiple Dwelling Law, 71 See "Report to Commissioner of Accounts, J . H. Higgins," May 11, 1931, and special complaints filed therewith. The worst conditions seemed to coincide in time with the great freedom in writing off by interpretations, and one is led to believe that violations were freely written off or allowed to continue indefinitely. 72 E. g., see Annual Reports for 1932-33 and 1935.

2Óo

The Charter of 1938

Zoning Resolution, and general and specific regulations of the Board of Standards and Appeals and the McCall Act, which extended the powers of the commissioners. The fire prevention division had been transferred by the last named act to the building agencies and had been placed in close association with the violation division in enforcement, method of procedure, and prosecution. It was emphasized that not only owners but contractors, plumbers, attorneys, and architects were summoned to the hearings. The superintendent concluded his account for the year with the following appraisal : There is no doubt these hearings contribute in large measure to obtaining compliance with large numbers of violations that would otherwise be prosecuted. By establishing personal contact between the Superintendent and the persons served with violations, these hearings provide an opportunity for a discussion of the matters involved, with the result that a better understanding of the requirements set forth in the written, formal order is obtained by the person served with the order. Very often, as a result of these hearings, it is found that the facts warrant modification or reconsideration of the order issued—another commendable feature of these hearings. Regardless of the advantages inherent in the procedure for securing compliance in cases of violation, the evidence submitted to the commissioner of accounts during the years 1935-37 indicated that the bureau "played ball" with many of the violators. Many of the violations that were actually placed were pardoned by the interpretative or write-off process and many more were ignored for one reason or another. 73 The Department of Housing and Buildings received as an institutional heritage the preliminary office hearings procedure. The old violation division became the public safety and violation section. The writer was permitted to examine, in the Manhattan department, a few of the typewritten transcripts, some of which were not completed until 1941. Three of the samples under the title, "Violation Office Hearings," were of interest. A complaint was filed by the Department of Health in November, 1938 that a certain building was being used contrary to C26-185.0 of the code, in that 73 E. g., Memoranda to Commissioner Blanshard, especially re Complaints Nos. 1721 and 174S, 1937.

The Charter of 1938

261

certain floors were being used contrary to the governing certificate of occupancy. Within ten days Violation Order Number 5462-1938 was issued, demanding that certain floors cease to be used as dwellings until a certificate of occupancy for such use could be secured and threatening prosecution for refusal. An inspector reported January 17, 1939, that nothing had been done to comply with the order. An office subpoena was then issued to the responsible party, asking for his appearance at the office of the department at a specific hour on January 30 to show cause why prosecution should not be commenced against him. Counsel appeared and averred that the owner had rented the floors in question for business purposes and that the lease stipulated that one floor was to be used for business and the other for an art studio, an arrangement that called for no alteration. In May, 1939, an inspector found that nothing had been done, although the department had on file an application for a certificate of occupancy upon which objections bad been placed. In August and October the condition was found essentially unchanged, and a note was sent to the owner's representative to that effect. No attempt at compliance had been made by early June, 1940, though the owner had refused to be served a second office subpoena. The owner on June 11 was given until October 1, 1940, to secure a new certificate of occupancy or to get the tenants out. Nothing was done of importance as of October 21. A summons was issued November 11, returnable to the city magistrates court fourteen days later. There was no service of the summons and it was recalled by the court on November 18, for the reason that an alteration application had been approved by the department. A new certificate of occupancy was issued December 26, 1940, and Violation Number 5462-1938 was dismissed on January 3, 1941. A year and forty-one days of legal and administrative wrangling to prove the adequacy of the preliminary office hearing! Another more involved case 74 dealt with the use of a building, certified for business occupancy, for public assembly rooms on various floors occupied by labor unions. Originating in the winter of 1938, the case ran its tortuous course through more than one appeal to the Board of Standards and Appeals by the several union 74

Violation Order No. 4858-1938.

2Ó2

T h e C h a r t e r of

1938

lessees, through additional subpoenas, and through final withdrawals of the unions and the dismissal of the violation, January, 1941. Another order 75 was complied with after a year of bickering over the placing of partitions contrary to approved alteration plans. The violation was ended by submission of amendments to the plans and their acceptance by the superintendent. The examples cited, together with others, produced some very definite impressions upon the writer: the superintendent of buildings finally enforced the terms of the law and regulations, though in the process ameliorative actions were taken by the Board of Standards and Appeals in several instances; legal counsel introduced all the litigious devices into the administrative process that had accumulated during centuries in connection with property rights; the owners or lessees, whether individuals or corporations, whether members of the bourgeoisie or the laboring class, fought to the last ditch to retain as rights those advantages they had seized upon in opposition to the law; and the administrators exhibited long-suffering patience in their dealings with their acquisitive fellows. One might well ponder whether the administrative process should be contrasted with the judicial process as to speed, whether that process should be designated the hare or the airplane, as opposed to the tortoise or the horse and buggy. Perhaps the judiciary has superinduced this condition. The whole problem of compliance enforcement has become involved in centralization and borough autonomy. Although the department was to enforce the various laws and regulations that governed building, 76 the superintendent within his borough was to have exclusive power to examine and approve plans, to see that all construction and removals were carried on according to law and regulations, to issue certificates of occupancy, and to carry out such other duties as the commissioner might direct. 77 This power was exclusive in the matter of construction, but departmental reports merely placed the superintendents under the buildings division of the department. The housing division, through inspectors assigned to each borough, administered the social requirements of 70 77

Violation Order No. 5137-1938. Ibid., sec. 645-a.

78

See charter, sec. 643-a.

The Charter of 1938

263

the Multiple Dwelling Law, and was therefore considered as a part of the department. But compliance with violations was a matter of enforcement of the law.78 The Administrative Code, however, endows the commissioner with order-making and with power to enforce such orders as to conditions in or about buildings, 79 while other sections of the code give similar powers to the superintendent of buildings relative to construction. 80 In the commissioner's Report of 1939, the statement was made that the violation section in the division of buildings and the corresponding section in the housing division were organized primarily to secure compliances and to enforce all orders of the department issued under the Building Code, the Administrative Code, the Labor Law, the Multiple Dwelling Law, the Industrial Code, and the Building Zone Resolution; and that "both these sections are under the single control of the superintendent in his borough." The preceding paragraph represented the writer's interpretation of the relationship between the head of the department and the borough superintendent in regard to the securing of compliance with violations as set forth in the charter, the code, and the departmental reports. In order to obtain a certified view of the commissioner's direct power of issuing compliance orders and to see what influence that officer had upon the independent action of the superintendent in carrying out similar actions, he propounded specific questions to the Manhattan borough superintendent. The answers were as follows: 8 1 1. Each borough office does have a separate violation section and handles and prosecutes its own cases in court. As a matter of fact in the City Charter you will note that the Borough Superintendent has complete charge of the borough office even to the extent that the Commissioner cannot overrule a decision of the Borough Superintendent. There is, however, an Administrative Assistant in the Administrative Section of the Department who aids the various borough offices when necessary in order to prepare unusual cases. He also gives other assistance to the borough offices on questions of violation enforcement. 78

Ibid., sec. 642-a-b, 644-a-b. Administrative Code, sec. 643-a-6.0 through sec. 643-a-ll.O, all of which apparently apply to MDL. 80 /Md., C26-181.0. through C26-188.0. 81 Personal letter from Superintendent Chester W. Cambell, dated Aug. S, 1941. 78

264 The Charter of 1938 2. The Legal Section of the Housing Division acts as a part of the Superintendent's Violation Section although the Housing Division acts quite independently of the Buildings Division since the Multiple Dwelling Law, which is enforced by the Housing Division, is quite different and independent of the building laws which more particularly govern construction and are enforced by the Buildings Division. 3. The Commissioner does not issue violation orders of any kind or hold office hearings except when he is acting to enforce the Multiple Dwelling Law. I again refer you to the Charter of the City of New York which states that the decision of the Superintendent cannot be overruled by the Commissioner. All our violations carry the name of the Commissioner but they are more definitely issued in that of the Superintendent who is charged by law to enforce the violation. There are, however, many times when owners request hearings before the Commissioner on violations placed by the Superintendents. Of course, such requests are granted and the Commissioner very often expresses an opinion on the case to the Superintendent. This letter was more of a corroboration than a correction of the writer's interpretation of the relative powers of the commissioner and the superintendents in the compliance field. The 1939 Report of the commissioner in regard to the unity of the violation and legal sections under the local superintendent was specifically clarified. However, the main value of the information obtained had to do with the extralegal methods by which the commissioner has endeavored to exercise central control over the independent actions of the superintendent in compliance enforcement. An administrative assistant, under the guise of aiding in both the official attempts at securing compliance and in the actual prosecution where the former have failed, undoubtedly has helped to standardize for the entire city the procedure and the settlements. The yielding of the commissioner to the requests of owners for extralegal hearings on compliance cases and his expression of an opinion as to what should be done in a specific case by the superintendent has worked to the same end. Indeed, the Manhattan borough superintendent closed his letter with a statement which indicated that the indirect method used in securing uniform policy in interpretative matters was being extended to the field of compliance: 82 82

Personal letter from Superintendent Chester W. Cambell, dated Aug. 5, 1941.

