Success of Con Edison Construction Vendor Comes at the Expense of Neighbors' Peace of Mind

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Success of Con Edison Construction Vendor Comes at the Expense of Neighbors' Peace of Mind

August 04, 2015 - 00:25

Entrance to Peduto Brothers Construction at 7 4th Street Before Dawn

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NEW ROCHELLE, NY -- Every morning before sunrise, seven days a week, dozens of laborers arrive at a converted coal yard in the West End of New Rochelle. More than a dozen trucks, some carrying or pulling heavy construction equipment, start up, load up and drive off.

"We've been complaining about the noise, the trucks, the workers, for years," said one resident who asked not to be identified. "We've been to the City, to our Councilman, and nothing ever happens so we called Talk of the Sound."

City records confirm that New Rochelle residents have been complaining for years without result about the operation of a contractor’s yard on 4th Street in the City’s West End. Nicholas Peduto has owned the property since 1987. Peduto Brothers Construction was incorporated in New York in 1991. Peduto is the President of the company.

This dispute over the property is a common story in New Rochelle where non-conforming residential dwellings are often mixed in with properties that have non-conforming uses, often manufacturing or industrial. This is especially true in the City’s West End.

Talk of the Sound reviewed decades of public records posted online and obtained under Freedom of Information requests and interviewed residents, municipal officials, various regulated agencies and Nicholas Peduto. 

This research appears to confirm there are numerous City Code violations at that location but two other complaints from neighbors appear to be unfounded.

The two unfounded complaints revolved around allegations of noise violations and too many vehicles being parked on the property.

Talk of the Sound visited the site on several occasions, at different times of the day and night. The work crews do make noise while preparing to leave the site to work elsewhere and make noise when they return but the noise was nothing out of the ordinary for a district zoned as M-2. The property abuts the Northeast Corridor Railway and trains pass within 20 feet of the property on a near constant basis throughout the day — the yard was originally developed for its access to the railway but more on that in a moment. City sanitation trucks and work vehicles from the many landscapers who operate out of the area can be heard beeping and rumbling past on Lafayette Avenue at the other end of the street. It is not a quiet area early in the morning and Peduto Brothers Construction is not making an extraordinary amount of noise.

Another complaint filed with the City is the claim that the property was “grandfathered” to allow 3 trucks on the property. A review of municipal building files shows no limit to the amount of trucks that can be stored on the property. The trucks are packed in like sardines but that does not appear to be a violation per se.

Illegal parking has been an issue and regular complaints to the New Rochelle Police Department have resulted in the issuance of parking tickets.

The history of the property involves both a twice-elected Mayor of New Rochelle and a twice-convicted former State Senator from New Rochelle.

The 7 4th Street property was originally developed as a coal yard in 1929 by the Waldorf-Reid Coal Company. For many years the property was used as a coal yard. Four coal silos towered 60 feet over the neighborhood. Beneath the silos, train tracks ran onto the property.

The Waldorf-Reid Coal Company was run by Frederick H. Waldorf, a prominent New Rochelle resident who resided at 145 Wellington Avenue. A Democrat, Waldorf was twice Mayor of New Rochelle. At the time of his death on August 3, 1935 at the age 74 he was a member of the New Rochelle Board of Education and Trustee of the Peoples Savings Bank.

According to an obituary published in the Brooklyn Daily Eagle on August 5, 1935, Waldorf was one of the most prominent yachtsmen on Long Island Sound. He was a former commodore of the New Rochelle Yacht Club. Waldorf began his career as a wholesale grocer in New York City, founded the Huguenot Trust Company and went on to be a real estate developer in his later years.

After Waldorf's death -- and building department records do not indicate precisely when -- the property was converted a contractor’s yard.

