Background:
The town of Holland adopted its first subdivision control by-law or zoning bylaw in 1970. Thereafter, the value of certain affected parcels decreased in value as the parcels had no longer the legal frontage to qualify as buildable lots or other restrictions rendered them unbuildable. In 1976, the town took a total of 111 parcels of land for unpaid taxes which changed hands thereafter within the "inner circle" or without the proper paperwork. The general public was unlawfully excluded from participating in the disbursement of said 111 parcels. Some individuals close to Johnson and other town officials did not pay property taxes for years, others claimed to be non-profit Organizations without having filed the necessary papers with the Commonwealth; others paid taxes but never got a deed. At the same time, the tax collector, Elizabeth Jean Rozema, was convicted of embezzling app. $800,000 and was incarcerated. The scandal was termed "DD 111" and lead to the resignation of Earl Johnson and the two other tax assessors, Mr. Robert Peret and Mr. George Hemingway in 1993.
Time-line of Johnson’s illegal Activity:
In 1980, Earl Johnson, who was at the time a member of the Board of Selectman, thereafter BOS, in Holland, conveyed one of the 111 parcels, a 12.41
acre parcel, for $1,200 (price on the deed) to Doris L. Proulx, his mother in law. However, according to the
DD 111 report, the Johnson's
did not pay anything for the parcel.
During the ensuing investigation over the
DD 111
scandal, it was determined
that the BOS failed to follow proper procedures
in performing this transaction.
In 1987, Doris L. Proulx deeded said parcel to Johnson’
s wife, Theresa L. Johnson. Abutter David A. Gibson adamantly insisted that Johnson had no right
of way to his land-locked 12.41 acre parcel.
In 1997, Johnson, with the help of two engineers,
Leonard S. Jalbert (Leonard Jalbert) and Winslow M. Spofford (Winslow Spofford) both with Jalbert
Engineering, Inc., 54 Main Street, Sturbridge, MA 01566, phone 508 3475136, recorded a plan showing
a right of way over the Gibson parcel for which there was no record in any deeds up to this point.
The plan was a fabrication!
Thereafter, the deeds of the Johnsons’ referred to this plan to claim a right of way. The
plan named Brian Johnson as the holder of the shown right of way despite the fact that Brian
Johnson was neither the owner at that time nor a previous owner of the parcel. Brian became the
owner of the parcel six years later, on February 25, 2003, when his mother, Theresa L.
Johnson, deeded the parcel to him. On November 10, of the same year, he deeded the 12.41
acre parcel to his brother Eric.
In 2003, Eric Johnson applied for a variance with the Zoning Board of Appeals, thereafter "ZBA," to "construct" a house that, according to Eric, existed a hundred years ago. His request did not conform to the factual situation as there was no house to be replaced. The variance could not be lawfully granted as the lot was not buildable and the parcel had not one single foot of frontage. The applicable section, M.G.L. c.40A, s. 6, also called the "grandfather clause," requires a minimum of 50’ frontage for a parcel to qualify for a pre-existing non conforming buildable lot. The lot had not even access, other then the access created by the fraudulent plan created by Jalbert Engineering, Inc. Even if the granting of a building permit would have been possible if it would have depended only on the alleged prior existance of a dwelling, the Johnson's proposal would have been outside the law. The Appeals Court found in a decision issued seven years ealier: "A lot was not eligible for separate lot protection where a single family structured had been demolished some twenty three years prior to the request for a building permit." Dial Away Co., Inc. v. Zoning Board of Appeals of Auburn, 41 Mass. App. Ct. 165 (1996).
Instead of denying Eric’s variance, the ZBA granted unanimously his request. The following individuals signed the "special permit," Don Beal, Sarto Caron, Christian Petersen, clerk. In their decision, the ZBA referred to Eric’s application as a request for a special permit and not as a request for a variance. Eric’s argument he made during the public hearing was, that he intended to "replace" a structure for which "[t]here are no current signs," claiming "[t]he proposed construction [to replace a non existing structure] would be grandfathered.&# 34; As stated before, the ZBA has not the authority to vary the terms of M.G.L. which requires a bare minimum of 50 feet frontage. The Johnson’s claim that the common driveway - for which they later were granted a special permit - would provide the required frontage, is just an excuse, outside the law, and can only appease the gullible.
The fundamental flaw in applying the grandfather clause to Eric’s application lays in the contradiction to "replace" or to "grandfather" a structure that did not exist. Pertinent laws and bylaws consistently refer to "structure [...] existing at the time," see section 7.01 of the Holland zoning bylaws, or "structures or uses lawfully in existence," see M.G.L. c.40A, s.6.
According to the record, abutter Gibson "was present to express his adamant position that the
claimed right-of-way that runs over his land is not valid [...] in error [...] Mr. Gibson in his
frustration implied that such a drawing could have been illegally altered with the influence of
town officials."
