The Battle for Summer Street: Part II

by Tom Nash on May 2, 2011

1188 Broadway

[This is an ongoing series about a proposed development near Davis Square, the history of the developers behind it and the city government’s handling of both. See the first part of this story here.]

Sitting in what is, by all appearances, a well-appointed apartment, a resident of one of Marc Daigle and Roberto Arista’s recent Somerville developments said the search for a condo near Davis Square at first seemed to end happily after coming across 1188 Broadway.

“I’ve always done stuff myself,” the resident said. “This is about as close as we could come to Davis Square without being in an old triple decker or a two-family home that I knew would have lots of repair work.”

Three years later, the resident is only now emerging from a battle with Arista and Daigle that began shortly after moving in. Because of the resident’s closeness to the legal struggle that unfolded and a confidentiality agreement that came with the settlement, the resident would only speak with Post Somerville anonymously.

From the beginning, the resident says, the homeowners faced a wide variety of building problems. Dakota Partners served as the general contractor on the project, which was officially owned by 1188 Broadway LLC, a partnership between Dakota owners Daigle and Arista.

The issues were varied, and affected more than half of the units in the building. An HVAC system in one unit was never hooked up completely. Crossed gas lines in two units eventually caused the fire department to investigate. Nonfunctioning exterior lighting was found to have never been hooked up completely.

“I was frustrated because I’m someone who cannot easily sit by as a consumer and watch people get trod upon,” the resident said. “What I agreed to do was try to go to Dakota, sit down with them, and create a process so that (the issues) that would pop-up would actually have some action.”

The issue that affected the largest number of residents, however, was the water that leaked into the building. The resident says every unit on the top floor became susceptible to water leaks after packed snow began to melt. Another unit on the second floor with a terrace that served as part of a first floor commercial unit had constant water issues – its drain system was built so that more than an inch of water had to collect before it would be able to flow out. The floor in the unit eventually began to buckle.

Dakota called out the original roofing contractor, Insul-Pro. After several trips to patch the roof, including one in which the trustees said they found a worker clearing snow with a hammer and garden shovel, the condo association banned the contractor from the property.

Insul-Pro did not respond to a request for comment.

Tensions continued to rise until the condo trustees refused to sign off on a document needed to sell the last unit in the building: the first floor commercial unit. The trustees said they hoped Daigle and Arista would agree to put the profits from the sale toward $209,086 in repair fees, the largest portion of which would go toward a new roof.

Dakota responded by suing – leading the association to countersue for the cost of the repairs.

The standoff

After a judge ordered $130,000 to be placed by the company in an escrow account and the paperwork handed over by the trustees to allow the sale to go forward, the two sides brought separate reports to show the extent of the building’s damage.

The report prepared for Arista by Jigsaw Home Inspections stated patches placed on the building’s main roof needed further work to prevent deterioration. It stated several seams on the roof “were not currently sealed” and that “in time and in the right conditions the roof could eventually leak.”

A report prepared for the condo owners by Noblin & Associates detailed what the inspector called “a variety of concerns related to poor quality workmanship.” Pictures included in the report showed the inspector lifting up the roof by hand to show that it was not properly secured.

“Based on the numerous examples of poor workmanship, the history of multiple leaks, the lack of a manufacturer’s warranty, this office recommends that the Association have the main building roof entirely removed and replaced,” the report concludes.

In an email, Arista said the roof was under warranty, and that the reports recommend substantially the same repairs.

“If you read the full (Noblin) report, it makes very specific recommendations regarding the roof, which are consistent with recommendations made by (the) independent inspector we hired,” Arista said. “We agreed to implement each and every one of the recommendations. The condominium association did not accept our offer.”

Both sides agreed to settle the suit in December, and Daigle and Arista agreed to pay $70,000 toward a new roof on the condition they would not be liable for further building issues.

The resident says the overall cost to the owners has been $40,000 in shared costs so far. Work on the new roof was recently completed, while work on a damaged second-floor terrace is still being finalized.