In July 1969, as Neil Armstrong was walking on the moon, 7 4th Street Realty Corporation sought and was granted a variance by the New Rochelle Board of Appeals on Zoning to legalize the use of 7 4th Street from a coal yard to a contractor’s yard. The variance was granted but with several conditions:

  • Heavy building equipment and machines not to be stored on the property; the property only to be used to store materials, such stored materials not to exceed the height of the fence.
  • Property to be used only for the parking of trucks.
  • No work to commence before 8 a.m. or after 6 p.m.
  • A stockade fence to be erected six feet in height.
  • The silos that are on the property at present are to be removed within a three year period; if this is not complied with, applicate may return to the Board to request permission for an extension of time to comply.

Joseph R. Pisani, the lawyer for 4th Street Realty Corporation, then argued that the variance should be granted because the property had been used for years as a contractor’s yard and his clients were deceived into buying the property in the mistaken belief that the yard could continue to be used as a contractor’s yard.

The premises was originally used a coal yard and on the premises there is presently 4 silo type coal bins which are dangerous and it was anticipated that the bins would be demolished. Upon the demolition of these bins the yard will be then reorganized so that there would be absolutely no visibility of the use of the yard from the street or adjoining properties.

Pisani was a well-known figure in New Rochelle at the time. Pisani was a New York State Legislator, serving in the New York State Assembly from 1966 to 1972. He went on to serve in the New York State Senate from 1973 to 1984. Pisani was indicted for fraud and tax evasion in 1983 and resigned his seat. He has been in and out of prison twice. Some of the charges against Pisani were later vacated and he was re-instated to the bar in 2008.

The 4 silo type coal bins were removed long before Peduto Brothers Construction bought the property so compliance with that aspect of the Certificate of Occupancy has not been an issue for decades.

While several of the complaints are unfounded, Peduto Brothers Construction is in violation of each of the other four conditions of the Certificate of Occupancy, especially as it pertains to the promise that "there would be absolutely no visibility of the use of the yard from the street or adjoining properties".

Work can occur at any time at the site due to the nature of the company serving as an approved vendor to Consolidated Edison. Work on-site always begins before 8:00 a.m. and can continue well past 6:00 p.m. and this work occurs seven days a week.

Nicholas Peduto acknowledged that there may be work going on at the site as late as midnight depending on the needs of Con Edison.

Talk of the Sound observed the location from 5:30 a.m. until 7:00 p.m. on a weekday and found that workers began arriving shortly before 6:00 a.m. Crews loaded up and pull out at around 6:30 a.m. and the yard was largely empty by 7:00 p.m. Given the amount of activity in the morning as 45 workers and more than a dozen trucks roll out, the site was relatively quiet. The Metro-North trains passing by the end of 4th Street were louder than the workers.

Peduto says he has taken steps to reduce noise, going so far as to install switches at great expense so that his workers can disable the back-up beepers on his trucks while operating on 4th Street.

Disabling the back-up beepers appears to be legal. OSHA regulation 29 CFR Part 1926.601(b)(4) requires "a reverse signal alarm audible above surrounding noise level", but only when the motor vehicle has "an obstructed view to the rear”. The determination of the noise level is left to the employer. 29 CFR 1926.601(b)(4) and 1926.602(a)(9) relate to back-up alarms in construction. Both provisions “apply only to the motor vehicles and materials handling equipment used in construction operations” when a driver's view to the rear is obstructed. In such case, the vehicle must be either equipped with an alarm or an observer must signal the driver that it is safe to proceed.

There are several other violations that go against the terms of the Certificate of Occupancy: (1) there is not a six-foot high stockade fence surrounding the entire property; (2) building/construction supplies are stored on the property; (3) heavy equipment is stored and used on the property; (4) equipment and supplies are visible over fence — including more than a dozen trucks; (5) most every structure on the property is visible over the fence and supplies are piled on top of those structures so they too are visible over the fence.

There are additional violations.

A two-story steel structure was built on the property without a building permit. There is no record of an inspection and no Certificate of Occupancy was issued. The City responded to a complaint about a previous steel structure built on the site in November 2010; the structure was taken down at the time and the complaint marked “Condition resolved”. The current structure was built in direct violation of the previous agreement to remove the steel structure, according to City officials.

