City, Legal Aid Clash On Lead Paint

The city spent $32,000 on the court-ordered, emergency lead abatement of a single Elm Street apartment.

According to the health department, the abatement went off without a hitch, and lawmakers should rest easy now that the landlord has fully reimbursed the city.

According to a legal aid attorney and lead poisoning watchdog, the abatement was too costly, too slow — and indicative of city government’s wholly inadequate and dishonest response to New Haven’s child lead poisoning crisis.

Those two perspectives were on display on Thursday night during a City Services and Environmental Policy (CSEP) committee hearing in the Aldermanic Chambers on the second floor of City Hall.

City Director of Environmental Health Paul Kowalski and New Haven Legal Assistance Association (NHLAA) Attorney Amy Marx took turns pitching the alders on how to interpret the city’s emergency procurement of $32,104 last summer to complete the lead paint abatement of the second floor apartment of 969 Elm St.

To Kowalski, the process went smoothly and exactly as it should whenever a judge orders the city to expedite the clean up of lead paint hazards at a residence: The city hired a contractor, oversaw the abatement, and was fully reimbursed by the landlord after the abatement was complete.

“Nothing was out of the ordinary,” Kowalski said about the process.

That’s not how Marx saw it. A local attorney who recently has represented multiple lead-poisoned child tenants, including TJ Mims, the three-year old former tenant at 969 Elm, Marx argued that the long delay, judicial mandate, and high cost associated with the abatement were all cause for an extraordinary level of concern about how the city currently responds child lead poisoning crisis.

After all, she said, the situation at 969 Elm worked out ​“perfectly” only because legal aid got involved, a judge ordered the city to relocate the tenants and abate the property, and the landlord sold the property, thereby securing enough funds to pay back the city.

Over the past year and a half, three separate state judges have publicly rebuked the city’s health department for inadequate lead paint inspections, for storing lead-related notes on paper and not in electronic records, for failing to enforce timely and sufficient abatements of lead-hazardous properties, and for failing to follow up and make sure that abated properties remain safe for child tenants to keep living in.

“Boy, there’s a lot we could discuss about this issue,” Westville Alder and CSEP committee member Adam Marchand said, ​“about the presence of lead in homes and the damage it does to young people who come into contact with that lead.”

Although the alders unanimously voted to approve the city’s emergency procurement of funds for this particular abatement, they also all recommended that the city and the alders hold future public conversations about improving the city’s handling of child lead poisoning cases.

“I think that’s really worth following up on,” Marchand said. ​“There’s a problem here that needs to be addressed.”

Morris Cove Alder and CSEP Chair Sal DeCola promised to talk with aldermanic leadership about the lead-related concerns raised during the public hearing by Marx and by his fellow committee members.

$32,000 Abatement For One Unit

The city’s abatement of the second floor apartment of 969 Elm St. took place soon after Superior Court Judge Walter Spader, Jr. ordered the health department in July 2018 to take over the abatement and to relocate Mims, his mother, and his younger sibling to an area hotel.

“The process worked,” Livable City Initiative (LCI) Deputy Director Frank D’Amore told the alders while sitting alongside alongside Kowalski and city Purchasing Agent Michael Fumiatti.

Fumiatti said the city put out an ​“informal” bid for the abatement work to the state-licensed, city-preferred contractors included in its Small Contractor Development program.

Fumiatti said he didn’t remember exactly how many contractors responded to the bid, but the city ultimately chose the East Haven company J&A Lead Abatement.

The city paid J&A $32,104 to complete the abatement on Aug. 6, and LCI then put a lien on the property to recoup those costs.

That finally happened after Dec. 28, when the Elm Street property’s landlord, Ronald Livieri, sold the three-family house for $210,000 and reimbursed the city for the $32,000 lead abatement and for the roughly $30,000 more in tenant relocation costs.

“We’re happy to report that the issue was resolved,” D’Amore said. ​“The property was sold, and the city was paid in full for all the money that we put up, for the abatement and for the relocation.”

Downtown Alder Abby Roth asked the city officials how the property got to the point where a judge needed to order the city take over the abatement.

“That I am not able to answer,” Kowalski said.

Silence.

“The owner did not have the money, as far as we could tell,” he continued as Roth waited for a longer reply. ​“I don’t discuss specific cases as it relates to this.” The court ordered the city to pay for the abatement, he said, so that’s what the city did.

“But was there something the city didn’t do that required us to go through the process of litigation?” Roth pressed.

“The city health department was pursuing everything it was supposed to be doing in this particular case,” Kowalski replied. ​“The court ordered that the abatement proceed with the city funding, and that’s what the city of New Haven did.”

East Rock Alder Anna Festa picked up the line of Roth’s questioning: What led the city to the point of litigation? How did the case get to a point where the judge had to step in and order the city to better protect the child tenant?

