Selectmen gavel down house complaints
Published on September 21st, 2005
The town's Board of Selectmen silenced a Hanford Road resident after she refused to accept a municipal attorney's opinion that local officials could do nothing more to punish a Lynnfield contractor who purportedly destroyed her home.
After former Hanford Road resident Carol McNelley abrasively attacked Town Counsel Bill Solomon in an interrogation-style manner - suggesting at one point that the attorney submit his resignation - and then continued butting heads with the Selectmen after a five-minute recess was called to calm down the displaced citizen, the bang of a gavel ended the conversation.
"Well, why doesn't the board tell me what they want to do here. Obviously this board has already wrapped this up in a closed executive session," McNelley alleged as soon as the Selectmen re-convened after the brief recess.
"Okay, we're going to go to the next agenda item. I don't like your insinuations or your tone. You're all set Carol," Selectmen Chair Bob Sweeney cut in with the bang of his gavel, dismissing the resident.
Calling in municipal attorney Leonard Kesten, who has represented the town during several lawsuits against the municipality, the Selectmen had invited the lawyer to the meeting to respond to McNelley's demands that Lynnfield contractor Michael Nardone, of 30 Edwards Ave., be fined up to $200,000 for not pulling a permit on several projects across town.
According to the decades-long Stoneham resident, Nardone completely ruined her Hanford Road home in July of 2004 when he dropped her house off a set of jacks twice in a period of three-days - an allegation Nardone adamantly refutes.
After being evicted from her house by former Building Inspector Gene Argiro, who declared the structure unfit for human habitation, McNelley brought Nardone before the Mass. Board of Building Regulations and Standards. And while that action resulted in the revocation of Nardone's construction supervisor's license, McNelley came before the Selectmen earlier this month and alleged that the Lynnfield resident continued performing work in the town.
Responding that Nardone was legally performing the work by utilizing a legal loophole that allows him to labor under a building permit pulled by a local homeowner or another licensed contractor, Town Administrator Ron Florino argued that the town couldn't stop him.
However, McNelley claimed that state law allowed the town to assess a $1000 fine for each day the contractor worked without a permit and further insisted that in levying the fines, Nardone would be prohibited from performing any other work. With the factual accuracy of that statement in question, the Selectmen voted unanimously to explore that option, setting another meeting with McNelley for this Tuesday night.
Responding to McNelley's suggestion that Nardone be fined for not pulling permits, Kesten told the Selectmen that such an action couldn't be authorized by the town, but rather through a court order.
Furthermore, the local attorney opined that any such fine would be assessed at two-or-three times the original permit costs - not $1000 a day - and that a judge was likely to either dismiss the town's complaint completely or offer Nardone yet another opportunity to pay the fees.
"You apply for a complaint, and then the judge always says, 'okay, I'll give you 10-days, 12-days, two-weeks to get the permit...In this case, there's no chance of a fine ever being issued in court - not with these facts," Kesten said, adding that Nardone at one-point did attempt to pull a permit for the work, but was denied because McNelley didn't want the contractor working on her home anymore.
Not only did Kesten suggest that the town would fail in any attempt to assess the fees, the attorney further warned the Selectmen that bringing such a complaint against the contractor might result in Nardone suing the town.
Specifically, the attorney explained that the U.S. Constitution's equal-protection clause prohibits government from singling out one individual for an offense if it ignores similar infractions by other parties.
"There's been talk that the town should have done more," said Kesten, after mentioning that multiple town officials had attended the state hearing against Nardone to lobby for McNelley. "But in 99 percent of the cases I've seen, it's from somebody saying, 'the government did too much'".
"When I first heard about this, I thought it would be evident that the contractor was suing [because of that letter to the state board]. You cannot, because somebody complains, because somebody says I want you to pick on this guy, do something you've never done before. If you do that, and they sue, you will lose."
Immediately disagreeing with Kesten, McNelley attempted to argue that the town only jumped on her side during the State Board of Building Regulations and Standards hearing after she had initiated the complaint nearly a year after the initial damage was done to her residence.
To prove her point, the Hanford Road resident began sharply questioning Solomon to confirm whether the dates on the town's correspondence reflected her point.
"I don't like the way this is going. You heard from the experts that the town has gone above and beyond what they've seen any other municipality do. I have to go by what the professionals recommend," Sweeney then interrupted, attempting to calm the resident down.
"Carol, believe me, we all feel bad about the position you're in. But our hands are tied. I really don't know what else we can do," the Chairman added. "Please, if that's what you have to do [take out a civil court action], do it so your house and your life can get back on track."
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