Death comes for the arch-builder: Part 1, three novel theories

March 13, 2012 | Abutters, Bubier Road, Demolition, Housing, Land use, Law, Litigation, Local issues, Marblehead, Zoning

By:David A. Smith


Requiescat in pace


This story has a happy ending, with a home being torn down. 


It took sixteen years for justice to wield her sword, but when she did, it was swift:


Marblehead (CBS Boston, February 21, 2012) – A longstanding feud between neighbors in Marblehead ended Tuesday morning with the demolition of a million-dollar home … at 74 Bubier Road, torn down in a matter of minutes just after sunrise Tuesday.


Twice before I’ve posted about this story, first in September, 2010 with Zoning high noon and a year later, in September, 2011, in High noon (again?).


May I cut in?

You say I can’t?

I’ll do it anyway.


This story matters because so long as 74 Bubier Road stood, it represented a visible, endurin, and contagious failure of justice and law, for once the the observant herd learns that flouting the law will go unpunished, then there will be a progressive outbreak of clandestine expansions and constructions, and the Town of Marblehead would face an outbreak of suburban gecekondu.


(Under Ottoman Law, property that was built overnight and occupied in the morning was immune from demolition, resulting in thousands of such properties popping up like ‘mushroom housing’.)


Gecekondu = ‘mushroom housing,’ in Istanbul


As Mr. Wayne Johnson, whose home was demolished because he is the sole party causing all this trouble, has a propensity for being economical with the truth, I’ll give you the background in the Dick-and-Jane version:


See Wayne build

See Wayne get sued

See Wayne lose

See Wayne appeal

Appeal, Wayne, appeal!



[Sources for this post include the Marblehead Reporter (Jan 27, 2010), the Marblehead Reporter (Nov 23, 2011), the Marblehead Reporter (Dec 21, 2011), the Salem News (Dec 22, 2011), and CBS Boston (Feb 22, 2012)]


What makes this little post tragicomic are the contortions to which Mr. Johnson went to evade or delay the court’s judgment, even after the seemingly final final decision in September.  Housing being expensive and immovable, there are people who believe that once it’s built, it’s permanent, zoning be damned, and evidently that is what Wayne H. Johnson thought:


McElroy added that they have seriously considered Johnson’s settlement proposals, including one three or four years ago, but found the proposals to be inadequate. He noted that the original Land Court judge had observed that the Scheys “had a right to believe there would be no house next to them” on what has always been an illegal lot — one that Johnson had created himself by subdividing the land.


Mr. Johnson made a substantial profit by doing so, since he was able to sell the family manse for a tidy profit, so he has no one to blame but himself.  He thought he could get away with it, and the Scheys thought the law would win. 


The hostage: front door of 74 Bubier


Sixteen years later, it did.  Here is an irate judge, two months after the original demolition order, finally throwing the book at Mr. Johnson (Marblehead Reporter: November 23, 2011):


Judge: If Marblehead man does not remove house, neighbors can


Marblehead resident Wayne Johnson has less than a month to enter into a contract “for the prompt demolition and removal” of his house and its foundation at 74 Bubier Road or he will be held in contempt of court, a Massachusetts Land Court judge has ruled.


“Sixteen years after filing, 11 years after entry of judgment, five years after that judgment was affirmed, and after all other possibilities to change the demolition and removal order have been attempted and rejected, this case has reached an endpoint,” wrote Judge Keith Long in a decision dated Nov. 18.  Long gives Johnson until Friday, Dec. 16, to enter into the demolition contract, and he must file a copy of the contract with the court by the following Monday.


What, asks the cynical reader, will make this latest last order any different from the previous last chances? 


Just taking notes …


The judge added three new penalties, each of them much more severe than anything heretofore introduced:


If he misses the deadline, not only will Johnson face “all appropriate remedies,” including [x] fines and [y] possibly jail time, but [z] Long also empowered Johnson’s longtime adversaries and neighbors, Ruth and John Schey, to take matters into their own hands.


Here, finally, is the power of law.  What had been merely a civil dispute has become potentially a criminal matter, and the right of physical invasion is being vested in the adverse party.


“If, for whatever reason, Mr. Johnson fails to comply with this order, the Scheys may themselves proceed to have the house demolished and removed and seek appropriate orders from this court for reimbursement of all associated costs,” Long ordered.


In case you’re wondering about the enforceability of that ‘for costs’ provision, remember that at a minimum the Scheys could take title to the 74 Bubier Road parcel. 


