1 COMMONWEALTH OF MASSACHUSETTS

2 Hampden, ss. Dept. of the Trial Court

3 Superior Court Department

4 Docket No. HDCV2002-1196

7 *********************************

8 PETER FREI, *

9 Plaintiff *

10 vs. *

11 TOWN OF HOLLAND PLANNING BOARD, *

12 ET AL., *

13 Defendants *

14 *********************************

17 DEPOSITION OF: DEBRA HENRIETTE BENVENISTE

18 CATUOGNO COURT REPORTING SERVICES

19 1414 Main Street

20 Springfield, Massachusetts

21 September 11, 2003 9:00 a.m.

23 Kristen M. Edwards

24 Court Reporter

1 APPEARANCES:

3 Representing the Plaintiff:

4 PETER FREI

5 P.O. Box 500

6 Brimfield, MA 01010-0500

7 (413) 245-4660

8 BY: PETER FREI, PRO SE

10 Representing the Defendants:

11 LAW OFFICES OF VINCENT J. MCCAUGHEY

12 807 Main Street

13 P.O. Box 601

14 Warren, MA 01083

15 (413) 436-9321 FAX (413) 436-9322

16 BY: VINCENT J. MCCAUGHEY, ESQ.

18 Also present:

19 Earl Johnson

1 I N D E X

3 WITNESS: DEBRA HENRIETTE BENVENISTE

5 EXAMINATION BY: PAGE:

6 Mr. Frei 4

9 EXHIBITS: PAGE:

10 Exhibit 28, Chapter 41 Section 81L.....14

11 Exhibit 29, Chapter 40A Section 6......18

13 (Exhibits retained by Mr. Frei)

1 DEBRA HENRIETTE BENVENISTE, Deponent,

2 having first been duly sworn, deposes and states

3 as follows:

6 EXAMINATION BY MR. FREI:

8 MR. FREI: My name is Peter Frei. I

9 represent the plaintiff. I am pro se. I

10 would state for the record that I suggest

11 the usual stipulations. It is hereby

12 stipulated that all objections except

13 objections as to the form of the questions,

14 motions to strike are reserved and may be

15 raised at the time of the trial for the

16 first time. It is further stipulated that

17 the deposition will be read and signed

18 within 30 days of receipt with the right to

19 do so will be waived by signing before a

20 notary public is waived.

21 MR. MCCAUGHEY: Did you understand

22 that?

23 A. No.

24 MR. MCCAUGHEY: Might I explain

1 that, Mr. Frei?

2 MR. FREI: Sure.

3 Q. (By Mr. Frei) Which part did you

4 not understand?

5 A. I didn't understand about the

6 objections. I didn't understand.

7 MR. MCCAUGHEY: Your attorney has

8 the right to make objections. All

9 objections will be waived except as to the

10 form so I can object on your behalf or the

11 town's behalf as to the form of the

12 question.

13 Q. (By Mr. Frei) If Mr. McCaughey says

14 objection, you still have to answer. It doesn't

15 have anything -- it will not effect my question at

16 this time and you have to answer the question

17 regardless of his objection.

18 A. Okay. Is that true?

19 MR. MCCAUGHEY: That is correct.

20 The other part of it relating to reading

21 the deposition. At some time the

22 deposition will be provided in a written

23 form for you. You will have an opportunity

24 to review that for purposes of not to

1 change your answers but if there are errors

2 in the transcription that you believe then

3 you have an opportunity to do so. We will

4 stipulate to those stipulations too, Mr.

5 Frei.

6 A. Thanks.

7 Q. (By Mr. Frei) Ms. Benveniste, I am

8 going to ask you a number of questions regarding

9 the facts of this lawsuit. Mr. McCaughey is

10 counsel of the defendant, the Planning Board of

11 the Town of Holland. He may ask you questions if

12 he wants to also. If at any time you do not hear

13 a question, let me know and I will repeat it. If

14 at any time you do not understand a question, ask

15 me to rephrase it. If you have answered a

16 question, I will assume that you have heard and

17 understood it. Do you understand this?

