Chairman Stephanie Wilkie called the meeting to order at 7:00 P.M. Present were Vice Chairman Edward Sheehan, Director of Public Health Thomas Carbone and Town Counsel Charles Zaroulis. Susan Sullivan was not present.
Ms. Wilkie outlined the code of conduct for the meeting. All owners, tenants, family, reporters, members of the board and staff will refrain from interrupting testimony and everyone will be heard.
Ms. Wilkie stated that last week the Board of Health made a determination that the building on 320 Old Main Street would be condemned.
Ms. Wilkie asked all who would be giving testimony to stand, raise the their right hand, and they were sworn in. A notice was sent on May 24, 2002 to JDS Enterprises apprising them of the violations.
The first to give testimony was Director of Public Heath Thomas Carbone.
Mr. Carbone stated that on May 22, 2002 the Board of Health office received a call from tenants at 320 Old Main Street. They stated that the toilet on the bottom floor of the residence would not flush and that the water heater was not working. They requested an inspection of the property. On May 23, 2002, he conducted the inspection per Chapter II of the State Sanitary Code, Minimum Standards of Fitness for Human Habitation. The following items were found:
1. The downstairs toilet had backed up and overflowed resulting in excrement and foul smelling water on the floor and back of the toilet. The washing machine hookup showed a backup with wastewater.
2. The downstairs toilet was loose on the base and had to be reset.
3. There were floor titles in the downstairs bathroom that had come loose due to the backup and overflow.
4. The carpet outside the downstairs bathroom was soaking wet from wastewater.
5. The washing machine drain line is vented inside the building when the plumbing code requires outside vents.
6. The pilot on the gas water heater was not staying lit. Mr. Carbone witnessed the tenant lighting the pilot and within 20 minutes it was out again.
7. The roof overhang over the back door showed dry rot and needs to be replaced.
8. There are two bedrooms in the basement. The windows only open at most to a 12-inch by 19-inch space and the sills are at least 57 inches off the floor. The state building code requires the window to open at least 20 inches by 24 inches and the sills to be no higher that 44 inches off the floor.
9. There was a missing cover plate on the electrical plug near the refrigerator.
Mr. Carbone stated that the order was typed and dated on May 24, 2002 and it was mailed via certified and regular mail to JDS Enterprises. It was signed for on May 28, 2002. On June 3, 2002 the Board of Health received a letter from John D. Sullivan dated May 31, 2002 requesting a hearing before the Board of Health.
The next to give testimony were the tenants at 320 Old Main Street, Laura Rae and Ernest Rae.
Mrs. Rae presented documentation and pictures to the Board of Health. For the record the following documentation was given:
1. A statement from Robert Briggs dated June 12, 2002. This is Laura Rae’s father.
2. A letter from the Rae’s to the Tewksbury Housing Authority dated May 20, 2002.
3. A letter from the Tewksbury Housing Authority to the Rae’s dated June 3, 2002.
4. A copy of the letter from the Board of Health to John D. Sullivan dated June 7, 2002.
Ms. Wilkie stated a complete package of the documentation and pictures will be given to John D. Sullivan.
Mrs. Rae stated that she called Mr. Sullivan’s office on April 11, 2002 to let him know about the boiler and hot water pilot problem. On April 16, 2002, Mr. Sullivan came to the house to try to light the boiler and could not. On April 17, 2002 one of Mr. Sullivan’s employees came over to look at the boiler and he had no luck starting it either. One week later the Gas Company came to change the meter over to the Rae’s name. He lit the boiler and showed Mr. Rae how to light the hot water heater pilot. They have to light it several times a day and wait one hour before getting hot water. There is also a problem with the sewer. Their daughter flushed the toilet downstairs and it flushed slowly. The second time it was flushed, sewage was seeping from the bottom. She called Mr. Sullivan’s secretary and she said she would get in touch with him. He called but never came over.
She called the next day and he never came. One week later he came over on Monday and looked at the overflow downstairs. He said it was messy and he would get someone over there to look at it. They never came. She called the office several times but there was no response. They tried to keep up with the overflow with a wet/dry vacuum. They had no choice but to call the Board of Health. Mr. Sullivan called on May 24, 2002 after he received the letter from the Board of Health. He said that friends don’t report friends. The response was friends don’t leave tenants with no hot water and raw sewage for five weeks. Mr. Sullivan became angry and threatened eviction.