The Charter of 1938

265

By law, the Superintendent acts independently. However, considerable central control is exercised by the Commissioner and Deputy Commissioners over the Superintendents, particularly in matters of policy. T h u s the old struggle between the peculiar spheres of the individual and the universal, the borough and the city, has appeared again, perhaps in a more subtle form, but persistently. Experience alone will answer the question as to whether the factor of locality, even in the small but crowded area that is N e w Y o r k , is to be reckoned with as a universal in the field of administration.

8. Résumé and Conclusions the benefit of those who would prefer a brief account of the tortuous road of development in both the law and practice of New York's building control, the following brief résumé is offered. In the time stretch of more than a century, three periods are of interest. The years 1831-97 cover the period during which the geographical lines moved northward on the island of Manhattan and finally jumped the ribbon of salt water into the area now called the Bronx. Villages fell into the grasp of the growing city, but so gradual was the influx of population from the south that most of the historical feel for separate governmental institutions played little part in the development of administration. Therefore, the central control of building became the norm. Whatever demand there was for local control was satisfied for the most part by inspectors who tempered the laws and regulations to the localities. The main problem lay in the differentiation of building functions and the development of technics and personnel. During period 1831-62 a commission executed the combined functions pertaining to fire, engineering, and building. The mayor was blocked in assuming full responsibility for the actions of this official body through the intervention of the councilmanic and interest-group politics. However, building functions were more or less clarified, allocation of powers to the functionaries were tested out, and procedures were developed. As a reaction to the economic greed and the consequent corruption in politics, the building functions were more or less isolated from related or dissimilar ones and organized into an independent department for the years of 1862-80. The tendency was to give the mayor complete control of the head of the department, but the fear of placing too much power in the hands of the chief executive officer of the city produced definite limitations on his control. Official discretion, especially that of vary-

Résumé and Conclusions

267

ing the provisions of the law, became separated from the department in its final aspects by delegating to the lower courts the full administrative discretion in each case. The folly of mixing judicial with administrative functions and of combining their personnel was recognized by 1874, and sanction for modifications was transferred to nominees of interested professional groups and to the head of the building agency, who together formed the Board of Examiners. This board represented the first step in the development of an expertise, which was destined to assume important administrative powers which could be distinguished from those of immediate enforcement. For some twelve years after 1880 the building agency was made once more a subordinate bureau of the Fire Commission. Although the commission had complete overhead management, the functions relative to building were left to the bureau. In the meantime the state legislature was paying increasing attention to the city's building administration. Several statutes were passed tightening up the procedure, raising the qualifications of the personnel, and establishing a fairly complete building code. The powers of the enforcing agency were limited somewhat, while those of the already established Board of Examiners were increased, in that it could use its judgment in filling specific gaps in the laws or in substituting "as good or better forms of construction" in specific cases. In 1892 the subordinate building agency again was given the dignified position of an independent department. The superintendent of buildings was appointed by the mayor for a definite tenure and was protected from arbitrary removal by the requirement of gubernatorial consent. His powers were definitely increased. The second period runs from 1897 to 1938. It is one in which federalism was rife. The incorporation of adjacent organized cities and towns, the separation from Manhattan by appreciable stretches of water, and, perhaps, a touch of the "rural against the urban" sentiment had greatly exaggerated the idea of federalism. Conditions in the outlying boroughs undoubtedly called for building controls that could hardly be said to match those demanded by conditions on the island of Manhattan, even though the general police purpose was the same for all boroughs. Actual city-wide

268

Résumé and Conclusions

organization, however, was left for the future. The central agency, called the Board of Buildings, was composed of three commissioners, each of whom had wide powers on his own account over one or more of the five boroughs and zealously used them. The Board of Examiners, constituted as of old, heard appeals from the combined areas of Manhattan and the Bronx, while the Board of Buildings acted in similar capacity for the new boroughs. The locality idea, however, permeated the actual organization, since the personnel of the direct enforcement agency was so selected as to represent the various boroughs. The same was true of the appeals agencies. The only variance from the locality idea was the actual assumption by the Board of Buildings of the appeals function for the entire city. This variance rested upon an altogether different basis. During this period, the city gained the right of home rule in the making of the building code regulations. By 1902 the federal idea had been recognized in law and five departments of buildings were established, one for each borough. Each was a part of the office of the borough president, and the chief officer was chosen by and responsible to him. Decentralization was on the rampage. The chief executive of the city was helpless. The superintendent's powers, exercised independently and with the approval of the borough president, comprised many of those that had accumulated during the years of institutional development. The "housekeeping" functions, which had been exercised in part and very poorly by the building agency, had in the meantime been segregated and placed in the hands of a highly centralized Tenement House Department. Appeals and certain petitions still went to the Board of Examiners, which had been freed entirely from ex officio departmental representation and given exclusively to the usual professional groups. This board remained the single consistent exponent of the old centralizing idea and continued to keep alive the reformers' hope of unity in all building agencies. The struggle for this last idea, among others, during the next fourteen years resulted in the transfer of important powers from the superintendents of buildings to an agency that took the place of the then-existing Board of Examiners. In 1916 there was established a Board of Standards and Appeals, which contained within

Résumé and Conclusions

269

itself a Board of Appeals. The larger board consisted of the five superintendents of buildings, two ex officio officers from the Fire Department, and six technicians, who were appointed and removable by the mayor. The experts, together with an ex officio representative of the technical force of the Fire Department, made up the smaller board. The mayor, however, held control over a majority of members of each board. Under this set-up, the direct domination of the city-wide agency by the professional groups gave way to the principle of governmental control. The two potentially important points were that the major discretionary powers, such as rule-making and the approval of materials and appliances, which had theretofore been left to the superintendent and his borough president, were transferred to the city-wide Board of Standards and Appeals, and the appellate power placed in the expert personnel of the Board of Appeals. In addition, the modification of and the rule-making under the state Labor Law fell into the hands of the larger board, insofar as that law was applied in the city. The Board of Appeals secured further jurisdiction over appeals from the Fire Department and was the sole agency in varying the terms of and in hearing appeals relating to the enforcement of the new Building Zone Resolution. Within nine years the two boards had developed into a single and still more expert Board of Standards and Appeals. The superintendents remained the enforcing officers of all building and construction laws and regulations and, in 1929, of the state Multiple Dwelling Law. The central appellate body's jurisdiction was to that extent increased. In 1933 the centralizing forces were certain that they had actually translated their idea into law when the superintendents of buildings of the various boroughs were legally shorn of much of their individual power by the simple trick of throwing administrative enforcement into the hands of a commission made up of the locally appointed superintendents. What legally happened was that the power of the borough presidents was transferred to the central ex officio commission, known as the Board of Buildings. What actually took place on the central level was the struggle between that board and the Board of Standards and Appeals for the discretionary powers already bestowed upon the older board. What

