High noon (again?)

September 22, 2011 | Homeownership, Litigation, Marblehead, Zoning

By:David A. Smith


Maybe you can’t go home again, but you can read about it with astonishment.  A year ago, I posted about an absurdly protracted neighbors’ dispute where one neighbor had all the law on their side, and the other had all the facts on the ground:


[January 27, 2010 Lynn Daily Evening Item – Ed.] In 1995, Johnson began building the contentious single-family home, which is situated on a quarter acre, on property that he owned and subdivided after selling his former residence at 76 Bubier Road, now owned by Robert and Leslie Clark.  The property contained a single-family home and a garage, which Johnson subdivided and turned into two lots, leaving the home on one and the garage on the other.


When Johnson sold his house, he sought and received a building permit for the remaining lot, and built a 4,900 square foot, three-story, three bedroom Georgian home.  The Scheys reportedly warned Johnson the new lot containing the garage did not meet the zoning bylaw’s dimensional requirements and that it was an illegal lot.


By 2000, the courts had definitively ruled Mr. Johnson’s home illegal, whereupon a decade of litigation has continued with Mr. Johnson showing impressive ingenuity in preventing a final adjudication that he must remove the house. 


And yet I’m still here: Wayne Johnson in front of his illegal house


Last year it appeared that Mr. Johnson’s case had run its course and his house would have to be demolished or partially amputated, but remarkably, a year after the final, final judicial resolution, as described in this Marblehead Reporter story (and an earlier May Marblehead Reporter story in red), Mr. Johnson has still more tricks up his sleeve, and his astounding gall is most remarkable only when his current statements (August, in black) are put next to his previous statements (May, in red):


Marblehead — Marblehead Town Meeting Tuesday night [August 16, 2011 – Ed.] denied Bubier Road resident Wayne Johnson’s request for a “favor”: a change to the town’s zoning bylaw that would have provided a desperately needed victory in his battle to save his house, which is under a Land Court order to be removed.


Change to the zoning bylaw means, essentially, a personal zoning variance to ratify just a handful of people, mainly me. 


Me; I’m entitled, aren’t I?


Johnson opened discussion on an amended version of Article 36 by noting that he had received permission to subdivide his lot and a building permit to construct the home –


Mr. Johnson thus cleverly frames his case in terms of initial approval that he received, a claim predicated on one permit, that was immediately challenged before he built anything, and subsequently overturned in court.


– in which he has lived for the past 14 years and which has been the subject of controversy for even longer.


Yes, Mr. Johnson’s neighbors objected to his new house long before he built it – but their objections proved fruitless. 


“This all began in 1993 when my clients stated to Mr. Johnson that his plan would harm them,” [the neighbors’ attorney, Frank] McElroy, said in an emailed response. “Mr. Johnson thumbed his nose. Eighteen years later, after 15 years of litigation, he has the temerity to suggest that my clients owe him something.”


Mr. Johnson doubtless believed that once his over-size house was built, his neighbors’ ire would die down.  It didn’t.


It’s been over two years since Judge Charles Trombly and lawyers for Wayne Johnson, his neighbors the Scheys and the town gathered on Bubier Road for a walk-through of the property.


“If I knew then what I know now, I would have done things differently,” Johnson acknowledged.

He continued, “I’m not used to asking for favors, but in this instance I am asking a big one of you: Change the zoning bylaw, let me keep my house and stay in the Marblehead I have come to love.”


Another heartstring tug: no one is proposing that Mr. Johnson be evicted from Marblehead.


Johnson’s attorney Charles LeRay then gave an overview of the amended version of Article 36 being proposed, one that would change the percentage by which a lot is permitted to narrow under the zoning bylaw from the current 75% to 60%, which would cure the problem with Johnson’s lot.


Not arguing the past actions, merely appealing for absolution: LeRay


It is true, as Mr. Johnson and his attorney Mr. LeRay argued, that his property is ‘only a little bit’ over the line – and that’s because, as Mr. Johnson wants everyone to forget, he subdivided his lot and developed and sold a house on the other lot.  As one of the commenters to the May story put it:


This isn’t a story about someone losing a home that has been in the family for generations. It’s a story about a development project gone bad. A development project the neighbor objected to and the judge cautioned against. The developer thought it was a sure-thing-money-grab. Sell his current house and build a new one where the garage is. In the end the developer, Johnson, is going to lose money. He can move the house if he likes. It stinks but I hope it serves as a cautionary tale to any future wannabe developers to be good neighbors and make sure you’re following the rules. I think it’s right not to change the rules for one person.

Mr. Johnson’s current house is non-conforming because he made a great deal of money doing exactly what the zoning generally sought to prevent – further densifying Marblehead.


LeRay noted that, unlike the original version of Article 36, the amendment would not undo zoning bylaw changes the town had enacted in 1994, aimed at putting an end to “rat-tail” or “pork-chop” lots — lots with long, skinny pieces toward the rear of the property — and indeed would only apply to 14 parcels town-wide, all of which have existing homes on them.


