Dear Mr. Pucci, Thank you every much for sending by e-mail the 3 Red Barn Road Plumbing Inspection Report. Below is my response together with my letter to the Clerk requesting that it be docketed and filed. Have a nice summer! Sincerely Ernst Meyer ============================================== _ Commonwealth of Massachusetts Superior Court _ Suffolk, ss. C.A. No. SUCV2008-05664-E _ _____________________________________ _ | _ | _ Ernst J. Meyer, | _ appellant | _ v. | _ Nantucket Building Department | _ and | _ Board of State Examiners of Plumbers | _ and Gas Fitters, | _ respondents | _ _____________________________________| _ Appellant's Response by Means of Annotations to _ the Plumbing Inspection Report/Condemnation Removal Order _ of the Defendant _ ========================================================= _ In Footnote 13 to its Order of December 6, 2010, the _ Appeals Court held: _ FN13. The inspection of Meyer's work must be one _ of integrity and fairness. A report of any defi- _ ciencies must have the substantiation of specific _ and detailed findings and reasoning. Any deci- _ sion resting upon the inspection will remain sub- _ ject to review by the Superior Court and appel- _ late courts under the standards of the Adminis- _ trative Procedure Act, G.L. c.30A,ยง14(7)(a)-(g). _ In response to the Appeals Court ruling, the defendant _ filed the Plumbing Inspection Report/ Condemnation _ Removal Order. _ ----------- _ 1) This order is reproduced below as single- _ spaced, indented text. Purported deficiencies _ claimed by the defendant are preceded by "xx_>". _ The appellant's rebuttals are preceded by "==_>". _ -2- _ The Plumbing Inspection Report/Condemnation Removal _ Order begins: _ xx1> I advised you at the time of the inspection _ of your plumbing construction at 3 Red Barn Road, _ your plumbing construction is wholly deficient _ and of unskilled and inferior workmanship. _ ==1> This introductory statement holds the key to this _ report: The inspector's prejudice against the appel- _ lant and his installation antedating as it did the _ inspection of March 14, 2011, by two years and three _ months, deprives that inspection of integrity and _ fairness, and makes its findings meaningless. On or _ about January 6, 2011, the Inspector before having _ inspected or even seen the 3 Red Barn Road plumbing _ instructed the appellant's licensed plumber, Mr. _ Christopher M. Gordon, that this plumbing could not or _ should not be made code compliant, stated that he _ would refuse to inspect it, and refused for 45 days to _ issue a plumbing permit to Mr. Gordon. Once the permit _ was issued, the Inspector prohibited Mr. Gordon from _ performing any work on the installation that might _ make it code compliant. To the appellant, even before _ the inspection had been performed, the Inspector _ emphatically and insistently stated that the plumbing _ construction was wholly deficient and of unskilled and _ inferior workmanship, and that he, the appellant, was _ ignorant, incompetent and dishonest. _ -3- _ xx2> Since the deficiencies and poor workmanship _ are so widespread throughout the system as a _ whole, my only viable option is to condemn the _ entire system and order its removal. _ ==2> The appeal to the Superior Court extinguished the _ Inspector's jurisdiction over the issues of this con- _ troversy. The Appeals Court decision ordering the _ Inspector to conduct an inspection of integrity and _ fairness, did not confer on him concurrent jurisdic- _ tion and did not authorize him to issue orders to the _ appellant on the Court's behalf. Accordingly the _ Inspector's Condemnation Order and the Inspector's _ Order prohibiting "any attempted use of the system" _ are invalid as usurpation of the authority of the _ Superior Court. _ The relevant regulatory code provisions, and cor- _ responding violations and deficiencies, are as _ follows: _ 10.05 General Regulations _ 4.Fittings and Connections Prohibited. _ b.Obstruction to Flow. _ 1.No fitting, connection, device, or method of _ installation that obstructs or retards the flow _ of water, wastes, sewage, or air in drainage or _ venting systems where the obstruction results in _ flow resistance that is greater than the normal _ frictional resistance to flow shall be used _ unless otherwise specifically indicated elsewhere _ in 248CMR 10.00. _ 2. The enlargement of a three-inch closet bend or _ stub to four inches shall not be considered an _ obstruction under this provision provided that _ the horizontal flow line or insert is continuous _ without forming a ledge. _ -4- _ Your plumbing construction fails this code provi- _ sion in several critical ways. _ xx3> The wye fitting for the main sewer line is _ installed backwards. _ ==3> This alleged deficiency lacks the substantiation _ of specific and detailed reasoning required by Foot- _ note 13. On the contrary, it reflects a misconception _ on the part of the Inspector whose implicit presump- _ tion is in error: Fluid encounters the same resistance _ whether it flows