Lawyer Fees Exceed Cost of Bubier Road House

Wayne Johnson has now spent more on lawyers trying to save his house than it cost to build it. And the legal wrangling is far from over.

Johnson's house on Bubier Road, which cost about $425,000 to build in the mid-1990s, is ground zero of the growing fight over how dense the town is going to be. The issue is whether to reduce the required lot frontage from 100 to 75 feet, which would make Johnson's house and lot legal.

If the town allows narrower lots, more lots may be subdivided, which would permit more houses to be built.

, and it is scheduled to be on the Town Meeting's agenda in May. And the planning board, which has not made a recommendation on the broader issue, is also scheduled to hear arguments specifically on Johnson's house on March 22.

The fight over Johnson's house has been in the courts for more than a decade. And the appeals continue. All have gone against Johnson, including a recent decision.

Still before the appeals court is whether his neighbors, Drs. Ruth and John Schey, had a right to file a challenge against the house in the first place.

“As far as I am concerned, the legal system has let me down,” Johnson said.

The battle over Johnson's house started in 1995, when the Scheys, Lynnfield pediatricians, challenged Johnson's home construction. Johnson owned the adjacent house on Bubier Road which was closer to the ocean. He subdivided the large lot to allow him to build a house on the new lot where a garage stood. He designed the new house and promised the new owners of his old house that he would build and not leave them with the uncertainity of what would be built there. He said he felt committed to building the new house as he had designed it.

In those days, Marblehead had no planning board. If you wanted to build a home, you asked the Building Inspector for a permit, which Johnson was given.

One of his mistakes was not tearing down the garage before he had the lot subdivided, he said. If there had been no existing structure on the lot, he could avoided a lot of the legal fighting that ensued after he started building the new house.

“I never intended to be a precedent setter,” he said. Facing an uncertain future for his residence “is no way to live your life.”

The Scheys' attorney, Frank McElroy, believes his clients are the victims in this case, suffering from Johnson's decision to build his new home between his original house and the Scheys' house.

“The blockage of light and air, the loss of privacy engendered by an illegal house on an illegal lot have been observed not only by me and my clients, but by two justices of the Land Court, and are part of the case."

He blamed “Mr. Johnson's unending efforts to start the case all over after my first letter to his client more than 16 years ago.”

In the mid-1990s, the Zoning Board of Appeals ruled that Johnson's lot was too narrow by 13 feet. The Land Court agreed in 2000 that the house and lot were illegal and should be torn down. Through multiple appeals and stay orders against tearing down the house, Johnson and the Scheys have lived as neighbors on Bubier Road, barely speaking to one another, for almost two decades.

“I have not set foot in their house since this began,” Johnson said.

He has offered to tear off two feet of his house to pacify the Scheys or to switch houses with them, but the Scheys remain adamant that his house should be torn down.

The issue has taken on a bigger dimension for Marblehead than simply a neighborhood dispute. The bigger question is how dense do the residents want the town to be. The town enacted new rules in 1994 that require all lots to have 100 feet of frontage. And the lots cannot narrow down like Johnson's porkchop-shaped lot beyond 75 feet. Johnson's lot at one point is 62 feet wide.

, a group formed to support Johnson in his fight to save his home, told the planning board that more than 400 homes in Marblehead do not conform with the lot size and shape requirements. If the rule were changed to 75 feet, the lots would comply.

Non-conforming houses have to petition the zoning board if they want to make almost any change to the house. Proponents of the change say it is expensive and time consuming to win the zoning board's approval.

Charles Le Ray, Johnson's attorney, said changing the current 100-foot frontage rule would “make the zoning code mesh with the reality of what's on the ground in Marblehead.”

Opponents say the zoning board approves most requests, and one speaker called the process of winning the board's approval only “a bump in the road.”

Johnson has had little trouble getting enough signatures to bring the issue to the town's attention. which held two well-attended and

At the Town Meeting in May, Johnson must get two-thirds of those attending to vote for the change in the zoning bylaw allowing home lots to be 75 feet wide. That means if 300 residents attend the Town Meeting, 200 have to vote for the change.

Johnson worries that the issue has become too complicated and polarized in the community to explain it effectively at the Town Meeting.

When asked what happens if he loses the issue and the courts enforce the order to demolish the house, the financial planner, now in his 70s, said losing the equity in the house would be devastating financially.