Now the purpose of the ‘lot frontage’ restriction becomes clear; it prevents developers from gluing together a gerrymandered property whose extra land serves no development purpose except allowing an ‘oversize’ house to crowd the street or the neighbors’ streetscape.


You don’t mind if I cut in front of you, do you?

Wayne Johnson’s 74 Bubier, and the Scheys’ 70 Bubier behind it to the left



Passage, he argued, would not increase density in town, even in the case of a large lot being subdivided.


The density has already been increased, a fact Mr. Johnson absent-mindedly overlooked, as he forgot that he’s intruded on his neighbors’ property’s enjoyment and value.


The Appeals Court noted that it felt bound by Land Court Judge Charles Trombly’s determination, based on a viewing of the property that “Johnson’s construction infringed on, among other interests, the light and air of the plaintiffs.”


Meanwhile, Mr. Johnson’s (latest) attorney gave it the old college try:


LeRay challenged the notion that Town Meeting was being asked to be a “super-appellate court,” saying that what he and Johnson were asking voters do was something within Town Meeting’s sole authority: to grant a zoning change.


Why can’t I be allowed to get away with it?


That would be more persuasive had Mr. Johnson not spent the last decade or more litigating, and losing, all the way to Massachusetts’ highest court, only to turn to a political (extra-judicial) avenue.


“It’s pretty much the end of the appellate route [for Johnson],” said [his neighbors, the Scheys, attorney Frank] McElroy, though he acknowledged that Johnson could ask the Appeals Court to reconsider its decision or appeal to the Supreme Judicial Court, which has once before declined to grant a review of issues in the case.


Back to August and Town Meeting:


In this case, the change was a small one, with “no adverse effects on the town,” LeRay said.


Except for violating the rule of law.  As the Scheys put it in their impassioned column:


The alternative, adopting either of the articles or amendments, will not only allow for greater density and lower home values, it will set the following precedents:


a. It is okay to violate the Zoning By-Law, even if that illicit behavior has caused permanent injury, because one can expect a reprieve from Town Meeting.

b. Town Meeting is a Super-Appellate Court, which can change the rules after the fact and retroactively.

c. The town of Marblehead does not enforce its Zoning By-Law and is not bound by the decisions of the courts of the Commonwealth.

d. Breaking the rules is rewarded by Town Meeting.

e. The hurt and damage caused by breaking of the rules is not recognized by Town Meeting.


Clearly the Scheys are exasperated with the Town’s inactivity, as it appears they should be:


Can you believe it?


While McElroy said [this is the May appellate court hearing – Ed.] he would pursue the contempt complaint [against Mr. Johnson for defying court orders – Ed.], he is also hoping the Appeals Court decisions “motivate the town to initiate enforcement of its own order” to remove the house, referring to the notice sent by the building commissioner, which was prompted by Trombly’s Jan. 20, 2010, order.


Clearly the town wishes the whole thing would just go away, a feature that Mr. Johnson’s tactics have used to full advantage.


McElroy is hoping, at a minimum, that the town will begin to assess against Johnson $300 daily fines for an ongoing violation of the town’s zoning bylaws. He noted that similar fines helped the town to reach an agreement and obtain compliance with its enforcement order related to Gerry Island from Peter Noyes.


Right now Mr. Johnson’s delaying tactics serve him well, as he continues to live in his illegal house while paying ‘rent’ only in the form of legal fees to his series of attorneys.  As the Scheys wrote in their column:


And we suspect that is because Mr. Johnson wants exactly what we had when we purchased our house almost 20 years ago, and what he gained (and took from us) when he jammed his house in front of ours: a magnificent view, sunlight year-round, the sea breeze and the privacy afforded by the distance between the original houses.


Nice view, isn’t it?  You know what I paid for it?


Fines to the tune of $100,000 a year would accelerate his motivation to settle.


“The town does have the power; it needs to exercise it,” McElroy said. “It’s the responsible thing to do.”


Clearly the town wishes the whole thing would just go away, a feature that Mr. Johnson’s tactics have used to full advantage.


Planning Board Chairman Philip Helmes then explained the position his board had taken with respect to Johnson’s proposals. He noted that the board had voted to recommend indefinite postponement of the original Article 36, as it had appeared on the warrant, not wanting to see the changes enacted in 1994 undone.


He then explained that the board would be making no recommendation on the amended version of Article 36, on the one hand believing that the zoning bylaw should only be changed to address “chronic problems,” while on the other agreeing with LeRay that the proposal would not radically alter the zoning bylaw.


“The board did not feel there was a problem with the existing bylaw,” Helmes said. “As far as impact, we found there is very little impact and also very little benefit [to the change].”


In short, the issue is narrow enough to demotivate the broader government, but precise enough to be unambiguous.