Ryan Sullivan, Mr. Sullivan’s nephew came over and saw the mess. He sent someone over to fix the toilet. The wax ring was rotten, so it was replaced. The man flushed the toilet and it didn’t leak so he left. Mrs. Rae then flushed the toilet and the water rose to the top. She called Ryan Sullivan again and he said he would call Tewksbury Sewer Service. Mrs. Rae told him she would call. She called and they said they would be there at 7:30 AM the next morning. Mr. Rae dug the hole where the septic cover was. When the cover was removed the system was full. Mr. Sullivan came over and the Raes went inside. Mr. Rae stated that he took a picture of the full sewer.
Mr. Carbone asked what the date was of the first overflow. Mrs. Rae stated that on or about April 11, 2002.
Ms. Wilkie asked the Raes when they moved into 320 Old Main Street. Mrs. Rae stated that they began moving in on the first weekend of April but started residing at 320 Old Main Street on April 11, 2002. Mr. Rae added that there was no heat for the first week.
Attorney Zaroulis stated that there are a dozen photos submitted that should be dated and explained. The following is a record of the photographs.
1. Picture #1 shows the screws in the downstairs toilet. Picture taken on May 24, 2002.
2. Picture #2 shows some old mold. Picture taken on May 24, 2002.
3. Picture #3 shows an arrow, which is pointing to the pipe through the wall. Picture taken on May 24, 2002.
4. Picture #4 shows the Raes using the wet/dry vacuum on the carpet outside the downstairs bathroom. Picture taken on May 24, 2002.
5. Picture #5 shows the saturated rug inside the house. Picture taken on May 24, 2002.
6. Picture #6 shows the downstairs rug being cleaned with the wet/dry vacuum. Picture taken on May 24, 2002.
7. Picture #7 shows a closer look at the water on the floor. Picture taken on May 24, 2002.
8. Picture #8 shows the Raes using the wet/dry vacuum on the floor and feces and water on the floor. Picture taken on May 24, 2002.
9. Picture #9 shows excrement being dumped from the rugs inside the house. Picture taken on May 24, 2002.
10. Picture #10 shows the hole dug by Mr. Ray for the septic system. Picture taken on May 24, 2002.
11. Picture #11 shows the hole dug by Mr. Ray and the overall yard. Picture taken on May 24, 2002.
12. Picture #12a shows what was in the sewer system when the cover was removed. Picture taken on May 24, 2002.
13. Picture #12b shows water coming from the laundry room. Picture taken on May 24, 2002.
14. Picture #13 shows Mr. Roux from the Tewksbury Sewer Service bringing in the hose to pump the septic system. Picture taken on May 24, 2002.
15. Picture #14 shows more dumping of excrement from the rugs inside the house. Picture taken on May 24, 2002.
16. Picture # 15 shows the toilet. Picture taken on May 24, 2002.
Attorney Kevin Sullivan appeared representing JDS Enterprises and John D. Sullivan.
Ms. Wilkie stated that the first flush of the downstairs bathroom was on April 11, 2002. She asked when the second flush occurred. Mrs. Rae stated that it was on April 12, 2002, that’s when the water was coming from the base of the toilet.
Ms. Wilkie asked when Mr. Sullivan was called. Mrs. Rae stated immediately on April 12, 2002.
Ms. Wilkie asked when did Ryan Sullivan come over. Mrs. Rae stated he came over on April 22, 2002 and then again on April 24, 2002. The second time he brought a guy to look at the toilet. Ms. Wilkie asked who the guy was. Mrs. Rae stated that she was not sure. Ms. Wilkie asked what the guy did on April 24, 2002. Mrs. Rae stated that he asked if she had contacted Tewksbury Sewer Service and when she indicated she had, he left.
Ms. Wilkie asked that from April 12, 2002 through May 24, 2002 how many times did the water flow? Mrs. Rae stated that whenever the water was used, so everyday.
Attorney Zaroulis asked if any of the conditions listed have been repaired since that day. Mrs. Ray replied no, except that the sewer had been pumped.