through this wye from left to right _ or from right to left. It is incorrect to claim a _ deficiency on the premise that the flow resistance _ differs in the two directions. It is an elementary _ fact of physics and of common sense that the flow _ resistance is identical whether the fluid flows from _ right to left or from left to right. No less signifi- _ cant, the circumstance that the disputed wye, mounted _ in the system by two easily removable rubber couplings _ was a temporary device, installed by the appellant for _ the purpose of pressure testing. In as much as the _ appellant, immediately on receipt of the cease and _ desist order, ceased all plumbing, he had no opportu- _ nity to reposition the wye in its final proper situa- _ tion, a fact of which he informed the Inspector at the _ time of the inspection and was rebuffed with the _ rejoinder: "It makes no difference." _ -5- _ xx4> The tees used in venting the first floor _ fixtures are also backwards. _ ==4> This alleged deficiency lacks the substantiation _ of specific and detailed reasoning required by Foot- _ note 13. It also reflects the Inspector's misconcep- _ tion of fluid dynamics. The plumbing fitting "Tee", _ like the letter "T" for which it is named was origi- _ nally wholly symmetric about the vertical axis. At _ one time tees in the upright position were used to _ deflect streams of water from the horizontal to the _ vertical. When used for this purpose they were prone _ to act as siphons, and to decrease this propensity, _ the inner edge of one limb of the transverse member _ was rounded. The modified tee is referred to as a _ "Sanitary Tee". There is no Code requiring sanitary _ tees for venting. There is no Code requirement speci- _ fying the orientation of a sanitary tee when so used. _ The slight asymmetry of the sanitary tee is of no con- _ sequence at all when the tee is used in an inverted _ position as a vent, especially when, as in the instant _ case, the vent is dry and no fluid at all drains down _ the stem of the inverted tee. The movement in issue _ is not of fluid but of air, and air even in the sewer _ "blows where it listeth," depending on the temperature _ and flow rate of the subjacent stream of water, _ depending also on the differential temperatures in _ -6- _ different parts of the system. The tee when used as a _ dry vent is intended as a channel for the displacement _ of air which moves unpredictably every which way, _ right, left, up or down, and it is incongruous to pre- _ sume to distinguish a "correct" disposition of the _ tee, especially when, no matter what, the asymmetry _ could have no effect on the flow of air. _ xx5> Many of the fittings in the basement plumb- _ ing are not installed correctly. _ ==5> This allegation of deficiencies lacks the sub- _ stantiation of specific and detailed findings and rea- _ soning mandated by Footnote 13. _ xx6> The kitchen sink does not tie into the main _ sewer line correctly. _ ==6> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings and reason- _ ing mandated by Footnote 13. _ xx7> The main sewer line also picks up too many _ connections with far too many extra fittings. _ ==7> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings and reason- _ ing mandated by Footnote 13. The allegation is _ ambiguous at best: a) because while the downstream _ terminus of the "main sewer line" is definite at the _ foundation wall, the point at which the "main sewer _ line" originates is subject to interpretation. No _ -7- _ section of the Plumbing Code places a limit on the _ number of connections or fittings, nor does it define _ "extra fittings." _ xx8> There is also far too much unnecessary pip- _ ing to the main sewer line which meanders in a _ convoluted and entirely flawed manner. _ ==8> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings and reason- _ ing mandated by Footnote 13. It is not clear what the _ epithet "far too much unnecessary piping" adds to the _ previously cited alleged deficiencies "too many con- _ nections with far too many extra fittings." _ xx9> This is a fundamental flaw in good workman- _ ship which requires as few redirections of the _ pipings installed into a system as possible. _ ==9> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings and reason- _ ing mandated by Footnote 13. Calculations made by the _ appellant persuaded him the the piping configuration _ selected was necessary to obtain strict compliance _ with the Plumbing Code. Conversations with licensed _ plumbers, Mr. Maurice Daniels, Mr. Dennis Parks, and _ Mr. Christopher Gordon suggest to the appellant that _ the Plumbing Code is routinely and regularly disre- _ garded by Nantucket plumbers and by the Inspector who _ supervises them. The appellant suspects that one of _ the reasons for the Inspector's adamant rejection of _ -8- _ the appellant's plumbing is insecurity engendered by _ an awareness that the appellant's work is not less but _ more code compliant than is customary on Nantucket. _ xx10> Further, the 3-inch double wye which is _ being used to pick up the two first floor toilets _ does not work out for venting in violation of _ subsection 4.b.1., and also in violation of 248 _ CMR 10.16(12)(c)1. and 2, which requires as fol- _ lows: _ 10:16: Vents and Venting (12) Fixture Vents. _ (c) Floor-mounted Fixture Outlet. _ 1. when installing the piping for a floor outlet _ type toilet or similar fixture, the vertical pip- _ ing distance shall not exceed 20 inches from the _ finish floor of the fixture served to the center _ line of the horizontal drain serving such fix- _ ture. _ 2. If the vertical distance exceeds 20 inches the _ fixture shall be individually vented. _ ==10> The citations "subsection 4.b.1." is incomplete _ and ambiguous. 