270

Résumé and Conclusions

actually developed on the lower levels was the arbitrary action of the several superintendents. The third period covers only a scant two years, beginning with the effective date of the 1936 charter. The trend was toward centralization. Experience had taught the desirability of central control, especially since the financing of all building operations centered ultimately in Manhattan. Duplication of activities, too, was getting on the nerves of all. There was filing with the Fire Department, with the Tenement House Department and with the various borough building bureaus. Unity seemed to be the solution for all problems. In addition, the sense of location was thought to be on the wane. Means of communication had brought the outlving boroughs closer to Manhattan, and many of the peonie had close ties with the heart of the city, even though the population in areas like Brooklyn had surpassed that of the old city. As a result, all activities relating to building, including those of the Tenement House Department, were joined for purposes of enforcement under the Department of Housing and Buildings. The commissioner who headed the department was appointed by the mayor and was strictlv responsible to him. The department, however, was internally decentralized, since the divisions of housing and buildings were segregated. The lurking locality idea lay in the wide powers of the superintendents of buildings, who were appointed under civil service rules by the commissioner. They could short-circuit the head of the department by appealing their decisions directly to the Board of Standards and Appeals. However, by a process of mutual accommodation, the central authority was able to secure something like conformity in the application of the building laws and regulations. Still, the commissioner's complaints indicated that uniformity was not complete. On the basis of the history and analysis of the narrow field of building control in New York City, it is clear that this monograph has been limited to the field of administrative law. With the exception of the public-welfare aim, about which there has been little disagreement, the various forces behind the laws and ordinances have been centered upon the proper means of securing the ethical ideal. A surprising amount of administrative law has come from

Résumé and Conclusions

271

the legislatures of the state and city, since all the provisions of law that create administrative authorities, define their powers, condition the qualifications of the personnel, and prescribe procedures fall within the limits of the new classification of administrative law. 1 In the distant past, the legislature considered this field as its province, but under modern conditions the tendency has been to shift this task to the shoulders of others. So much has this been so that students have lost sight of the legislature as the maker of such law. It is the development of administrative law by the administrative authorities that has attracted attention in democratic states. It is to this source of administrative law that a large proportion of the detailed discussion in the preceding chapters has been devoted. Administrative law has been made or is in the process of formation at every moment, as a result of specific or implied delegations or because of the inherent nature of the administrative process itself. This development in the building agencies at one level or the other appears in the following: 1. Rules and regulations affecting those outside of officialdom: ( 1 ) Rules and regulations with the force of law; ( 2 ) rules of practice before an authorized administrative tribunal; (3) general interpretative regulations given in advance of the application of the law or in connection with a specific decision; (4) specific interpretations of legal provisions in advance of application that tend to become generalized ; 2. Internal regulations that in practice touch outsiders; 3. Specific decisions that somehow or other issue in a generality.

If the judicial department of government must be considered as a nonenforcement agency, the courts are another source of administrative law. Through their interpretations and their refining processes, they have developed an important part of American administrative law. Instances have been cited in this monograph, but, as stated before, there has been no attempt to develop such law to the extent of making it a major part of the discussion and analysis. In the history of New York City's building agencies, the problem of the interplay of centri fugalization and centripetence has been relatively of as great significance in organizational form and 1

Cf. James Hart, Introduction to Administrative Law, New York, pp. 4-5.

272

Résumé and Conclusions

functions as in the state and national governments. In its geographical aspect, one would not think that such a small area would be influenced by such interplay. Even in the nineteenth century, when the city was more compact and the building organization was centralized, the local inspectors had almost full sway in their local districts—the devolutionary aspect of the problem. When the city government became federal in form, the building control was legally centralized; but under the pressure of locality, the central administration was broken into its constituent parts by the action of the city-wide commission through its several members. Thereafter for many years the law acknowledged the primacy of decentralization both geographically and functionally. The charter amenders, having taken it for granted that centralism rather than federalism was the basic principle of all social organization, turned to an ex officio central commission made up of locally appointed and therefore locally minded superintendents. This was the reverse of even a déconcentration scheme built upon the basis of "pyramidalism." Enforcement was largely in the hands of the borough officials by the common agreement of the so-called commission. Dissatisfied with the results of their experiment, the reformers pushed their drive for real centralization of enforcement. Their efforts were apparently rewarded in the terms of the 1938 charter. What they legally got was not even a déconcentration of power but decentralization of such power. The insertion of one short legal phrase enabled the local enforcement officer, who was appointed under civil service rules by the head of the central enforcement department, to by-pass the head of the department. For two years at least the central agency has been taking infinite pains to get its will, but without complete success. Whether the struggle between the centrifugal and the centripetal forces is inherent in human nature or is merely the result of the prevailing economic and political forces in society, the good and bad effects of the struggle upon administration should go into the common pool of information for the use of the universal principle-maker. The organization of building matters on the basis of function has met with the usual difficulties that beset the idea of the functional organizational basis. For many years functions that might

Résumé and Conclusions

273

have been classified as belonging to building were to be found in the Fire Department, the Department of Health, the Department of Water Supply, Gas and Electricity, and the Department of Streets and Sewers. The building agencies absorbed many of the functions of these agencies, but experience often indicated that certain of such functions were better administered in connection with one or the other of the departments in which they had once been placed. In 1901 Class A apartments under the state law were handed over to the newly created Tenement House Department for better protection of human beings, though the Class B apartments were under the supervision of the building agencies. However, the actual construction work always was handled by the building agency. Certain functions connected with the Labor Law and the Zoning Resolution were and still are under the administration of one or the other of the building agencies. It was not until 1938 that many of the functions once exercised by the building agencies were brought under one city-wide department. However, even under the new organization, there is an internal decentralization of functions, over which the commissioner of the department has a more or less tenuous control. The alternative to complete organization according to function is coordination. Under the present charter clear provision is made for such coordination of all related functions of departments, and the mayor is the chief coordinator. It has already been noted that the desire for city-wide organization in the lower categories of enforcing power has appeared rhythmically, only to be beaten down in the legislature or in practice. In the higher categories, especially the order of powers involving a highly important degree of discretion or judgment, a separate and more dignified agency has appeared in a city-wide organizational form. Beginning with the appellate power, this agency has accumulated power to modify, fill in particular gaps in the laws, provide for proper materials and appliances, and make regulations with the force of law. This positive move toward disparateness in the building agencies and functions has evidently been based upon political prudence, the desire to avoid the concentration of too much power in the hands of one man or one board. Some would call such organization of functions within the same field a kind of

274

Résumé and Conclusions

decentralization. This breaking of the whole administration into parts and the setting up of distinct agencies have not obviated irregularities in either central or local administration, although it can be said that the work of the Board of Standards and Appeals has been decidedly a factor in good administration during the last several years. Perhaps the most important point that should interest both students and administrators, however, is the struggle of the central enforcement agency, when there is one, for the rich powers exercised by the long-established centralized agency. It must be remembered that the latter authority has no power to enforce, on its own account, any of its regulations, specific orders, modifications, or rulings. This struggle has taken on various forms, ranging from outright usurpation to plaintive whimpers. Aside from the mere desire for power and more power, there has been superinduced in the central enforcing agency a feeling that the division of powers has so separated the doers from the nondoers that serious inefficiencies in the total field have resulted. If the wider discretionary powers are not to be wholly absorbed by the enforcing agency, the minimum demanded is that some portion of the personnel of the central enforcing group be permitted to form a part of the more dignified and theoretical authority, to serve as a sort of leavening. The minimum asked is not without precedent in the history of the building agencies and has existed in more than one department of the state of New York. On the other hand, the more remote board had definitely disapproved of having any member of an enforcing agency participating directly in its activities. The writer believes that the enforcing agency has scored a point here, especially in regard to rule-making. In the lower levels of actual application of the laws and regulations, the history of the building agencies has not been a pretty one. It would seem that the poor showing has resulted in large part from the background of the superintendent and his aides and from the fact that selection of such officials has been based largely upon political expediency. But New York City and the laws governing building have been factors also. The strong sense of property rights and the adjustment of such rights to the rapidly changing condì-

Résumé and Conclusions

275

tions have made the prescriptions of the laws difficult to apply. The chief tool with which the superintendent has cut his way through the laws has been that of interpretation, which is inherent in the administrative process. It has obviated the necessity of going through all the formalities of appeal, modification, and rulemaking. Interpretation has its place, but when it has been raised to a principle of action it has resulted in abuse and usurpation of power. For the most part, the lower enforcement officers have belonged to the "interpretationist school" and have crowded into their principle a full quota of greed and politics. On the other hand, where the officer has broken the law because of the development of new techniques he has been the agent of progress ! The placing of the superintendent and his aides under civil service rules may hold them within the terms of the rules and the laws and may result in the freezing of a potentially powerful drive toward adjustment of man to his environment. Professor Freund has said, in effect, that administrative actions tend to develop into customary law. 2 The record shows that the better type of superintendent, as well as the Board of Standards and Appeals and its predecessors, has made conscious efforts to tie current decisions, interpretations, and modifications to those of the past, provided the conditions were at all similar. In fact, insofar as decisions and petitions have been concerned, several of the laws have urged the application of stare decisis. Consequently, much of the building law has come from such actions and not a little of it has been definitely written into the Building Code or the statutes. A reading of the entire history of building enforcement has led the writer to the conclusion that an institution never forgets the acts of its human agents. Decisions, whether originally based on law or upon arbitrary action of some officer, have been followed in many cases down to the present time. Administrators do not have to cite precedents when a decision is given, although they do so in many cases, but when some authority demands that precedents be given for specific cases after the fact, they can be readily given. 2 Emst Freund, Administrative Powers over Persons and Property, Chicago (1928), p. 582.

