Appeal Court Rules Against Wayne Johnson, Fight Goes On

The Massachusetts Appeals Court has ruled against Wayne Johnson in his decades-old fight to keep from having to tear down his home on Bubier Road. But the fight is far from over.

Johnson's attorney Charles Le Ray, called this ruling from the appeals court “tangential to the main issue.” Arguments on another appeal before the court have not been scheduled. That hearing before the court will be on the main issue of whether Johnson's neighbors, John and Ruth Schey, had the right to sue him.

The fight over Johnson's house has also been taken to the Board of Selectmen. Johnson has two petitions before the Selectmen asking to take the critical issue – whether his lot is wide enough – to a Town Meeting. Le Ray said it is likely that Johnson will take the issue to the Town Meeting in May, rather than call a special Town Meeting.

At the Town Meeting, Johnson plans to ask the Marblehead bylaw requiring that lots be 100 feet wide be reduced to 75 feet. That change would bring Johnson's house into compliance, along with more than 400 other lots in town, Le Ray argued.

The controversy began in the early 1990s when Wayne Johnson filed plans to divide his property where he had a home and build a new home on the section of the property where a garage had been.

The new three-bedroom, three-story Georgian home, valued at more than $900,000, would partially obstruct the Scheys’ ocean views and according to Frank McElroy, the Schey's attorney, leave the Scheys’ home in darkness and impinge on their privacy.

Johnson argues that the Scheys are not harmed by the new home and do not have the right to sue him.

In an unpublished decision issued last week, the appeals court rejected three arguments from Johnson, who claimed the Zoning Board of Appeals made an erroneous decision in not granting him a special permit to build the house.

In the first argument, Johnson argued that the board did not set forth a clear reason for denying the special permit. The court disagreed, saying the zoning board acted correctly. “..when zoning relief is denied, as opposed to granted, detailed findings are not required and only generalized reasoning is necessary.”

The ruling also said, “While individual members expressed varying views, each ultimately indicated the size and the location of the dwelling as reasons for denying the request. Therefore, it was not error for the judge to determine that the board's decision voiced a clear reason for the denial of the special permit and met the statutory requirements imposed.”

Johnson also claimed that the zoning board must hold a separate vote on each issue, which it did not.

The court disagreed with Johnson, saying, “While the statute does require the board to issue a decision that clearly indicates the vote of each member for each question at issue, nothing suggests that each prerequisite for a special permit is an individual question on which members must vote. Therefore, it was not error for the judge to conclude that the board's decision, which considered the overarching question of whether a special permit should be granted, was issued in accordance with (General Law c. 40A, § 9).”

Finally, Johnson claimed the zoning board's decision was “arbitrary and capricious, evidenced by the fact that two board members voted affirmatively on the initial question of whether all conditions for the grant of a special permit were met but nevertheless voted for the permit's denial.”

The court again disagreed, saying Johnson's argument had no merit. The court said, “There is no absolute right to a special permit and the granting of such is done at the discretion of the zoning board even if prerequisites are met.”

The Planning Board has also held two nights of well-attended hearings on the issue of lot width. It is expected to hold another hearing on Johnson's petition and issue its report at the Town Meeting in May.