18 A. Yes.

19 Q. If you need to stop the deposition

20 at any time in order to use the restroom, get a

21 beverage or take a break, you may do so. Do you

22 understand this?

23 A. Yes.

24 Q. You are under oath today providing

1 testimony in this deposition and it is no

2 different from providing testimony in a court.

3 You have sworn to tell the truth. Do you

4 understand this?

5 A. Yes.

6 Q. Ms. Benveniste, would you please

7 state your full name for the record, please?

8 A. My name is Debra Henriette

9 Benveniste.

10 Q. Could I have your date of birth,

11 please?

12 A. 7/7/56.

13 Q. Would you please state your home

14 address for the record, please?

15 A. I have a no trespassing order in

16 effect. I have some discomfort in giving my home

17 address.

18 Q. Would you please answer the

19 question?

20 A. I did.

21 Q. It's unacceptable.

22 A. How come? I stipulated I am a

23 resident of Holland. I am a resident of Holland.

24 MR. FREI: Mr. McCaughey, will you

1 tell her she has to answer?

2 MR. MCCAUGHEY: She has provided her

3 answer.

4 Q. (By Mr. Frei) I object to this

5 answer.

6 A. Okay.

7 Q. May I ask what is the reason why you

8 don't give me your address?

9 A. For the reason that I stated.

10 Q. You are claiming that you issued a

11 no trespassing order against me?

12 A. I did not issue it. The Holland

13 Police Department did.

14 Q. I never got notified. I never got a

15 copy.

16 A. That is not a question. I am not

17 going to respond to that.

18 Q. I just want to have it on the

19 record. Ms. Benveniste, I gave you a notice for a

20 deposition, which should have taken place the 30th

21 of December 2002. You choose not to attend. What

22 was the reason for not attending?

23 MR. MCCAUGHEY: Objection.

24 MR. FREI: On what grounds?

1 MR. MCCAUGHEY: I object.

2 MR. FREI: On what grounds?

3 MR. MCCAUGHEY: Go ahead and answer.

4 A. I was unable to attend because I

5 work. I did not have enough time to reschedule

6 what I needed to.

7 Q. (By Mr. Frei) What kind of work do

8 you do?

9 A. Is that relevant?

10 Q. Yes. I am the one who is asking

11 questions.

12 A. Am I required to answer that?

13 MR. MCCAUGHEY: Could I suggest that

14 we take a five minute break and I will

15 confer with my client?

16 MR. FREI: Sure.

17 MR. MCCAUGHEY: Thank you.

19 (A recess was taken)

21 MR. FREI: Back on the record.

22 Q. (By Mr. Frei) Ms. Benveniste, what

23 is your educational background?

24 A. I was prepared to discuss the

1 Planning Board issues today. I did not realize

2 that my personal background was going to be part

3 of my deposition today. That is part of my

4 reluctance to answer these questions. I don't

5 personally see how they are relevant. If you want

6 to ask them, I suppose. Do you want an answer to

7 the first question that you asked?

8 Q. Yes, please.

9 A. I am a psychotherapist.

10 Q. Excuse me?

11 A. I am a psychotherapist.

12 Q. Do you want to answer that question

13 about your home address?

14 A. No. I answered the question about

15 my home address.

16 Q. So you have a degree in human

17 services?

18 A. Yes.

19 Q. What kind of degree?

20 A. I have a masters in social work.

21 Q. That is all you did all your life;

22 you didn't have any other type of work in the

23 past?

24 A. I worked as a cashier at a liquor

1 store. During the summer I was a teenager, I

2 worked as a camp counselor. I worked as an office

3 manager for the summer in college. I worked as a

4 telemarketer part-time to make money when I was in

5 graduate school.

6 Q. Thanks. Since when are you member

7 of the board, the Planning Board in the Town of

8 Holland?

9 A. I believe I joined the Board in

10 1998.