248 CMR 10.16(4) has no subsection _ 4.b.1. The deficiency alleged cannot be established _ until the Inspector states affirmatively the distance _ from the finish floor of the fixture to the center _ line of the horizontal drain. _ xx11> Additionally, there is a 3-inch vent which _ proceeds from the basement though the roof with _ no fixtures which serves no purpose. _ ==11> 248 CMR 10.16(5)a states: "Vent stack _ required.""Any structure in which a building drain is _ installed, shall have as a minimum one full size main _ stack vent or a vent stack no less than three inches _ in diameter..." The inference from the Inspector's _ -9- _ criticism is that this requirement is not customarily _ honored on Nantucket. _ 10.05: General Regulations _ 2.Pitch of Horizontal Drainage Piping. _ a. Horizontal drainage piping shall be run in _ straight practical alignment and at a consistent _ uniform pitch. _ b. Horizontal drainage piping which is three _ inches in diameter or smaller shall be installed _ with a minimum uniform pitch of 1/4 inch per _ foot. _ c. Horizontal drainage piping which is larger _ than three inches in diameter shall be installed _ with a minimum uniform pitch of a 1/8 inch per _ foot. _ xx12> The main sewer line is not pitched cor- _ rectly. _ ==12> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings mandated by _ Footnote 13. The Inspector cannot say at what points _ he determined the pitch to be incorrect. He cannot _ tell the arithmetic value of the pitch, because he did _ not bring instruments to measure, and he did not mea- _ sure it. "Eyeballing", the visual estimation of pitch, _ being subject to optical illusions, is notoriously _ unreliable, especially when the Inspector has a pre- _ conceived notion that the "plumbing construction is _ wholly deficient and of unskilled and inferior work- _ manship." An allegation so flimsy ought not be per- _ mitted in support of a condemnation order for the _ destruction of valuable property. _ -10- _ xx13> Most of the fittings going into the main _ sewer are not pitched correctly. _ ==13> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings mandated by _ Footnote 13. Which fitting were pitched incorrectly _ and what was the arithmetic value of the incorrect _ pitch? The Inspector failed to measure the pitch. _ Indeed he brought no instruments to do so. His allega- _ tion of improper pitch is at best an (un)educated _ guess, profoundly colored by his bias that the appel- _ lant ought not be permitted to install his own plumb- _ ing and that he should be punished for successfully _ having done so. _ 10.05: General Regulations _ 3. Changes in Direction of Drainage Piping. _ a. Fittings to be Used. _ 1. Changes in the direction of drainage piping _ shall be made by the use of wyes, long sweep _ quarter bends, fifth, sixth, eighth or sixteenth _ bends, or their equivalent. _ 2. Quarter bends, or their equivalent may be used _ in soil and waste lines when the change in the _ direction of the flow is from the horizontal to _ the vertical. _ 3. Tees and crosses for vent fittings may be used _ for changes in the direction of vent piping only. _ xx14> The main stack tee going into the main _ sewer is not up to code and it is also installed _ backwards. _ ==14> This allegation of deficiencies, relying on the _ catch-all phrase, "not up to code", lacks the substan- _ tiation of specific and detailed findings and reason- _ ing mandated by Footnote 13. The insignificance of _ -11- _ the orientation of a tee used for dry venting is dis- _ cussed above at ==4>. _ xx15> Many of the fittings in the basement plumb- _ ing are not installed correctly. _ ==15> This allegation of deficiencies lacks substanti- _ ation of specific and detailed findings and reasoning _ mandated by Footnote 13. _ xx16> The kitchen sink does not tie into the main _ sewer line correctly. _ ==16> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings and reason- _ ing mandated by Footnote 13. _ xx17> The main sewer line also picks up too many _ connections _ ==17> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings and reason- _ ing mandated by Footnote 13. _ 10.15: Sanitary Drainage System _ (10) Sumps and Ejectors. _ (b) Design of Sumps and Ejectors. _ Sump and pumping equipment shall be so designed: _ 1. as to discharge all