Little did he knew that he was right; the plan creating the right of way is a fraud! The
ZBA admonished Mr. Gibson, stating, "that his insinuations were out of order and that the
board’s decision would be based on the facts as presented."
In 2004, Mr. Gibson sold his adjoining parcel to the Johnsons’ and moved to Charlton, where they live now on 25, Cranbury Meadow SHO.
On March 7, 2006, after Eric Johnson had constructed his home and acquired the Gibson parcel, he submitted an application to the Planning Board of Holland, thereafter "PBH," for a request pursuant to M.G.L. c.41, s.81P, to endorse a plan dividing land that has already been subdivided; a proposition that must be endorsed by a planning board if each parcel has the required frontage and acreage; such a plan is called ANR plan (Approval Not Required) The PBH granted the request and endorsed the ANR plan unanimously even though none of the lots had the required frontage. As a matter of fact, none of the three lots had even one single foot of frontage! As a member of the PBH, Earl Johnson abstained from the vote, but claimed during a televised select board meeting on May 16, 2007, that a common drive-way would provide the necessary frontage. M.G.L., c.41, s.81L, provides in part:
Therefore, according to M.G.L., a common drive-way is not among the ways able to provide frontage. To make this very clear, the Zoning By-law of the Town of Holland provides under Chapter 6, Section 10, Subsection 4, "A common driveway shall not become a public way." Please not that the imperative "shall" is used."Subdivision" shall mean the division of a tract of land into two or more lots and shall include resubdivision, and, when appropriate to the context, shall relate to the process of subdivision or the land or territory subdivided; provided, however, that the division of a tract of land into two or more lots shall not be deemed to constitute a subdivision within the meaning of the subdivision control law if, at the time when it is made, every lot within the tract so divided has frontage on (a) a public way or a way which the clerk of the city or town certifies is maintained and used as a public way, or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon. Such frontage shall be of at least such distance as is then required by zoning or other ordinance or by-law, if any, of said city or town for erection of a building on such lot, and if no distance is so required, such frontage shall be of at least twenty feet.
On April 27, 2006, Eric conveyed one of the parcels illegally created by his ANR to his brother Carl who built a dwelling on it, and the other buildable lot to his brother Brian Johnson.
Aerial view of the illegal subdivision of the Johnson family
The image shows an aerial view of the illegal subdivision of the Johnson property. Please compare
the
ANR (approval not required) plan book 341, page 61. (If you are
running Windows XP, to zoom in, change the zoom level in the lower right corner, just above the
time display. If you don't have a plugin to read TIF files, you can view the PDF files listed in
the appendix for your convenience) The House in the upper right is the house of Eric Johnson, (Lot #
20), The house in the upper left is the house of Carl Johnson, (Lot #21). The third lot created by
the ANR, Lot #22, belongs to Brian Johnson. The tif image also shows Lot #22 in reference to the
common driveway.
Click on any title to get there!
How the Johnson’s obtained the land in question
How the Johnson’s illegally procured the right of way to their land-locked parcel
Eric Johnson applied for a building permit which was denied the same day
Eric Johnson applied for a variance
Eric Johnson obtained a special permit to build a house
The special permit for a common driveway is outside the law
Special Permit versus Variances
Holland bylaws are inconsistent with state laws
Eric Johnson and his wife Amey sell their property to Albert West, Jr,. and Renee Thibault
Albert West, Jr., becomes the sole proprietor
How the Johnson’s obtained the land in question
Earl Johnson’s political career in Holland began a long time ago. In 1980, Earl Johnson was one of the three selectmen and as such he had the power to co-sign deeds whereby the town conveyed land on behalf of the "inhabitants of the town of Holland" to new owners. Four years earlier, on February 28, 1976, the tax collector, Luziana Nasse, signed a total of 38 " instruments of takings," (Hampden Registry of Deeds, book 4248, page 329-366), whereby the town of Holland took in an unprecedented move 38 parcels of land from their owners for their failure to pay taxes. Instead of putting the different parcels of land up for auction to the general public, Earl Johnson and other selectmen sold and deeded a total of 111 parcels of land over to new owners, among them relatives and friends. In 1992 when Jim Foley was elected for selectman, he realized that approximately 500 property owners had not paid taxes for years; others paid taxes but did not have a deed to their property. Foley also realized that the tax collector, Jean Rozema, embezzled approximately $800,000.00. The scandal became known as " DD 111." To read the report, click here! The tax collector, Elizabeth Rozema, eventually ended up in jail, Earl Johnson, at that time one of the assessors, and the two other assessors, Mr. Peret and Mr. Hemingway, resigned.