276

Résumé and Conclusions

Under the name of stare decisis many "crimes" have been committed, but the total effect has been, in the opinion of the writer, toward the stability of building control. Nothing has appeared in the history of the building control to give one hope that principles of administration can be worked out above the atmosphere of the economic and political forces of a particular time. Where the top men of the agencies have been selected on the basis of objective expertness and the lower officials have been chosen under civil service rules, the whole structure of administration has been forced to yield to the current pressures. "Politics and administration" must still be written "politics in administration." Finally, the pyramidal form of organization covering all the functions involved in the administration of building matters in N e w York City does not exist and has not existed since the middle of the last century. This is the touch of practice or nature that makes New York's building administration kin to that of other and larger areas. Even though the present charter has come nearest to pyramiding the enforcing agencies, very essential lines of control have a way of running from the central department to the lower enforcing officers and then up a second pyramid, at the top of which sits an independent Board of Standards and Appeals. This condition has called for another larger and more widely enveloping pyramid, at the top of which is the city's chief executive. It is this over-all political and administrative control of the mayor, assisted by his all-seeing eye, the commissioner of investigation, upon which the harmony of building control depends. Where the mayor's characteristics are similar to those of a L a Guardia, both the public and the private interests at stake may expect a square deal within the milieu of an "Eentsy Weentsy New Deal."

Table of Cases Altschul v. Ludwig, 216 N.Y. 459, 1916; N.Y.L.J., April 1, 1916; 182 App. Div., 887, 1918; 1214 C. and P. 1 ff

86», 87

City of New York v. Alheidt, 99 Record and Guide (1917) 107; 180 App. Div. 434, 1917

71

City of New York v. Foster, 72 Misc. 67, 1910; 148 App. Div. 2S8, 1911; 205 N.Y. 593, 1912

70

City of New York v. Lauchheimer, 98 Record and Guide (1916) 415; 99 Record and Guide (1917) 107

70,87

City of New York v. New York Trust Company as Trustee, 156 Supplement 1118, 171 App. Div. 907; 1098 C. and P. (1915) 203

72

City of New York v. Stewart Realty Company, 109 App. Div. 702, 1905

69»

City of New York v. Wallace Appleton Co., N.Y.L.J. (June 1, 1912); 853 C. and P. (1912) 189 Dewey Theater Case, Appeal 311, 1915 Fiore C. Luongo v. Thomas P. Flanagan, Superintendent of Buildings, 230 App. Div. 71, 1930; N.Y.L.J., June 23, 1930 . . . Flegenheimer v. Leo, N.Y.L.J. May 18, 1918

61» 217»

In re Falcone, N.Y.L.J. (Nov. 27, 1936) 1878 In re Forman v. Walsh, 217 App. Div. 1926; 1659 C. and P. .

70 85 f.

177 .

227n

Kesbec v. Campbell, 104 N.Y.L.J. 399, Aug. 20, 1941 . . . .

196»

Matter of Towers Management Corp. v. Thatcher and Others, 271 N.Y. 94, 96-97, 1936

173»

Mazzarell v. Walsh, 135 N.Y. Mise. 719, 1930

217»

Panama Refining Co. v. Ryan, 293 U.S. 388, 1935

90

Peo. ex rel. Beinert v. Miller, 100 Mise. 318, 1916; Special Term, June 21, 1917; 188 App. Div. 113, 1919 99»,216»,217» Peo. ex rel. Broadway and 96th St. Realty Co. v. Walsh, 203 App. Div. 468, 474, 1923

174»

Peo. ex rel. Cockcroft v. Miller, 196 N.Y. Supp. 206, 1918; 187 App. Div. 704, 1919; 228 N.Y. 565, 1920; 1314 C. and P. (1920) 1 ff.

206»

Peo. ex rel. 475 Fifth Ave. Corp. v. Walsh, 221 App. Div. 100, 1927

228»

278

Table of Cases

Peo. ex rei. Lovett v. Walsh, 220 App. Dhr. 756, 1927; 1707 C. and P

227»

Peo. ex rei. Third Ave. R.R. Co. v. Walsh, N.Y.L.J. April 7, 1926; App. Div. 760, 1927; 1171 C. and P

229»

Peo. ex rei. Van Buren Bill Posting Co. v. Miller, 161 App. Div. 138, 1914

50»

Pounds v. Board of Standards and Appeals, 129 N.Y. Misc. 676, 1927, aff'd 223 App. Div. 861, 1928, aff'd 248 N.Y. 591, 1928; 1725 C. and P

227»

Powell Garage Company v. Murdock, N.Y.L.J. (Oct. 20, 1936) 1267

175

Purdy v. Esterbrook, 26 Hun. 401, 1882

29«, 30

Riding Academy Case, N.YX.J. June 18, 1917

220»

Stein v. Flanagan, 228 App. Div. 668, 1929

230»

Tucker v. D'Oench, 44 Hun. 33, 1887 Walsh v. Kleinert, Superintendent, 200 App. Div. 881, 1922; 1386 C. and P. 409, 637

29 137»

Index Accounts and Investigation, Commismissioner of, 38 Adams, Superintendent, 23 Adamson, Robert, 198, 200 Administrative Code, 236, 243, 246, 263 Administrative law, sources, 270 f. Administrative legislation, applied to, by court, 90 Administrative process, study and development of, 1 ; New York City's problems, 2 ; former powers of legislature and judiciary reforged into, 6; social rights may only be secured through, 150; struggle over control of functions by immediate enforcing, or a higher isolated, agency, 179; influenced by economic and political forces, 276 Administrative f i . interpretative regulations, 168 Aldermen, Board of, Code placed in hands of, 45, 47, 50, 71; power over building regulation, 45, 49; code revision, 94; removal of borough president, 101 Alheidt ad vs. City of New York, 71 AUsckui v. Ludwig, 86-90 American Bar Association, 34; LoganWalter Bill, 148 American Institute of Architects, 9, 11, 14, 15, 51, 54, 197 Amusement, places of, 68, 70 f., 78, 112, 121; see also Theaters Appeals, procedure for, 99 ; statement of what was appealable, 161; general interpretations in cases involving, 21823 Appeals, Board of, organization, 96; membership, 96, 195, 197-204; relation to Board of Standards and Appeals, 96, 98, 100, 205, 206, 269 ; jurisdiction, 98, 160, 215, 269; procedure laid down for, 99, 206; abolished, 102, 160; proposed by Walker's "Social Committee," 149 f.; conclusions to be

drawn from history of the personnel, 204; importance of chairman, 208; power of variation, 215 ff.; general interpretations in cases on appeal, 21823 ; pushed movement for city-wide uniformity of laws, 223 ; "decision in each case" vs. general resolutions, 22434; see also Standards and Appeals, Board of Appeals agencies under five-borough system, 31 ff.; see also boards of Appeals: Buildings: Examiners: Standards and Appeals Appointment, power of, 16, 31, 43, 46, 94, 145; by mayor, 14, 31, 46, 101, 198, 205, 239 Appointments, by mayor, 8, 9, 10, 17, 73, 74, 91, 145, 197, 199, 200, 202, 203 Aqueduct Commission . . . Committee to Investigate, 23 Architects, incompetence of, builders and, 60 Asch Building, 52 f. Association of Architects and Engineers, 50, 54 Baird, Howard C„ 197 Baldwin, Henry de Forest, 100 Banks, aid enforcement of building laws, 190 Bar Association, 34, 148 Bassett, E. M., 119 Bastress, C. S., 120 Beard, Professor, 151 Beatty, J . J., 200 Bijur, Justice, opinions, 86-90 Birdieye, quoted, 33 Black, S. J., 235« Blanshard, Paul, 107, 120, 140, 189, 192; see also Commissioner of Accounts Blum, Charles M., 203 Board of, see under name, e.g., Appeals, Board of Boiler, Hodge, and Beard, 197 Borough president, agencies subordi-

