Wooden two-by-fours jut out and over the backyard where children used to play, a giant pit has been dug in the basement, and fast food odors from a nearby restaurant creep straight into a three-story home owned by Darrell Burgess of Norwood.

It’s been quite the living nightmare for Burgess, whose struggles stem from construction of a building addition owned by Edward Khalil, the developer of an impending six-story structure that rests at 3103 Webster Ave. by East 204th Street and just across from another building under construction by The Doe Fund. The pair of buildings are the result of a major 2011 rezoning of Webster Avenue that accommodates larger buildings, and a source of Burgess’s headaches.

Khalil’s project looks to add at least four floors to the existing property that’s home to La Nueva Estrella restaurant. And crews have been working directly above Burgess’s property since.

For months, Burgess has grappled with Khalil, the city Department of Buildings (DOB), and even the city Department of Health (DOH), engaging in a tiff rife with he-said-he-said moments, daily inconveniences, and the study of construction law.

With negotiations to resolve the issue at an impasse, the dispute may be headed to court, with Burgess saddled with mounting legal debt.

“I hope you can afford [your lawyer’s] fees,” Khalil wrote to Burgess in a recent text message following the breakdown of a proposed agreement that would have allowed Khalil to legally allow construction workers to enter the space of his property to perform work.

Burgess filed his first complaints almost immediately after construction, as work had already begun to shake his building at all hours. It worsened from there, as more and more construction-related issues surfaced.

Licensing
Typically, any developer who expects some construction work to spill over to a resident’s property must get a legally binding license that’s approved by the homeowner, in this case Burgess, and signed off by the DOB.

But Burgess, who’s expanded his skillset into real property law, says that never happened. And he’s entitled to it.

“They have to protect your property. I use my backyard,” Burgess said. “My daughter uses my backyard. She plays, she dances. I use my backyard, I work on bikes; I have a basketball court back there. If you wanna use it, we gotta find some middle ground.”

According to Burgess, in an initial good faith meeting last year, Khalil said he was unaware of the licensing process, later hinting that he often slipped neighboring property owners from his previous projects a couple hundred dollars in exchange for accessing their property. Burgess claims that Khalil’s understanding of the legal process crystallized the moment lawyers got involved. “Now all of a sudden, lawyers involved, he understands what licensing means,” said Burgess.

Burgess has since filed DOB complaints related to the encroachment, with one grievance related to a restaurant duct that ventilated food odors into his home. 

Underpinning Fears
The initial meeting proved to be a smoke screen from Burgess’s vantage. At the meeting, Burgess was promised construction plans and that no underpinning—a process that reinforces a home’s foundation to prevent it from collapsing–would take place. Underpinning, often utilized when construction of a nearby structure could cause neighboring foundations to shake, can potentially devalue a home.

When Burgess began to suspect underpinning took place, he took the advice of a surveyor he hired and checked his property after noticing a large pit was being excavated along the side of his house.

He went to the Bronx borough DOB office and was able to obtain building plans for the construction, which suggested that Khalil’s company had underpinned the property. Speaking with the Norwood News, Khalil said all the plans should be publically available and asserted that no underpinning took place.

Burgess returned to the DOB in late October and was able to personally meet with Bronx Borough DOB Commissioner Werner deFoe.

“[H]e says, ‘No, they would never do this, why would they [do this]?’ So he is looking through his big ol’ fancy computer and he says, ‘Oh. I think they underpinned your property,’” said Burgess.

When the Norwood News recounted Burgess’s version of events to the DOB, an agency spokeswoman clarified no underpinning happened and that the notation was a mistake on an old building permit application.

Deadlock
Burgess drafted up a settlement that would allow Khalil to perform work on his property. Burgess spent about $12,000 in lawyer’s fees for it. Khalil showed initial interest in the deal, but weeks later rejected it. Burgess claims this shift was spurred by Khalil’s displeasure at a clause requiring Khalil to remove scaffolding by a certain date or face a fine. Khalil disputed Burgess’s version of events telling the Norwood News he actually declined over Burgess’s request, comparing it to Burgess demanding ‘ransom money.’ Currently, parties stand deadlocked as a stop work order is in place until Khalil makes an effort to protect Burgess’s roof from the rising construction.

But the stop work orders haven’t really stopped work at all. Construction has since reached six stories despite orders that were filed to cease construction when the building was only at five stories. DOB violations and civil fines have come and gone, and multiple stop work orders have been summarily dropped after quick and, Burgess believes, suspect inspections by Manhattan based Building Enforcement Safety Team (BEST) squads, who report to the DOB.

“I would like to go to court. The problem with that is that gets very expensive… my lawyer says when you go to court that’s going to cost you, you know, another $10,000,” said Burgess. “But in one sense I want to go to court because I want them to explain to a judge how they got to the sixth floor.”

For now, Burgess remains convinced his home was underpinned, going so far as to dig through his tile and into the dirt in an effort to discover the underpinning. He couldn’t afford the $10,000 an engineer might charge.