The 12.41 acre parcel in question here was taken by the town with the instrument book 4248, page 335 in 1976, and was 12.41 acres more or less. Instead of selling the parcel lawfully through public auction, Earl Johnson as selectman deeded the property in the name of "inhabitants of Holland" over to Doris L. Proulx, which happens to be his mother in law. See deed book 5049, page 155. This transaction was unlafull and in violation of M.G.L. c. 60, s.77B. According to the deed, his mother in law paid $1,200 for the 12.41 acre lot. The lot was a land-looked parcel and as such not of any great value as it could not be developed or even accessed. According to the " DD 111." report, the Johnson’s did not pay for the land and also failed to pay property taxes for more than a decade!
Seven years later, Earl Johnson’s mother in law deeded the property over to Earl Johnson’s wife, Theresa L. Johnson, see deed book 6649, page 373. The deed states an amount of less than one hundred dollars as the price paid for the parcel. Sixteen years later, the parcel was deeded over from Earl Johnson’s wife to his son Brian, see deed book 12976, page 185, 186. The price paid was "love and affection". Nine month later, the parcel changed hands again, this time Earl Johnson’s son Brian deeded the property over to his brother Eric, see deed book 13762, page 384, 385. Un-taxable "Love and affection" was again the currency of choice used to pay for the land. Finally, on April 27, 2006, Earl Johnson’s son Eric sold the parcel again for "love and affection", see book 15889, page 317, 318.
How the Johnson’s illegally procured the right of way to their land- locked parcel
State certified engineers, Leonard S. Jalbert and Winslow M. Spofford, of Jalbert Engineering, INC, acting under the oath of office, clothed with the authority to draw plans and register them with the registry of deeds with their seal, registered a plan that shows the missing link of the right of way located on Mr. Gibson’s property. This missing link was needed by the Johnson’s to access their land, see plan book 310, page 92.
There is no record of this right of way mentioned in any deeds pre-dating this plan; it is a fabrication of Johnson’s engineers! Johnson’s attorney, David J. Uguccioni, stated in a letter:
Cart roads are shown on the Johnson plan westerly of the "Existing R.O.W." on land shown as n/f David A Gibson, John R.Merrill and Robert J. Wilson. One of these cart road existing in to land of Johnson is an implied right of way over land of Gibson etals in favor of said Johnson. On September 10, 1823 he sold the Johnson piece to Loring Webber without mention of a right of way. On the same day with the next deed he sold the Gibson piece to Esra Webber with no mention of the right of way. A right of way by necessity or implication arose when Coburn separated the Johnson from access by the Gibson piece. An examination of the parcels involved back to the early 1800’s revealed no other record access for the Gibson or Johnson pieces
See letter. Clearly there is no record of a right of way; the statement "no other record" is misleading, there is no deeded record of a right of way! The parcels divided in 1823 were located along Stafford Road and Hisgen Road and had ample access to these public ways; there was no need for a right of way. In an attempt to fabricate a legal basis for the missing right to access their property, Johnson’s attorney David Uguccioni claimed in his letter, "a right of way by necessity or implication arose when Coburn separated the Johnson from access by the Gibson piece." To buttress his ridiculous argument, Uguccioni quoted Eno and Hovey, Massachusetts Practice Series Volume 28, Section 8.7. Section 8.7 pertains to the Profit a Prendere and has nothing to do with rights to access property or a right of way. If it would be that simple, no land-locked parcels and the problems these properties create for their owners would exist. There are other facts in support of the illegality of the fabricated right of way:
- If there would have been a record of a right of way in a deed, there would not have been a need for a fraudulent plan to fabricate a right of way.
- The plan drawn and signed by Leonard Jalbert and Winslow Spofford, dated February 17, 1997, plan book 310, page 92, shows a right of way for Brian Johnson. Brian Johnson was not even the owner of the parcel in question. At this time the 12 acre parcel was in the ownership of Earl Johnson’s wife Theresa, see deed book 6649, page 373. Only six years later, Brian became the owner by quitclaim deed, book 12976, page 185, 186.
- Quitclaim deed, book 12976, page 185, 186 states: "Premise address: Off Hisgen Road, Holland, MA." The deed did not give as address "off of Stafford Road."
- The plan dated February 17, 1997, plan book 310, page 92, was not mentioned under "PLAN REFERENCES" on the ANR plan Eric Johnson submitted to the PBH, see plan book 341, page 61.
There is nothing more than wishful thinking on the part of the Johnson family, their engineers, and their lawyer in the record at the Registry of Deeds in support of a "right of way" pre- dating the fraudulent plan, see plan book 310, page 92.
Eric Johnson applied for a building permit which was denied the same day
According to the official record, Eric Johnson filed the document "Town of Holland Recommended Procedure and Signature List" on 11-18-03. Jack Keough, zoning officer and building commissioner of the town of Holland, denied Johnson's project the same day and stated as reason for his denial on said document: "Pre-existing lot no frontage. New House to replace structure removed several years ago. Zoning Bylaw Section 7."