11 Q. Do you have any other involvement;

12 do you have any other offices at the present time

13 in other towns or in the Town of Holland?

14 A. No.

15 Q. Did you ever have any other office

16 in the past in other towns?

17 A. I have held other offices in Holland

18 but not in other towns.

19 Q. What was that?

20 A. I was on the economic development

21 board and park commission.

22 Q. What are the requirements to be

23 appointed to the Planning Board?

24 A. The Planning Board is an elective

1 office so most everybody is elected. I was

2 appointed for the first, I think year that I was

3 on because I was finishing the term of somebody

4 else. So the requirements, as far as I understand

5 them, are you must be a resident of Holland and

6 you must be a registered voter. I don't think --

7 I don't know if there are any others.

8 Q. What functions do you have at the

9 present time within the Planning Board?

10 A. I am chairman of the Planning Board.

11 Q. When did you get elected as a

12 chairwoman?

13 A. The roles of the Board are

14 determined by the Board. You are not elected a

15 specific role of the Board just to be on it.

16 Q. Since when?

17 A. I think it's been a little over two

18 years. I think it was the summer of 2001.

19 Q. What kind of specific academic

20 training did you go through to prepare yourself

21 for this position?

22 A. I have no training whatsoever to be

23 on this Board. These are volunteer Boards. There

24 is no requirement by the Commonwealth of

1 Massachusetts that anybody be trained to serve on

2 these Boards, and we are paid very little.

3 Q. To what extent do you have knowledge

4 about Massachusetts General Law applicable to

5 subdivision matters?

6 A. I attended a training that was

7 offered by the citizen's planner training

8 corroborative, collaborative, sorry, which is they

9 are associated with UMass somehow. They provide

10 training for municipal government members on a

11 wide variety of things that we need to learn how

12 do to do so they offer a series of trainings for

13 Planning Board members. One of which was

14 subdivision, which I took sometime between 2001

15 and the present. I also can access the Mass.

16 General Laws when I need to. And if I have a

17 question, I find the relevant section and read the

18 law. I also ask Planning Board people who have

19 trained in planning for information about it. I

20 might seek counsel with the town attorney if I

21 need to.

22 Q. You will get one. I want to mark a

23 section.

24 A. That is fine.

1 Q. Ms. Benveniste, I am handing you a

2 printout of the section of Massachusetts General

3 Law. Will you please identify the document?

4 A. It looks like it's printed from the

5 internet. It says, "General Laws of Massachusetts

6 part L, administration of the government title 7C

7 cities, towns and districts. Chapter 41 officers

8 and employees of cities, towns and districts.

9 Chapter 41 Section 81L definitions."

10 Q. Thanks.

11 MR. FREI: I want to introduce a

12 copy as Exhibit 28.

14 (Exhibit 28, Chapter 41 Section 81L,

15 marked)

17 Q. (By Mr. Frei) Ms. Benveniste, have

18 you ever read this section?

19 A. Yes.

20 Q. So you are familiar with Chapter 41

21 Section 81L; is that correct?

22 A. Somewhat.

23 Q. But, Ms. Benveniste, you have access

24 to these laws as you stated earlier?

1 A. Could you define access, please?

2 Q. I am the one who is asking

3 questions.

4 A. I don't understand what access.

5 Q. You stated earlier that you have

6 access to Massachusetts General Law and if you

7 need to you can actually look it up?

8 A. Yes, on the internet like this.

9 Q. So would you be more specific to

10 what degree you have knowledge about Chapter 41

11 Section 81L?

12 A. I have read this in the past. I am

13 not quite sure when I most recently read it.

14 Q. Ms. Benveniste, I am going to read

15 to you the paragraph where subdivision is defined.