contents accumulated in _ the sump during the cycle of emptying operation; _ and _ 2. so that the storage of drainage in a sump or _ ejector does not exceed 12 hours. _ xx18>The sump drain is not tied into the main _ sewer line correctly. _ ==18> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings and _ -12- _ reasoning mandated by Footnote 13. The accompanying _ citations of 248 CMR 10(b)1 and 2 are either irrele- _ vant or create the incorrect and irrational inference _ that the sump drain not being "tied into the main _ sewer line correctly" caused the pumping equipment: 1. _ "not to discharge all contents accumulated in the sump _ during the cycle of emptying operation;" and or caused _ "the storage of drainage in a sump or ejector ... (to) _ exceed 12 hours." _ xx19> Additionally, the sump does not have a _ check valve. _ ==19> It is impossible for the sump, being the excava- _ tion in the ground, to have a check valve. The check _ valve for this installation is properly located in the _ discharge pipe from the sump pump within the subsur- _ face tank. The Inspector did not open the subsurface _ tank within which the check valve is enclosed. There- _ fore the Inspector could not see the check valve and _ in an effort to identify another "deficiency" reported _ it as absent. _ 10.05: General Regulations _ 7. Workmanship. _ Workmanship shall conform to generally accepted _ good practice. Particular attention shall be _ applied to all piping installations in regard to _ the alignment of piping (straight, level, plumb). _ xx20>The workmanship is inferior throughout the _ plumbing construction and in total disregard of _ generally accepted good practice. _ -13- _ ==20> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings and reason- _ ing mandated by Footnote 13. "Inferior workmanship" _ is a subjective determination which is meaningless _ when made by a person who has expressed strong _ antipathies about and toward the person whose workman- _ ship he purports to be judging and may not be used to _ support a condemnation order. _ xx21> The piping installations are not aligned in _ a straight, level, or plumb manner. _ ==21> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings mandated by _ Footnote 13. The pipes, if any, which lack the _ required straight, level or plumb alignment are not _ identified. At this juncture, the Plumbing Code _ reveals its true nature. The circumstance that the _ Plumbing Code requires piping installations to be _ pitched precludes their being level. If pipes were _ level, they would not drain. Even supply pipes are _ preferably pitched in order to facilitate the passive _ evacuation of water when the system is drained. Devia- _ tions from straightness or plumbness have only _ esthetic significance. Inasmuch as almost all plumb- _ ing is concealed, even the esthetic factor is evanes- _ cent. This misguided, simplistic imperative, which the _ appellant's plumbing did not violate, is of only _ -14- _ dialectical legal significance. _ 10.06: Materials (m) Water Distribution Piping _ Above Ground (Inside Building). For water distri- _ bution piping that is installed inside a building _ and above ground, only the following materials _ may be used: _ 1. Iron size brass or copper pipe with cast brass _ fittings. _ 2. Type K or L hard drawn copper tubing that is _ incised marked and has cast brass or wrought cop- _ per fittings. _ 3. Copper alloy tubing "Heavy" and "Standard" _ weight incised marked, color coded aqua, conform- _ ing to ASTM Standard and having cast brass or _ wrought copper fittings. _ 4. Exposed galvanized wrought iron or galvanized _ fittings only when used for replacement in exist- _ ing buildings or structures or when used for _ replacement of large size water mains. _ xx22> You have galvanized fittings being used to _ tie the main water into the system in direct vio- _ lation of this section. _ ==22> 248 CMR 10.03, Definitions, "Plumbing" states _ that (only) the plumbing which begins "on the house _ side of ... the main control valve" requires to be _ installed by a licensed plumber. The manifold of gal- _ vanized steel which the appellant built is not on the _ "house side of ... the main control valve." It is a _ component of the pressure tank installation, and as _ such is upstream from the "main control valve", where _ is is not under the jurisdiction of the Inspector. _ The appellant's failure to comply with a set of rules _ that are not applicable to this manifold may not be _ used as an argument for destroying that part of his _ installation which is subject to the Plumbing Code. _ -15- _ Should the Court for some as yet inapparent reason _ determine that the galvanized steel manifold is indeed _ subject to the Inspector's jurisdiction that manifold _ can easily be reconstituted with copper tubing by a _ licensed plumber. _ 10:14: Water Supply and the Water Distribution _ System _ (4)Designing and Sizing the Building Water _ Distribution System. _ (a)Methods to Be Used. _ 1. The design of the building's hot and