Eric Johnson applied for a variance
According to the records at the town Hall, Eric Johnson filed a petition for a variance. A variance is inherently different from a special permit. The difference between the two is outlined under the heading "Special Permit versus Variances." Eric Johnson noted on his application under the heading "State Briefly Reasons for Variance:"
[C]onstruct a single family dwelling on a Grandfathered non conforming lot per M.G.L. c. 40A, s.6, structure once existed on lot, new house to replace.
See Eric Johnson’s petition to the Zoning Board of Appeals "ZBA" to vary the terms of the Zoning Bylaws of the Town of Holland.
By granting a variance, a Zoning Board of Appeals can vary the requirements of their own bylaws. Pursuant to the Holland zoning bylaws, Eric Johnson’s parcel needed 200’ frontage which he obviously did not have. State law requires a bare minimum of 50’ for a pre-existing none conforming undeveloped parcel to be buildable in any town that has a requirement exceeding 50’ . M.G.L. c.40A, s.6, 4th par., provides in part:
Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which [...] had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage[...]
In any town that does not have a by-law with frontage requirements, the bare minimum is 20’ for a buildable parcel. M.G.L. c.41, s.81O provides in part:
[...] has frontage on a public way or way shown on a plan [...] as is then required by ordinance or by-law of said city or town for erection of a building on such lot, and if no distance is so required, has such frontage of at least twenty feet.
Johnson’s variance fell short to satisfy the requirements under both statutes and the ZBA has not the authority to vary the terms of the General Laws of the Commonwealth. Instead of denying Johnson’s application for a variance, the ZBA subsequently treated Johnson’s variance as an application for a special permit.
Eric Johnson obtained a special permit to build a house
There is a record at the Registry of Deeds, that Eric Johnson was granted an application "for a Special Permit, [registry of deeds, book 13962, page 437-440,] for the replacement of an old structure with a new home on a non-conforming lot as provided by Section 7.0 of the Holland Zoning Bylaws." (Bylaws for the town of Holland are available online at http://town.holland.ma.us).
There is no record of an application for a special permit submitted by Eric Johnson. However, A public hearing was held on December 16, 2003, and continued on January 20, 2004. The Zoning Board of Appeals unanimously granted the Special Permit. On page 3 under the heading CONDITIONS, the ZBA stated:
[T]his approval does not relieve the applicant or any other person of necessity of complying with all other applicable federal, state or local statutes, by-laws or regulations of the special permit.
See Registry of Deeds, book 13962, page 437-440.
The special permit to build a house issued by the Zoning Board of Appeals to Eric Johnson is outside the law
In fact, under the heading "REASONS FOR GRANTING THE SPECIAL PERMIT" 4th par., the ZBA noted:
Any and all issues concerning legal access to the right-of-way for this property are outside the jurisdiction of this board and as such are not part of this ruling.
See the ZBA’s record in the matter of Eric Johnson at the registry of deeds, book 13962, page 437-440. The ZBA did not only have jurisdiction over the issue of frontage, the ZBA had a mandate to deny the variance and/or special permit for lack of frontage.
An analysis under the presumption that Johnson’s application was treated as a special permit request does not offer any relief for the Johnson’s or the other involved town officials.
The ZBA stated in its record at the registry of deeds, book 13962, page 437-440 that Eric Johnson intended to "replace" an old structure but admitted that "there are no current signs of this structure." M.G.L. c.40A, s.6, 1st par. provides in part:
Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures [...] lawfully in existence [...], but shall apply to ... any reconstruction, extension or structural change of such structure [...]
Due to the fact that there was no structure lawfully in existence, the structure that did not exist was not grandfathered and the Zoning Board of Appeals’ grant of the Special Permit was unlawful.
Eric Johnson’s application for a special permit to "replace" a nonconforming pre- existing structure that he claimed was exempt under the grandfather clause is inherently misconceived. The alleged pre-existing structure did not violate any laws or bylaws pertaining to the structure itself, such as setback, footprint, height etc. The structure did not exist, this was the problem. As such the parcel was undeveloped. Undeveloped parcels can not be grandfathered through a grandfathered structure that does not exist. This was the problem and not the pre-existing nature of the structure. The 12 acre lot offered ample space to place a structure in compliance with the setback requirements. The required frontage was missing. There may have been a structure 100 years ago as claimed by the Johnon’s, 100 years ago the property certainly had frontage and access which it obviously lost over the years and became land-locked.
The grandfather clause c.40A, s.6 offers relief under the most extreme circumstances to owners of pre-existing dwellings. Let’s assume there actually would have been a house on Eric Johnson’s 12 acre parcel. The occupants of such a house would have traveled over some kind of a way. Chapter 41, s.81L would have offered an exemption for such a way as a pre-existing way in existence at the time the subdivision control law became effective in the town of Holland. Just the regular use by inhabitants of such a house would have proven the existence of such a way and secured the future use of such a house.