“I did not bring the entire file,” Kowalski said. ​“I thought this was just about the emergency procurement,” and not a history of the department’s involvement at 969 Elm St.

He recalled that the landlord had initially applied for a loan from the federal lead abatement funding managed by the city. But the court ordered that the abatement be expedited, he said, so the city and the landlord couldn’t wait the two months it usually takes to get the homeowner one of the federal lead abatement loans.

Prospect Hill/Newhallville Alder Steve Winter asked Kowalski why the abatement of one apartment cost over $32,000.

Kowalski said the price tag was so high because 969 Elm St. is in an historic district. The abatement work required, such as the replacement of windows and the removal and encapsulation of lead-hazardous paint, had to meet certain standards set by the State Historic Preservation Office (SHPO).

“It just seems like an awfully high number for one unit,” Winter said.

“I’m going to agree,” Kowalski replied.

Not An Isolated Case

Marx followed Kowalski, D’Amore, and Fumiatti with a very different interpretation of the court-ordered lead abatement at 969 Elm.

As she approached the front of the room, the three city officials who had just finished addressing the alders immediately left the Aldermanic Chambers. None stuck around to listen to Marx’s concerns or to the alders’ response.

The picture that Marx painted for the committee stretched beyond the simple facts of the city’s emergency procurement of funds to abate the Elm Street apartment.

She answered the alders’ prior questions about how the city ended up in court on this particular case, and said that 969 Elm is unfortunately not unique. Hundreds of children in this city are lead poisoned each year, she said, and the city regularly responds to only a fraction of those cases.

“There was a young child three years of age who first tested positive for lead in August 2017,” Marx said.

That was TJ Mims, who lived with his mom and brother at 969 Elm.

He tested at 6 micrograms per deciliter (mg/dL), which is one point higher than the level the city and the federal Centers for Disease Control’s (CDC) say presents an undue risk for the development of permanent neurological problems in children under six years old.

After the child first tested as lead-burdened, she said, the city failed to get the landlord to abate the property and failed to adequately communicate to the child’s mother the dangers presented by her apartment.

“We’re only here for the procurement,” DeCola reminded Marx. ​“If you want to have a forum about this, we need to talk to our colleagues.”

Marx agreed, but continued on with her explanation.

By December 2017, she said, Mims’s blood lead level had risen to a 17. Even worse, his brother was now also testing at an elevated blood lead level.

Not until legal aid filed for injunctive relief and the judge issued the court-ordered mandate in July 2018, she said, did the city finally kick into gear and make sure that the property was adequately abated. And that was a full 11 months after Mims first tested at an elevated blood lead level.

And Mims and his brother aren’t the only children in New Haven who have suffered at from the health department’s inadequate enforcement of city lead laws, she argued.

Based on legal aid’s review of review of state Department of Public Health data, she said, New Haven likely has well over 350 children under the age of six who are lead-burdened.

And yet according to legal aid’s review of city land records, she said, the city’s health department conducted lead paint inspections in only 69 homes in 2017.

And of those inspected homes, she said, the city has posted lead abatement releases on only 53, and has created lead management plans for only five. She called on the mayor and the alders to convene the Lead Poisoning Advisory Committee as mandated by city law and to conduct a comprehensive review of how the city currently handles child lead poisoning cases.

“What we’re looking for is an open and transparent conversation,” she said, ​“about what truly is a crisis, if we have 300 kids suffering from permanent damage.”

Previous lead coverage:

• Legal Aid To City: Get Moving On Lead Paint Law
• 100+ Tenants Caught In Lead Limbo
• 2 Agencies, 2 Tacks On Lead Paint
• Chapel Apartments Get 3rd Lead Order
• Lead Sends Family Packing
• Health Officials Grilled On Lead Plans
• Judge Threatens To Find City In Contempt
• Same Mandy House Cited Twice For Lead Paint
• Lead $ Search Advances
• 3 Landlords Hit With New Lead Orders
• Another Judge Rips City On Lead
• Judge To City: Get Moving On Lead
• Health Department Seeks Another $4.1M For Lead Abatement
• City-OK’d Lead Fixes Fail Independent Inspection
• Judge: City Dragged Feet On Lead
• 2nd Kid Poisoned After City Ordered Repairs
• Judge: City Must Pay
• City Sued Over Handling Of Lead Poisonings
• City’s Lead Inspection Goes On Trial
• Eviction Withdrawn On Technicality
• 2nd Child Poisoned; Where’s The City?
• Carpenter With Poisoned Kid Tries A Fix
• High Lead Levels Stall Eviction
• 460 Kids Poisoned By Lead In 2 Years
• Bid-Rigging Claimed In Lead Cleanup
• Judge Orders Total Lead Paint Clean-Up
• Legal Aid Takes City To Task On Lead