cold- _ water distribution system shall conform to good _ engineering practices. _ 2. The methods used to determine pipe sizes shall _ be the procedure outlined in Appendix "D" of the _ United States Public Health Service publication _ #1038, or a system designed by a registered pro- _ fessional engineer, using the computation out- _ lined in 248 CMR 10.14(4): Tables 1, 2, and 3. _ (An example of the use of these tables is shown _ following 248 CMR 10.14(4): Capacity Values for _ Service, Mains, Risers and/or Branches). _ 3. The minimum size of a fixture supply pipe _ shall be in accordance with 248 CMR 10.14(4): Ta- _ ble 1. _ 4. The size of fixture supplies, the building _ main and branch distribution piping may be deter- _ mined from 248 CMR 10.14(4): Tables 1, 2, and 3. _ 5. To size the hot and cold water main or distri- _ bution branches for a building, they shall be _ computed on an individual basis. _ 6. A demand factor, as recognized in 248 CMR _ 10.14(4): Table 2 shall be applied to determine _ the minimum diameter pipe size for the building _ main and water distribution system piping. _ 7.Size of Fixture supplies. _ a) The minimum size of a fixture water supply _ pipe shall be as shown in 248 CMR 10.14(45): _ Table 1: Minimum Sizes of Fixture Water Supply _ Lines and Factor Values. _ b) The fixture water supply pipe shall be _ extended to within at least 30 inches of the _ point of connection to the fixture. _ xx23> The piping for the water distribution sys- _ tem is undersized _ -16- _ ==23> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings and reason- _ ing mandated by Footnote 13. Paragraph 4 in the cita- _ tion above, states: _ "4. The size of fixture supplies, the building main _ and branch distribution piping may be determined from _ 248 CMR 10.14(4): Tables 1, 2, and 3." The word is _ "may". The use of these tables is not mandatory. They _ do not take into account the distance which the water _ must travel to reach a fixture. That distance is crit- _ ical for determining the pipesize requires to deliver _ water at a given rate and a given pressure. Within _ limits, the shorter the distance, the smaller the _ required pipe. In the installation under consideration _ the supply pipes are unusually short; therefore a pro- _ portionately smaller diameter is appropriate. _ xx24>The piping for the water distribution system _ is ... entirely inadequate to service a house of _ this size. _ ==24> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings and reason- _ ing mandated by Footnote 13. In determining the size _ of mains and fixture supplies, the Plumbing Code does _ not take into consideration the size of the house. _ xx25> Additionally, some of the water lines are _ installed backwards. _ -17- _ ==25> The Inspector does not specify which water lines _ have been allegedly installed "backwards." Inasmuch as _ "installation of water lines backwards" is not collo- _ quial usage and is not defined by the Plumbing Code _ this allegation of deficiency is devoid of meaning and _ is therefore not susceptible to substantiation of spe- _ cific and detailed findings and reasoning mandated by _ Footnote 13. _ 10.02: Basic Principles _ 10. Principle No. 10 - Protection of Trap Seals. _ The drainage and vent system must be designed to _ provide adequate circulation of air in and _ throughout all piping. Trap seals shall be pro- _ tected from the dangers of, siphonage, leakage, _ aspiration, momentum, oscillation, back pressure, _ evaporation and capillary action under conditions _ of normal ordinary use. _ xx26> The tub drains are not tied into the system _ correctly and the system is sure to fail under _ normal ordinary use. _ ==26> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings and reason- _ ing mandated by Footnote 13. The Inspector fails to _ describe or define the alleged incorrectness of the _ tub drains installations, making it impossible to _ divine the specifications to which he purports to _ require them to be changed. _ xx27> The sink drains are also not vented cor- _ rectly which is a violation of Principle No. 10 _ as well as Section 10.05(4)(b) cited above. _ ==27> Principle No. 10 refers to the protection of _ -18- _ trap seals. Section 10.05(4)(b) refers to obstruc- _ tions to flow. The relationship of trap seals and _ obstruction to flow by incorrect venting of sink _ drains is not immediately apparent. Once more, the _ foregoing allegation of deficiency lacks the substan- _ tiation of specific and detailed findings and reason- _ ing mandated by Footnote 13. _ 10.04: Testing and Safety _ 2.Methods of Testing the Water Distribution and _ Supply System. Upon completion of a section or _ of the entire water supply system when roughed, _ it shall be tested and proved tight under a pres- _ sure of not less than 125 pounds per square inch. _ Water used for tests shall be obtained from a _ potable supply source. Air or other inert gases _ may be used for testing. _ (b) Final Test and Inspection. _ 4.Defects _ b.If the licensee holding a