However, the law clearly does not exempt landowner’s to comply with the comprehensive scheme of the subdivision control law just on a vague cart path through the woods leading to a spot where allegedly some kind of structure existed hundred years ago, and would allow so in disregard of the rights of owners of abutting land. Just to access land-locked parcels, a right of way is needed to avoid criminal trespass. There was a reason for the fact that the previous owner resumed to pay taxes on the lot; the reason being that the land-locked parcel was worthless to everybody else but the Johnson’s.
The decision by the ZBA to grant a special permit is also in violation of the Holland zoning bylaws, which provide in part:
7.01 The lawful use of any structure or land existing at the time of the enactment or subsequent amendment of this bylaw may be continued although such structure or use does not conform with the provisions of this bylaw.
Massachusetts General Laws and Holland zoning bylaws clearly do allow only existing structures to be grandfathered. It is a right to preserve the nonconforming dimensions, use, and location of the structure not its previous existence per se, unless the parcel is a pre-existing non conforming parcel.
Even if the Holland zoning bylaws would allow the re-construction of a house in place of a structure that existed hundred years ago, the by-law would be in error as local bylaws can only be more restrictive and not less restrictive than M.G.L.
At the time the ZBA granted the special permit, Christian Peterson was one of the three members of the ZBA that granted the permit. Christian Peterson was also one of the three selectmen in the town of Holland.
Earl Johnson, with the help of the Planning Board, fashioned the zoning by-law to accommodate the Johnson’s fraudulent subdivision
Earl Johnson has three sons, Carl, Brian, and Eric. Up to this point only one of his sons had procured permits outside the law to build a house on the infamous parcel of land. Building lots are all about frontage. The Johnson’s parcel of land had not one foot of the required frontage. To circumvent the law successfully, the by-law had to be "sanitized" of any language that was too clearly in conflict with Earl Johnson’s scheme. The zoning bylaws of the town of Holland had the following provision under Section VII(n) on page 51:
This sentence does only clarify the confines prescribed by M.G.L., c.41, s.81L. As the writer reiterated earlier, bylaws can only be more restrictive than M.G.L. The removal of Section VII(n) from the bylaws did not effectuate or create a right that did not previously exist. The absence of the removed subsection did therefore not remedy the Johnson’s predicament. The sole reason for removing the language included in subsection (n) was to cover up the fraudulent scheme by the Johnson’s to create two more building lots for Carl and Brian by circumventing the subdivision control law. The removal had to be sanctioned by the unassuming voters of the town of Holland. Article#1 of the "WARRANT SPECIAL TOWN MEETING, THURSDAY, JULY 28, 2005" had the note:Common driveways shall at no time be used to satisfy zoning frontage requirements. Each lot served shall have lot frontage on a street which serves to satisfy lot frontage requirements.
The change was unanimously approved by the trusting voters of Holland.To remove section "n: of Common Driveway bylaw section 7.8 on p.51
A common driveway can not provide any frontage pursuant M.G.L., c.41, s.81L regardless whether subsection (n) is part of the bylaws or not. Furthermore, section VII(k) of the Holland bylaws requires unambiguously that each lot served by a common driveway shall meet the legal frontage requirement "as would be required for those lots had they not shared a common driveway." Earl Johnson had served as a tax assessor, member of the Planning Board, and member of the Board of selectmen and other Boards for decades. To assume that he did not know better is ludicrous.
Eric Johnson’s ANR (approval not required) plan and his application for a special permit for a common driveway
The writer does admit, the Johnson’s are ingenious. In order to apply for a special permit for a common driveway, a developer would need an endorsed ANR plan or an approved subdivision plan showing existing lots with the required frontage along a public way or a way in existence at the time the subdivision control law became effective in the town of Holland, M.G.L. c.41, s.81L. These existing lots would then be served by the sought common driveway.
To circumvent this simple fact, the Johnson’s put the cart before the horse. Eric Johnson submitted a special permit application for a common driveway before he submitted his ANR application. The common drive way that could only be used to provide access to already existing lots with the required frontage was going to be used to provide the frontage. A public hearing was held on March 7, 2006. The minutes to the pertinent public hearing provide in part:
Eric Johnson requested a special permit to put a common driveway through his property on Stafford Road [...] Mr. Johnson presented the proper documentation describing the common driveway through his property.
See minutes to the meeting of March 7, 2006. The proper documentatio
n referred to in the Minutes
is Eric Johnson’s
ANR plan that had not been endorsed as of yet as none of the created
lots had the required frontage. Debra Benveniste, Lynn Arnold, Joanne May, Christine McCooe, and
Steve Ross did the unthinkable, they unlawfully
approved the special permit. Member Earl Johnson abstained from the vote.
Once the PBH granted the special permit
for the common driveway, the PBH endorsed the ANR plan as the
driveway
now provided the required frontage in Johnson’s and the PBH members opinion.