An above-ground diesel tank was added to the property without obtaining a required permit from the New Rochelle Fire Department.

Mechanics reportedly work on automobiles and trucks on the property which is prohibited without proper permits. Talk of the Sound did not observe this but Peduto did not dispute this claim when it was presented directly to him.

The eastern edge of the property borders property owned by the Metropolitan Transit Authority. A garage appears to have have been built on MTA property -- obviously without a permit. Construction materials are piled in a haphazard manner on top of the garage, well-beyond the six-foot high limit, and some of the construction material has fallen off the garage onto the ground where they may present a hazard with the MTA train tracks just 20 feet away.

Metro-North which operates on the rail line has had several well-documented safety failures over the past two years. In February 2015, a Metro-North Railroad train crash with an SUV in Valhalla killed six people and injured fifteen others. A Metro-North Railroad train derailment and crash at Spuyten Duyvil in December 2013 killed 4 and injured 61 after an engineer fell asleep at the controls of the train. Another Metro-North Railroad train crash occurred in May 2013, when a Metro-North Railroad train derailed between in Fairfield, Connecticut, injuring 72 people. The same train tracks serve as the Northeast Corridor for rail service from Washington, DC to Boston. In May 2015, an Amtrak Northeast Regional train in Philadelphia derailed and crashed, killing 8 and injuring over 200.

Loose construction materials, scattered about just a few feet from the Northeast Corridor railway, should be a cause for alarm for the MTA.

The MTA told Talk of the Sound it was previously unaware that Peduto Brothers may have encroached on their property but now plans to visit the site and make their own determination.

“We are not aware of problems resulting from materials at that location,” said Aaron Donovan, Deputy Director for External Communications for the Metropolitan Transportation Authority. “We will investigate to see if there are any safety hazards.”

Peduto Brothers Construction is an approved construction vendor for Con Edison. For many years, Con Edison delivery trucks have arrived throughout the week, carrying large amounts of heavy construction supplies. The trucks have routinely blocked driveways and the street as they have illegally unloaded their trucks in the Public Right-of-Way. 

Neighbors have complained that Con Edison makes deliveries on large 10-wheel flatbed trucks every work day and that they block the right of way and do not fully enter Peduto Brothers Construction property to make delivery so they are blocking a Public Right-of-Way while making delivery of heavy construction supplies. Con Edison delivery trucks were observed parked on the street, blocking a driveway and taking up multiple parking spaces. They were not idling their engines.

Asked about this, Con Edison ducked the question, failing to respond for over a week, claiming they had to “research” the matter, promising a response but then failing to provide one as promised. After repeated follow up emails, Con Edison officials explained the delay in responding was due to hot weather in New York in July.

When Con Edison did finally issue a statement it came in the form of a canned response that was not responsive to the issues at 4th Street:

“Our crews seek to comply with all local regulations when doing the work that is necessary to keep service safe and reliable. We apologize for any inconvenience.  However, our work requires our trucks and personnel to be on the streets of New York City and Westchester County 24 hours a day, seven days a week."

Con Ed spokesperson Joy Faber said the company was “working to address these issues by adjusting delivery schedules and reducing lane closures in the area".

The issue on 4th Street is not about “lane closures” by Con Edison repair crews in the streets of New Rochelle doing work to provide service to customers. Con Ed officials were told several times that the issue was not crews working on the street but their trucks making illegal deliveries to a vendor. Despite this, Con Ed continues to respond to an invented narrative of their own making while failing to address what is actually occurring — Con Ed delivery crews are blocking public right of ways while illegally unloading construction supplies in the middle of the street and not repair crews working to repair downed power lines or replace blown transformers.

It is hard not view the nature of these responses as a deliberate attempt to muddy the water by conflating their truck drivers delivering construction supplies to a vendor with repair crews servicing the community. The work done by Peduto Brothers can occur throughout the Con Ed service area and rarely, if ever, in New Rochelle.

Peduto says Con Edison had made changes over the past week, soon after Talk of the Sound first contacted Con Ed for this story. He said the company is no longer sending 10-wheel trucks and drivers are being directed to pull their vehicles completely onto the 7 4th Street property.