16 "Subdivision shall mean the division of a tract of

17 land into two or more lots and shall include

18 resubdivision, and, when appropriate to the

19 context, shall relate to the process of

20 subdivision or the land or territory subdivided;

21 provided, however, that the division of a tract of

22 land into two or more lots shall not be deemed to

23 constitute a subdivision within the meaning of the

24 subdivision control law if, at the time when it

1 was made, every lot within the tract so divided

2 has frontage on A, a public way or a way which the

3 clerk of the city or town is maintained and used

4 as a public way; B, a way it is shown on the plan

5 therefore approved and endorsed in accordance with

6 the subdivision control law; C, a way in existence

7 when the subdivision control law became effective

8 in the city or town in which the land lies having

9 in the opinion of the Planning Board sufficient

10 width, suitable grades and adequate construction

11 to provide for the needs of vehicular traffic in

12 relation to the proposed use of the land abutting

13 thereon or served thereby, and for the

14 installation of municipal services to serve such

15 land and the buildings erected or to be erected

16 thereon. Such frontage shall be of at least such

17 distance as is then required by zoning or other

18 ordinances or bylaw, if any, of said city or town

19 for erection of a building on such lot. And if no

20 distance is so required, such frontage shall be at

21 least 20 feet."

22 Ms. Benveniste, did you apply this

23 section when you decided on my two ANR

24 applications?

1 A. Yes.

2 Q. You did?

3 A. Yes.

4 Q. Do you understand what I just read?

5 A. Yes.

6 Q. Did you have knowledge of this

7 substantial at the time I attended the meetings

8 with the Planning Board last year and that will be

9 after May 7, 2003?

10 A. I am sorry. I don't understand that

11 question. I thought what we were talking about

12 was an application that was submitted prior to

13 May 2003.

14 Q. To refresh your memory, Ms.

15 Benveniste, the first meeting I attended in

16 regards to my first ANR was held May 7, 2003.

17 A. I was --

18 Q. Sorry, 2002.

19 A. Yes.

20 Q. Sorry. I can't read my own writing.

21 I just handed you another copy of a printout of a

22 section of the Massachusetts General Law. Would

23 you please identify it?

24 A. It says it's Chapter 40A zoning.

1 Q. That is correct.

2 MR. FREI: I would like to introduce

3 a copy of Chapter 40A Section 6 as Exhibit

4 No. 29.

6 (Exhibit 29, Chapter 40A Section 6,

7 marked)

9 Q. (By Mr. Frei) Ms. Benveniste, I am

10 going to read you part of this section. "Any

11 increase in area, frontage, width, yard or depth

12 requirements of a zoning ordinance or bylaw shall

13 not apply to a lot for single and two-family

14 residential use which at the time of recording or

15 endorsement, whichever occurs sooner was not held

16 in common ownership with any adjoining land,

17 conformed to then existing requirements and had

18 less than the proposed requirement but at least

19 50,000 -- excuse me. I correct. 5,000 square

20 foot of area and 50 feet of frontage.

21 Any increase in area, frontage,

22 width, yard or depth requirement of the zoning

23 ordinance bylaw shall not apply within the period

24 of five years from its effective date or five

1 years after January 1, 1976, whichever is later,

2 to a lot for single and two-family residential use

3 provided the plan for such lot was recorded or

4 endorsed and such lot was held in common ownership

5 with any adjoining land and conformed to the

6 existing zoning requirements as of January 1, 1976

7 had less area, frontage, width, yard or depth

8 requirements than the newly effective zoning

9 requirements but contained at least 7,500 and

10 75 feet of frontage, and provided that said five

11 year period does not commence prior to January 1,

12 1976 and provided further that the provisions of

13 this sentence shall not apply to more than three

14 of such adjoining lots held in common ownership.

15 The provisions of this paragraph

16 shall not be construed to prohibit a lot being

17 built upon if at the time of the building,

18 building upon such lot is not prohibited by the

19 zoning ordinances or bylaws in effect in the city

20 or town."

21 Did you read it the same way?

22 A. Yes.

23 Q. Do you have knowledge of this

24 section, Ms. Benveniste?

1 A. Yes.

2 Q. Did you apply this section to my ANR

3 applications, the first and the second one?