Ms. Wilkie asked when the last time the Raes were at 320 Old Main Street. Mr. Rae stated that he was there today to get the mail and he went inside. Ms. Wilkie asked if there were any signs of cleanup. Mr. Rae stated no.
Attorney Sullivan asked when the Raes became tenants. Mrs. Rae replied on April 12, 2002.
Attorney Sullivan asked if the Raes were tenants at another property owned by Mr. Sullivan until April 20, 2002. Mrs. Rae replied no, they moved in at 320 Old Main Street on April 11, 2002.
Attorney Sullivan asked when the Raes give up their tenancy at the other apartment. Mrs. Rae stated that they paid for the month of April at the other apartment but Mr. Sullivan told them to move because there were people at the old apartment ripping down walls in preparation for new tenants in May.
Attorney Sullivan asked Mrs. Rae when the first time she noticed a problem with the toilet. Mrs. Rae stated that on April 11, 2002 when the toilet was first flushed.
Attorney Sullivan asked if the toilet was ever moved. Mrs. Rae replied no, and they put a sign on the door not to use the toilet.
Attorney Sullivan asked if prior to the Raes moving in if there was an inspection done by the Tewksbury Housing Authority. Mrs. Rae stated that there was an inspection on May 1, 2002. Attorney Sullivan asked if there was one on April 24, 2002. Mrs. Rae stated that she was mistaken, it was on April 24, 2002. Attorney Sullivan stated that the Raes were already living there when the inspection happened, so did they tell the inspector about the toilet problem. Mrs. Rae stated that it wasn’t overflowing, it was coming from the base. She told the inspector about it and told him it would be taken care of. Attorney Sullivan asked what the inspector’s name was. Mrs. Rae stated that she wasn’t sure.
Attorney Sullivan stated that he had an inspection report dated April 24, 2002 and the only problem listed was the bad hot water heater.
Attorney Sullivan asked Mrs. Ray when the next time was she called Mr. Sullivan. Mrs. Rae stated that she called on April 11, 2002 to tell him about the hot water tank and boiler not working.
Attorney Sullivan asked if the Raes have been inside recently and when the septic tank was pumped out. Mrs. Rae replied yes, and it was pumped out on May 24, 2002.
Attorney Sullivan asked if the toilet was working properly on May 24, 2002. Mrs. Rae replied yes.
Attorney Sullivan asked who took the pictures presented at the meeting. Mrs. Rae stated that both her and Mr. Ray took the pictures. Attorney Sullivan asked if the pictures were taken after the tank was pumped out. Mrs. Rae replied no, it shows a full septic tank.
Attorney Sullivan asked that for the record when did the tenancy start. Mrs. Rae replied on April 11, 2002. Attorney Sullivan stated that at the same time the rent was paid on another apartment. Mrs. Rae replied yes.
Attorney Sullivan stated that Mrs. Rae stated that there was no work done in the house, and asked what she meant. Mrs. Rae stated that the rugs, tiles and floor are still in the same condition.
Attorney Sullivan asked if the Raes still had keys to 320 Old Main Street. Mrs. Rae stated that the house is open to Mr. Sullivan.
Attorney Sullivan asked if the Raes gave permission for Mr. Sullivan to work inside the house. Mrs. Rae stated that they haven’t spoken with Mr. Sullivan since they left, but he has been at and in the house since they left.
Attorney Zaroulis stated that for the record, it should reflect as an exhibit that the notice by the Board of Health dated May 24, 2002 concerning this matter was signed by Thomas Carbone the Director of the Public Health and it was timely filed by John D. Sullivan, Manager of JDS Enterprises on the appeal process. Ms. Wilkie stated that Mr. Carbone would make copies for all parties of everything given to the Board of Health tonight.
There was a 5 minutes recess.
Attorney Sullivan stated he wanted to be clear that the Raes moved in on April 11, 2002 and the Tewksbury Housing Authority made an inspection on April 24, 2002, so they moved in before the Tewksbury Housing Authority authorized it. Mrs. Ray stated that they authorized it on April 24, 2002.
Attorney Sullivan asked if on April 24, 2002 they informed the inspector of the overflow. Mrs. Rae replied no, because it didn’t start to overflow until after that.
