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Buildings Commish Backs off Order for Q-Train Neighbors to Inspect Subway Walls

Homeowners in Brooklyn received a letter from the DOB saying they were responsible for a retaining wall along subway tracks.
Homeowners in Brooklyn received a letter from the DOB saying they were responsible for a retaining wall along subway tracks. Photo: Ben Fractenberg/THE CITY

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The Department of Buildings commissioner on Friday said she will rescind hundreds of violation notices the agency had sent to owners of Brooklyn homes alongside a trench used by the Q and B subway lines, after the MTA stepped up to urge the bureaucrats to back off.

Owners of property next to a trench used by the N train will also see their tickets canceled, the letter from Buildings Commissioner Melanie La Rocca to New York City Transit President Andy Byford indicated.

The bureaucratic backtrack came a day after THE CITY reported on Ditmas Park and Flatbush homeowners who were incredulous at La Rocca’s signed order directing them to immediately inspect retaining walls bordering MTA-operated train tracks and file technical reports on their condition.

“We are very pleased with the resolution,” said David Newman, who has lived with his spouse, Ellen Bilofsky, in West Midwood for 37 years. “This is something that should have never happened. Putting the onus on homeowners to inspect transit property was ridiculous.”

‘Impracticable and Unsafe’

The couple and many of their neighbors had complained that the “commissioner’s order” issued by La Rocca defied reason because New York City Transit had long ago asserted the century-old walls are its responsibility.

After inquiries from THE CITY, MTA officials agreed, asking La Rocca Friday to rescind the notices, noting that New York City Transit already routinely inspects the walls along busy and dangerous tracks.

“While we appreciate the city’s vigilance, our view is that inspection and maintenance of the retaining walls along those Brooklyn subway lines is the responsibility of the New York City Transit Authority, not of the adjacent homeowners,” wrote David Farber, New York City Transit’s acting general counsel, cc’ing Byford.

“Having private engineers and contractors inspecting and repairing the retaining walls would be impracticable and unsafe,” Farber continued. “Also, it would be highly inadvisable to rely on homeowners for inspection and maintenance of retaining walls that are essential to the operation of the transit system.”

Previously, an MTA spokesperson had told THE CITY that it was unclear who had control over the Brighton Line trench walls and that agency lawyers were reviewing property records.

That review found that the City of New York had assumed responsibility from the railroad’s builders to inspect and maintain the retaining walls, Farber added. Those obligations then transferred to the MTA, he wrote, under the general agreement turning over city property for use in the subway system.

“Thank you for clarifying the ownership and responsibility of the retaining walls in question,” La Rocca responded to Byford — also asking him to inform the Department of Buildings about any other New York City Transit retaining walls abutting private property.

Last week, a Buildings Department spokesperson had told THE CITY that all homeowners must  submit an inspection report, except where they provide evidence that the MTA had assumed responsibility for their property. Under a 2008 city law, owners of retaining walls facing so called public rights of way must submit a report every five years or face a series of escalating fines that could reach into the thousands.

Bilofsky said some neighbors already spent money trying to fight the violation notice.

“This is not an instance of ‘No harm, no foul,’” she said. “Some people went as far as retaining counsel already. The DOB spent a lot of money sending out letters.”

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