permit for work in a _ building turns the water on and fails to properly _ notify the Inspector as required, or neglects to _ remedy any defects or violations that may have _ been found and pointed out to him/her by the _ Inspector he/she shall not be granted any further _ permits until he/she has complied with 248 CMR. _ Other disciplinary action may be pursued by the _ Inspector as provided for in M.G.L. c. 142 and _ 248 CMR. _ xx28> A toilet has been illegally hooked into the _ sewer system which has not been tested or _ inspected. _ ==28> The septic system has been tested and approved _ by the Health Department. The sewer system was in fact _ tested by the appellant. It was inspected by the _ Inspector on March 14, 2011. The Inspection Report _ annotated in this response provides stong dialectical _ -19- _ evidence that the appellant's plumbing system is _ indeed Code compliant; for were it otherwise, the _ Inspector would have found and documented credible _ deficiencies instead of trying to peddle frivolous _ fabrications, inadmissible to the Report by the terms _ of Footnote 13. _ 12.Principle No. 12 - Test the Plumbing System. _ The plumbing system must be subjected to such _ tests as will effectively disclose all leaks and _ defects in the work or the materials. _ xx29> There was no testing which would effec- _ tively disclose leaks or defects in the water or _ sewer system. _ ==29> The Inspector's recklessness in making the _ charge "There was no testing which would effectively _ disclose leaks or defects in the water or sewer sys- _ tem," is emblematic of the absence of fairness and _ integrity in this Report. On February 20, 2011, the _ Inspector sold to Mr Gordon a plumbing permit for _ $560.00 The Inspector then effectively voided the per- _ mit, by prohibiting Mr. Gordon from doing any work _ including testing, at 3 Red Barn Road. The Inspector _ complains of the failure to test when he himself pre- _ vented all activity which made such testing possible. _ At the beginning of the inspection on March 14, 2011, _ the Inspector prohibited Mr. Gordon from participating _ in the inspection by saying to him, in my presence, _ "You stay out of this." The Inspector himself then _ -20- _ failed to perform any pressure testing of the system _ he was intent on destroying, and cited as one of the _ reasons for insisting on destroying the system that _ "There was no testing which would effectively disclose _ leaks or defects in the water or sewer system." _ 10.02: Basic Principles _ 7.Principle No. 7 - Drainage System of Adequate _ Size. The plumbing drainage system must be _ installed, designed, arranged, constructed, and _ maintained to protect against fouling, deposit of _ solids, and stoppages. The drainage system shall _ incorporate adequate cleanouts placed in a manner _ that the drainage system may be readily cleaned. _ xx30> The plumbing system at 3 Red Barn Road is _ not constructed in a manner which will adequately _ or safely protect against fouling, deposits of _ solids, or stoppages. _ ==30> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings and reason- _ ing mandated by Footnote 13. Repetition of statements _ inadmissible by the standards of Footnore 13, far from _ making them admissible, serves only to to demonstrate _ the Inspector's lack of understanding or disdain for _ the Appeals Court Order. _ xx31> In light of the defective and inadequate _ materials I observed upon inspection, along with _ the unskilled and inferior workmanship I found _ throughout your plumbing installation, _ ==31> This allegation of deficiency lacks the substan- _ tiation of specific and detailed findings and reason- _ ing mandated by Footnote 13. Nowhere in this report _ -21- _ have defective materials been cited; the only refer- _ ence to inadequate materials is the citation of the _ galvanized steel inlet manifold, which pursuant to 248 _ CMR 10.03 is not under the Inspector's jurisdiction. _ "Unskilled and inferior workmanship" is a subjective _ criterion not susceptible to objective substantiation, _ if only because it is a comparison with an unidenti- _ fied and inaccessible standard. _ xx32> I hereby condemn the entire system and _ order it removed pursuant to 248 CMR 3.05(g). _ ==32> The Inspector should be advised that the Appeals _ Court remanded this controversy not to the Nantucket _ Plumbing Inspector but to Suffolk Superior Court, with _ which the Inspector does not have concurrent jurisdic- _ tion. At this stage of the proceedings, only the Supe- _ rior Court may order "the entire system" "removed pur- _ suant to 248 CMR 3.05(g)" and the Inspector's order _ has no effect other than to demonstrate his malice _ toward the appellant and his disrespect for the Court. _ The order of condemnation and removal is inconsistent _ with and incompatible with the provisions of Footnote _ 3. which mandates substantiation of detailed findings _ and reasoning specific to each allegedly defective _ item or member of the plumbing installation. The _ destruction of non-defective