AYER - 'Targeted' properties again consumed a healthy portion of the Ayer selectmen meeting on Tuesday night. Town attorney Gregg Corbo of the Boston firm Kopelman and Paige advised the board on the ins-and-outs of property enforcement.
Before Corbo briefed the board in open session, selectman Christopher Hillman revealed that selectman Frank Maxant had refused to recuse himself earlier in the evening from the board's scheduled closed-door session with Corbo regarding specific targeted properties. Hillman said Maxant was asked to remove himself from the discussion because Maxant is "openly friends" with Hugh Ernisse who owns targeted homes on Washington Street and a tenement on William Street where Maxant resides.
Hillman "respectfully" asked Maxant to step aside during the open session discussion with Corbo. Maxant refused, saying his attitude on so-called targeted properties has "remained unchanged for 20 years and has absolutely nothing to do with the people involved."
"I completely and 100 percent disagree with Mr. Maxant's opinion on this," said Hillman.
Chair Jim Fay said "the same question" was posed to Maxant in executive session but that Maxant refused to stand down. Fay said the board nixed the earlier session with its attorney, feeling a discussion with Maxant present would be inappropriate. It's not clear if the selectmen were acting on advice of the Ethics Commission or town counsel in taking its stance.
Selectman Pauline Conley said that the board agreed in advance "this will be a generic discussion not relating to any property" during open session. Conley said Maxant's recusal refusal put the board in a "compromised position."
Corbo eventually advised the board that various town officials are empowered to initiate action against owners of targeted properties. Corbo advised that the Board of Health oversees public health concerns, the Building Inspector enforces town bylaws, the state building code and state law regarding dangerous structures. The Conservation Commission controls wetlands concerns, and the police and fire departments exercise general police powers.
"Often times these things can be resolved in an informal manner" said Corobo. However, "it doesn't always go smoothly."
Town orders and deadlines can issue along with non-criminal fines. But Corbo said sometimes court action is needed via criminal complaints in district court to trigger criminal fines or imprisonment, or civil complaints in housing or superior court to spark court-ordered clean-ups.
"The court route is swift and effective," said Corbo. "The court doesn't like to be ignored."
For recalcitrant property owners "you should expect a time-consuming process," said Corbo. Don't expect "results overnight... but in my experience, the results are ultimately achieved."
The selectmen have struggled over whether more stringent town bylaws would help. Corbo advised that there's no "magic bullet" to clean-up the addresses. Corbo recommended consistent enforcement measures to ensure "like people are treated in like fashion."
Maxant pressed Corbo to define the term 'nuisance.' Corbo said it's the "persistent use of property" which interferes with the rights of others "by causing public injury" via sight, sound or smell. Corbo suggested the definition is "intentionally vague" to "fit the needs of a particular community."
Maxant claimed the Board of Health has "no authority to harass somebody" on aesthetic complaints. But Corbo said eyesores can be beacons for other concerns like ground water contamination, rodents or other harm. However, Corbo offered that aesthetic complaints "may not justify a significant expenditure of public resources."
"I'll try to be as vague as possible here," said Hillman. "It has come to my attention" that one targeted property has "hazardous debris buried" on site, including asbestos. "How would we investigate that?" asked Hillman.
Corbo suggested notification of the Building Inspector, Board of Health and ultimately the Department of Environmental protection which can issue its own orders and pursue enforcement.
Conley sought a ballpark estimate on time and expense for legal battles that "can take years" to resolve. "What do you estimate the number of hours or cost to the municipality to be? That's a huge consideration for the taxpayers that we would then have to justify."
Corbo warned "You're starting to tread upon what I want to talk about in executive session. I don't want to sit here in open session and tie your hands in that way. All I can say is it's not going to happen overnight."
"I'm just asking for a rough estimate," asked Conley. "Two years? Is that a fair estimate?"
"It really does depend on the case," said Corbo. Courts act quickly when there's a risk of imminent public harm, said Corbo. On non-threatening matters, Corbo said judges give "a little more slack in the rope" to targeted property owners.
Hillman urged legal action to signal that the town is "not going to just sit here and talk about it."
