Landlords Sue City Over “Unconstitutional” Lead Paint Law

A Brooklyn landlord facing a $27,000 lead abatement but didn’t trust the city’s findings, and got a second opinion from a private lab.

The second test found not enough lead to require remediation. But the city refused to accept those results, according to a lawsuit that could upend the city’s lead-testing regime.

The Department of Housing Preservation and Development had tested 820 East 10th Street, a Midwood apartment building, for lead-based paint and found some over the legal limit.

The lawsuit, filed by the LLC that owns 820 East 10th and by owner entities of two other apartment buildings, claims the city’s refusal to consider appeals of its findings amounts to a “retesting ban” that denies owners their constitutional right to due process.

A spokesperson for HPD did not respond to a request for comment.

The city has tacked on at least nine lead paint laws in the past five years. The landlords suing HPD are targeting Local Law 66. Passed in 2019, the law halved the allowable concentration of lead paint and required all testing to be done with an XRF analyzer — a gun-shaped reader that uses x-rays.

The owners claim the test consistently produces false positives.

The XRF model the city uses is 95 percent accurate, according to its manual. Owners argue the “readings are not absolute.”

The gold standard, they claim, is laboratory testing of paint chips. But the city refuses to allow building owners to use lab test results to appeal HPD’s findings.

Yet the city itself orders lab tests for some buildings that pass their initial test, according to the lawsuit.

Landlords claim they are often required to do unnecessary work that is “financially ruinous.” Some say they are buckling under the ever-expanding lead paint laws.

“Each year there’s another mandate,” said Chris Athineos, a small landlord in Brooklyn.

Last summer, the City Council passed a series of bills that required lead-paint abatement in all units with a child under 6, among other mandates. In 2020, then-Mayor Bill de Blasio signed five bills, one of which roped in owners of one- and two-family homes.

Most landlords acknowledge that such measures are needed to keep tenants safe.

Lead abatement can require encapsulating walls in sheetrock. Properties built before the late 1970s may also have lead in the doors, door frames and window sills.

“There’s no paint, so there’s no way to take that lead off,” said one landlord. The only option is to replace doors and windows.

“The cost of lead abatement is huge,” Athineos said. “For a six-room apartment it could be $40,000.”