items would serve not as _ -22- _ the correction of a plumbing defect, but as a punish- _ ment which the Appeals Court has found to be contrary _ to law and which Footnote 13 does not permit. Aside _ from the circumstance that the foregoing analysis has _ demonstrated the deficiencies which the Inspector _ claims to have found are in many, if not most _ instances, fabrication, and that the changes, if any, _ required to bring the plumbing system into compliance _ with the Code are probably few and inexpensive, the _ circumstance that the repair of numerous individual _ deficiencies might be financially more costly, and _ that economics might dictate the removal and rebuild- _ ing of the entire system, are monetary decisions to be _ made not by the Inspector but by the appellant. _ xx33> I further order that you cease and desist _ from any attempted use of the system, or further _ work on the plumbing at 3 Red Barn Road until you _ have made suitable arrangements for an agreed _ removal of the system as currently constructed, _ along with an approved plan for reconstruction of _ the system by a licensed plumber in compliance _ with 248 CMR. _ ==33> The appellant has complied with and will con- _ tinue to comply with the Inspector's order of December _ 2008, to cease plumbing work at 3 Red Barn Road. The _ Appeals Court has reversed the Inspector's order that _ the plumbing be destroyed irrespective of Code compli- _ ance. The Appeals Court remanded the action for fur- _ ther proceedings not to the Inspector but to the _ -23- _ Superior Court with which the Inspector does not have _ concurrent jurisdiction. Until this case has been _ closed, valid orders pertaining to this controversy _ can be made only by the Court. Purported orders issued _ by the Inspector rather than by the Court, including _ the prohibition of "any attempted use of the system", _ should be deemed void. _ The prohibition of "any attempted use of the system" _ is especially invidious inasmuch as it deprives the _ appellant of water which is essential for and univer- _ sally available at construction sites, water which is _ needed for mixing mortar and plaster, water which is _ indispensable for washing hands and for irrigating _ eyes accidentally contaminated with caustics, water _ conceivably saving such injured eyes from blindness, _ and water which is imperative for early extinction of _ the small fires that occasionally erupt at construc- _ tion projects. _ The denial of toilet facilities to an 81 year old man _ engaged in devoting the final months or weeks of his _ life to completion of his house, where the toilet has _ been found by a licensed plumber to be in compliance _ with the plumbing code, and has been inspected by the _ Town Inspector whose Inspection Report describes no _ credible deficiencies, that denial of toilet _ -24- _ facilities to an 81 year old man engaged in devoting _ the final months or weeks of his life to completion of _ his house is a mean-spirited deprivation of civil _ rights under color of law. Even prisoners in solitary _ confinement in the prisons of the Commonwealth are not _ denied the use of toilet facilities! _ It is my understanding that this condemnation- _ removal order will be filed in connection with _ your pending Court proceedings in Suffolk Supe- _ rior Court. Please advise the Town's attorney _ whether you will agree to removal as ordered. _ I have advised the Town's attorney that I do not agree _ to the removal of any plumbing unless and until _ ordered by the Court. I hereby further advise the _ Town's attorney that during and after the pendency of _ this action, I consider myself bound by ALL orders of _ the Court, but that during the pendency of this _ action, I do not consider myself bound by ANY orders _ of the Inspector that have not been explicitly adopted _ by the Court as its own, specifically not by purported _ orders of the Inspector issued in usurpation of the _ Court's sole prerogative to adjudicate the issues. _ Of the deficiencies cited by the Inspector, No. 1 is _ an invalid expression of prejudice, No. 29 is misrep- _ resentation, Nos. 3 and 4 lack substantiation of _ detailed and specific reasoning,. Nos. 5,6,7,8,13, _ 14,15,16,17,19,22,23,24,25,26,30 and 31 lack _ -25- _ substantiation of detailed and specific findings and _ reasoning, No 29 is a misrepresentation of procedure. _ Nos. 11 and 22 are based on errors of law. No. 19 is _ based on an error of fact. _ This Plumbing Inspection Report/Condemnation Removal _ Order raises three questions with three obvious _ answers: _ 1) Which deficiencies cited by the Inspector are _ admissible evidence under the rules of Footnote 13? - _ None _ 2) Would Footnote 13 permit destruction of the entire _ installation if all specific deficiencies cited, as _ distinct from general statements of disapproval, were _ admissible? - No. _ 3) Does this Plumbing Inspection Report/Condemnation _ Removal Order proves the appellant's installation to _ be code compliant? -Yes _ This Plumbing Inspection