Northland: Disaster Not Our Fault

If Church Street South was such a mess, why didn’t the tenants tell the landlord? Or government inspectors?

Lawyers for Northland Investment Corporation, the Massachusetts-based owner of the former 301-unit federally subsidized housing complex across from Union Station, raise that argument in a new 700-page brief, as they try to dissuade a judge from grouping former tenants together to press their case that the company is responsible for endangering their health and their lives.

The tenants argue that they all suffered from the property owner’s mismanagement, particularly from the creeping mold that left many with respiratory problems. The tenants — all of whom have moved to new homes as their old deteriorated complex gets demolished — have filed a lawsuit in state Superior Court seeking millions of dollars in damages.

In the new response brief, filed last week, Northland’s lawyers argue that each apartment needs to be looked at separately to verify those claims can be backed up with maintenance logs, code enforcement orders or medical records.

Depending on whether or not the judge rules to certify the class is certified, the trial could focus on either five named plaintiffs and their children or hundreds more unnamed families. The city’s biggest housing crisis in years could be dealt with as a systematic failure by one company or it could be split into hundreds of different suits and settlements about shoddy repairs.

The tenants’ class-action suit against Northland, filed in state court by attorney David Rosen in November 2016, seeks monetary damages for the respiratory problems, skin disorders, migraines, loss of furniture, dislocation and homelessness suffered by the families because of rampant mold, leaking ceilings, and other hazards at the 301-unit complex.

Only now, months later, with all the tenants relocated and the cinderblock homes being reduced to rubble, will a judge get to decide whether former residents legally constitute a class.

Superior Court Judge Linda Lager scheduled the case’s next hearings on July 30 and Aug. 29.

The Northland court filing offers the company’s first detailed defense against the accusations of allowing hundreds of families to live in dangerous conditions. More on that later in the story. But first, a look at the more immediate question of whether Lager should allow the lawsuit to proceed as a class action covering all the tenants.

Class Considerations

Connecticut judges must do a ​“rigorous analysis” before deciding whether to certify a class-action lawsuit. They generally give deference to the attorneys, especially if they’re representing hundreds of low-income plaintiffs.

Past precedent has established that class actions save everyone time and money. Moreover, they look out for clients who can’t afford to take on corporations alone, at the same that they also protect companies from inconsistent orders in multiple courtrooms.

The state legislature, too, explicitly encouraged lawyers to act like ​“private attorneys general” through the Connecticut Unfair Trade Practices Act, judges have determined.

Rosen alleges that law was violated in this case in collecting rents for apartments that had become uninhabitable. The suit accuses Northland of ​“demolition by neglect” — allowing conditions to deteriorate so badly that the complex would need to be torn down — at the expense of tenants’ health and safety.

The toughest burden to meet, however, for certifying a class is that there is one common question — whether of fact or law — that predominates over individual circumstances.

Rosen acknowledged differences in how bad apartments got, but he argued that Northland’s ​“entire course of conduct” in largely ignoring moisture and mold was the same throughout Church Street South. In the end, he said, it forced everyone to be relocated out of the complex.

He argued that would meet the standard that a federal judge set in 2008 in determining that residents of a Hamden neighborhood built atop a city landfill could join as a common class to sue Olin Corporation for dumping industrial waste that contaminated their yards.

Northland’s lead attorney, Marc Kurzman, argued in the latest brief that the tenants’ experiences vary so widely that they can’t be dealt with all at once.

Nicknamed ​“The Jungle,” Church Street South consisted of 22 buildings located over a ​“sprawling” 13 acres of land, Kurzman wrote. That size alone and tenants’ varied experiences within it means the claims can’t be dealt with together, he argued.

Proof that one apartment was in rough shape doesn’t mean that other properties were too, let alone that Northland was responsible for the defects, Kurzman argued. Similarly, proof that one tenant had difficulty breathing after moving in doesn’t mean other clients were sickened too, let alone that Church Street South caused the shortness of breath, he added.