Attorney Sullivan asked when the Raes starting paying rent. Mrs. Rae stated that Mr. Sullivan told them to pay on May 1, 2002 because they paid the April’s rent for the other apartment. Attorney Sullivan asked if Mr. Sullivan told her to move things in. Mrs. Rae replied yes. Attorney Sullivan asked if Mr. Sullivan said they could move in without paying rent. Mrs. Rae replied that yes he did.
Ms. Wilkie stated she needed to be clear. The Raes moved in belongings on April 1, 2002 and started occupying 320 Old Main Street on April 11, 2002. Mrs. Rae replied yes. Ms. Wilkie asked why they started renting on April 11, 2002. Mrs. Rae stated because Mr. Sullivan had people in their old apartment knocking down walls getting ready to move in new tenants on May 1, 2002. Ms. Wilkie asked if Mr. Sullivan approved the move. Mrs. Rae replied yes.
Ms. Wilkie asked that at the time of the Housing Authority inspection, did they discuss the problem with the bathroom. Mrs. Rae replied no, it just flushed slowly.
Ms. Wilkie stated that Mrs. Rae said it was oozing from April 11, 2002 to May 24, 2002, so why didn’t she tell the inspector. Mrs. Rae stated because she thought it would be fixed.
Ms. Wilkie asked when the inspector came were the bathroom tiles up off the floor. Mrs. Rae replied no. Ms. Wilkie asked when the pictures were taken, were the tiles off. Mrs. Rae replied yes.
Ms. Wilkie asked if from April 11, 2002 through May 24, 2002 the toilet was oozing. Mrs. Rae replied yes. Attorney Sullivan asked to explain oozing. Mrs. Rae stated that the wax ring was rotted.
Ms. Wilkie asked if the Raes had any last words. Mrs. Rae stated that she didn’t want to take this issue this far. Mrs. Rae stated that the Tewksbury Housing Authority called Mr. Sullivan and he said he wouldn’t fix it. Ms. Wilkie asked when the Tewksbury Housing Authority contacted Mr. Sullivan. Attorney Sullivan objected to that question, unless there is a representative from the Tewksbury Housing Authority present to answer that. Attorney Zaroulis stated that the rules of evidence don’t apply strictly to the hearing. If the witness talked to a person at the Tewksbury Housing Authority she can relate the conversation, but it should be regarded as hearsay. Ms. Wilkie asked whom at the Tewksbury Housing Authority Mrs. Rae spoke to. Mrs. Rae stated it was Susan Hayes.
Ms. Wilkie stated that Mrs. Rae said that Mr. Sullivan came out to 320 Old Main Street to light the pilot. Mrs. Rae replied that was correct, Mr. Sullivan came out on April 16, 2002. Ms. Wilkie stated that he was aware of the residency at that time and didn’t request her to move out. Mrs. Rae replied that was correct.
Ms. Wilkie asked if he came back the next day. Mrs. Rae stated that an employee of Mr. Sullivan’s came out on April 17, 2002. Ms. Wilkie asked if they identified themselves as employees of Mr. Sullivan and stated what they were there for. Mrs. Rae replied yes and that they were there to try to light the pilots.
Ms. Wilkie stated that on April 22, 2002, Ryan Sullivan came to 320 Old Main Street. Mrs. Rae stated that was correct. He was there to look at the bathroom. Ms. Wilkie asked if Ryan Sullivan stated why he was there. Mrs. Rae stated that he said he came to look at the bathroom to see if he could get it fixed. Ms. Wilkie asked if Ryan Sullivan stated why he stopped in to try to get the bathroom fixed. Mrs. Rae replied no, he did not.
Ms. Wilkie stated that Mrs. Rae is excused. Ms. Wilkie asked if Mr. Rae had anything to add. Mr. Rae replied no.
Attorney Zaroulis stated that there is one minor thing. Mr. Carbone testified and Attorney Sullivan
did not get to ask questions. Attorney
Sullivan stated that he had no questions at this time. Ms. Wilkie stated that she had one more
question for Mr. Carbone.
Ms. Wilkie stated that the Raes stated that Mr. Roux pumped the septic, asked
if that could have taken care of the problem.