Arista, who maintains the roof did not need to be replaced, said he couldn’t discuss the details of what occurred at 1188 Broadway, but said he has always worked to solve issues faced by residents at developments he’s been responsible for.

“If they had issues we would go in and fix them,” Arista said. “When people start accusing us of stuff, how do you deal with that? You can only go so far, and then they want to sue you, so then you back off and call the attorneys.”

A new lawsuit

Three weeks after the 1188 Broadway trustees settled their lawsuit with Dakota, a new set of Somerville homeowners came forward with a lawsuit that alleged $207,000 in damages from similar construction issues.

The development, at 25 and 27 Osgood St., consists of two buildings with 14 units. They were finished in 2007, with Daigle serving as the sole trustee until it was turned over to residents in 2008.

The suit was brought against Emerald Development, a company owned by Daigle that closed after Dakota was founded, Dakota and 1188 Broadway LLC (because of its connection to Daigle). It alleges that as the sole trustee of the Osgood project, Daigle “simply looked the other way” as the issues mounted.

“Dakota Partners’ negligence in designing and/or constructing the Condominium buildings … has directly and proximately caused and continues to cause significant physical damage to property,” the suit alleges, at one point stating that some units might be “unfit for human habitation.”

The initial filing from the condo trustees includes a detailed list of issues faced by the condo owners and a report prepared by the same engineering consultant company that investigated the work at 1188 Broadway.

Like the 1188 Broadway report, the document included in the Osgood case file outlines construction issues that have resulted in water leaks throughout the building. Photos in the report show water-stained curtains near windows, a lack of window insulation and deteriorated wood.

“The inspection revealed a number of material defects and deficiencies, including violations of the applicable Building Code, in the construction of the condominium common areas and facilities,” the report stated. “Such defects and deficiencies, including violations of applicable codes … pose a serious threat to the health, safety and welfare of the unit owners and residents of the condominium including a threat of personal injury.”

Peter Czepiel, a project manager at Noblin & Associates who completed the Osgood report, said the company would not comment on either report.

Emerald has countersued the Osgood Trustees, alleging the same negligence in addressing problems as they claim Daigle displayed, stating the trustees “breached their fiduciary duty by exacerbating any alleged construction defects by waiting over two years to ‘investigate’ the alleged construction defects.”

Arista, responding with Daigle in an email to questions about the lawsuit, stressed that the Noblin report did not have any citations backing up the claims of building code violations.

“There was not a single building code violation citation issued on this project and I am confident that none would be found in this case,” the email stated. “Furthermore, we had not heard from the condominium association in almost five years prior to the filing of the lawsuit. Had they picked up the phone to call us we would have met with them to review the situation because we stand behind our work.”

Daigle’s countersuit, however, states that residents’ concerns with building issues were on the radar for Dakota, the contractor that built the project, since 2008. In a series of email exchanges included by Daigle’s attorney, residents describe roof leak damage similar to those experienced by residents at 1188 Broadway. The residents also complained of water ponding on the roof – one of the issues detailed by the Noblin report in the 1188 Broadway report.

The Osgood owners settled the roof issues with Dakota in 2009 for an undisclosed amount of money, meaning they can’t sue for a new roof.

The last chance of making it right’

While settlement discussions are still underway, in January a judge granted a request by the Osgood Trustees to place a $207,000 writ of attachment on Daigle’s home.

Osgood resident Jeff Jenkins, a trustee who would not discuss the case itself, said he was surprised the city signed off on the development in the first place. The Noblin report says the windows in the condos inspected did not function properly.

“The windows are all in crooked,” Jenkins said. “It’s poor code. It amazes me that the building inspector couldn’t have picked up on that. Sure, a builder might have a bunch of workers, some good, some bad, but (the inspector is) the last chance of making it right.”

In the next part of this series, Post Somerville will examine more of the issues at these and other developments built by Arista and Daigle, how they received inspection approvals from the city, and what occurred at one of their recent projects in Rhode Island.

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