Private developers will be required to remedy toxic mold, under ADA

Some good news in a case that NCLEJ has been working on for nearly a decade: NYCHA residents, including those living in buildings operated by Section 8 private developers*, will be afforded protection against the build-up of toxic mold. 

The agreement was reached between NYCHA and plaintiffs represented by NCLEJ, including Upper Manhattan Together, Inc. and South Bronx Churches Sponsoring Committee, Inc., as well as individual NYCHA residents.  

Here is how this case got started: The Baez v. NYCHA lawsuit addressed the grave health effects suffered by NYCHA residents with asthma. Prior to the lawsuit, mold build-up over months and even years. This contributed to chronic breathing difficulties for many residents.  According to NYCHA’s own data, it is likely that tens of thousands of children and adults with asthma are living in NYCHA public housing, and are affected by toxic mold.   

In 2013, NCLEJ and the Natural Resources Defense Council (NRDC) filed Baez in the Southern District of New York on behalf of a class of low-income residents who have asthma and who were living in apartments riddled with toxic mold contamination and excess moisture build-up that contributes to mold.

Here’s what makes this case unique: The Baez litigation, the first of its kind in the nation, sought abatement of these deplorable living conditions as a reasonable accommodation to these persons’ respiratory disabilities under the federal Americans with Disabilities Act (ADA). Following a lengthy period of negotiations, the parties agreed to a class action settlement, which the federal court approved in March 2014. The terms of the settlement incorporated a new “Operations and Maintenance Policy” that obligated NYCHA to take specific steps to identify and remove mold in residents’ apartments.  

Under the settlement, residents with asthma were also entitled to reasonable accommodation, such as temporary or permanent relocation to new apartments if mold rendered their current apartments uninhabitable. The settlement additionally obligated NYCHA to conduct extensive statistical reporting and random sampling of repairs, and provide the data to plaintiffs’ counsel.  The settlement terms required NYCHA to take steps to remediate mold and excessive moisture in all apartments irrespective of whether the tenant has asthma. 

In 2015, the federal court held that NYCHA had failed to comply with the consent decree, and agreed to the plaintiffs’ request for a court-appointed Special Master to oversee its compliance. This resulted in a complex mold remediation process throughout NYCHA buildings, which includes scheduling of repairs, the use of instruments to detect moisture behind walls, repair of fan and ventilation systems, quality control inspection, data collection, and staff training. 

This in turn helped formulate a plan for replacing roof fans, creating and implementing protocols to detect and abate moisture behind walls, and providing help to individual residents trying to deal with an indifferent response by NYCHA, through the creation of an ombudsperson and call center.  

In 2020, NYCHA announced to plaintiffs its intention that developments converted to the Section 8 RAD/PACT program would no longer be subject to the terms of the Baez consent decree.  Plaintiffs again went back to federal court to protect NYCHA tenants. The court held that, even though the original Baez agreement did not apply to RAD/PACT buildings, the certified class of NYCHA residents with asthma still existed, regardless of who owned or managed their buildings.  Accordingly, the court gave the parties a choice – they could either resume litigation of the lawsuit or attempt to reach an agreement on how the requirements of Baez would apply to RAD/PACT buildings.  

This produced a new agreement, which the court approved in 2021, that continues Baez protections for residents in converted developments, with developers required to submit evidence of compliance that must be incorporated into contracts between developers and NYCHA.   

Read the fine print of what is included in the agreement here, as reported in The City

* There are currently over 20,000 residents living at developments that have been converted to the HUD Rental Assistance Demonstration program (RAD) and the Permanent Affordability Commitment Together program (PACT). When Congress created the RAD/PACT program in 2011, this separate Section 8 federal funding stream, apart from traditional Section 9 public housing, allowed NYCHA to lease buildings to private developers who are in charge of improvements to buildings, apartments, and the site, as well as private managers who conduct day-to-day management of the developments.  Under these programs, NYCHA retains oversight responsibility for how the developments are managed and run.