“One driver came the other day and wanted to unload on the street,” said Peduto. “We told him he had to pull all the way onto the property.”

Peduto says the driver refused and left without dropping his load.

While laudable, this remark served to verify the complaint that Con Ed drivers have been unloading in the public right-of-way.

One neighbor disputes even this account, claiming that the driver in question did drop his load before driving off.

Peduto Brothers Construction recently leased property on Beechwood Avenue under the New England Thruway from the The New York State Thruway where the terms of his lease allow the company to park construction equipment and store non-flammable construction equipment at the location.

“We will be moving some of this equipment over there,” said Peduto.

Peduto Brothers leases property near the NYSTA property where, several years ago, a cement mixer was installed without a permit. Shortly after Talk of the Sound began researching this story, the cement mixer was dismantled and removed. Wherever it goes, it cannot go on the NYSTA property as the NYSTA will not allow a cement mixer on its property.

“Peduto did inquire about placing a cement mixer on the property,” said Shane Mahar, spokesperson for the New York State Thruway Authority. “That request was denied.”

While Peduto Brothers Construction does have problems with the MTA, and has a number of City Code and Fire Code violations, Nicholas Peduto is correct to note that the residents are filing noise complaints while living in an M-2 zoned district (zoned for manufacturing with a FAR of 2.0).

The residences along the dead end of 4th Street near Lafayette Avenue were built in the late 1930s, after Waldorf Reid Coal Company constructed the coal yard. Residences in that area were non-conforming dwellings at the time they were constructed, buildings that later required City approval to make changes to the dwellings because residential uses are not permitted in an M-2 zoned district.

The industrial use of the property at 7 4th Street pre-dates the residential use of property elsewhere on 4th Street. Anyone building, converting or purchasing a residential dwelling in that section of 4th Street got a lower price because the property is up against the train tracks, on property zoned M-2 and next or across from a coal yard, later converted to a contractor’s yard. Noise from industrial use of 7 4th Street was always part of the deal in owning a residence at the dead end of 4th Street so to complain about noise violations today smacks of revisionist history.

At the same time, residents rightly point out that there are numerous restrictions on the way 7 4th Street can be used and what can be placed on the property and Peduto Brothers has not adhered to those restrictions.

More troubling is the failure of the City to act on the many obvious City Code violations. Anytime the City is made aware of City Code violations and fails to take enforcement action it raises legitimate concerns of “selective enforcement” for other property owners who find themselves subject to enforcement for some of the same City Code violations. A precedent is set that can be used in court to justify all manner of City Code violations, a dangerous path towards property use anarchy for the City of New Rochelle.

New Rochelle residents have a right to expect that the City Code will be enforced fairly and evenly, not selectively for the benefit of a few. In this case, both sides, in what has become a running dispute, have valid concerns and valid arguments. The neighbors have a right to have the City Code enforced so they are not awakened at all hours of the day and night, that their street is not blocked off by delivery trucks unloading in the middle of the street and that vehicles are not parked illegally on the street where they live.

At the same time, Peduto Brothers has a right to make a living by operating a business on a property zoned for commercial use. Peduto employees close to 50 people, most of whom live in New Rochelle. The company has taken affirmative steps to address resident’s concerns about the noise while doing extra work to make their corner of the street look nicer.

“I try to be a good neighbor,” said Peduto, who pointed out that he has planted flowers, built fences and even added a gate to prevent people from accessing the rail road tracks.

Nicholas Peduto may just be a victim of his own success. He has worked hard to build his company into a profitable construction company with a blue-chip client but he has grown beyond what can be accommodated at his current location and the demands of the client are not viable based on the property restrictions built into the Certificate of Occupancy.

The solution may be for the City to step in to enforce the rather clear-cut City Code violations so the property is safe and in compliance with local ordinances and for the residents to recognize they chose to live in an M-2 zone which is going to inevitably bring with it commercial vehicles and some amount of noise.