Lawsuit: Nicholaus Building was sacrificed 'in the name of greed and so-called progress'

PHOTOGRAPHER: Eric Jenks

Work continues at the site of the former Nicholaus Building on Thursday.

SCHENECTADY — The owners of the former Nicholaus Building have filed a federal lawsuit alleging the structure was a casualty of efforts to move forward on a neighboring apartment development.

An attorney for building owners VIroj and Malinee Chompupong filed the lawsuit Tuesday, claiming the Chompupongs’ civil rights were violated. The lawsuit details events from the time the iconic structure became unstable to the time it was demolished, and names the city of Schenectady, Jackson Demolition and other firms associated with the Electric City Apartment development.

“The Chompupongs, who immigrated to this country from Thailand and who worked hard for decades before buying, renovating and renting the Nicholaus Building as part of their American dream, were sacrificed by the City of Schenectady (and others) in the name of greed and so-called progress,” the lawsuit states.

After the Nicholaus Building was deemed to be in imminent danger of collapse and was knocked down on April 7, the owners filed a notice of claim — a precursor to a lawsuit — alleging the city negligently demolished the building.

The subsequent lawsuit, filed in U.S. District Court, argues the demolition happened “on barely a moment’s notice,” violating the Chompupongs’ property rights and due process.

City Corporation Counsel Carl Falotico, who previously said that claim has no merit, said Thursday he stands by the decision to tear down the structure.

“There’s really no new allegations here,” he said. “They’re restating things they’ve stated before that simply aren’t true.”

The Chompupongs bought the building — it stood for more than 150 years at the corner of Erie Boulevard and State Street — in 2004.

The structure began shaking on April 1, 2016, resulting in cracks and the separation of walls from ceilings and floors. The building was evacuated and stabilized.

The Chompupongs have maintained the damage to their property was caused by demolition of the former Olender Mattress building next door. That work was done to make way for the Electric City Apartments, a project supported by the Schenectady Metroplex Development Authority and undertaken by Highbridge Development.

The lawsuit claims Mayor Gary McCarthy, “a friend to developers and contractors like Highbridge … who generously donated to his election campaign,” made restarting the apartment project a priority.

McCarthy could not be reached for comment on Thursday.

The city retained MJ Engineering and Land Surveying in the summer of 2016 to monitor the building’s stability. Additionally, Metroplex retained engineering firm Simpson Gumpertz & Heger to prepare renovation plans for the structure, which were submitted to Metroplex in August 2016.

The rehabilitation costs were in the ballpark of $1 million, too costly for Metroplex, the lawsuit states. Highbridge Development offered to purchase the building for $450,000, which the Chompupongs rejected in September as being below market value, according to the lawsuit.

In October, the city moved to conduct a building inspection that it could act on if necessary, according to the lawsuit, which also claims the property owners were “naïve and unaware of the city’s true agenda.”

On Dec. 1, 2016, former Building Inspector Eric Shilling reviewed the structure and issued numerous code violations.

The building sat empty and in violation of city code for several months, its fate in limbo as nobody took responsibility for making repairs. City and Metroplex officials expressed frustration as the Chompupongs failed to present plans for fixing the building.

On April 7, at about 2 p.m., Falotico called the Chompupongs’ attorney to notify them the building had shifted less than half an inch, was in danger of collapse and would be demolished immediately, the lawsuit states.

The building owners tried to appeal to a judge to block the demolition. A hearing was conducted over the phone, in which Falotico acknowledged the city had not shared any engineering reports warning of a building shift with the Chompupongs, and said there was no time to conduct a full hearing.

The demolition took place that night. The city then said it would drop the code violations and instead seek to recoup the $168,000 cost of demolition.

“The city directed the demolition of the Nicholaus Building even though buildings naturally shift and shifting by less than half an inch is within ordinary and acceptable limits and not indicative of imminent collapse,” the lawsuit states.

In a letter dated April 7 obtained by The Daily Gazette, MJ Engineering and Land Surveying told city officials the building had shifted sometime in mid-March, the west wall and foundation were further deteriorating and the building was in danger of collapsing.

The city asked if it could wait seven to 10 days to address the situation, but the engineer said it would not recommend waiting, according to the letter.

In July, work commenced once again on the Electric City Apartments. Construction had been delayed while the Nicholaus Building sat vacant and cordoned off. The $20 million development will include 104 luxury apartments and 9,900 square feet of ground-floor retail space.

Falotico on Thursday rejected the argument that the city sought to remove the Nicholaus Building for the sake of the adjacent development project.

“The building stood for over a year after it was initially destabilized, so I don’t think the facts support what their contention is,” he said. “We really bent over backward to give them an opportunity to fix that building. I don’t know how much more we could’ve done. It was only when it got so bad that it was an imminent threat to collapse and endanger the public we took action.”

HOW IT PLAYED OUT

Here’s a timeline marking significant events surrounding the fate of the Nicholaus Building, which was deemed unstable more than a year ago and was demolished nearly five months ago:

April 1, 2016: Nicholaus Building becomes unstable, is evacuated and fenced off.
Summer 2016: City retains engineering firm to monitor building’s stability.
August 2016: Engineering firm submits plans to fix the structure, work that would cost roughly $1 million.
September 2016: Building owners reject Highbridge Development’s offer to buy the building for $450,000.
Dec. 1, 2016: City inspects the Nicholaus Building and issues numerous code violations.
April 7, 2017: The Nicholaus Building is deemed a threat to collapse and is demolished.
April 8, 2017: City says it will drop code violations and instead look to recoup the cost of demolition from the building owners.
April 19, 2017: The Nicholaus Building owners file a notice of claim — a precursor to a lawsuit — against the city for negligent demolition.
Aug. 22, 2017: The building owners file a lawsuit in federal court alleging the city and other agencies violated their civil rights when they demolished the Nicholaus Building.