“Each tenant’s claim necessarily rises or falls on its own merits,” he wrote. ​“This is the antithesis of a class action.”

As proof, he cited how judges tossed out housing suits across the country, from luxury-apartment dwellers in Manhattan who tried to get a rent rebate for power outages during Hurricane Sandy to mixed-income tenants in Los Angeles who sued their landlord over nuisances like an intermittently operating elevator and trash pileups. But almost all of those cases had other procedural issues that were never going to get to court.

The strongest case law Kurzman can rely on is from 2007, when a Connecticut judge refused to certify a class of public housing residents in New London seeking damages from the city for letting them live in squalor. The judge said those issues required specific proof.

Northland said it would prefer to deal with the case by setting up a special docket, as the state judicial system has done for asbestos and lead paint. More recently, the courts set up another special docket for 2,500 pending cases against the manufacturer of Pradaxa, a prescription blood thinner, the company’s attorneys pointed out.

Proof of Disrepair

In the context of that procedural argument, Northland’s attorneys also previewed for the first time in the brief how they intend to rebut the claims that they created a public-health crisis at Church Street South.

A company executive will say that, after buying the property for $5 million in 2008, the owner poured $11 million into maintenance and repairs over the next decade, before one ​“horrific winter” finally did the property in. And an industrial hygienist and a building engineer will say that tenants rarely complained about mold, possibly because the spores showed up after the property was condemned and the heat turned off.

Kurzman assembled that team of experts to pick apart tenants’ statements, pressing them to document each claim of disrepair and each diagnosis of respiratory problems, rather than relying on a general sense of decrepitude in the complex that the ward’s alder took to calling ​“Asthma Central.”

To certify the class, Rosen wants to put one common question to everyone who lived at Church Street South: Did you suffer from Northland’s ​“demolition by neglect”? (Click here for a previous story detailing his argument for the plaintiffs, including expert testimony.)

Kurzman plans to try to complicate that ​“self-serving and scurrilous allegation” with a dozen more questions: Which building did you live in? What was its condition? How was the roof? Where was your apartment? Who lived there and for how long? What was its condition? If there was damage, what caused it? Did it affect your health? Did it damage your possessions? Did you tell anyone? Did they do anything about it?

Rosen had tried to prove the general disrepair by submitting questionnaire data from 268 people who lived in 106 units at Church Street South.

Those families reported that 93 percent of the units had mold, 91 percent had structural damage, 86 percent had water leaks, and 82 percent had plumbing backups. Some type of defect was reported in all but one of the apartments, Rosen wrote.

Kurzman wrote that that summary simplifies ​“a diverse panoply of alleged conditions and health effects.”

For instance, tenants meant different things when they reported ​“water damage,” he argued, as three had water dripping from their walls and ceilings, one had a leaky boiler, and two had broken faucets.

He demanded a paper trail that tenants might not have, especially because the bureaucracy at the time failed to catch problems, until just before the property was condemned.

Kurzman went after the lead plaintiff, Personna Noble, in particular, stating that she frequently complained to the property manager and city inspectors, but those reports never documented any mold.

A log of 13 repairs at Christopher Green, Apt. 14C, that ranged from the bathroom sink coming loose and shattering on the floor to the boiler breaking down and and cutting the heat, don’t mention any mold over the two years. Noble said she believed that three work orders had gone missing — ​“without explanation,” Kurzman said.

He added that Noble was also unable to explain why a 2015 inspection report from the Livable City Initiative (LCI), New Haven’s anti-blight agency, did not cite mold as an issue in her apartment, despite showing her bathroom to the inspector.

That fits a pattern throughout Church Street South: HUD and LCI inspectors reported mold in only one-third of the apartments. Only 22 were bad enough to be condemned, representing less than 7 percent of the complex.

“In all, the contrasts, variances, and contradictions between Ms. Noble’s allegations, her testimony, and records of repair and inspection, can only be resolved through individualized fact finding,” Kurzman wrote.