Mr. Carbone stated that based on the pictures, the pumping would not
have solved the problem. The septic
tank was full and this is gravity fed from the house into the septic tank which
is then fed into the pump chamber and then pumped into the leach field. The backing up in the septic tank indicates
the problem is somewhere between the septic tank and leach field. It’s possible that there is a blockage in
the pipe between the septic tank and pump chamber or a mechanical failure in
the pump. Ms. Wilkie again asked if
pumping the tank would not correct the problem. Mr. Carbone stated that based on observation it hasn’t been
permanently solved. Attorney Sullivan
asked that if the tank was pumped, did you he any break out of sewer on
site? Mr. Carbone replied no. Attorney Sullivan asked if the tank was pumped,
is there any reason to think that the sewage would not flow down from the
house. Mr. Carbone replied no. Attorney Sullivan asked if Mr. Carbone
talked with Mr. Roux. Mr. Carbone
replied yes. Attorney Sullivan asked if
Mr. Rue told him that it was pumped out and all set. Mr. Carbone replied yes.
Attorney Sullivan asked if Mr. Carbone has a reason to believe it is not
all set. Mr. Carbone replied yes, based
on engineering knowledge that there would be a problem. Water has to go somewhere. There had to be a reason that it backed up
into the septic system. It should have
flowed freely into the pump chamber.
Attorney Sullivan asked if Mr. Carbone told Mr. Roux that. Mr. Carbone replied yes. Attorney Sullivan asked if Mr. Carbone told Mr. Roux there was still a problem. Mr. Carbone replied that he believed he did. Attorney Sullivan asked what Mr. Roux’s response was. Mr. Carbone stated the Mr. Rue said he was there yesterday and he didn’t see a problem. Attorney Sullivan stated that Mr. Rue said it was fixed. Mr. Carbone stated that was correct. Attorney Sullivan asked if Mr. Carbone knows Mr. Roux. Mr. Carbone replied yes. Attorney Sullivan asked why he would doubt him and who could be hired to challenge that doubt. Mr. Carbone stated that one could get a Title V inspector that is licensed by the state or a professional sanitary engineer. Attorney Sullivan asked if Mr. Roux is a licensed Title V inspector. Mr. Carbone replied no, his son Charles is.
Attorney Sullivan asked if Mr. Carbone was aware of the glove that was found. Mr. Carbone stated that Mr. Sullivan told him he found a glove. Attorney Sullivan asked if that could have caused the problem. Mr. Carbone stated it could, depending on where it was found. Attorney Sullivan asked if he found something like it, could that be the reason for plugging it up. Mr. Carbone stated that not in the septic, it would have to be in the outlet pipe. Attorney Sullivan asked if Mr. Sullivan told him where he found the glove. Mr. Carbone stated that Mr. Sullivan indicated it had been fished out of the sewer line beyond the toilet. Attorney Sullivan asked if something like that was found could it cause a problem? Mr. Carbone stated that in the main line, yes it could.
Attorney Sullivan stated that the system was only installed a couple of years ago and it was properly inspected. Mr. Carbone stated that yes it was installed in June of 1997. Attorney Sullivan asked when the system is pumped does it require a Title V certificate, that then requires notification to the Board of Health when a tank is pumped. Also, does the town require a Title V certificate prior to occupancy? Mr. Carbone replied that the town does not require a Title V certificate when a septic system is pumped. Attorney Sullivan asked if he have ever required it. Mr. Carbone replied not for a simple pumping.
Attorney Sullivan asked if the Board of Health has a copy of the work done. Mr. Carbone replied that the Board of Health issued a Certificate of Compliance after it was installed. On August 10, 2000, Charles Roux conducted a Title V inspection.