The board voted 4-1 to offer only explanatory remarks, Helmes noted. Member James Bishop was the dissenting vote.


When the debate was opened up to the general public, fellow Bubier Road resident Louis Zetes offered Johnson some support.


Those of you who have experienced it know the Founding-Father beauty of Town Meeting, where speaks anybody and everybody who wants to. 


Town meeting, people come who are interested, and everybody who comes can vote


So it was in Marblehead, first with a friend of Mr. Johnson’s:


“I want Mr. Johnson to keep his house,” Zetes said, adding that it was “inconceivable” and “disgraceful” to him that the situation had gotten to the point where “a man has to rip down a house he has been living in the last 15 years.”


Then with an opponent of Mr. Johnson’s:


Borrowing a word from Zetes’ remarks, the next speaker, from Nanepashemet Street, countered that what had not been neighborly was Johnson’s decision to press ahead with the construction of his house that blocked his neighbors’ view, despite a warning from a Land Court judge not to do so. He noted that Johnson had ignored subsequent court and zoning-board decisions, an assertion that LeRay would later challenge. He also clarified that Johnson did not have to tear down his house but rather could move it to another location, which he suggested is common.


Norman Rockwell’s iconic Freedom of Speech, showing Town Meeting


We have seen hermit-crab housing, and while it’s disruptive and expensive, it is certainly feasible, as Ms. Johnson previously conceded:


“You couldn’t get it down the street,” Johnson explained. “You’d have to cut it up into three sections to move it down the street,” and even then, trees would have to be trimmed.

“The bottom line is, it’s expensive,” he said.


The Scheys disagree, as they wrote in an April Marblehead Reporter column before the Town Meeting:


Moving the house is not difficult — we have investigated that and found that there is no practical impediment. Even the cost is reasonable — certainly a small percentage of what Johnson claims publicly to have spent in attorneys’ fees.


Nobody wants to tear down Mr. Johnson’s house, but he has had more than 10 years to move it since he lost in Land Court.


He has made no progress, despite the availability of lots in Marblehead and surrounding towns.


More to the point, it’s something Mr. Johnson has wanted not to do.


“He’s been stonewalling for years and years, and now he is asking us to bail him out,” the man said, adding that an affirmative vote would send the message that “people are not responsible for their actions.”


I can’t believe nobody’s moving


In the end, that is the point of this sorry tale.  Either one enforces the rules one has, or one has no rules at all, or worse, rules that apply to those without friends and not to those with friends.


Resident Charles Gessner objected to the proposal on another front, that it constituted “spot zoning,” something Town Meeting has never supported.


Spot-zoning is the purest form of rule by preferment, not by principle.


Alison Ford noted the dispute between Johnson and the Scheys over the sequence of events over the last 16 or 17 years but that it was an “uncontested fact” that the town had given Johnson a permit to build and later occupy his home.


She called Johnson’s issue a “minor zoning infraction” and asked, “Why the zealotry to destroy this man’s home?”


She also suggested the Scheys had no right to expect their views would remain unchanged.

“Even the Kennedys have had to grapple with this reality,” she said.  [Referencing the wind farms off Nantucket, I believe. – Ed.]


True, but not on private, zoned land.


After Moderator Gary Spiess curtailed what he felt was an unnecessary rehashing of the history of the litigation between the Scheys and Johnson, McElroy concluded that support of Johnson’s proposal would set a dangerous precedent, that “people relying on the zoning bylaw might end up surprised, like my clients were.”


In the end, Town Meeting heeded McElroy’s advice, voting first to reject the amendment to Article 36 and then voting to adopt the Planning Board’s recommendation of indefinite postponement of the original Article 36 by a vote of 474 in favor to 218 opposed.


Is the story over? 


Land Court Judge Charles Trombly, center, has retired, meaning a different judge will need to be assigned to the case if contempt proceedings are brought against homeowner Wayne Johnson, second from left. Also in foreground of photo are Lisa Mead, Marblehead assistant town counsel, left, and Charles Le Ray, Johnson’s attorney, right.



Mr. McElroy’s next step will be to file that Mr. Johnson be held in contempt of court:


McElroy said he would also be moving forward with filing a contempt complaint as soon as Johnson’s window to appeal the Appeals Court rulings expire. A new judge will have to be assigned to the case, as Trombly has retired.


The town’s continued passivity continues to astonish me, as it forces the neighboring Scheys to act as their own police:


“When Mr. Johnson overcomes his astounding arrogance and has his attorney call, I’ll take it because that is my job,” McElroy said. “How my clients respond will have to wait until that unlikely moment, until they hear something new from Mr. Johnson.”


It’s been over two years since Judge Charles Trombly and lawyers for Wayne Johnson, his neighbors the Scheys and the town gathered on Bubier Road for a walk-through of the property.


My kingdom for a spot-zoning variance