Report/Condemnation Removal _ Order proves beyond reasonable doubt that the appel- _ lant's plumbing installation is in fact code compli- _ ant. The defendant sent three inspectors who made _ diligent search for deficiencies, then filed with the _ Court an Inspection Report in which no admissible _ deficiencies are recorded. If there had been admissi- _ ble deficiencies, the three inspectors would have _ -26- _ found them and reported them. Since the three inspec- _ tors found no admissible deficiencies the Court should _ find that appellant's installation was code compliant. _ Of greater significance in this action than the _ details of the Plumbing Inspection Report/Condemnation _ Order are the constraints which the State Plumbing _ Code, specifically 248 CMR 3.05(1)(a)2 and 248 CMR _ 3.05(1)(d) place on the personal freedom and civil _ liberties of licensed plumbers. Plumbers are rarely, _ if ever, independently wealthy. They are dependent on _ their plumbing work for their livelihood. 248 CMR _ 3.05(1)(a)2 gives to local inspectors the authority to _ grant or deny plumbing permits without specifying the _ criteria by which such permits must be granted or may _ be denied. 248 CMR 3.05(1)(d) gives the Inspector the _ right to cancel a permit if in his opinion 248 CMR _ 3.00 through 10.00 have been violated. The proceedings _ before the Court provide dramatic evidence of manner _ in which the Inspector may exercise his discretion. _ The case before the Court shows that the plumbers on _ Nantucket are unconditionally dependent on the favor _ of the Nantucket plumbing inspector for their liveli- _ hood. Thus Mr. Christopher M. Gordon, a licensed _ plumber who expressed to the appellant and to the _ Inspector an opinion uncongenial to the Inspector, _ -27- _ namely that the plumbing at 3 Red Barn Road merited _ the Inspector's approval as complying with the plumb- _ ing code, was on account of expressing this opinion _ denied a plumbing permit for 45 days, from the date of _ attempted application, January 6, 2011 until the date _ of issuance, February 20, 2011. At the inspection on _ March 14, 2011, Mr. Gordon was instructed by the _ inspector: "You stay out of this," and was prohibited _ from contesting the Inspector's determinations of pur- _ ported deficiencies. When at the time of the inspec- _ tion, I asked for Mr. Gordon's aid to protect me _ against the Inspector's verbal abuse, Mr. Gordon _ remained silent, and understandably so. Had he dared _ to speak up in my behalf, the permit denial for 3 Red _ Barn Road to which he had been subjected, might well _ have proved to be precursor to the denial of permit _ applications for other customers' projects; his plumb- _ ing business would have been wiped out in short order. _ It's not surprising that the two other plumbers who _ were interested in my work, Mr. Maurice Daniels and _ Mr. Dennis Parks failed to submit proposals after they _ had conferred with the Inspector, nor is it surprising _ that 25 other plumbers whom I tried to enlist for my _ project would not even talk to me. All Nantucket _ plumbers whose testimony endorsed the quality of my _ plumbing would have reason to fear for their _ -28- _ livelihood. The testimony of Nantucket plumbers who _ might be critical of my plumbing would be tainted by _ intimidation. _ In consequence of the Inspector's refusal to allow Mr. _ Gordon to begin working on the installation, the per- _ mit valid for 90 days, that the Inspector issued to _ Mr. Gordon on February 20, 2011, has now expired. The _ appellant has been given no indication by Mr. Gordon _ that he is willing to apply for yet another permit. _ The appellant now has no plumber. The only rational, _ equitable solution to this dilemma is for the Court to _ allow the appellant's unopposed motion of January 31, _ 2011. _ 174 School Street Ernst J. Meyer _ Belmont MA 02478 pro se _ 617-484-8109 _ ernstmeyer@earthlink.net June __, 2011 _ Certificate of Service _ I, Ernst J. Meyer, appellant pro se, certify that I _ have served the foregoing Appellant's Response by _ Means of Annotations to the Plumbing Inspection _ Report/Condemnation Removal Order of the Defendant by _ mailing copies thereof postage prepaid, to the defen- _ dants' attorneys, David Hadas, George X. Pucci, Kim- _ berly M. Saillant and Paul R. DeRensis. _ Ernst J. Meyer _ pro se _ June __, 2011 =================================================================== _ Ernst J. Meyer, M.D. _ 174 School Street _ Belmont, Massachusetts 02478 _ 617-484-8109 _ ernstmeyer@earthlink.net _ June 14, 2011 _ Clerk, Civil _ Suffolk Superior Court _ 3 Pemberton Square, 12th Floor _ Boston MA 02108 _ re: Ernst J. Meyer v. Nantucket Building Department, et al. _ Suffolk Superior Court SUCV2008-05664-E _ On June 10th, you filed and docketed the Defendant's Plumbing _ Inspection Report/Condemnation Removal Order. Please also _ file and docket my enclosed Response to the above. _ Thank you for your attention to this matter. _ Very truly yours, _ Ernst J. Meyer, _ appellant pro se