Attorney Sullivan stated that the Title V inspection occurred when Mr. Sullivan bought the property and it passed. He stated Mr. Carbone wanted another one because it had to be pumped out. Mr. Carbone replied no, as the picture shows that the water at the septic tank was at the height of the cover, which means that water was above the outlet of the septic tank. The problem is downstream of the septic where the water tries to leave the tank. Attorney Sullivan asked if the water was there prior to or after pumping. Mr. Carbone stated that the water is gone now that it was pumped. Attorney Sullivan stated that now he was requiring it after it was pumped out. Mr. Carbone stated that if there is an indication of a problem, the Board could require an independent inspection. Attorney Sullivan asked Mr. Carbone to provide a list of everyone that he had required this of. Mr. Carbone responded that he doesn’t keep a list of that. Attorney Sullivan asked if Mr. Carbone could recall who he had required that of. Mr. Carbone stated that he couldn’t remember off the top of his head.
Ms. Wilkie asked why the Board would require a Title V inspection. Mr. Carbone responded that so the Board could determine what the problem is. Ms. Wilkie stated that Mr. Carbone doesn’t think that the problem was fixed. Mr. Carbone replied correct. Ms. Wilkie asked if Mr. Carbone would recommend this in any other similar situation. Mr. Carbone stated yes, the recommendation would be the same.
Ms. Wilkie asked Mr. Carbone if based on his expertise, could a glove responsible for this. Mr. Carbone replied it’s possible, however the pictures show water above the proper operating level in the tank. Ms. Wilkie asked if a tank could rise to that level if a glove was blocking the line. Mr. Carbone replied that one would not expect to see the water at that level.
Attorney Sullivan asked if the toilet would flush right now. Mr. Carbone stated that it should flush, until the water reaches a level that it can’t flow out of the septic tank. Attorney Sullivan stated that if the toilet would flush now then it would take some sewage. Mr. Carbone replied yes, it would be expected to.
Attorney Sullivan asked what would happen if the toilet was flushed last Friday. Mr. Carbone replied same as before.
John D. Sullivan of 360 Main Street appeared for testimony. Attorney Sullivan stated that he would like to state the facts prior to Mr. Sullivan’s testimony.
Attorney Zaroulis stated that Attorney Sullivan is going to make an opening statement, which will layout what he intends to show. In order for the hearing to progress, Attorney Sullivan will be permitted to ask questions and Mr. Sullivan will answer.
Attorney Sullivan submitted a brief, explaining the time from when Mr. Sullivan owned the property. In 1997 Beverly Pestana owned the property. A new septic system was installed and on August 20, 2000, the Certificate of Compliance was issued. The property was sold to Mr. Sullivan on October 11, 2000. Attorney Sullivan provided a deed for the hearing. On August 10, 2000, Charles Roux inspected the septic system and it passed. On pg. 11 on that inspection report, it says the septic tank has proper operating baffles and no leakage or surcharge. On pg. 8, it says the distribution box is level and provides even flow to outlets and complied with the state code. In April 2002, the Tewksbury Housing Authority requested that Mrs. Rae be allowed to move into 320 Old Main Street. On April 24, 2002 the Tewksbury Housing Authority inspected the property and failed the inspection because of the pilot light on the hot water heater, which has been fixed. All the other systems were in good working order at the time of the inspection. The Tewksbury Housing Authority authorized her to move in. On May 23, 2002 she called and said the toilet was backed up. Mr. Sullivan went over and found the toilet had been disconnected. He asked who had disconnected the toilet and a male occupant said he had. Mr. Sullivan said to reconnect it. Later, Mr. Sullivan returned with Lem Greenhal, a handyman, and found an oven mitt in the discharge line causing the backup.
On May 24, 2002, Mr. Sullivan received a letter from Mr. Carbone listing the 9 items to be corrected. On May 24, 2002 in the afternoon, Mr. Sullivan contacted Mr. Gene Roux to have the septic pumped out, even though he didn’t believe it was necessary. Mr. Sullivan did it because it is part of the annual maintenance. Mr. Roux did not arrive until May 28, 2002 to pump out the septic. The subservice disposal system was in good working order and there were no violations to the State Sanitary Code. On May 31, 2002, Mr. Sullivan requested a hearing because the septic system was fixed. On June 3, 2002 he received a letter from Mr. Carbone stating that the hearing would be on June 9, 2002 at 7:30 PM. Ms. Wilkie interjected and stated that the date was an error on the Board’s part, since it was a Sunday.