Recent pictures of an apartment like Noble’s wouldn’t cut it either, said Eric Olson, a professional engineer whom Northland hired to check the roofing and walls.

After the apartments were vacated, they were trashed by vandals, burglars and squatters, he said, meaning they likely looked different from 2013 to 2016.

Olson did admit, however, that buildings with ​“exterior masonry barrier walls” like Church Street South, often have trouble ​“reliably preventing water intrusion due to precipitation. ​“These limitations were inherited by Northland, not caused by Northland,” he said.

William Thompson, Northland’s senior vice president, picked up that argument by saying that the company tried to invest in the property, putting $5.4 million into capital improvements by 2015, amounting to nearly $18,000 per apartment. Thompson also submitted a balance sheet showing Northland lost $244,000 on the property over the last decade, after accounting for operating expenses, service contracts, utilities, repairs, taxes, insurance and debt service.

Thompson said the complex just wasn’t able to withstand the ​“unforeseeable and uncontrollable”: an ​“extraordinary winter.”

After the complex was pounded by blizzards in early 2015, Thompson said Northland decided that it would be ​“economically unfeasible” to repair the damage. He said they ​“worked with the City and HUD officials to decommission the property.” But that telling makes it sound like Northland had a choice; in fact, the feds had already declared the complex unlivable, cutting off the rental subsidies because the company failed to maintain ​“decent, safe and sanitary” conditions.

Previous coverage of Church Street South:
• Church Street South Taxes Cut 20%
• The Tear-Down Begins
• Finally Empty, Church Street South Ready To Disappear
• Northland’s Insurer Sues To Stop Paying
•Who Broke Church Street South?
•Amid Destruction, Last Tenant Holds On
• Survey: 48% Of Complex’s Kids Had Asthma
• Families Relocated After Ceiling Collapses
• Housing Disaster Spawns 4 Lawsuits
• 20 Last Families Urged To Move Out
• Church St. South Refugees Fight Back
• Church St. South Transfers 82 Section 8 Units
• Tenants Seek A Ticket Back Home
• City Teams With Northland To Rebuild
• Church Street South Tenants’ Tickets Have Arrived
• Church Street South Demolition Begins
• This Time, Harp Gets HUD Face Time
• Nightmare In 74B
• Surprise! Now HUD Flunks Church St. South
• Church St. South Tenants Get A Choice
• Home-For-Xmas? Not Happening
• Now It’s Christmas, Not Thanksgiving
• Pols Enlist In Church Street South Fight
• Raze? Preserve? Or Renew?
• Church Street South Has A Suitor
• Northland Faces Class-Action Lawsuit On Church Street South
• First Attempt To Help Tenants Shuts Down
• Few Details For Left-Behind Tenants
• HUD: Help’s Here. Details To Follow
• Mixed Signals For Church Street South Families
• Church St. South Families Displaced A 2nd Time — For Yale Family Weekend
• Church Street South Getting Cleared Out
• 200 Apartments Identified For Church Street South Families
• Northland Asks Housing Authority For Help
• Welcome Home
• Shoddy Repairs Raise Alarm — & Northland Offer
• Northland Gets Default Order — & A New Offer
• HUD, Pike Step In
• Northland Ordered To Fix Another 17 Roofs
• Church Street South Evacuees Crammed In Hotel
• Church Street South Endgame: Raze, Rebuild
• Harp Blasts Northland, HUD
• Flooding Plagues Once-Condemned Apartment
• Church Street South Hit With 30 New Orders
• Complaints Mount Against Church Street South
• City Cracks Down On Church Street South, Again
• Complex Flunks Fed Inspection, Rakes In Fed $$
• Welcome Home — To Frozen Pipes
• City Spotted Deadly Dangers; Feds Gave OK
• No One Called 911 | ​“Hero” Didn’t Hesitate
• ​“New” Church Street South Goes Nowhere Fast
• Church Street South Tenants Organize