State tosses most fines in Alosso DEP case

By Nelson Sigelman - October 11, 2007

In a decision overwhelmingly favoring Joseph and Evelyn Alosso of Oak Bluffs, an administrative magistrate ruled that a decision by the Massachusetts Department of Environmental Protection (DEP) to levy $19,685 in fines against the couple, in connection with the installation of a septic system for a new house, was not supported by the facts of the case.

In a 47-page partial summary decision (available here) issued Oct. 3, Division of Administrative Law Appeals administrative magistrate Mark L. Silverstein found for the Alossos on four of five points and vacated $19,685 of $28,310 in civil administrative penalties.

The language of the summary decision also cast doubt on the strength of the DEP's case going forward on the one issue where the facts remain in dispute.

A summary decision is issued when no factual issues are in dispute and allows for an accelerated disposition of an appeal without the need for a hearing to present evidence.

Yesterday, Mr. Alosso, facilities manager for the Oak Bluffs and Edgartown wastewater plants, said he was very happy that the four-year ordeal over his house was over, but he deplored the cost in time and money, for him and for the taxpayers.

This spring, Mr. Alosso won another victory when more than one year after it first authorized an inquiry, the state Ethics Commission ended a probe into whether Mr. Alosso violated the conflict of interest law while he served on the Oak Bluffs board of health.

The state inquiry and the DEP fines arose in connection with Mr. Alosso's construction of a four-bedroom house in 2003, and against the backdrop of Oak Bluffs's rough and tumble brand of personal politics.

The DEP launched an investigation into the septic system that the Alossos installed after receiving a complaint about the property. At the time, Mr. Alosso was a board of health member.

The crux of the issue was the state's assertion that a septic system for a four-bedroom house should not have been allowed on the property at 53 Carol Lane. Mr. Alosso maintained that he simply replaced a preexisting four-bedroom house with a new four-bedroom home, and installed the necessary septic system.

However, DEP investigators concluded that the original house never contained more than three bedrooms. The difference was critical because under "Zone 2," where the Alossos' house is located, the Alossos would not have been allowed to build a four-bedroom house unless a four-bedroom house had previously existed on the site.

At the heart of the ethics probe was the allegation that Mr. Alosso abused his position on town boards to gain approval of a house with four bedrooms, more than would have been allowed by existing regulations.

The DEP filed a motion in 2005, claiming that Mr. Alosso violated state rules, including using his septic system before obtaining a certificate of compliance and building too large of a septic system for the size of his lot. He was ordered to pay $28,310 in fines.

Mr. Alosso maintained that there were four bedrooms in the house when he purchased the property, and that he had done nothing wrong. The question of how many bedrooms existed in the house when Mr. Alosso bought it and the documentation surrounding the project were at the center of the case.

Mr. Alosso hired a lawyer, Donald Nagle of Plymouth, and appealed the DEP ruling. In Sept. 2005, DEP asked for a summary decision.

House of horrors

In his decision, Mr. Silverstein addresses the DEP fines point by point. Much of the decision rests on the magistrate's view that there was no willful violation of the rules and that the original house did contain four bedrooms.

In the introduction to his decision, Mr. Silverstein wrote, "It was supposed to have been a modest dream home for a middle class family; a single-family, two-story modular house to replace an older one-story home that Joseph N. Alosso and Evelyn R. Alosso had first rented and then purchased. But the dream home soon became a house of enforcement horrors. According to the Massachusetts Department of Environmental Protection

(DEP), the home had too many bedrooms, the capacity of its new sewage disposal system exceeded what was authorized, and there were other, numerous violations of the state's Title 5 Regulations.

"In DEP's view, the Alossos' new 4-bedroom home had replaced one with three bedrooms; its new sewage disposal system was therefore designed and built to receive a greater volume of sewage than was authorized for the older system or that was allowed in a nitrogen sensitive area. For these alleged violations, and for the alleged violation of other Title 5 regulations governing the system's setback from property lines, percolation testing of the system site, and backfilling and discharging to the system prior to the issuance of a certificate of compliance by the local board of health, DEP assessed a $28,310 civil administrative penalty against the Alossos. DEP also issued an enforcement order requiring that the Alossos limit the number of usable bedrooms in the new house to three via a deed restriction, and that they either acquire land to be used solely for nitrogen-loading credit or modify their on-site sewage disposal system to include an approved system for nitrogen reduction.

"The evidence shows it to be beyond genuine dispute, however, that the original house had four bedrooms rather than three, as DEP alleged. Consequently, the design capacity of the new on-site sewage disposal system was not increased over the volume that the original house was authorized to receive, the new house is not "new construction" as the Title 5 Regulations define it, and the nitrogen-loading limitations that the Regulations impose upon new construction in nitrogen-sensitive areas do not apply here."

Mean people

Yesterday, Mr. Alosso said the case never should have gotten as far as it did. He said the board of health and DEP should have seen that. "They wasted the town's money, they wasted the state's money, and they wasted the money I had saved for a child in college. He estimated his legal fees at close to $20,000. "I saved my money and I had to spend it foolishly," he said. "And I think that's wrong. But I think some good may come of this because next time they will think twice before they make false accusations."

Mr. Alosso said he has always tried to help people in his public role, and it is the role of government to be helpful. He attributed the case to people who are inherently mean-spirited. "I think it must really be lousy to be them," he said.

In their public and private comments, Mr. Alosso's critics continually insinuated that he had done something wrong. Mr. Alosso's strongest critics included Oak Bluffs political figure Linda Marinelli, who served on the board of health when DEP issued its fines, and Jonathan Revere of West Tisbury, a political gadfly who acknowledged contacting the DEP regarding Mr. Alosso.

Mr. Alosso was critical of the Vineyard Gazette for publishing several front-page stories about his ordeal and providing ample space for his critics to suggest that he had done something wrong and abused his power.

"People believe what they read, and in the back of their minds they always think something's wrong," said Mr. Alosso. "To my critics, I'd ask them, where do I go to get my reputation back?"