I’m going to walk through Mr. Johnson’s first three defenses in detail, both for their entertainment value and because anyone who throws these arguments, which we can examine and directly refute, can’t possibly expect to be believed on anything else he says where we can’t directly refute it.


Who are you going to believe, me or your own eyes?


Assistant Town Counsel Lisa Mead disagreed with Johnson’s characterization of the town’s role over the years, noting that Johnson has been given several attempts — including a trip to Town Meeting last May in an attempt to amend the town’s zoning bylaws — that “haven’t worked out.”

“I think the decisions speak for themselves,” Mead said. “The courts have all reviewed [the zoning-board decisions] and made the determinations that have been made.”


Got more money to play with?


1. “Ignore the previous trials and give me something better.”


For context, recognize that Mr, Johnson had already lost definitively, and had failed to comply with the court’s order, and was now on trial for criminal contempt.


At the contempt trial, Johnson asked the judge to vacate the removal order and substitute a damages (money) judgment.


So … having already had a trial about liability and remedy, and having lost that trial and had remedy set at removal, Mr. Johnson essentially wanted to ignore all that litigation and get to try again.


It’s not up to the defendant


“That request is neither timely nor warranted,” Long said, noting that the “appropriate remedy” — removal — had been established more than a decade earlier and survived through many rounds of appeal.



2. “But wait, your honor, I’ve got a mortgage on the property!”


Johnson also argued that the removal of the house “would violate the covenants in his mortgages.”


This one really takes the cake.  A borrower promises his lender he won’t damage his house – but nothing in that two-party agreement binds anybody else (like a court) or overrides zoning or land-use law, because if it did, then everybody could take out insurance against zoning violations simply by getting a mortgage.


Long found that, too, unpersuasive, noting that Johnson had taken out a mortgage and an equity line of credit on the property in 2005, “10 years after this lawsuit commenced and five years after the judgment ordering removal was entered.”


In other words, you brought this on yourself, bubele.


Long noted that Johnson had testified that he “fully informed” Wells Fargo of the lawsuit and judgment before obtaining the mortgages.


Oh, really?  Then it’s a recourse loan.



And in any case, forgive me for wondering whether this statement of Mr. Johnson, like so many others of his statements, is a self-serving subset of the truth.


Wells Fargo was also offered the opportunity to take part in the contempt proceedings “but expressly declined to do so,” Long said.


Translation: We want nothing to do with this litigation, your honor. 


“You’re gonna be sorry you ever met me.”

“I’m already sorry.”


Throughout this case, and despite his frenetic efforts, Mr. Johnson has been unable to recruit a single ally, or at least none willing to go on the record.  That tells you something, doesn’t it?



3. “Woe is me, I’m too poor to tear it down!” 


Sorry, I said the previous argument took the cake – but Mr. Johnson promptly outdid himself.


Long spent much of his decision discussing Johnson’s third defense, “that he lacks the financial resources necessary to pay for the removal of the house.”


Having litigated for decades, having built a “million-dollar” home, and having taken out a mortgage on that home (thus getting a lot of cash), now Mr. Johnson pleads poverty? 


It’s not fair!


Long noted that Johnson’s mortgages have a current balance of $640,000, when the house had initially been built with a construction loan of $435,000.


“It is likely that much, if not all, of that extra $205,000 has been transferred over time to his IRA and 401(k)s by paying expenses that otherwise would have come from his regular income,” Long wrote.


Long [noted] that not only was Johnson continuing to receive a six-figure salary as an investment advisor but also that he had ample sums in an IRA and a pair of 401(k) accounts, which the court was within its power to order he access.


Not only is Mr. Johnson not destitute, he has in fact been burying cash out of reach of creditors with the fervor of a chilly squirrel:


He’ll never get my money here


Long noted that Johnson had been “continuing annually to contribute to the maximum amount allowable” to his IRA and 401(k)s “to give them maximum protection from creditors.”


Long added that, in light of the removal order, Johnson “intentionally stopped paying both his mortgage and property taxes in July 2010,” allowing him to redirect more than $56,000 to his IRA, 401(k)s or other expenditures.


Remember when I was skeptical of strategic mortgage default as a phenomenon?  Mr. Johnson is the epitome of a strategic defaulter, and if I were his lender I would check my documents to see whether a bad-faith claim could be mounted against him, especially given this.



Long said the record shows Johnson “has not cut back on expenditures for vacations, entertainment, his sailboat or gifts to his adult children.”


Some poverty.


I’ll bear my poverty stoically


But wait, readers, it gets better.


[Continued tomorrow in Part 2.]