4 A. I don't believe this applied.

5 Q. Again, I didn't ask if you think it

6 applies. I asked you did you apply. In other

7 words, did you consider this statute by looking

8 into my ANR?

9 A. I can try to answer the question. I

10 don't know if it will be an acceptable answer. As

11 far as my understanding of this section is, it

12 applies to changes in the zoning bylaw. And so

13 whatever zoning bylaw was in place at the time of

14 the application or as I understand it was the one

15 that needed to be applied, so in a very general

16 sense I would apply this.

17 Q. Thanks. You do understand

18 everything which is written in there?

19 A. To the best of my ability.

20 Q. Ms. Benveniste, did you have

21 knowledge of this statute at the time I attended

22 the first meeting with the Board last year on

23 May 7th and thereafter?

24 A. Yes.

1 Q. On May 7, 2002, I attended together

2 with the buyers of the lot Rob and Tammy Mildish

3 for the first time meeting with the Board; is this

4 correct?

5 A. I don't have it in front of me.

6 Q. I will give you a copy. Hold on.

7 A. Thank you.

8 Q. I am handing you Exhibit 19. The

9 document is titled Town of Holland Planning Board

10 minutes meeting of May 7, 2002. Would you please

11 describe to the best of your memory what happened

12 during that meeting?

13 A. I can refer to the minutes. You

14 appeared with two people who you identified as

15 being interested in purchasing one of the parcels

16 in the land that you were referring to. You

17 talked about that there was already your existing

18 house on part of it. That wasn't the part that

19 you were interested in dividing. There was a lot

20 that conforms to the current zoning for ANR and

21 that one was not a problem. It was the remainder

22 of the property that we felt was a problem that

23 didn't front it. You did not give us a map at

24 that time and did not submit an application at

1 that time.

2 MR. FREI: I am handing Exhibit 10

3 to Ms. Benveniste so that she can identify

4 the document.

5 Q. (By Mr. Frei) Can you identify the

6 document; what are you looking at?

7 A. I am looking at a map.

8 Q. Is it a map R.40 accessor's map of

9 the Town of Holland?

10 A. Yes. It also has a section whited

11 out, some lines are whited out and there are some

12 pencil drawings on it.

13 Q. Was this all we had to work with at

14 the time you didn't have the ANR application; is

15 that correct?

16 A. I believe a form of this was what

17 you brought in that May discussion.

18 Q. Do you still have that copy?

19 A. I believe so.

20 Q. Is it correct that the members of

21 the Board claimed because I own two pieces of

22 property, one of which is not conforming, I could

23 not subdivide the adjoining property?

24 MR. MCCAUGHEY: Objection. You can

1 answer.

2 A. No. I don't recall it that way.

3 MR. FREI: Will you please tell me

4 why you object?

5 MR. MCCAUGHEY: It's a leading

6 question.

7 MR. FREI: I have a right to lead.

8 MR. MCCAUGHEY: You do not have a

9 right to lead. Mr. Frei, I am not going to

10 debate the issue.

11 MR. FREI: It is an issue. I just

12 want to have it on the record. I am

13 reading a little section out of

14 Massachusetts Deposition Practice Manual by

15 Peter M. Lorient issued by Massachusetts

16 Continuing Legal Education Incorporated.

17 It's out of the supplement 2003 page seven

18 dash five paragraph seven period two period

19 three Subsection A.

20 "A leading question keep in mind,

21 however, that Massachusetts law and the

22 federal rules of evidence permit

23 examination of a hostile witness an adverse

24 party or any witness identified within the

1 first party by leading questions."

2 Q. (By Mr. Frei) Will you please

3 repeat the answer?

4 A. I think I said no. I don't recall

5 that we discussed or thought that. I think that

6 is what I said.

7 Q. So you don't recall that that was an

8 issue, common ownership of a nonconforming lot?

9 A. No, we didn't. My understanding of

10 what you asked me was not that.

11 Q. Let me rephrase the question. Was a

12 common ownership of two lots, one of which was

13 nonconforming, an issue at that meeting of May 7,

14 2002?

