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Tawana Myers lives in a 10th-floor public housing apartment with her Yorkie, Casey, a row of silver oxygen tanks, a “No Smoking” sign on her door and a nebulizer with a mask in case her asthma acts up.

Occasionally, nasty black mold builds up in her bathroom because the air vent is busted. She wipes it down and asks the New York City Housing Authority to come in and fix the underlying problem so it won’t happen again.

“Over there it gets black and I have to wipe it down and I can’t live like that,” said Myers, 58, pointing to the corner of her tub. “They do a quick patch-up. They have a porter come in, they put a Band-Aid on it.”

Right now, her NYCHA development in Spring Creek, Brooklyn, is under the watchful eye of an independent federal monitor as part of a city agreement with the U.S. Department of Housing and Urban Development — and is also being monitored by a federal judge under a legal settlement to eliminate toxic mold from apartments.

Soon, all that protection will disappear.

That’s because the Linden Houses, where Myers lives, is on a growing list of public housing complexes slated to be turned over to private management as part of Mayor Bill de Blasio’s signature effort to fix crumbing public housing with a controversial program known as Rental Assistance Demonstration, aka RAD.

Loophole Looms Large

A giant loophole in both the monitor agreement and the mold court settlement explicitly says that when a development goes RAD, oversight by the monitor and the court is terminated, THE CITY has learned.

Thousands of tenants already have lost these protections. Thousands more will soon follow.

As of Wednesday, 5,147 apartments at eight developments have entered RAD, according to NYCHA, and have been removed from monitor and court oversight. Another 4,343 will be coming out by June, and an additional 5,908 by year’s end.

All told, 62,000 apartments — nearly one-third of NYCHA’s stock — are set to be removed from the monitorship and the mold lawsuit by the time de Blasio’s promised RAD conversions are complete in 2028.

The group that sued to get the mold protection told THE CITY it will go back to court, if necessary, to fight to keep all NYCHA apartments covered.

Meanwhile, NYCHA Chairperson Gregory Russ — a longtime RAD champion — recently said he is open to putting even more apartments into the program.

Under New Management

Under the federal RAD program, NYCHA continues to own the housing complexes, but real estate developers upgrade the buildings using taxpayer-subsidized loans and grants. Private firms then manage the buildings, collecting rent and performing maintenance — including mold remediation.

Rent continues to be capped at one-third of a tenant’s household income, and the federal government pays the rest.

When de Blasio announced his plan to greatly expand New York City’s use of RAD in November 2018, he emphasized his central message that the program is not privatization of public housing. “The public sector, NYCHA and the city of New York, retain control over the land and the decisions,” he said.

The mayor that day didn’t mention his ongoing discussions with HUD Secretary Ben Carson and Manhattan federal prosecutors that would soon bring in an independent federal monitor to make sure NYCHA provides healthy, safe apartments to its 400,000 tenants.

Housing Secretary Ben Carson announces a deal with Mayor Bill de Blasio to have a new federal monitor overseeing NYCHA, Jan. 31, 2019. Credit: Ben Fractenberg/THE CITY

When that agreement was signed on Jan. 31, 2019, it included Section III, Paragraph 15, which stated if an apartment is converted to RAD, “then the obligations of this agreement shall no longer apply as to those conversions as of the closing of the applicable transaction.” The legalese, on Page 4 of the 29-page document, means that RAD buildings aren’t subject to the same oversight as other NYCHA complexes.

The mayor also did not mention that when an apartment is converted to RAD it is removed from the court settlement on mold cleanup known as the Baez agreement. At the time, the development where the mayor made his announcement — Betances Houses in The Bronx — was still protected by Baez.

That protection ended when Betances converted to RAD this past July.

Lawsuit Dates to 2013

The Baez lawsuit, filed in December 2013 by a consortium of churches and housing advocates called Metro IAF, charged NYCHA with violating the Americans With Disabilities Act by failing to eradicate mold in apartments where tenants have respiratory ailments.

Then-Mayor Mike Bloomberg and NYCHA settled the case with a consent decree that promised aggressive reforms and cleanup timelines. Because it was approved as a class-action lawsuit, the settlement originally applied to all 177,000 public housing apartments, placing them all under the jurisdiction of Manhattan Federal Judge William Pauley.

The settlement got off to a bumpy start. But after Pauley ordered NYCHA to revamp its strategies to more aggressively combat mold, a rewritten agreement that included the appointment of a special master to track promised results and an ombudsman to field tenant complaints was approved in November 2018.

Examples of suspected mold at public housing complexes in the city. Credit: Via Federal Lawsuit

Since then, the number of apartments covered by the court oversight provided in the Baez deal has begun to shrink — a trend that concerns the Metro Industrial Areas Foundation, the group that filed the suit in the first place.

“RAD apartments should not be exempt from the same aggressive mold-removal methods guaranteed by the Baez settlement,” said Ray Lopez, a director of programs at Little Sisters of the Assumption Family Health Services, in East Harlem, and a Metro IAF leader.

“Everyone living in any type of public housing must have a mold-free apartment,” Lopez added. “As we have told NYCHA, the first step to accomplishing this is ensuring that there is complete transparency about any and all mold issues both before and after projects are converted to RAD.”

New Court Action Eyed

Barbara Brancaccio, a NYCHA spokesperson, confirmed that RAD apartments aren’t covered by either the monitor or the Baez agreement. But she insisted tenants will still be protected because the private-sector building managers must still follow HUD rules requiring that apartments be kept clean and safe.

“The property management companies at [RAD] developments are obligated to operate and manage the properties in accordance with HUD compliance guidelines,” she said in an emailed response to THE CITY’s questions. “NYCHA receives monthly reports from development partners, as per the [Jan. 31, 2019] Control Agreement, and can use the legal and regulatory tools at our disposal to provide oversight and ensure compliance across the NYCHA 2.0 portfolio.”

Metro IAF leaders — who have been frustrated by NYCHA’s failures to live up to its promises in the past — said they remain cautiously optimistic that the Baez lawsuit is finally having an effect. They cite the cooperation of court-appointed oversight experts on mold and data, and a new division within NYCHA that handles mold issues.

“Despite the fact that far too many NYCHA tenants are still struggling with mold, we are finally seeing signs that the protections we pushed for in the Baez settlement are starting to help some tenants,” Lopez said.

But Michael Stanley, a spokesperson for the group, said Wednesday that Metro IAF has informed NYCHA that “if filing a motion in court to make sure RAD apartments are covered by Baez is necessary, then we’re going to file a motion to do that.”

‘They Don’t Care’

Meanwhile, the long list of public housing woes that the monitor is guiding NYCHA to correct — from lead paint to mold to vermin infestation — persists.

At the Linden Houses, which will convert to RAD and lose protection of the monitor and the federal judge by the end of this year, several tenants said they were contending with mold and other decrepit living conditions.

A Linden Houses resident says a leak and bad circulation cause mold to grow in his apartment. Credit: Ben Fractenberg/THE CITY

In an 11th-floor apartment, a tenant who spoke on the condition of anonymity because of concerns about retribution from NYCHA pointed to a soiled towel spread against the baseboard of his living room wall. At the edge of the wall, the plaster was eaten away by a constant water leak that floods his apartment every time it rains.

“For the mold, I throw down some bleach,” he said, explaining that when he requested that NYCHA deal with the leak causing the mold, a worker came in, patched up the plaster with putty and without addressing the water behind the wall.

“I’m done with this. I’m going to get out,” he said. “They won’t respond. They don’t care.”

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