The
minutes to the meeting of March 7, 2006 state, "After acceptance of
the ANR concurrently presented, no further subdividing can occur." The PBH’s decision on the
special permit of the common driveway is on record at the Registry of Deeds,
book 15889, page 311.
On March 20, 2006 the PBH issued its
FINDINGS AND DECISION.
To be clear, not even a Judge from the Supreme Judicial Court of the Commonwealth would have the
authority to allow or grant Eric Johnson's
application for his special permit in this situation. Earl Johnson and Debra Benveniste served
many years on the PBH. The writer personally interrogated both individuals during depositions in the
matter Frei v. Planning Brd. of Holland,
Town of Holland, Hampden Superior Court, docket # HDCV 2002-1196. This happned 3 years earlier
and the subject of the suit was all about
legal frontage. Both individuals had an intimate understanding what constitutes "legal frontage.
"
The endorsement of Eric Johnson’s ANR is outside the law, the Planning Board of Holland does not have the authority to endorse an ANR plan that does not provide the necessary frontage
M.G.L. c.41, s.81L provides the definitions for a subdivision that needs approval by the Planning Board, and an ANR that does not need approval by the Planning Board. A subdivision proposes new roads which will provide access (frontage) to the newly created lots. Such a subdivision can create tracts of lands along a new road which can be further divided without approval by a planning board, utilizing the ANR procedure. Such a tract of land is already subdivided as the new roads provide the needed frontage.
It is really simple, a subdivision creates new roads, and an ANR further divides land that is already subdivided. M.G.L. c.41, s.81L provides in part:
[...]the division of a tract of land into two or more lots shall not be deemed to constitute a subdivision within the meaning of the subdivision control law if, at the time when it is made, every lot within the tract so divided has frontage on (a) a public way or a way which the clerk of the city or town certifies is maintained and used as a public way, or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies [...]
Subsections (a), (b), and (c) define ways that are able to provide frontage. A common driveway is not among the ways able to provide frontage. This is the reason why Eric Johnson’s ANR in fact does not create new buildable lots.
The Appeals Court of this Commonwealth found that an ANR endorsement does not grant any new rights to use the land as it is an, "attestation of compliance neither with zoning requirements nor subdivision conditions," Hamilton v. Planning Bd. of Beverly, 35 Mass. App. Ct. 386, 389 ( 1993).
To develop Eric Johnson’s landlocked parcel in accordance with M.G.L., Eric Johnson is required to submit a subdivision proposal showing a proposed road in conformance with the requiremen ts of the Subdivision Control law and the Holland Rules and Regulations Governing the Subdivision of Land. In essence, the PBH treated Johnson’s ANR plan like a Subdivision proposal, the common driveway like a newly created road, created by an approved subdivision.
To the writer’s knowledge, nobody ever submitted a subdivision proposal to the Planning Board since the adoption of the bylaws on October 13, 1970. The construction of a road in compliance with subdivision bylaws would be a costly undertaking. The current bylaws require a 38’ wide pavement for principal streets, and 24’ for a secondary street. For comparison, RT 20 leaving Palmer eastbound has a 24’ wide pavement.
Eric Johnson’s ANR failed to create any building lots which have any standing under M.G.L. and local bylaws. The two houses built on the Johnson parcel are illegal, in violation of M.G.L. and local bylaws and need to be removed. The fraudulent construction of the two dwellings is the very kind of sprawling development the subdivision control law is meant to prevent. The illegal plan disguised as an ANR plan which shows an actual subdivision plan that needs approval under the subdivision control law was drawn by Bertin Engineering Associates, INC, and is signed by David E. Teachout. Heather Blakeley, an employee of Bertin Engineering, is chairperson on the Board of Health in the town of Holland and is holding other offices in the town as well.
The special permit for a common driveway is outside the law
Even if all three lots created in Eric Johnson’s ANR would have the required frontage, the common driveway would also be in violation of Section 7.85; 2(j) of the Holland zoning bylaws, which provides:
No common driveway shall be extended or connected to any way other than at one point of intersection with a street providing frontage to the development.
Furthermore, section 7.85; 2(k) provides:
All lots to be served by a common driveway must meet the requirements of a lot as defined in the bylaws. All dimensional requirements, as defined in the Zoning Ordinance, for lots served by a common driveway, including but not limited to, setback and dimension of front, side and rear yards, as measured in relation to the street serving as the legal frontage for the lots, shall be the same as would be required for those lots had they not shared a common driveway.
Comparing the aerial view with Johnson’s ANR plan, it is apparent that the Johnson’s did not even bother to build the turnaround that allegedly provides "300’ +" frontage to the newly created lot #21.
Special Permit versus Variances
Both, a special permit and a variance require a public hearing.
Special permits can only be granted for permit applications of uses named as such needing a special permit according to the bylaws, see M.G.L. c.40A, s.9, 1st par. If the special use is not named in the bylaws, the issuing authority is not allowed to grant a special permit. The permit issuing authority can not grant any special permits for any use other than the uses provided for by the bylaws.
