For city, finding illegal units isn't the problem



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NASHUA - City officials have a formula to gauge if a building might be housing illegal units before they ever have to step inside. "Look at the (utility) meters; then go look at the mailboxes; then go look at what is recorded," said deputy health inspector Heidi Peek. Peek is just one of several city inspectors who come across illegal units through their duties in city neighborhoods. The illegal construction comes to light in a variety of ways. Sometimes inspectors spot clues from the city streets; other times wary neighbors will call with suspicions that a building is overcrowded. "Sometimes it is a contractor who calls," code enforcement supervisor Nelson Ortega said, "someone who did the work himself and didn't get paid." Quite often, though, it is tenant-landlord disagreement that gets code inspectors into the building, and once inside, the construction methods used to make illegal units are often quite obvious to the trained eye. "Because of the way the buildings are chopped up," code inspector Thomas Malley said. "They have all these unique things that stand out that say, 'OK, this unit should not be here.' " For More Information: Not surprisingly, most of the city's illegal units are in the Tree Streets and French Hill neighborhoods - areas filled with old, single-family homes that have been converted to multiunit buildings. But while illegal units are built without permits and inspections, property owners aren't always the builders. Sometimes property owners unwittingly alert city officials to the problem while trying to do things legally. In one 2003 case, property owner Jacques Poulin applied for a permit for three electrical meters at his 1 Amory St. property, only to have a stop work order issued and a letter sent to him stating that he was in violation for maintaining illegal apartments in that building and one other. "The reason for the order is that your building at 1 Amory St. is supposed to be a single-family home, not a three-family building," former code enforcement supervisor Laura Games informed Poulin in the April 2, 2003, letter. "In addition, your building at 3 Amory St. is supposed to be a two-family, not a three-family . . . You must convert these buildings back to their legal status," Games letter stated. Notifying the property owner by letter is the first step code officials must take once they have found illegal units. Once notified, the property owner needs to begin work to remove the unit, or else convince members of the zoning board of adjustment to issue a variance, or special exception, that would allow the owner to keep the units and apply for after-the-fact permits. But city records show that, in many cases, the notices are sent with no follow-up, leaving the illegal apartments to remain for years before other city inspectors "discover" them once again. Poulin's Amory Street buildings are just two properties in the city that remain in violation for illegal units despite formal notification, according to code records. Permission Granted The only recourse Demolishing an illegal unit, or getting approval and after-the-fact permits to keep it, are the only options after the illegal units have been verified, according to Kathy Hersh, the city's economic development director. "There is no other way to get around it," said Hersh, who has worked with other department officials in the past on the issue when she was head of community development. While the process has always been in place, the procedure for addressing illegal units was formalized in writing in 2004 and distributed to various city department officials to ensure a uniform response, Hersh said. City code records reveal that several times in the past decade, officials have launched aggressive campaigns against illegal units. In a July 1999 memo, Games assigned code inspectors Thomas Malley and Ortega, who was promoted earlier this year, the task of researching city records to identify illegal units. The assignment was prompted by the department's prosecution of two property owners who, at that time, were refusing to obtain after-the-fact building permits for illegal units in their properties. "As you probably know, we have a somewhat pervasive problem with buildings in the city that have been illegally chopped up without proper permits," Games said in her memo to the men. The effort was taken up in good faith but eventually fizzled as attention went to other cases and priorities. Left behind in the files were photographs and lists gathered as part of the casework. One list identified 19 buildings with illegal units. Another detailed the histories of some the properties, listing how the unit numbers changed throughout a 40-year period. Other files showed pictures of mailboxes, electric meters and other proof of extra units and tenants. At one point, Ortega said Games and other department heads were seeking ways to quickly legalize units that had been around for long periods of time. "The function was to look at the unit and see if it could be made legal without a lot of headache," Ortega said. The issue of illegal units is so complex, Ortega said, that many department employees avoid taking any action for fear of future repercussions. He described the dilemma of one homeowner whose property was illegally converted from a single-family home to a two-family prior to his ownership. The man had been to various city departments before calling on Ortega. "It kept going back and forth. Nobody wanted to commit to signing a piece of paper to condone it," Ortega said. "He called and said, 'I just want to know what I can do. I am trying to sell this.' '' Structurally, the house met the housing code, Ortega said, but the man was obligated to disclose its legal problems to any potential buyer. Eventually, Ortega wrote a letter for the man, stating the extensive number of years the extra meter had been attached to the building and that the building met code requirements. "Is the plumbing done right? We don't know. Even now, we don't make people tear up walls to look at plumbing," Ortega said. "But I basically put my reputation as a code officer on the line." The only recourse Demolishing an illegal unit, or getting approval and after-the-fact permits to keep it, are the only options after the illegal units have been verified, according to Kathy Hersh, the city's economic development director. "There is no other way to get around it," said Hersh, who has worked with other department officials in the past on the issue when she was head of community development. While the process has always been in place, the procedure for addressing illegal units was formalized in writing in 2004 and distributed to various city department officials to ensure a uniform response, Hersh said. City code records reveal that several times in the past decade, officials have launched aggressive campaigns against illegal units. In a July 1999 memo, Games assigned code inspectors Thomas Malley and Ortega, who was promoted earlier this year, the task of researching city records to identify illegal units. The assignment was prompted by the department's prosecution of two property owners who, at that time, were refusing to obtain after-the-fact building permits for illegal units in their properties. "As you probably know, we have a somewhat pervasive problem with buildings in the city that have been illegally chopped up without proper permits," Games said in her memo to the men. The effort was taken up in good faith but eventually fizzled as attention went to other cases and priorities. Left behind in the files were photographs and lists gathered as part of the casework. Enforcement challenges Code department e-mails generated more recently show the challenge longstanding unauthorized units pose for city officials. In a December 2003 e-mail to city attorney David Connell, Games expressed concern that the department had "scant evidence" that a two-family building was illegally converted to a three-family sometime between 1970 and 1985. Assessing records documented the building as a three-family, she wrote, but the department had zoning board records that documented it as a two-family. According to the e-mail, Games became concerned when the new owner came in to get a mechanical permit to add a third heating system. "I believe that if we issue the permit knowing that this is supposed to be a two-family instead of a three-family, we are essentially sanctioning the illegal third unit," she wrote. Connell replied, "Typical illustration of the general code enforcement problem, right? The problem is not the bad man ordinance, but the affirmative defenses of estoppels, administrative gloss, selective enforcement, systematic non-enforcement, etc." In his e-mail, Connell asked if Games was ready to pursue the property owner for having an illegal unit. Games replied, "No." "I also don't know how these things were handled in the past," Games wrote back. "I guess that you could say the problem is that they weren't handled at all."

 

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