The third-floor apartment where five people died in a house fire on East Second Street in November did not have two independent means of escape, as required by the N.Y. State Multiple Residence Law, which has been in effect since 1952.
The law requires a stairwell located in a public hall and a second means of egress — either a fire-escape or enclosed stair unconnected to the first — accessible from the same story. In lieu of a second means of egress, a sprinkler system may be installed in the public halls and stairs, the law says.
But town officials say a letter of pre-existing use issued by the town in 2009 exempted the building from that requirement.
The blaze at 46 East Second Street late in the evening of Nov. 16 consumed the 3,000-square-foot home, built in 1905, and trapped the family that occupied the third-floor apartment. Suffolk County Police investigators have determined that improperly discarded cigarettes outside the three-story, wood-frame home caused the fire.
The bodies of Zonia Dinora Rivera, 41, her children, Carlos Cifredo Peñate Rivera, 24, and Andrea Isamar González, 16, and her nephews, Douglas Edgardo Rivera Aguirre, 24, and Carlos Alberto Ramos Aguirre, 22, were recovered from the third-floor apartment. Tenants occupying two apartments on the second floor and the owner, who lived on the first floor, all escaped without injury.
RiverheadLOCAL examined records obtained from the town through Freedom of Information Law requests submitted by reporters and by resident Ellen Hoil, who shared with reporters documents she obtained through FOIL requests.
Records show Riverhead Town issued rental permits for the third-floor apartment for more than 20 years, despite the fact that town tax records have the structure listed as a three-family dwelling containing apartments on the first and second floors only — and notwithstanding the lack of a second means of egress for the third-floor apartment.
Riverhead Town last issued rental permits for the second and third floor apartments in 2018. The permits expired in March 2020. The town’s code enforcement division issued tickets to the landlord, Carmela Cannella, in October 2021, a month before the fatal fire, charging her with violating the town rental occupancy code by renting the apartments without permits. Those charges remain pending.
Code enforcement last inspected the apartments in April 2018, prior to the prior permits being issued. Each apartment initially failed the 2018 inspections, town records show. The kitchen stoves in the second floor apartments were missing igniters, and sleeping rooms in the third floor apartments had keyed entry doors, which is prohibited by the fire code. Permits were subsequently issued, indicating that the violations were remedied.
Town Attorney Erik Howard said Friday the 2018 fire safety inspections included checks to make sure smoke detectors were installed and operational and that points of egress were not obstructed.
Town code enforcement officials did not check whether the third-floor apartment had two means of egress, Howard said, because the building had a letter of pre-existing use.
“Where there’s an existing building that is in possession of a letter of pre-existing use, we, the town, honor that pre-existing use,” Howard said. “So they wouldn’t have been required to make any alterations, changes or improvements to it, unless they filed an application, which would have triggered a change of use under the existing building code.”
“When [code enforcement officials] see a structure or an application that has come in with all [certificate of occupancies] that it looks like that property would need or the equivalent [letter of pre-existing use] they don’t do a top to bottom building permit or certificate of occupancy analysis,” Howard said.
Three-family or four-family? Town issued conflicting letters of pre-existing use
The town’s records, however, do not present a clear picture of the building’s pre-existing use status, as far as the third-floor apartment is concerned. The records contain numerous inconsistencies.
The town’s former Building Permits Coordinator Sharon Klos issued a letter of pre-existing use on April 9, 2009 stating the building was a three-story, four-family dwelling since prior to June 1965, when the Riverhead Town zoning code was first adopted. But Klos in 1997 had issued a letter of pre-existing use for the same building stating it was a three-family dwelling.
Howard said “it could be” after the 1997 letter was issued, “the homeowner found additional evidence showing that it was a three-story, four-family house prior to 1965.” The files don’t have documentation of that additional evidence, or even a subsequent application for a letter of pre-existing use, according to the town’s responses to Freedom of Information Law requests.
“If a person is asking for a letter of pre-existing use, the building department typically makes a determination of that based on some kind of evidence or affidavits from neighbors or conversations with neighbors that would confirm that,” Howard said.
In an interview Monday, Klos said she didn’t have a “definitive memory” of writing either pre-existing use letter for the house. “At the time that I wrote the first letter that was probably what was available to me, in terms of information, at that time,” Klos said. ”Now, what I’m assuming happened is that somewhere along the line, and I have had conversations with people after that, that told me that it was — not only was it a three-family, but that the third floor had been occupied as an apartment way back when,” she said.