28O

Index

Borough president (Continued) nated to, 42 ; officials in office of, 42 f. ; powers, 43; shift toward the locality, 43; approval of superintendent's variations, 95 ; removal of, 101 ; appointment of bureau chiefs, 145; building bureau an integral part of office of, 145 Boroughs, centralization vs. decentralization involved in five-borough system, 5, 31 f., 41 ff., 145, 146, 268, 270, 271 f.; battle of, against mounting central control, 91-144; local autonomy, 238-41, 268; building departments in, absorbed by Department of Housing and Buildings, 243; compliance enforcement involved in autonomy of, 262 ; see also Bronx: Brooklyn: Manhattan: Queens Boulton, Alfred J., 198, 200 Brady, Charles, 109, 110, 111, 113, 120, 152, 202, 258 Brady, Thomas J., 26, 36, 37, 39 Brennan, Peter J., 27 Bribes, see Money "Bridges" along sidewalk, 25 Broadway Association, 225 Bronx, evidences of situation re construction, 59 f., 61 ; practice of, in use of interpretation and modification of laws, 107,139 f.; violations during rule of commissioners, 189; see also Boroughs Brooklyn, evidences of situation re construction, 60-62; practice of, in use of discretion and modification of laws, 106, 107, 136-39; violations during rule of commissioners, 189 f.; see also Boroughs Brown (Joint Legislative) Committee, 91 Builders, graft demanded of, 25 ; incompetence, 60 Builders' Association, 21 Builders' League, 42 Building agencies, struggle of reformers to better conditions, 4-6 ; organization and powers to 1897, 8-18; practices, 1862-97, 18-30; Mazet Committee's report on, 25 ff.; organization, powers, and practices of the chief agency, 1897-1916, 30-47; revision accomplished during Mitchel's administration, 47; some degree of stability at-

tained by 1925, 102; examination of actual performance in applying laws or their equivalent, 103 fi.; McCall Act and other laws resulting from investigations, 156; the three periods of interest, 266, 267, 270 Building Code, 35, 40, 47, 49 f., 68, 94, 102, 104, 139, 172, 176, 225, 237; earliest forms, 9, 10; making of, delegated to Municipal Council, 32, 37; provisions, 45 ; placed in hands of Board of Aldermen, 45, 47; hearings on revision of, 50, 51, 53 ff., 68; Saving Clause, 71; Mayor Mitchel's influence upon revision, 93; gives vast field for superintendent's discretion, 105 ; superintendent's power to modify reduced to, 109; important modifications of, 115; attitude toward, by certain superintendents, 135, 140, 144; summary of pertinent provisions of McCall Act and, 180 8. Building Code Commission, 32, 37, 50 Building ring, 36 Buildings, Board of, powers, work, and status of, 31-42 fi. passim, 268; appeals function, 33, 165, 168 f., 174, 268; Fassler's statements as to powers and operations of, 156; comment and résumé of McCall Act, 157-59; jurisdiction, 159 f.; struggle with rival Board of Standards and Appeals because of overlapping jurisdiction, 161 ff., 173 ff., 269; rule-making power, 165-68, 176; general interpretative regulatory power, 167 f.; attitude and practice of, in attempt to exert jurisdiction over rule-making, appeals, and petitions, 170-73; members, 179; modifying power, 181 ; retention as centralizing agency advocated, 237 ff. passim; Charter Commission's opinion, 242 ; absorbed by Department of Housing and Buildings, 243; duties, 247 Buildings, Bureau of, reorganized into Department of Buildings, 17; jurisdiction over factories, with special reference to Asch Building, 53; purpose and principal function, 107 Buildings, Department of, severance from fire department, 13 ; provided with three bureaus, 15 ; organization,

Index 17; duties, 22; Board of Buildings the plural head of, 31; powers under 1897 Charter, 32 ; jurisdiction lost to Tenement House Department, 41 Building Trades Employers' Association, 54, 197 Building Zone Resolution, 98, 100, 102, 104, 107, 108, 136, 138, 139, 1S4, 172, 176, 219, 22S, 226, 231, 2S2, 269, 273; delegation of power to vary, 99; modifications of, 116 ff.; bestowed power of variation, 216 Burwell, Edward P., 140, 141; quoted, 144 Byrne, J. J., 138, 139 Callahan, D., 37 Cambell, Chester W., 250 Campbell, D., 37 Carlin, P. J., 60, 198 Cases and Points, 70n Centralization vs. decentralization, problem of, 5, 31, 41 ff., 145, 146, 268, 270; battle of the boroughs against mounting central control, 91-144; Manhattan, 109-36; Brooklyn, 136-39; Bronx, 139 f.; Queens, 140-44; problem of, posed before commission working out Charter of 1936, 237 ff., 271 f.; Department of Housing and Buildings as central enforcing agency, 243 ff.; compliance enforcement involved in, 262 Central Park Board, 13 Certificates of occupancy, 41, 55, 95, 105, 106, 261 Chamber of the Institute of Architects, 172 Charter Commission of 1897, excerpt from Report, 32; problems posited to, and work of, 41 ff. Charter Commission of 1907, 235, 236; of 1908, 46, 235, 236; of 1921, 100, 101 Charter Commission of 1935, creation of, 235; problems posed before, 237 ff.; opinion re Board of Buildings, 242 Charter nicknames: Tweed charter, 13; Genet and Norton, 14n; Gaynor, 47 Charter of 1897, 25; steps leading to consolidation and, 31; Bar Association's "principles" to govern, 34; problems posited to, and work of, Charter Revision Committee, 41 ff.;

281

amended in 1916, 94; war of the particular vs. the universal manifested in set-up of, 95 Charter of 1901, 57; overhauling of, 235 Charter of 1916, 94, 180; provisions re Board of Standards and Appeals, 209, 211, 215 Charter of 1936 (effective 1938), 5; Seabury's recommendations a basic proposal for, 155; adoption, 235; effective date, 235, 242; code for implementing, 236; organization and important functional aspects of enforcement agencies under, 237-65, 272; represented decided step toward centralization, 242; pyramidal form of organization under, 276 Chettick, Richard O., 92 Cities, New York Senate Committee on, 24 Citizens Association, 1868, 13, 19 Citizens' Committee of 107, 91 Citizens' Union, 56 City, "rise and fall" theory, 3 City of New York v. Alheidt, 71; v. Foster, 70; v. Lauchheimer, 70, 87; v. New York Trust Company as Trustee, 72; v. Stewart Realty Company, 69n; v. Wallace Appleton Company, 70 City Record, 18, 38, 57, 78, 109, 135, 136, 137, 142, 163; modifications had to be published in, 104 Civil service superintendents, 240, 241, 243, 270, 275 Clark, Minna D„ 28 Cockcroft v. Miller, People ex rel, 206n Code of Ordinances, 94, 104 Codes, see Administrative Code: Building Code Comer, J . P., quoted, 168 Commissioner, Department of Housing and Buildings (g.v.), 243, 244 Commissioner of Accounts, investigations by, 103, 107, 108, 114, 119, 146, 148, 181, 190, 191, 259; titles, 146»; powers: to whom reports made, 147 Commissioner of buildings, 14, 15, 26, 31, 268; Mazet Committee's report on, 36, 38; differences of attitude and practice under superintendents and, 181 ff.; see also Board of Buildings: Superintendent of Buildings

282

Index

Commissioner of Investigation, 146n; see Commissioner of Accounts Committee on Local Laws of the Board of Aldermen, 101 Committee on the Codification of Ordinances, 94 Common council, approval of mayor's appointments, 15 Compliance enforcement in the matter of violations, 258-65 Conncll, Henry L-, 201, 202, 203, 231, 232 Consolidation Act of 1882, 16, 47 Constable Brothers, 27 Cook, Walter, 73 Cooper, Peter, defense of state control, 13; complaints against building department and superintendent, 19 Costello, Augustine E., quoted, 8 Council, city: appointments by, 8, 37 Court, former powers reforged into the form of administration, 6; given power to act as an administrative agency, 10; loses to Board of Examiners, power to approve modifications, 15; role as administrator with discretion, criticized, 21; decisions re discretion of superintendents, 68-71; and their power to make rules a n d regulations, 71-73; legal question as to whether a taxpayer could enjoin an official, 86; U. S. Supreme Court laid ax to administrative legislation, 90; the only check upon Board of Appeals, 99; investigation of city courts, 151; eases determining legal relations between Boards of Buildings and of Standards and Appeals, 173 ff.; administrative methods of avoiding court actions, 258; a sourcc of administrative law, 271 Crawford, William, 28, 74, 91, 197, 200, 224; reports Board of Examiners' view of Dewey Theater case, 88-90; chairmanship of Board of Examiners, 91, 92 f. Croker, Richard, 24, 25 Curry, John F., 153 Curtain walls, 77 Daus, R., 37 Decentralization, see Centralization Del Gaudio, W. W., 189