15 A. It was an issue that you raised. We

16 didn't think it applied.

17 Q. Why would I raise that issue?

18 A. You would have to answer that. I

19 can't answer why you would do something.

20 Q. Ms. Benveniste, I will read out of

21 Exhibit 19 is minutes of May 7th where it says,

22 "Mr. Frei said he thought he did not need adequate

23 frontage due to common ownership rights." That

24 was my take. What was your take?

1 A. As I said, we didn't think it

2 applied.

3 Q. Good. So if I understand you

4 correctly, Ms. Benveniste, from now on we can

5 disregard the fact that I own also lot marked with

6 the number two on Exhibit 10 with an area of

7 28,950 square foot; is that correct?

8 A. Are you referring to your existing

9 lot that has your house on it?

10 Q. Yes.

11 A. Yes.

12 Q. From now on this is not an issue any

13 more; it doesn't have anything to do with this

14 subdivision?

15 A. As far as we were concerned, it

16 never did.

17 Q. Do you remember that you claimed

18 that I cannot subdivide lot, which is marked

19 number one on Exhibit 10, into two lots; do you

20 remember that?

21 MR. MCCAUGHEY: Objection.

22 A. At which time are you referring to?

23 Q. (By Mr. Frei) May 7th.

24 A. We would not have made a

1 determination, because you were not making an

2 application.

3 Q. So at that point in time, you didn't

4 see a problem with the proposed subdivision

5 problem?

6 A. I didn't say that.

7 Q. So what were the issues at that time

8 May 7, 2002?

9 A. I believe the issues at that time

10 had to do with the frontage of the rear area. Not

11 your existing house but the rear area that is

12 indicating on this map R.40. Well, it is not the

13 section that has A in the box up there.

14 Q. You are referring to a piece of

15 land, which on Exhibit 10 has 5.3 acres?

16 A. Yes.

17 Q. You don't recall having a

18 conversation about the fact that I could not

19 subdivide because I own both pieces of land and

20 you don't recall conversations about talking about

21 or me asking if I could sell it to somebody else

22 to subdivide it. Do you remember any of those

23 conversations?

24 A. I do remember you asking me

1 something about if you sold it to someone else

2 could you subdivide it.

3 Q. Why would I ask that?

4 A. Again, you would have to answer

5 that. I cannot answer why you would ask

6 something.

7 Q. Do you remember suggesting or any

8 other members of the Board suggesting that because

9 I cannot subdivide it I can donate it to the town?

10 A. No. I don't recall me saying

11 anything like that, and I don't recall if anyone

12 else said it.

13 Q. I am going to read the second

14 sentence of the third paragraph of Exhibit 19.

15 "Mr. Frei wants to divide his lot into three

16 parcels." Would you please explain?

17 A. That was our understanding of what

18 you were proposing at that time. Again, I would

19 like to say that you were talking about this.

20 This is a town accessor's map. We did not have a

21 formal application with an ANR plan on it. We

22 were talking about something that didn't have the

23 lot specified.

24 Q. But you are talking about three

1 parcels?

2 A. That is what my understanding of

3 what you were describing.

4 Q. Would you please show me where those

5 three parcels are on Exhibit 10?

6 A. It would be difficult for me to do

7 that. As I said, this was an informal request on

8 your part with a map that did not have specified,

9 so we were referring to what you were describing

10 verbally at the time. It would be difficult for

11 me to recall the exact details of what the

12 conversation was at that time. The best of our

13 recollection was what is written on these minutes.

14 Q. The next sentence reads, "It is

15 currently two parcels, one of which runs on a

16 driveway." Will you please explain?

17 A. I would guess that what we were

18 talking about was this. Your existing home is one

19 parcel, and the rest of it would be the second

20 parcel maybe. Is that the way it is currently

21 divided?

22 Q. Earlier on you said that you never

23 had an issue with a lot to --

24 A. I don't have an issue with it. You

1 are asking me for parcels. It is a parcel on this

2 property. It is an existing parcel. If it is not

3 an existing parcel, I apologize. I misunderstood

4 that.

