April 5, 2015
Town of Holland
Zoning Board of Appeals
27 Sturbridge Road
HOLLAND, MA 01521
RE: Brian Johnson's applications for a variance and/or special permit, number 1584, 1599, 1600.
Dear Members of the Board,
as an initial matter, your minutes are inadequate as it is impossible to figure out what actually happened. Here are the irregularities:
According to several individuals I spoke, the initial application with the number 1584 was withdrawn as this board realized that Johnson had two different projects requiring two different applications. Number 1584 was voided and the numbers 1599 and 1600 issued by Jack Keough.
Public hearing of December 23, 2015.
The first public hearing on Johnson's two applications was scheduled for December 23, 2015. I personally attended that hearing. I stayed until the meeting was adjourned at 8:20 PM. I left after the meeting was adjourned.
According to the minutes, a meeting took place in violation of the OML between Don Beal, Ron Seaburg, Tom Kenney, and Sarto Caron thereafter and went on for 25 minutes. Re-open an adjourned meeting is a clear violation of the OML. I was deprived of my right to attend the meeting as I had no notice of the fact that a meeting was taking place.
The fact that members of this board suggest to Johnson “to prove that the lot(s) were grandfathe red” by suggesting “that it might help if Brian could get tax documents to prove that taxes were being paid on two separate lots when he bought the property, and (2) What had been said during the meeting” is baffling. It is this board's obligation to do simple research to determine the status of Johnson's property and not depend on Johnson to prove anything or rely on taxes paid. The way a particular parcel or property is taxed is always subordinate to the parcel's status under M.G.L., and the zoning bylaws and not the other way around, (there is extensive case law on this subject.)
Dana Manning, member of the Board of Health, email to this board:
Dana Manning, member of the Board of Health, cc'd me on her email to this board which was dated November 28, 2014. In her email, she offered her analysis. I later learned in addition to her analysis through a request for public information that an amendment to the town's zoning bylaws increasing the frontage requirement from 100 to 200 feet was accepted by the town's voters at the special town meeting on September 29, 1986.
After this amendment, Woods had three years [FN1] to develop the property or sell it, so someone else could develop the property within the three year grace period. As Woods failed to do that, the parcel he sold later to Johnson became non-conforming on September 29, 1989 [FN2]. It is really that simple!
Everybody back then new about it and for that reason had no interest in buying said property. The Planning Board's endorsement of an Approval Not Required (“ANR”) plan on December 11, 1989, filed by Woods, did not cure the fact that the two lots (lot 1 and lot 8, see book of plans 63 page 111, and book of plans 272 page 26) were non-conforming and neither does the fact that there was an accessory building on the parcel at the time. The Planning Board's endorsement was outside the law as the two lots shown on the plan had not the required 200' frontage. An ANR plan does not create any new rights, if the created lots do not have the required frontage at the time of endorsement, the shown lots remain unbuildable. To suggest that a building permit issued in error would cure the lots' non-conforming status is equally misconceived.
Continued Public Hearing of January 13, 2015:
The fact whether the lots (lot 1 and lot 8, ) were separate lots as shown on book of plans 63 page 111, and book of plans 272 page 26, and the fact that they were conveyed to Woods with different transactions does not matter; all that matters is whether they were in common ownership at the time the frontage requirement changed and whether they were developed in the following three years. It is that simple!
What is not mentioned in the minutes is that Fred Beaulieu advised Johnson to go to the clerk's office and change his application seeking a variance to seeking a special permit application and that he informed Johnson and his surveyor, Roger Woods, that he [Beaulieu] was told by someone from the state that 95% of all variances wold be issued illegally. There is a remark that Johnson went to the town clerk's office to extend the time on his applications with the numbers 1560 and 1599. There is no application with the number 1560; Johnson applications were filed and dated in the following manner; number 1584 on August 26, 2014; number 1599 and 1600 on October 21, 2014. The Application with the number 1584 was voided as earlier mentioned.
The record in the minutes about my comment to this board are incorrect; I stated that the grace period was three years for parcels created by an ANR , and five years for parcels created by a subdivision. I referenced M.G.L., c.40A, s.6 and not M.G.L., c.48, s.6.
Continued Public Hearing of February 24, 2015:
The minutes state, “[t]here is nothing in The Holland Schedule of Principal Uses, Number 17, Land Use Classification (Accessory Building) that prevents an accessory dwelling in a detached building in either a residential or business zoning district by special permit. This board is looking in the wrong place, for Johnson to avail himself to a building permit, he needs to satisfy the dimensional requirement, one of which requires his lot to have 200 feet of frontage. Johnson's lot has only 110 feet of frontage. Johnson's lot is non conforming as it is not grandfathered as stated above and outlined in Manning's extensive analysis. It is really simple!