Klos could not explain why she wrote the second letter in 2009 but said she did not recall the property owner applying for or asking for the 2009 letter of pre-existing use, which was addressed to Cannella.
“She would not have been inclined to do that,” Klos said of the homeowner. “She was not what I would call a cooperative landlord,” Klos recalled.
The former official said she probably wrote the 2009 letter because of “somebody coming forward and saying ‘Oh yes, that was occupied way back when, you know, and I knew it because of XYZ.’”
The building department has no records of any applications or notes made concerning the house other than the 2009 letter or pre-existing use and a 2010 certificate of occupancy for repairs to the porch and roof on the premises, according to the department’s response to a Freedom of Information Law request. “Any/all other documents on file were lost in a fire in 2010,” according to the response.
Klos’ April 9, 2009 pre-existing use letter characterizing the structure as a four-family dwelling, including the third-floor apartment, followed a March 23, 2009 inspection report filed by Riverhead Town Housing Inspector Richard Downs that “failed” the third-floor apartment as a rental unit.
“Third story does not have C.O. for a dwelling unit,” Downs wrote. “Occupancy and use of such area is prohibited by the code without proper approvals and C.O.s”
‘Order to remedy’ issued in 2000: ‘NO OCCUPATION OF THIRD STORY IS ALLOWED’
But at that point, the town had been issuing rental permits for the third-floor apartment, as well as the two apartments on the second floor, for nearly a decade, town records show — contrary to a June 2000 order from another town housing inspector.
On June 15, 2000, Riverhead Housing Inspector Jack Wherry issued an “Order to Remedy” to Cannella, that stated, “NO OCCUPATION OF THIRD STORY IS ALLOWED. ILLEGAL APARTMENTS TO BE VACATED AND RETURNED TO STORAGE AREAS ONLY,” Handwritten but unsigned inspection notes in the file, dated June 8, 2000, state that the third floor had “2 small apartments, Three people living therein.”
No documents were produced by the town to indicate what happened after the June 2000 Wherry letter or why a rental permit for a third-floor apartment was issued in April 2001.
Documents from the assessor’s office dating back to 1980 list the house as a three-family dwelling, which is consistent with the 1997 pre-existing use letter. But the tax records were not changed to reflect the 2009 pre-existing use letter for a four-family dwelling. In fact, through and including the current tax year, the property remains listed on the town’s tax roll as a three-family structure.
Cannella’s attorney, Edward Burke Jr., could not be reached for comment today.
A letter of pre-existing use from the town allows for the continuation of an existing use after zoning code changes that render the existing use nonconforming.
A letter of pre-existing use also should not exempt a home from meeting the necessary fire safety requirements outlined in state law and adopted building codes, according to Richard Meier, a fire and explosion investigator, analyst and expert.
Second means of egress, sprinklers would be required by proposed town code amendment
The town board at its meeting next week will schedule an April 5 public hearing on proposed amendments to the Rental Dwelling Units code.
Councilman Ken Rothwell and the code revision committee last week presented proposed amendments that would require all third-floor rental units to have a secondary means of emergency egress. It would also require a residential fire sprinkler protection system and interconnected smoke detection and alarm system, for all buildings that have third-floor rental occupancies and/or buildings that have more than two rental dwelling units.
The amendment would also reduce the term of the town’s rental permit from two years to one year, which would allow the town to conduct safety inspections on dwelling units more often.
“So we’ll never know the answers, but could a secondary egress on the third floor have made a difference in structure like that?” Rothwell said. “So putting safety first, that was one of our responses to that tragedy, was to make sure that there will always be a secondary egress,” Rothwell said during the work session.
The amendment would also require proof of existing homeowners insurance for the structure with first-time and renewal applications. The fee for rental permits would be struck from the code, which would authorize the town board to set the fees by resolution. The amendment also broadly revises some of the code’s language and increases minimum and maximum penalties for violations.
There are about 2,000 permitted rental dwellings in Riverhead, Downs told the town board last week. The home on Second Street was the only three-story rental in the town “that I know of,” Downs said.
“The impetus here is to better manage safety requirements for the rental properties in the town,” Howard said during the discussion.
If adopted, the code amendment will take effect in 2023.
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