Zoning Chair Cited For Illegal Pool
By THERESA JUVA
Councilman Tony Avella, who has shaped his political career around advocating for tougher enforcement from the Department of Buildings while also fighting on the side of homeowners, is now entangled in his own dispute with the agency he has referred to as a “paper tiger.”
The Tribune recently learned that Avella, chairman of the City Council Zoning Committee, is scheduled for a hearing with the DOB next Tuesday to address a DOB violation on the swimming pool in the backyard of his Whitestone home.
In October 2005, the DOB received two calls about his residence: one claiming that there was an illegal apartment in his cellar and another regarding the above ground pool that was part of the home when he moved in 15 years ago.
Avella said he doesn’t know who made the calls, but believes they were made because he was outspoken about the DOB’s failure to stop illegal development.
“Clearly this is politically motivated,” he said in a phone interview Tuesday. “These complaints were put in and are totally ridiculous. The Buildings Department acted in a much more rapid response time than normal. Something was clearly done unethically in terms of the agency.”
Avella said that two DOB inspectors showed up at his house.
During the visit, he said the inspectors found no evidence of the unlawful apartment, but did find that Avella’s pool was in violation of the City Building Code, which states a pool must be placed at least five feet from the property line – Avella’s pool is 18 inches from the boundary.
He was slapped with a violation, and Avella has been contesting it with the agency ever since. He said there was a series of talks with DOB official Marietta Kremmidas to find out how many homeowners with pools are in violation of the law and don’t know it.
Avella suggested a survey, but was told those homeowners would be issued violations upon discovery. He inquired about the origin and purpose of the law, but no one in the agency could answer him, he said.
The DOB confirmed Wednesday that Avella questioned the rationale of the law with officials. It also said that the illegal apartment complaint was investigated by inspectors who “did not confirm the violation.”
However, according to the complaint record on the DOB Web site inspectors visited Avella’s home on two occasions and could not gain access.
DOB spokeswoman Kate Lindquist said there may have been a mistake in data entry because the pool violation was issued Nov. 18, the same day inspectors said they could not access the home to check the illegal apartment claim.
As of press time, DOB said in statement: “We are reviewing our records to determine whether access was granted to investigate the cellar complaint.”
As for the pool complaint, the DOB verified that his “above-ground pool was installed contrary to zoning regulations.”
Whether the violation falls under a building code or zoning law or both is unclear.
A DOB spokesman said because the clause exists inside a zoning law, only City Council legislation could change it.
Avella said this is not true and argued that the DOB has the decision-making power to amend building codes.
Currently, a revision to the entire building code, including the section on special construction – which includes above ground pools – is under consideration in the City Council, according to the DOB Web site. It does not include any recommendation for changing the pool setback
Avella said although the code could be changed through City Council legislation, he did not lead an effort for fear of how it would be perceived because it personally affected him.
Because no resolution was reached from Avella’s talks with Kremmidas, he will now appear at a hearing on April 10 to make his case against the law he said is “arbitrary and capricious.”
“I have my day in court just like anybody else,” he said of his decision to follow the DOB process. “The legal process is not finished. I am challenging it. Why give in to them? Then you have no recourse.”
Paul Graziano, an independent urban planning consultant from Flushing who has been heavily involved in re-writing the zoning laws in the borough, said he did not know about this specific regulation.
He questioned why the DOB suddenly issued the violation 15 years after Avella moved in and four years after he replaced the original pool.
He also said that because the pool is not considered a permanent structure, like a house, and is still technically on Avella’s property, it causes a minimal intrusion. Even if it leaked, he said, a couple feet away from the property line as opposed to five feet would not make a difference.
Although he does not argue the violation, Graziano said he thought the sudden call to the DOB was suspicious.
“It’s a payback from someone because he stopped them from building a McMansion somewhere,” Graziano said.
After next week’s hearing, Avella said he plans on suing the City if they ultimately fine him.
He wants the lawsuit to force the DOB to either scrap the law or require homeowners to get a permit that would specify the pool boundaries.
Avella said his personal dispute is one example of how the DOB is picking the wrong battles.
“This is what they are enforcing,” he said. “Instead of the Tommy Huangs, they go against the honest homeowner.”