Larry Smith, the PVPC land use and zoning specialist (not an attorney,) claimed, “[t]his is an example of a pre-conforming use on a non-conforming lot.” There is no such thing as “pre-conforming use on a non-conforming lot;” there is a “pre-existing non-conforming lot, building, or use.” See M.G.L., c.40A, s.6. Johnson does not apply to change the use of his property, he intends to build a garage and convert an accessory building into an accessory apartment. As his lot is not grandfather ed, or not “pre-existing non-conforming,” Johnson's only option would be a variance to vary the frontage requirement. In order to apply for a variance, Johnson would have to claim and prove a hardship. The threshold of a hardship is a high one, and not within reach of Johnson, see M.G.L., c. 40A, s.10, hence, 95% of variances are issued outside the law as Beaulieu correctly noted.
Once this board would (if it could) issue a variance for the frontage requirement, the Planning Board could then entertain an application for a special permit.
Johnson's proposal to build a garage would require a second variance which is out of reach as mentioned. If Johnson could claim and prove a hardship, Johnson would not need a special permit from the Planning Board, as a garage is allowed (if it conforms to the other requirements) as of right.
The argument that Johnson's accessory building existed a long time before the frontage requirement changed from 100 top 200 feet and said building would therefore be grandfathered is misconceived as well. Accessory buildings are always, by definition (see bylaw section 2.02 ), “ subordinate and incidental to a principal building.” At the time when Woods built this accessory building it was incidental to his dwelling, this an indication that lot 1 and lot 8 were already merged. The fact that Woods' parcel lays in the business district does not affect the frontage requirement. Dwellings can only be built on parcels with a frontage of 200 feet.
Woods' lot 1 and lot 8 merged on September 29, 1989. Woods' ANR (book of plans 272, page 260) rendered lot 1 and the remaining part of lot 8, the two parcels Woods sold to Johnson, unbuildable. Not only that, Woods' own parcel, the parcel his own dwelling is located on, lot 9, became also non conforming and is no longer “pre-existing non-conforming,” or “grandfathered” under M.G.L., c. 40A, s.6. If Woods or any owner buying the property after September 29, 1889 would apply for a building permit, he would first have to obtain a variance too.
If this would not be the case, everybody who has 200+ feet of frontage and an accessory building that existed before September 29, 1986 (date of change from 100 to 200 feet requirement) could divide his property and sell the piece with the garage to a potential buyer who could then build a dwelling on it and later convert the accessory building into an accessory dwelling unit and even add a 24 by 40 foot garage to his dwelling.
It is apparent that this board first advised Brian Johnson to change his application from a special permit to a variance to help Johnson to circumvent the law. To suggest Johnson at the end to withdraw his application does not make any sense and must be seen as another maneuver to circumvent the law and to deprive individuals and alert municipal officers like Dana Manning of their ability to appeal this board's decision pursuant to c.40A, s.17 (as a municipal officer Manning has standing to appeal.) This is even more likely as I personally wrote a letter to Johnson and this board putting this board and Johnson on notice what has to be done if this board choses not to take any action so nobody could claim in court that they did not know their obligations. In such a situation, this board's inaction would lead to a constructive approval of Johnson's application which then could also be appealed. In the past, this board took the easy way out by failing to act tand thereby passively grant an application outside the law. As Don Beal, Sarto Caron and others know, this worked in the past. My letter foiled that “solution,” and this board had to come up with another angle to give Brian Johnson the preferential treatment, a treatment outside the law! Because of your unethical conduct, the very individual who did not sell-out as you all did a long time ago is now being accused by asswipes like David Kovalski, Brian Johnson, and James Wettlaufer of having done the very conduct you are guilty of, unethical misconduct. And as you see, I do not hide behind the word “alleged” as the three self serving corrupt lying individuals cowardly do. Shame on all of you!
Just a reminder for the readers, M.G.L., c.40A, s.6, the grandfather clause, shields existing properties, uses, and buildings from more restrictive regulations adopted by the community at a later time. Any circumvention of the laws, regardless how artfully done, which would allow the construction of a building at a later time by applying the laws and regulations no longer in effect, is illegal. It is really that simple! If Fred Beaulieu and the rest of the ZBA are unwilling or incapable of doing their job, they should all resign!
When will this town and its many officer's begin to obey their oath of office as for instance Dana Manning does? When will this board and its members begin to serve with integrity? When will this board do the right thing and serve the public impartially, so we all have the same rights and can live free?
Indirectly I am holding this Board responsible for the recall effort by Kowalski, Johnson, and Wettlaufer. If this board would have done and would do what it is suppose to do, Johnson would stop bullying everybody out of office who does the right thing. Again, shame on all of you!
I am not convinced that this board and the PVPC “specialist” Larry Smith, does not know better; in legal briefs writers use the term “deliberate ignorance” to describe the conduct of involved actors.
The Johnson family has a well known long history of illegal land-use. It baffles me that this board has learned nothing and is willing to add another blunder to the already horrendous history.