Department, see under name, e.g., Housing and Buildings, Department of Dewey Theater, 40, 85-90, 93 Difficulty, concept of: general policy creeps into meaning of, 114; see also Practical difficulties Discretionary power: approval over, moved from court to Board of Examiners, 15; of superintendent of buildings, 19 ff., 29, 50 ff. passim; Mazet Committee's report on, 26; meaning of "to act by discretion," 57; of superintendent as seen by the courts, 68-71; opportunities for, and exercise of, in M a n h a t t a n Bureau, 103, 109-36 passim; in other boroughs, 106, 107, 136-44; see also Interpretation: Modification Doctors' offices, 230 Dodge, Stephen W., 189 D'Oench, Albert F., 29, 73 Donnelly, Eisner, and Olvany, 152, 154 Dooner, John, 36, 86 Dowd, John, 201 Doyle, William F., 153 Drennan, T. J., 200 Duganne, A. J. H., 12 Earle, Mrs. W. P., Jr., 235n Elevators, 58, 72, 77, 84, 122 Enforcement provisions of the law, weakness in, 20 Engineers, incompetence of builders and, 60 Estimate and Apportionment, Board of, approval of building height, 45; attempted delegation of power to vary Building Zone Resolution, 99; see also Building Zone Resolution Examiners, Board of, 16, 95, 237; set up as appeals body, 15, 74, 267, 268; modifying power, 15, 29; membership, 15, 17, 18, 26, 36, 44; records incomplete, 18, 79; powers, work, and status of, 26-45 ff. passim; Clark's history of, 28; adverse decision against, 28, 88; connection with private-interest groups, 28, 36, 44; Dewey Theater case, 40, 85 ff., 93; right of appeal to, from superintendent's decision, 49; chairmen, 73, 91; practical work of, 73-90; dispute as to jurisdiction of superintendents and,

Index 74 f.; appeals cases passed on, 76-90; sentiment crystallizing against, 82 ; exercise of real legislative power, 90; abolished, 91 ; Crawford Report on, a justification for, 92 ; principal matters stressed, 93 Exit facilities, loft and factory buildings, 52, S3 Expertise, Boards of Appeals and of Standards and Appeals, 195 ff. Falcone, in re, 177 Fassett Committee, 23 Fassler, Samuel, 139, 141, 159, 177, 189, 259; administration as superintendent, 120 ff., 179-88 passim; transcription of his testimony, 125-34, 181; career, 134n; statement on Board of Buildings, 156, 172 Fassler Iron Works, Inc., 120, 134», 185 Fire, Triangle Shirt Waist Company, 52 f. Fire Commission, building agency a subordinate bureau, 267 Fire control, building control originated in connection with, 8; insufficient in tenement houses, 12 Fire Department, history: purpose: powers, 8 f. ; Building Department severed from, 13 ; again subordinated to, 15; representation on Board of Examiners, 18, 44; on Board of Standards and Appeals, 198, 200 Fire Escapes and Iron Work, Bureau of, 15 Fireproofing, 52, 58, 61, 83, 84; struggle over jurisdiction in matters of, 85 ; see also types of buildings, e.g., Theaters Fire Underwriters, Board of, 44, 79 Flagg, Ernest, 27 Flanagan, Joseph, 179, 202 Flanagan, Thomas P., 202 Flower, Governor, 24 Foley, P. F., 123 Foster advs. City of New York, 70 French, F. F., Company, 186 Freund, Professor, 275 Fromlet, V. H., 183, 186 Fryer, William J., 26, 27, 37, 42, 73; protecting genius of building laws: résumé of their progress and purpose, 74

283

Gallagher, B., 37 Gaynor, Mayor, 91 "Gaynor Charter," 47 Genet and Norton, 14 Glass, fireproof, 61, 83 Goodnow, Frank J., 42 Gordon, James R., 189 Government, tendency for all levels to take on same general characteristics: significance, 1; hope for reform in strong mayoral type, 5, 46 Governor, removals, 17, 31, 43, 101; appointments, 46 Graft, see Money Graubard, Seymour, 7n; quoted, 196 Great New York Charter, see Charter Group Five Information Bureau, 190 Guilfoyle, John, 36, 37, 202, 203 Gulick, Luther, 240 Gunnison, J . B., 201 Gunnison Construction Company, 201 Hackenburg, Fred L., 235» Hambrecht, W. A., 189 Hart, James, 57» Hart, John de, 200 Harvey, George U., 102, 140, 193, 239 Health, Board of, 13, 19, 23 Hearing, public: and notice of, 211 Height of buildings, 45 Henderson, Superintendent, 80 Hewett, Mayor, 23 Higgins, J . H., 103; plans for reorganization of agencies, 147; see also Commissioner of Accounts Hill, George, 42; quoted, 56 Hill, Governor, 23 Hofstadter, Chairman, quoted, 154 Hofstadter Committee investigation, 14656 passim Holden, Lansing C., 197; quoted, 220, 221

Holland, James P., 200, 201, 202, 203 Home Rule Act, 2, 101, 236 Home Rule Amendment, 2, 101, 236 Hopper, Superintendent, 79 Hotels, 57, 77, 79 Housing and Buildings, Department of, as central enforcing agency, 243 ff.; organization, 243, 270; personnel, 243 ; powers, 244, 249, 270; functioning of, within framework of charter, 247 ff.; joint meetings of superintend-

284

Index

Housing and Buildings ( C o n t i n u e d ) ents and commissioners, 247, 248, 250 f. ; uniformity of action, 24«; relationship to other agencies, 256 ; compliance enforcement, 260-65 Hughes, Charles E., Sr., 91 Hughes, Charles E., Jr., 235n; quoted, 241 Hulse, Frederick, 50, 58, 148 Hylan, John F., 101, 102, 198; appointments by, 199, 200, 202, 224

Kelsey Amendment to Tenement House Law, 39, 40 Kenlon, John, 197, 198, 200, 229 Kenneally Code, 54 Kennedy, J . S., 201 Kerby, John E., 201 Kesbec v. CambeU, 196 Kirkus, Alfred K „ 198 Kleinert, Albert E., 137, 138, 200 Kleinert, Edward W., 240« Kohn, Robert D., 92

Ice trust's grip upon city, 78, 90 Industrial Commission, 97, 99, 216 Ingersoll, R. V., 179, 239, 248 Inspection a n d alteration of old buildings, 57 f. Inspection of Buildings, Bureau of, 15 Interest groups, see Private-interest groups ' Interpretation, superintendent's power of, 49 ; illegal abuse of, 107 ; investigation to ascertain extent to which substituted for modification and other illegal acts, 115; cases illustrating, 11544 passim; school of interpretationists, 139 ; power of commissioners of building, 181 ; centralization of function of, 238 ; concept of uniformity of enforcement in, 248; handling of, in Department of Housing and Buildings, 251 ff.; see also Discretionary power: Modification Interpretative vs. administrative regulations, 168 Investigation, Commissioner of, 146n; see Commissioner of Accounts Investors safeguarded by banks, 190

Labor Law, 94, 97, 99, 102, 104, 107, 136, 139, 160, 216, 225, 226, 244, 273; interpretation of, 220-22 La Guardia, Fiorella H., 1, 172; quoted, 193, 241; appointments to Board of Standards and Appeals, 203; Charter Commission named by, 235; efforts to increase efficiency, 240«; nonpolitical administration set up, 244n; attitude toward Department of Housing and Buildings, 248n, 249; square deal from, 276 Lange, L„ 180, 193 Langworthy, H. J., 180 Lauchkeimer advs. City of New York, 70, 87 Laundries, 219; two new categories of, 226, 229 Law and Practice of Municipal Home Rule (McBain), 101 Lawyers, political, 151, 154 Leddy, J. J., 148 Legislation, administrative, 90 Legislature, see New York State Lehman, Herbert H., 1 Leo, John P., chairmanship of Board of Standards and Appeals, 200, 201, 214, 224-26 Levy, Samuel, 238 Licato, Frank, 177 Loans, sub-standard buildings disqualified for, 190 Locality, shift of power toward, 43; plea for local autonomy in boroughs, 23841, 268; see also Boroughs: Centralization Lockwood-Ellenbogen bill, 92, 198, 205, 213 Lodging House Keepers Association, 177 Loft buildings, 53 Logan-Walter Bill, 148