"It's the outliers that become more problematic," said Corbo. Corbo said he's had greater success in court "if I'm involved from the beginning."
However, "if it's a situation that comes to my desk, it's not a situation that's going to be resolved overnight," said Corbo. "That's just the reality of it."
--MAXANT SPARKS MORE DEBATE
The board tussled with Maxant twice again.
First, the board voted 4-1 (Maxant dissenting) to send letters to the Patrick Administration to clarify that Maxant did not speak for the board when he emailed the state earlier this month. Maxant invoked his title as vice chairman when asking Community and Economic Development Secretary Greg Bialecki if the state would convey to Shirley land within the Devens Regional Enterprise Zone (DREZ).
The idea, first floated to the Ayer selectmen by Ayer Town Accountant Lisa Gabree, was for Shirley to use the land as collateral for an Ayer loan to help Shirley cover its share of the Ayer Shirley Regional School District tab. The Shirley selectmen soundly trounced the idea days later.
Selectman Pauline Conley requested the letter be sent to the state, and noted that she'd earlier complained about Maxant's email to Town Administrator Robert Pontbriand. "I know I phrased it in a way I shouldn't say out loud," said Conley. Paraphrasing her own email, Conley recalled the sentiment was along the lines of "this 'blank blank blank' must stop."
Conley said the Shirley selectmen "told Mr. Maxant off" at the school's budget hearing days later. Shirley selectman David Swain said Maxant's attempt was a "vendetta" against MassDevelopment, the state agency that manages the DREZ and its build-out.
While Conley said Gabree's suggested approach ""took on a life of its own," Conley said Maxant's email is only a request "on Frank's terms - not ours."
"I have never indicated in any way in any of these emails that I'm speaking for the Board of Selectmen or the Town of Ayer," said Maxant. "If this does happen, then we may be able to solve the problem with the school funding."
"We're not funding the school through any collateral of land through whatever means you acquire it," said Conley. "End of discussion."
Maxant defended his use of his selectmen title and then-title as Vice Chair when emailing Bialecki. Conley now serves as Vice Chair after the board stripped him of the title earlier this month.
Maxant likened the use of his former title to the time when selectman Jim Fay made 'robo calls' (automated telephone calls) on behalf of a former candidate for state representative. Fay bristled at the comparison.
"I made calls on behalf of Connie Sullivan, which I did from Groton. I didn't use municipal resources at all. It was perfectly legitimate," said Fay. "Let's not mix apples and oranges."
Later, the board skated past it's 10 p.m. sunset hour to entertain Maxant's call for a Town Meeting article to revise the town's sex offender residency-restricting bylaw. Passed by Town Meeting in Oct. 2011, the bylaw was the subject of a suit in federal court last November.
The court ordered in favor of the plaintiff and did not need to address a secondary claim that the town's bylaw (banning Level 2 and 3 sex offenders from living within 1,000 of parks, school and senior housing complexes) is unconstitutional. Maxant has maintained that an attorney representing the town's interests in the case has advised the board the bylaw needs revisions to survive any further costly challenge.
With the ATM warrant to be finalized next week, Maxant said his request was "very time critical."
Selectman Gary Luca objected, stating that Maxant was divulging subject matter which was discussed in executive session. The board has rebutted Maxant's assertion in the past, denying the attorney delivered such advice. Nashoba Publishing's requests for minutes of that closed door meeting have gone unfulfilled; Town Administrator Robert Pontbriand had stated that the federal case, which concluded with a second order in January, remained subject to appeal.
"That is absolutely wrong under the Open Meeting Law, Mr. Luca," flamed Maxant, who talked over others' efforts to adjourn the meeting. "We're doing a terrible disservice to this town."
"Go outside and get on your soapbox, will you please?" said Fay. "Good night, Mr. Maxant."
Maxant goaded Luca to "come to the meeting Thursday night and learn something." Ayer Town Hall is the setting for a Thursday night Open Meeting Law seminar from 6-8 p.m. conducted by the Attorney General's Office.
Follow Mary Arata at twitter.com/maryearata.