Variances can be granted by the issuing authority to waive the literal enforcement of the terms the applicable zoning ordinance or bylaws provide. M.G.L. c.40A, s.10 provides in part:
In order to apply for a variance, an applicant needs to claim and prove a "hardship." The threshold is high and was not within reach because the property had not the minimum required frontage.The permit granting authority shall have the power [...] upon petition with respect to particular land or structures a variance from the terms of the applicable zoning ordinance or by-law [...]
Holland bylaws are inconsistent with state laws
It is a fundamental principle that local bylaws can not supersede state laws; bylaws can only be
more restrictive. As an example, M.G.L. c.41, s.81O requires a minimum of 20’ frontage for lots created by a subdivision. c.40A, s.6 requires at least 50’ frontage for a lot to qualify under the grandfather clause.
However, local bylaws can require more frontage. Holland requires 200’ frontage in a
residential area for a buildable lot. M.G.L. c.41, s.81R "Waiver of strict compliance with
rules and regulations," provides a planning board the authority to waive strict compliance with
its own rules and regulations. However, the minimum requirements of M.G.L. can not be varied or circumvented for any reason.
Section 81R provides in part:
A planning board may in any particular case, [...] waive strict compliance with its rules and regulations, [...]
M.G.L. c.40A s.10 gives the zoning boards of appeals the power to vary the requirement of the local bylaws by granting a variance. Such variances however can not allow a shorter frontage than the minimum required by state law.
Holland subdivision bylaws:The currant version of the RULES AND REGULATIONS GOVERNING THE SUBDIVISION OF LAND in the TOWN OF HOLLAND contains a paragraph that is in violation of state law. Under the heading "Section II, procedure for the submission and approval of plans," subsection (1.) "Approval not required plans," it states:
An ANR may also be signed on a currently inadequate road when it is agreed to and the subdivider presents acceptable plans and surety to bring the road up to standard which is acceptable to the town.
This section of the bylaws is inconsistent with the provisions of M.G.L. Chapter 41, s.s.81L, 81P which provide unambiguously the circumstances under which an ANR has to be endorsed by a planning board, and under which circumstances an ANR endorsement needs to be denied. Under no circumstances can a planning board accept the argument that a common driveway would provide frontage. An unlawful expansion of the planning board’s authority would lead with certainty to unnecessary lawsuits in the future.
In a letter signed by selectman James Wettlaufer that is attached to the minutes of the meeting of January 16, 2006, Wettlaufer proposes a change to the bylaws that would be in violation of M.G.L., c.41, s.81L and other provisions of the subdivision control law. Wettlaufer claims in his letter:
The purpose of a common driveway generally is to allow the frontage requirement to be met on the driveway rather than the public way.
Wettlaufer’s argument is misconceived, see M.G.L. c.41, s.81L. The purpose of a common driveway is to reduce curb cuts that are unsafe or unpractical.
Eric Johnson and his wife Amey sell their property to Albert West, Jr,. and Renee Thibault
On September 25th, the parcel is conveyed to Albert West, Jr,. and Renee Thibault with Quitclaim deed, book 16946, page 496.
Albert West, Jr., becomes the sole proprietor
On May 2nd, 2016, Renee Thibault signed a quitclaim, book 21058, page 358, 359, declaring Albert West Jr., the sole proprietor.
Readers from the Press may refer to this web page so interested readers have the opportunity to view the documents. I would also like to bring to the readers attention, that all the documents with the exception of the documents listed under "other documents" can be viewed free of charge on the web page of the Hampden Registry of Deeds, click here to get there.