Jardine, Murdock, and Wright, 203 Jefferson, Thomas, 150 "Jerry building" in outlying boroughs, 189-93 Judiciary, see Court Just, George A., 37, 74 K a m o p p , A. W., 189, 193 Kearney, James, 200 Keller, Frank C., 140, 141, 159, 179, 180; responsibility for violations, 192, 193; quoted, 193 Kellogg, at hearings on code, 51

Index Low, Seth, 73 Ludwig, Alfred, 40, 64, 66, 71», 82, 83, 85, 109, 198 McBain, Howard Lee, 101 McCafferty, Robert, 37 McCall Act, 120, 136, 156; system of building control thrown into confusion by, 156£f.; analysis of, 157-60; summary of pertinent provisions of Building Code and, 180 ff.; usurpation and abuse of power under, 180; conclusions as to implementation of, 187 ; Board of Buildings created by, 224, 242 McClellan, Mayor, 52, 73, 74, 86, 91 McCooey, Herbert J., 138, 139 McCooey, J. H., 139 McDermott, W. J., 179, 198 McElligott, Fire Commissioner, 163, 166, 204 McGoldrick, Joseph D., 202, 235» McGregor, James M., 21, 23; first really great superintendent, 10, 63 ; information given in report of, 10-12, 18, 19, 22; moral tone, 12; criticisms of powers of, 19; reply, 19 f., 22 McKee, Joseph V., 202 McMillan, Samuel, 26 Magistrates, corruption, 151, 153 Manhattan, population: growth, 5; importance of, 62; outstanding men, 63, 82 ; sentiment crystallizing against Board of Examiners, 82 ; opportunities for discretion and modification, by superintendent and his aides, 103 ff. ; practice of, in modification of laws, application of precedent, and use of discretion, 109-36, 181-88; examination of files in bureau, 110; irregularities begin to appear, 111 ; investigation of, its purpose, 114, 115; compliance enforcement in matters of violation, 260 ff. ; financing of all building operations centered ultimately in, 270; see also Boroughs Marquees, 112, 121 Mayor, hope for reform in strong government by, 5, 46; appointments by, 8, 9, 10, 17, 73, 74, 91, 145, 197, 199, 200, 202, 203; power of removal, 10, 14, 31, 46, 199, 205; power of appointment, 14, 31, 46, 101, 198, 205, 239;

285

executive head of building administration, 32, 46, 92; committees of investigation, 146, 148, 189, 191; formerly blocked in assuming full responsibility, 266; chief coordinator under charter, 273 ; over-all political and administrative control, 276; see also names of mayors, e.g., La Guardia, Fiorella H. Mazet Committee, 25, 35, 49, 85, 91 ; report of investigation by, 25 ff., 35 f.; movement for charter revision, 41 Mechanics and Traders' Exchange, 15 Mechanics and Traders Society, 9 Memoranda to the Borough Superintendents, 254» Merchants' Association, 50«, 197 Metropolitan Board of Health, 13, 19, 23 Metropolitan Fire Department, 13 Metropolitan Police Board, 13 Meyer, Charles C., 235» Meyer Committee, 100; Report, 101 Miller, Rudolph P., 5, 50, 52, 55, 57, 58, 80, 82, 83, 84, 85, 87, 94, 106, 109, 110, 180», 183, 202, 218, 238, 248, 258; quoted, 6, 51; history of Asch Building, 52; testimony at investigation, 53 ; Report, 56 ; outstanding service and abilities, 63 ; interpretations and decisions during tenure of office, 63-66; attitude toward laws and regulations a practical one, 66-68 ; struggle over jurisdiction in matters of fireproofing, 85; chairmanship of Board of Standards and Appeals, 197, 199, 206, 208-24, 226, 230, 231, 233 Miners' Theater, 68 Mitchel, John Purroy, 28, 74, 88, 198; remarkable revision during administration of, 47; activities before election as mayor, 91 ; after election, 9194; influence upon revision of Building Code, 93; appointments to Board of Standards, and Appeals, 197 f., 205 Modification, power of Board of Examiners, 15, 29; power of superintendent of buildings, 15, 17, 21, 29, 43, 44, 48, 9S; opportunities for, and practice in, boroughs, 104, 109-44 passim, 18194 passim; Manhattan bureau rules, 104; reasons for, 107 f.; definition, 108; abuse and usurpation of the

Index Modification (Continued) power to modify, 108 ff.; defined, 134 ; power given exclusively to Board of Buildings under McCall Act, 181; see also Discretionary power: Interpretation Money gains by political officials, 25, 120, 134, 153 Moore, John D., 51«, 54 Moore, J. W., 198 Moorhead, R. J., 198 Morgan, R. M., 37 Movable fixtures, 69 Moving picture theater, 137 Multiple Dwelling Law, 102, 104, 107, 108, 136, 139, 160, 172, 176, 181, 233, 243», 244, 253, 263, 264, 269 Mumford, Lewis, 2, 4 Municipal Consolidation Commission, 30 Murdock, Harris H., 146, 147, 183, 238, 246, 248; efforts to clear up overlapping jurisdiction of boards of buildings and of Standards and Appeals, 161-78 passim; chairmanship of Board of Standards and Appeals, 203 f., 214, 215, 232 ; discussion of appeals from administrative agencies, 255, 256 National War Industries Board, 224 New Deal, nation-, state-, and city-wide forms, 1 New School of Social Research, 117 New York Building and Land Development Company, 26 New York City, largest organized population area: resulting problems of administration, 2; population: three stages of growth and decay, 3 ; state control, 13, 15; steps leading to consolidation and five-borough system, 30 f. (see also Boroughs: also names oj boroughs, e.g., Manhattan) ; work of Mayor Mitchel and Citizens' Committee toward reorganization in government of, 91 New York Real Estate Exchange, 18 New York Society of Architects, 54, 172, 201

New York State, former legislative powers reforged into the form of administration, 6; legislative committees' investigations of city, 12, 22 ff., 35, 45, 91, 151 ff.; famous report on tenant

housing, 12; control over city area, 13, 15 New York Sun, 1 New York Times, excerpt, 198, 200 New York Trust Company as Trustee ad vs. CUy of New York, 72 Notice and hearing, written requirement for, 211 Occupancy, certificate of, 41, 55, 95, 105, 106, 261

Office buildings in residential districts, 230 Olvany, George W., 152 Opera houses, 70 O'Reilly, Cornelius, 26, 37 Ortiz, President, 35 Palma, Borough President, 179 Panama Refining Co. v. Ryan, 90 Park Avenue Hotel fire, 57 Parkinson, Thomas L., 235n Pent- or deckhouses, 76, 78, 79, 115 People ex rei. Broadway and 96th St. Realty Co. v. Walsh, quoted, 174 Peppe, Vincent C., 203 Personnel, quality and functions, 195 ff. ; see also under names of boards, e.g., Appeals, Board of, membership Philadelphia Gas Ring, 36 Plan Examination and Inspection, 147 Plumbing, 45, 72, 80 Police Department, 13 ; Committee to Investigate, 24 Politics, unity of rural and urban machines, 5 ; interest-groups use of Board of Examiners posts, 18; solidarity of New York and Albany machines, 23; connection between politician and money-maker, 24, 36, 120, 134, 153; Tammany's control over police, 25; corruption in magistrates courts and among political lawyers, 151, 153, 154; relation of Board of Standards and Appeals to Democratic machine, 152; greed and corruption isolate building functions, 266; administration subject to economic and political forces, 276 Population, New York City, 2, 3 Post, George B., 51 Powell Garage Company v. Murdock, 175 Practical difficulties, 216, 219; phrase,