On June 6, 2002 at 12:00 PM, Mr. Sullivan received a fax stating that the hearing was scheduled for that night at 7:30 PM. Mr. Carbone was sent a letter by Counsel for Mr. Sullivan that notified him that the notification for the meeting was unacceptable and Mr. Sullivan would not be there because there was insufficient time to prepare. It also said that Mr. Sullivan would appear at any other correctly posted hearing. Any Board of Health meeting that took place on June 6, 2002 was illegal and in violation of the open meeting law and any action taken was null and void. The Open Meeting Law, Chapter 39, Section 23B states a notice of any meeting needs to be posted with the Town Clerk no later than 48 hours prior to the meeting. This was not complied with.
On June 7, 2002, Counsel for Mr. Sullivan contacted Mr. Carbone and was notified that the hearing regarding JDS Enterprises was rescheduled for June 13, 2002. Mr. Carbone also stated that the Board of Health condemned the building for human habitation and put the occupants in a motel. The Board of Health did this without Mr. Sullivan’s knowledge. Mr. Sullivan had already corrected the problem. These actions violated due process. The toilet and septic were fixed. The other actions were not emergency matters and they didn’t impose a threat to humans. The tenants caused the toilet overflow, because the oven mitt was found. The toilet has been reinstalled. The tenants are responsible for the loose tiles. Mr. Sullivan agrees to replace the tiles and carpet. If the washing machine vent is wrong, Mr. Sullivan will remove the service. The pilot lights are fixed. The roof overhang is not a Board of Health issue, but Mr. Sullivan is willing to replace it with a vinyl overhang. The building was built in 1950, so the windows are grandfathered in. This is not applicable. Mr. Sullivan will put a new electrical cover plate near the refrigerator.
Attorney Sullivan stated that Mr. Sullivan did everything possible. All the systems were corrected as soon as possible. Mr. Roux can verify the tank was pumped. Attorney Sullivan stated that the only other matter is that Mr. Sullivan is entitled to a fair and impartial hearing. No one voting on this matter should have had prior discussions on this. If anyone has talked about this to another town board, they should abstain from voting and disclose it now.
Attorney Zaroulis stated that this is a statutory hearing and the Board of Health should be an independent and unbiased board. If any information has been given to a member of the Board of Health, that information should be disclosed. All members should act impartial, without bias, and without prejudice and make a decision based on the facts. If a third party gave any information, it should be disclosed, if it is being used as a fact to make a decision. Ms. Wilkie stated that she had not received any information from an elected official or reporters. The only conversations held were regarding the decision made by the Board of Health last week and the emergency hearing. The Board of Health made a decision to separate the family emergency and the appeal. Mr. Sheehan stated that he had not had any discussions regarding this case.
Attorney Zaroulis asked if Attorney Sullivan had any witnesses to call. Attorney Sullivan replied no, but Mr. Sullivan will answer any questions.
Ms. Wilkie asked that when Mr. Sullivan went to light the pilot on April 16, 2002 was he aware the of the toilet problem. Mr. Sullivan replied no. Ms. Wilkie stated that he did go on April 16, 2002 to the house. Mr. Sullivan replied no.
Ms. Wilkie asked when Mr. Sullivan allowed Mrs. Rae to occupy 320 Old Main Street. Mr. Sullivan stated that he was not sure of the exact date, but he signed the request for lease approval sometime before April 24, 2002. They moved their belongings next door because they wanted more room. Mr. Sullivan stated that Mrs. Rae never signed the lease agreement, so the Tewksbury Housing Authority doesn’t consider her a tenant. Ms. Wilkie stated that Mrs. Rae assumed occupancy on April 11, 2002. Mr. Sullivan stated that she didn’t pay rent, so she was not an occupant.
Ms. Wilkie asked Mr. Sullivan when work was started on Mrs. Rae’s old apartment. Mr. Sullivan stated he wasn’t sure, but it was some time around April 24, 2002. Ms. Wilkie asked if any walls were taken down at the old apartment before April 24, 2002. Mr. Sullivan replied that the Board should stick to the issue; it was on or about April 24, 2002.