July 6th, 2007, Peter FreiAmended on May 28th, 2021, Peter Frei
APPENDIX
Deeds, plans, and other documents provided; documents listed in italic are mentioned in this memorandum. Additional documents are mentioned in deeds and are made available to facilitate a more in-depth analysis:Deed
Date Book Plan Page Description
9-01-1926 1320 D 407 change in ownership of parcel now in possession of the Johnson brothers
9-01-1926 1320 D 408 change in ownership of parcel now in possession of the Johnson brothers
12-13-1937 1649 D 452 change in ownership of parcel now in possession of the Johnson brothers
6-12-1947 1872 D 457 change in ownership of parcel now in possession of the Johnson brothers
9-23-1952 2212 D 600 change in ownership of parcel now in possession of the Johnson brothers
2-28-1976 4248 D 335 Land taking by the town of Holland for outstanding tax payments of the parcel Earl Johnson as selectman deeded over to his mother in law
5-17-1978 4591 D 372 mentioned in deed book 5421, page 23
9-09-1978 180 P 87 TIF file, showing right of way, mentioned in deed book 5421, page 23. The right of way only leads to the Gibson parcel and not all the way to the property of Eric Johnson
9-09-1978 180 P 87 PDF file, showing right of way, mentioned in deed book 5421, page 23. The right of way only leads to the Gibson parcel and not all the way to the property of Eric Johnson
9-29-1978 4668 D 235 mentioned in deed book 5421, page 23 right of way granted to previous owners of Gibson’s property
9-30-1978 4668 D 237 mentioned in 5421-23 right of way granted to previous owners of Gibson’s property
12-22-1980 5049 D 155 Earl Johnson as one of the selectmen deeded parcel over to his mother in law for the amount of $1, 200
3-24-1983 5421 D 23 Mickley’s buy 2.483 acres of land and 40’ right of way leading to Gibson’s parcel that was sold to Eric Johnson on 2-24-2004. The Mickley’s paid $59,500.Deed references plan 180, page 87, dated 10-03-1978 showing right of way; deed book 4668, page 237, deed book 4591, page 372, deed 4668, page 235
12-16-1983 5546 D 46 Gibson’s buy land they sold to Eric Johnson on 2-24-2004. Deed mentioned deed book 4668, page 237 with right of way; deed book 5501, page 172
9-23-1987 6649 D 373 Earl Johnson’s mother in law deeded parcel over to Earl Johnson’s wife for the amount of "less than One Hundred Dollars
2-17-1997 310 P 92 Plan drawn by Jalbert Engineering, Inc., showing a 1,374 s.f. right of way over the Gibson property
2-17-1997 310 P 92 PDF file of Plan drawn by Jalbert Engineering, Inc., showing a 1,374 s.f. right of way over the Gibson property
2-25-2003 12976 D 185 Earl Johnson’s wife deeded parcel over to Earl Johnson’s son Brian Johnson. Price paid & #34;love and affection." This deed mentions the right of way shown in plan book 310, page 92, dated February 17, 1997 for Brian Johnson. How was it possible to record a right of way for Brian Johnson back in 1997, when the property did not even belong to Brian Johnson?
11-12-2003 13762 D 384 Earl Johnson’s son Brian deeded parcel over to Earl Johnson’s son Eric. Price paid " love and affection."
1-24-2004 13962 437 Eric Johnson’s application for a special permit to replace an old structure. "There was no current signs of this structure…" On page 2, Mr. Gibson voiced his concern that the Johnson&# 8217;s falsified the part of the right of way crossing his property. The Zoning Board of Appeals &# 34;informed that his insinuations were out of order." See question entry 2-25-2003
2-24-2004 13995 D 74 Gibson’s sell property of about 12 acres for $25,000 to Eric Johnson with missing link between Eric Johnson’s property and Bean’s driveway
5-04-2004 14148 D 405 Eric Johnson deeded original parcel together with parcel he bought from Gibson over to him self and his wife
3-07-2006 341 P 61 Earl Johnson’s son Eric submits ANR to the Planning Board of Holland. Despite the fact that not one of the three created lots has one single foot of frontage, the Planning Board endorses the ANR plan
3-07-2006 341 P 61 PDF file of ANR plan that Earl Johnson’s son Eric submitted to the Planning Board of Holland. Despite the fact that not one of the three created lots has one single foot of frontage, the Planning Board endorses the ANR plan
3-20-2006 15889 311 The Planning Board grants Earl Johnson’s son Eric a special permit for a common driveway that allegedly complies with Holland zoning by-law section 7.85 (which it does not!) The irony is that the culprit, Earl Johnson abstained from voting
4-27-2006 15889 D 315 Earl Johnson’s son Eric deeded lot #22 of the ANR over to Earl Johnson’s son Brian. Price paid "love and affection."
4-27-2006 15889 D 317 Earl Johnson’s son Eric deeded lot # 21 of the ANR over to Earl Johnson’s son Carl and his wife. Price paid "love and affection."
8-24-2006 16142 440 Covenant on common driveway granted on 3-20-2006
9-28-2007 16946 D 496 Quitclaim deed; Eric Johnson and Amey E Johnson sold their property to Albert West Jr. and Renee Thibault on 9-25-2007
7-15-2008 17390 541 Notice pursuant to M.G.L., c.40A, s.7 dated 7-4-2008
2-10-2016 21058 D 358,359 Quitclaim deed, granted to Albert West Junior by Renee Thibault signed on 5-2-2016
Other documents:
12-29-1997 Attached letter in support of Eric Johnson’s application for a variance to construct a house on the landlocked parcel
11-20-2003 Eric Johnson’s application for a variance to construct a house on a landlocked parcel with Attached letter in support of the application
3-07-2006 PBH minutes pertaining to Eric Johnson’s special permit application for a common driveway
1-16-2007 PBH minutes pertaining to another application for a special permit for a common driveway
1-16-2007 Attached letter signed by selectman James Wettlaufer (The timing of this letter is interesting)
1-16-2007 PBH minutes with the same date but missing the entry about Kevin Tighe’s application for a special permit for a common driveway