ORLEANS — A lawyer who routinely argues before Outer Cape regulatory boards on behalf of rich and powerful property owners is the owner of the building where a six-year-old boy died in a fire last month inside an illegally constructed apartment.
Orleans resident Ben Zehnder, one of the best-known zoning law attorneys in this area, confirmed this week that he is the person behind College Fund LLC, the limited liability company that owns 177 Route 6A. He said he has owned the building since 2005.
In 2017, Zehnder said, he moved his office from 177 Route 6A to another spot in Orleans and entered a lease-to-own agreement with Peter Eli, who Zehnder said lives in Florida. It was Eli, Zehnder said, who converted the two commercial spaces into residential apartments without obtaining building permits.
Reached by phone, Eli refused to comment.
The electrical, carpentry, and plumbing work in the illegal apartments was never inspected, according to Martin Furtado, the Orleans building inspector. There were several smoke detectors missing and other violations “too extensive to enumerate here,” Furtado wrote in a letter sent to both Eli and Zehnder after the fire.
Zehnder said Eli rented out those new units to tenants including Shantal Thomas-Johnson, the mother of six-year-old Kyi Odeen Bourne. On the night of Feb. 4, a fire started in a second-floor room in the family’s five-bedroom apartment. Kyi and the other family members ran down the stairs, but Kyi, who had an autism diagnosis, may have panicked and run back upstairs without anyone noticing, according to Bryan Murray, a relative who lived in the apartment.
Firefighters responded and were told that Kyi was missing — but it was too late. The boy was found in a room next to where the fire started, Furtado said. The cause of the fire was a malfunction of an electrical fan, said Orleans Fire Chief Geof Deering.
Landlords can face criminal prosecution for neglecting their properties and causing the death or injury of tenants, said Jake Wark of the state fire marshal’s office. For that to happen, police would need to find hard evidence of the landlord’s neglect, and the district attorney would have to decide to prosecute.
Such cases are rare. Civil lawsuits, Wark said, are a far more common pathway for tenants “to seek justice.”
In this case, the state fire marshal, state police, and local fire and police investigated the fire and determined that the evidence “did not reveal any criminal conduct,” Wark said.
“This is a tragedy,” said Zehnder. “It is awful. Based on what I understand, the fire was related to an electrical device and not the building itself.”
The investigation into the fire found that the property had a hard-wired system that alerted the fire dept. through an alarm company. Inspectors found only one means of egress in the three-bedroom downstairs unit, Furtado stated. But that was not where Kyi’s family lived.
The Independent reported erroneously on Feb. 23 that Eli owned the property, based on incomplete information at the Orleans assessors’ website. Limited liability companies do not have to reveal their owners’ names. Neither Eli nor Zehnder sought to correct the error.
“Peter Eli was supposed to buy it from me,” Zehnder said. “So, I leased him the building, and he paid me rent. The correspondence from the town went to him directly, not to me.”
But the only address the town has for Eli is 177 Route 6A in Orleans, according to town records. Eli does not live in Orleans.
“I didn’t pay a lot of attention,” Zehnder said, “but I just know that periodically, when he would communicate with me, I would be chasing him for the rent or something, and he would say, ‘Well, I’m in Florida, I’ll mail you a check.’ So, I don’t know what the rhyme or reason was to where his address was. Maybe he had his mail forwarded or someone pick it up for him.”
Zehnder said he rarely entered the building after Eli leased it. When questioned further on how often he was in the building, Zehnder refused to comment.
“On Sunday, the day after the fire, my insurance company called me and said there had been a fire,” Zehnder said. “I went over there, and that was when I found out he had created residential spaces where there had been commercial spaces.”
At first, Zehnder said he didn’t even have a key to the building. When pressed on that point, he said, “I may have had a key, but I turned the building over to him. He got all the correspondence from the town. I never received electric bills, or sewer or water bills. I had no idea about the renovations. It was news to me.”
After the fire, Zehnder said, he terminated his agreement with Eli. “And now I intend to fully follow the directions of the building inspector,” he said.
The Orleans Select Board is drafting a bylaw requiring that long-term apartments be subject to basic inspections. Deering said fire safety inspections should be part of that bylaw.
But the town has only one fire inspector, who currently handles 900 inspections a year. There is no staff to take on further inspections, Deering said.
Furtado said the building dept. lacks staff to check on code violations.
“I think there are a lot more apartments like that one in town, and I would like to do more investigations,” Furtado said. “But there is no one here to do that.”
Kyi’s immediate family, including his eight-year-old sister, his mother, and her husband, are still looking for a home for four people, Thomas-Johnson told the Independent on March 6. On March 15, they will lose their current housing — a dormitory for seasonal workers in Harwich. The Homeless Prevention Council is working on their case.