Attorney Zaroulis asked if Mrs. Rae paid any rent for May 2002. Mr. Sullivan replied no. Attorney Zaroulis asked if Mrs. Rae paid any rent for any property. Mr. Sullivan replied no. Attorney Zaroulis asked if the toilet was reset and anchored to the floor. Mr. Sullivan replied yes. Attorney Zaroulis stated that all items relative to the toilet, septic, washing machine and outlet would or already have been corrected. Mr. Sullivan replied that is correct.
Ms Wilkie asked what Mr. Sullivan did on Friday at the property. Mr. Sullivan stated that he took the oven mitt out of the toilet, replaced the wax ring and reattached the toilet. Ms. Wilkie stated that Mr. Sullivan, not Mr. Roux, found the oven mitt. Mr. Sullivan stated that was correct.
Ms. Wilkie asked if Mrs. Rae would like to ask Mr. Sullivan any questions. Mrs. Rae replied no.
Ms. Wilkie opened the floor to the audience and requested that comments be made specifically about 320 Old Main Street.
Wilfred Lambert of 16 Babicz Road – Ms. Wilkie asked if Mr. Lambert would be sworn in. Mr. Lambert replied that he stood at the beginning of the meeting and was sworn in. Mr. Lambert stated that he is a constable for the Town of Tewksbury and has done work also for Mr. Sullivan, so he is taking no sides. Mr. Lambert received a call from the Board of Health to deliver a summons to Mr. Sullivan. The secretary offered to pay his fee from her own pocket, but he declined due to the process he follows with vouchers. Two evictions have been served to 320 Old Main Street and one tenant had left the place a mess. After the tenant had left, he had inspected the place and it was immaculate. They had done everything over. The toilet was not inspected however. Ms. Wilkie asked why he inspected the house. Mr. Lambert stated that he had to make sure that the tenants’ property was gone. Ms. Wilkie stated that just because it was esthetically clear, does that mean you could judge the condition of the toilets. Mr. Lambert replied, no, just that it was clean.
Scott Braxton of Exeter, NH – Mr. Braxton stated that he is the father of Mrs. Rae’s daughter, Jacqueline. Mr. Braxton stated that when they first moved in April, the Raes gave a tour. The house looked to be in great shape and they were happy there.
David Gammon of 212 Whittemore Street – Mr. Gammon stated that he was Mrs. Rae’s previous landlord. Ms. Wilkie stated that it is not relevant to this hearing.
Mr. Carbone advised the Board of Health that he conducted an inspection on May 23, 2002. The violations noted were violations of the Sanitary Code and asked the Board of Health to uphold the orders.
Attorney Sullivan stated that he would like to know what authority the Board of Health has to consider the size of the windows in a pre-existing dwelling. Attorney Zaroulis stated that the point was made in the brief, and the Board will discuss if the Board of Health has any authority in regards to that. Attorney Sullivan stated that this is a matter of landlord vs. tenant and this should be worked out between them. Mr. Sullivan would not allow a property to neglected. He has known Mrs. Rae for years. The situation happened over a long weekend and he tried to deal with it. Ms. Wilkie stated that she does clinical research based on fact, so that is what she plans to do for this decision.
Ms. Rae stated that she paid $800 rent for the month of May for 320 Old Main Street, but she has withheld June’s rent.
Ms. Wilkie stated that the evidentiary portion of the hearing is going to be closed.
Mr. Sheehan stated that Mr. Sullivan said that Mrs. Rae didn’t pay rent for May. Mr. Sullivan stated that is his understanding. Mrs. Rae stated that she paid rent in April for 304 Old Main Street and in May for 320 Old Main Street. Mr. Rae stated that he has a receipt. Attorney Zaroulis stated that they can close the evidentiary portion and if a rent receipt is found it can be submitted as evidence with a copy going to Mr. Sullivan.
Ms. Wilkie closed the evidentiary portion of the hearing.
Ms. Wilkie stated that there was a lot of information received tonight and would like to go through it all and continue the deliberations until June 24, 2002. All parties agreed.
MOTION - Ms. Wilkie made a motion to reconvene this hearing on June 24, 2002 at 5:00 PM at the Town Hall Auditorium. The motion was seconded by Mr. Sheehan and unanimously voted.
MOTION - Ms. Wilkie made a motion to adjourn at approximately 9:25 PM. The motion was seconded by Mr. Sheehan and unanimously voted.