Roosevelt Landings Psc Decision

STATE OF NEW YORK PUBLIC SERVICE COMMISSION At a session of the Public Service Commission held in the City of Albany on February 12, 2009 COMMISSIONER PRESENT: Garry A. Brown, Chairman Case 08-E-0838 – Petition of North Town Roosevelt, LLC, to submeter electricity at 510-580 Main Street, Roosevelt Island, New York, located in the territory of Consolidated Edison Company of New York, Inc., filed in C 26998. ORDER STAYING ORDER GRANTING PERMISSION TO SUBMETER (Issued and Effective February 12, 2009) By untitled order dated November 21, 2008, the Commission granted a petition of North Town Roosevelt, LLC (North Town Roosevelt or Owner) requesting permission to submeter electricity to residential tenants at its Roosevelt Landings apartment complex (formerly known as Eastwood), located at 510-580 Main Street, Roosevelt, New York (Roosevelt Landings). 1 On February 6, 2009, a petition for rehearing was filed on behalf of the residents of Roosevelt Landings. The petition for rehearing requests that the Commission withdraw its approval allowing the Owner to submeter electricity at Roosevelt Landings. The petition for rehearing asserts that a substantial number of Roosevelt Landings tenants are low income households and that Roosevelt Landings is in close proximity to the only public hospital (HHC Coler-Goldwater Hospital) in New York City that specifically addresses the needs of individuals 1

Case 08-E-0838, North Town Roosevelt, LLC, to submeter electricity at 510-580 Main Street, Roosevelt Island, New York – Submetering, Untitled Order (issued November 21, 2008)(Submetering Order).

with chronic diseases. As a result of its proximity to the hospital, the proportion of Roosevelt Landings tenants who are individuals with disabilities and chronic diseases is asserted to be larger than would be expected, and it is further asserted that Roosevelt Landings has an unusually high number of tenants who utilize 24hour life support medical equipment, such as ventilators and oxygen tanks. These allegations suggest that the Submetering Plan, as the Owner apparently intends to implement it, may jeopardize the tenants’ health and safety where unpaid electric charges could be used to allege the non-payment of rent, and, as a result threaten the tenant with eviction. The petition for rehearing asserts that the “shadow” electric 2 bills supplied to the tenants are two to three times higher than the rent reductions specified in the New York State Division of Housing and Community Renewal’s (DHCR) rent reduction formula, with some electric bills in excess of $1000. In addition, the petition for rehearing further states that tenants, who rely on electric baseboard heating, do not have the proper means to control their energy consumption to reduce their electricity bills --tenants cannot control the electric heat in each apartment and some basic energy efficiency measures such as covers for air conditioning sleeves have not been installed. These concerns are greatly exacerbated by the apparent attempt to avoid Home Energy Fair Practices Act (HEFPA) protections. 3 The petition for rehearing and the initial review of the rehearing petition by the Department of Public Service Staff (Staff) disclose serious, credible allegations challenging North Town Roosevelt’s implementation of the 2

A shadow electric bill provides a tenant with an indication of his or her electric consumption; it is not an actual bill due and owing to the landlord. The purpose of the shadow bill is to afford the tenant the opportunity to see and potentially alter electric consumption prior to the commencement of billing for submetered electric service.

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Public Service Law (PSL) Article 2. -2-

Submetering Plan approved in the Submetering Order. In light of the allegations, we are concerned about the potential for imminent harm to the tenants of Roosevelt Landings and the potential violation(s) of HEFPA if action is not taken on an emergency basis pursuant to the State Administrative Procedure Act (SAPA) §202(6). 4 The Commission was not informed of the tenants concerns regarding the Submetering Plan, the fact that Roosevelt Landings utilized electric heating, and the other concerns regarding the poor energy efficiency of the building prior to its issuance of the Submetering Order. Combined, these concerns could jeopardize the ability of vulnerable tenants to maintain housing in the middle of winter. Furthermore, while some customer outreach and education may have been provided, it appears from the rehearing petition that the tenants may still be confused as to the Submetering Plan and its impacts, which if true, may indicate a problem with that outreach. Furthermore, the petition for rehearing raises concerns regarding a rider to the tenant leases which appears to provide that electric bills will be treated as rent, subjecting tenants to potential eviction if they fail to pay their electric bills. In the Submetering Order, the Commission notes that the Owner stated in its petition that in no event will electric service be terminated for non-payment of electric charges. However, this language and tenant protections in the Submetering Order could be vitiated by the lease rider in that, while electric service might not be disconnected, the tenant could still be subjected to eviction. Further, the Submetering Order specifically states that the Owner will comply with HEFPA, but tenant eviction for non-payment of their electric bill would raise serious questions regarding the Owner’s compliance with HEFPA. The concern is

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This building is one of four buildings or complexes that were the subject of four separate orders granting permission to submeter electricity. While they are similarly situated, stays for each order will be issued separately in Cases 08-E0836, 08-E-0837, 08-E-0838 and 08-E-0839. -3-

that the treatment of electric service as a portion of rent has the effect of thwarting the intent of both HEFPA and the Submetering Order. While the Owner is presently providing only shadow bills to tenants, on March 1, 2009, Roosevelt Landings tenants will be subject to actual bills for submetered electric service. To ensure that vulnerable tenants are not harmed by submetering and to ensure that the Owner does not undermine the tenants’ HEFPA protections, the Submetering Order granting authority to submeter must be and is stayed pursuant to PSL §22 and this Order. Specifically, pursuant to this stay, the Owner shall not utilize the submetering system to measure electric service and shall not charge tenants for submetered electricity unless and until authorized to do so by a further Commission order. The Commission will expeditiously review the petition for rehearing and interested parties should file comments thereon. The Owner is directed to submit an affidavit to the Secretary, no later than February 27, 2009, stating it has served each tenant of Roosevelt Landings with a copy of this Order. The Secretary is directed to serve Consolidated Edison Company of New York, Inc. and DHCR with a copy of this Order. EMERGENCY APPROVAL Compliance with the State Administrative Procedure Act is not possible because to do so could, as described above, be detrimental to the health, safety and general welfare of tenants who are low income, require electricity for life support, are elderly, and/or are disabled, and emergency approval of this stay of the Submetering Order is required. 5 Immediate issuance of this Order pursuant to SAPA §202(6) is necessary for the preservation of the health, safety and general welfare of the tenants of Roosevelt Landings. Accordingly, compliance with the

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Empire State Association of Adult Homes, Inc. et al. v. Antonia C. Novello, M.D., as Commissioner of the New York State Department of Health 193 Misc.2d 543 (3rd Dept., 2002). -4-

advance notice and comment requirements of SAPA §202(1) would be contrary to the public interest. It is ordered: 1. The November 21, 2008 Order granting the petition of North Town Roosevelt, LLC to submeter electricity at 510-580 Main Street, Roosevelt Island, New York is stayed pursuant to Public Service Law §22, until further action by the Commission. 2. North Town Roosevelt, LLC shall submit to the Secretary, no later than February 27, 2009, an affidavit stating it served each tenant of Roosevelt Landings with a copy of this Order. 3. The Secretary to the Commission shall serve Consolidated Edison Company of New York, Inc, and the New York State Division of Housing and Community Renewal with a copy of this Order. 4. This Order is adopted on an emergency basis under §202(6) of the State Administrative Procedure Act. 5. This proceeding is continued. (SIGNED)

__________________ Commissioner

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