Index introduction and use of, 17; development into a general policy, 112; interpretation of, in alteration cases, 113 ; abuse of power under guise of the meaning of, 114 Precedent, application of, in Manhattan bureau, 109-36 passim Prince, Deputy Commissioner, 171» Private-interest groups, building organization bound up with, 9; appointments in hands of, 15, 26; Board of Examiners under sway of, 18, 28, 36, 44; public sentiment crystallizing against, 82 ; opposition to Lockwood-Ellenbogen bill, 92 ; power usurpation in Board of Buildings, 179; favor local autonomy, 240 Proskauer, Joseph M., 235», 238 Public opinion, must support safety regulations, 53 Purdy, Lawson, quoted, 180n Purdy v. Esterbrook, 29», 30 Pyramidal form of organization, 276 Queens, evidences of situation re construction, 61, 62; practice of, in use of interpretation and modification of laws, 106, 107, 140-44; "jerry building" and other violations during rule of commissioners, 190-94; see also Boroughs Radio City Theater, 121-23 Radio Corporation of America, 124 f. Real Estate Board, 92, 152, 172, 205 Real Estate Exchange, 18 Real estate investments safeguarded by banks, 190 Real Estate Owners and Builders' Association, 17 Record and Guide, 18, 37, 38, 56, 57, 58, 59, 70, 75, 87, 92; information re Board of Examiners, 76; excerpts, 190 f., 197, 222 Regulations, administrative vs. interpretative, 168 Removal, power of, 9, 14, 31; mayor's, 10, 14, 31, 46, 199, 205; governor's, 17, 31, 43, 101 Reville, P. J., 80, 179, 180, 200 Rheinstein, Commissioner, 243», 247 "Rise and fall" theory of the city, 3 Rives, Corporation Counsel, 75

287

Rules and regulations, powers delegated by code, 50; power of superintendent to make, as seen by court, 71-73; see also under boards having power, e.g., Standards and Appeals, Board of Rules and Standards, Board of, proposed, 151 Savage, Bernard A., 203 Saving Clause of Building Code, 71, 87 Savings banks, aid enforcement of building laws, 190 Scarlin Motor Corporation Case, 173 Schefcik, Frank J., 189 Schwartz and Gross, 65 Science: lies behind building laws, 5 Seabury, Samuel, investigation by; 151 ff. ; recommendations, 155 Seelig and Finkelstein, 175 Shearn, Justice, 71» Single- vs. two-agency plans, 241 f. Smith, Alfred E., 199 Snyder, S. L., 189 Social Committee, Mayor Walker's, 148, 154, 197, 257 Society of Architects, 54, 172, 201 Society of Architectural Iron Manufacturers, 17 Speculators, crook: procedure followed by, 20 Standards and Appeals, Board of, created, 92, 268; mayor given executive control over, 92 ; relation of superintendent to, 94 ; relation to Board of Appeals, 96, 98, 100, 205, 206, 269; organization, 96, 268; membership, 96, 156, 197-204, 246, 268; powers, 97, 99, 160, 196, 268; old board abolished: new board created, with added powers of former Board of Appeals, 102, 160; rules of, and variations from them, 107-44 passim; as the centripetal agency, 145 ; investigations of, ordered by Mayor Walker, 147, 148; recommendations for reorganization of its set-up, 149; 1935 law reconstituting, 156; struggle with rival Board of Buildings because of overlapping jurisdiction, 161 ff., 173 ff., 269; statement of what was appealable to, 161 ; decision power on appeal, 165, 169, 179, 196; rule-making power, 165-68, 173, 209-15, 237», 244; headings for activ-

288

Index

Standards and Appeals (Continued) ities, 171; Board of Buildings' usurpation of power belonging to, 172; conclusions to be drawn from history of the personnel, 204; rules of procedure, 206-8; importance of chairman, 208; stewardship of the Mitchel board under chairman Miller, 208 ff.; power of variation, 215 ff.; efforts to add to the law by general resolutions, 218-34 passim; retention of, 238, 241, 243; reestablished as highest nonenforcing agency, 246; distribution of functions between Department of Housing and Buildings and, 256; superintendents' right of direct appeal to, 270; a factor in good administration, 274, 275; at top of pyramidal organization, 276; see also Appeals, Board of State Factory Investigating Commission, inquiry into Triangle factory fire, 53, 54 Statutory Consolidation, Board of, 236 Stewart, Perez M., 57, 58, 59, 63 Stewart Realty Company advs. City of New York, 69n Stone and Webster, 117 Superintendent of buildings, 9,10,17, 42, 43, 274, 275; position created, 8; McGregor first great administrator, 10; his report, 11 f., 18, 19, 22; changes in title and powers, 14, 16, 34; appointment and removal, 14, 16, 31; member of Board of Examiners, 15; modifying power, 15, 17, 21, 29, 43, 44, 95, 108, 246, 252; summary of powers and limitations, 17, 48 f.; discretion of, 19-22, 29, 50 ff., 59, 61, 62, 63; contest over discretion, 50 ff. passim; outstanding service of Rudolph P. Miller, 63-68; judicial rulings on discretion, 68-71; on power to make rules and regulations, 71-73; dispute as to jurisdiction of Board of Examiners and, 74 f.; jurisdiction, and specific exceptions, given to by Charter amended 1916, 94; other powers, duties, and restrictions, 94; relation to Board of Standards and Appeals, 94, 268; use of discretion and power to modify, in boroughs, 103-44; abuses of power of interpretation, 107, 115 ff.; difference of attitude and practice under commissioner of buildings

and, 181 ff.; civil service men, 240, 241, 243, 270, 275; borough superintendents under Department of Housing and Buildings, 243, 245 f., 247 ff., 270; methods for avoiding court actions, 258 ff.; compliance enforcement, 258-65; relative powers of commissioner of Housing and Buildings, and, 263; boards to which powers transferred, 268, 269; see also Commissioner of buildings Supreme court, see Court Survey and Inspection of Buildings, Department of the, 10 Tammany Hall, effect of coordination of all city departments under sway of, 24f.; corruption exposed, 152 ff.; control of city, 1918-34, 198; appointees on Board of Standards and Appeals, 199-202 Taxpayer, suit to enjoin an official from doing an illegal act, 86 Technical agencies, opposition to Lockwood-Ellenbogen bill, 92; see also Private-interest groups Tenement House Department, 42, 46, 97, 238, 273; created, 40; functions centralized under, 40, 268; absorbed by Department of Housing and Buildings, 243 Tenement House Law, 98, 102; Kelscy Amendment, 39, 40 Tenement houses, situation in the 1860s, 11 f.; in the 1850s, 12; reasons for failure to remedy conditions in, 22, 23 Thacher, Thomas D., 235» Thatcher, Edward H., 173», 174, 179, 180, 189, 239, 248; quoted, 81 Theaters, 68, 70 f., 78, 82; Dewey Theater, 40, 85-90, 93; violations by, 57; Radio City, 121-23; moving picture, 137 Theaters, Special Committee to Examine the Safety of, 86 Thompson, Henry S., 59, 79 Towers Management Corporation v. Thatcher and Others, 173 Triangle Shirt Waist Company fire, 52 f. Tucker v. D'Oench, 29 "Tweed Charter," 13 Two-agency vs. single-agency plans, 241 f.

Index Underwriters, Board of, IS, 54 Unnecessary hardships, jurisdiction over requirements involving question of, 169, 178, 216, 219 Upjohn, H. P., 189 Usurpation and abuse of power under McCall Act and charter, 180 Variation, see Interpretation: Modification Veblen, Thorstein, 82 Violations, classes: rules governing, 104; failure to secure removal of, constituted breakdown of laws, 181, 187; "jerry building" and other violations in outlying boroughs, 189-94; procedure for securing compliance in cases of, 254, 258-65 Violations and Applications, Bureau of, 15

289

Vorhees, Stephen F., 148 Walker, James J., 197, 257; investigations started by, 146, 148; movement to oust, 151; appointments by, 202 Wallace, Commissioner, 39 Wallace Applelon Company advs. City of New York, 70 Walsh, F. M., 137 Walsh, J. J., 148 Walsh, William E., 109, 152, 200; chairmanship of Board of Standards and Appeals, 201, 202, 214, 227-32 Walsh v. Kleinert, 137 Wilson, Commissioner, 243, 247, 249, 258 Windeis, Paul, 173, 178; opinions, 163 Windows, fireproofing, 61, 83, 85 Zoning Resolution, see also Building Zone Resolution