NYC Comptroller Scott Stringer. Image credit: Office of the New York City Comptroller

Audit reveals that Department of Buildings did not inspect non-compliant POPS locations. On November 22, 2017, the Office of the City Comptroller Scott Stringer released a report of a follow-up audit to determine whether the Privately Owned Public Spaces (POPS), previously found noncompliant in an April 18, 2017 audit, now provided all required amenities, and what action if any were taken by the Department of Buildings to bring these POPS into compliance. To read CityLand’s previous coverage on the Comptroller’s initial audit, click here.

Privately Owned Public Space agreements are created by developers in exchange for the City allowing the developer to construct taller and denser buildings than would otherwise be allowed by zoning regulations. The agreements create outdoor or indoor spaces that are required to be open for public use and maintained by the developers and owners of private buildings.

For the initial April 2017 audit, the Comptroller’s Office inspected all 333 Privately Owned Public Spaces in the City. The audit determined that 182 out of the 333 sites failed to provide the required public amenities. In some sites the amenities were non-functioning, while in others they did not exist. In other locations, the public did not have access to all or part of the POPS locations.

For the most recent November 2017 audit, the Comptroller’s office selected 34 POPS locations out of the 182 that were previously found non-compliant. The audit revealed that 32 of the 34 sampled locations still lacked at least some required amenities or continued to deny the requisite level of access to the public. The audit found that the Department of Buildings had visited only 8 of the 34 sampled POPS locations as a result of 311 complaints, and not as a result of the initial April 2017 audit. Of these 8 locations, only three were given violations, and only one was given a $4,000 fine.

The Department of Buildings rejected the April 2017 audit recommendation that it should proactively inspect all 333 POPS locations on a periodic basis rather than only when there is a specific complaint. However, the Department of Buildings did not treat the April 2017 audit as complaints for 182 locations. The Comptroller’s office believes Buildings should have inspected all these locations as they would have if they received a 311 complaint.

The latest November 2017 audit made three recommendations. First, that Buildings inspect all 333 POPS to ensure they are in compliance. Second, that Buildings develop a monitoring policy that requires POPS to be inspected at sufficiently frequent intervals to ensure enforcement. Third, Buildings should schedule inspections of the outdoor POPS locations during warmer months when certain types on non-compliance would be more likely to be observed, such as use of a POPS by a restaurant for outdoor seating.

The Department of Buildings responded to the November 2017 audit that they will inspect POPS on a regular basis in accordance with the Local Law.

The audit does not believe the Department of Buildings addressed the recommendations and recommends that Buildings reconsiders its current position.

“Final Letter Report On The Follow-up Review Of The City’s Oversight Over Privately Owned Public Spaces,” SR18-075SL, NYC Comptroller Scott Stringer (November 22, 2017).

By: Brian Kaszuba (Brian is the CityLand Editor and New York Law School Graduate, Class of 2004).