5 Q. If it is not an issue and never was,

6 why would you bring it up in your minutes?

7 A. Because you just asked how many

8 parcels are there.

9 Q. My question is actually not how many

10 parcels. My question was: Why did you bring it

11 up in the minutes if it was never an issue?

12 A. It was an attempt to describe what

13 your request for guidance was.

14 Q. What I wanted at that time was to

15 divide lot number one of Exhibit 10 into two

16 parcels. That is what I wanted.

17 MR. MCCAUGHEY: That is not a

18 question.

19 Q. (By Mr. Frei) Is that correct?

20 A. Are you asking me if it's correct

21 what you wanted at the time?

22 Q. Um-hmm.

23 A. Could you repeat and specify what it

24 was you are saying?

1 Q. I am glad to do that. At that time

2 is it correct that I wanted to divide lot number

3 one of Exhibit 10 into two lots?

4 A. I would request to be able to ask a

5 question, because it's hard for me to answer your

6 question without asking for an additional piece of

7 information.

8 Q. What do you need?

9 A. I would like to know if you are

10 including your parcel in lot one or is that a

11 different parcel? Is this all one parcel or is

12 this separate?

13 Q. At that time I came to the Board to

14 talk about the subdivision of lot one into two

15 pieces and I never brought up the issue of the

16 nonconforming lot, which is owned by me too and

17 has 28,950 square foot in acreage.

18 A. Okay. When you were referring to

19 lot one, you were not referring to including the

20 current existing nonconforming lot.

21 Q. No.

22 A. I would have to say I don't recall,

23 because what I do recall is the ANR maps

24 themselves. I have very little recollection of

1 the discussions about this. This is simply not

2 specific enough.

3 Q. The next sentence reads, "He wants

4 to leave the conforming lot as is and divide the

5 other parcel into two additional lots." Would you

6 please explain to me, and I am going to be very

7 specific, which one do you describe as the

8 conforming lot?

9 A. He wants to leave the conforming lot

10 as is. I am guessing that we were talking about

11 the current existing lot, which wouldn't conform

12 currently except that it was grandfathered so it

13 does conform in the sense that it has been

14 grandfathered.

15 Q. Is it correct that the language is

16 kind of misleading and nonexact?

17 A. I wouldn't call it misleading. I

18 would call it nonexact.

19 Q. Would a division like the

20 preexisting nonconforming lot be more accurate?

21 A. Perhaps.

22 Q. Can you think of a better way to

23 describe it?

24 A. Since you stated that it isn't an

1 issue, I am not sure why you are still talking

2 about it. It is not an issue in this division so

3 it was not a focus of our attention. We were

4 simply trying to describe in writing what you were

5 asking about wanting to do.

6 Q. You just said perhaps to my

7 description of a preexisting nonconforming lot. I

8 ask you do you know a better way to describe it?

9 I ask you again.

10 A. In my mind calling it conforming

11 because it's grandfathered and calling it

12 preexisting and nonconforming are equivalent.

13 Q. The next sentence reads, "However,

14 it appeared to us that one of them did not have

15 adequate frontage." Which lot doesn't have

16 adequate frontage?

17 A. Well, again, it is unclear to me

18 based on this map as there is no division

19 indicating on this map, so what we were talking

20 about was something that we were verbally

21 describing to each other.

22 Q. Which information is lacking on this

23 plan here?

24 A. If you were going to divide lot A

1 where the division would occur is not on that map.

2 Q. You are referring to lot one, right?

3 A. I am sorry. Lot one.

4 Q. Is it your understanding too I

5 wanted to divide lot one into two lots?

6 A. That is what the minutes say that

7 you said at that time. To be perfectly frank, I

8 do not have a direct recall of the conversation

9 word for word so I am relying on minutes that says

10 you said that you wanted to leave your current

11 house lot as it was and you wanted to divide the

12 parcel into two additional lots. That is what the

13 minutes says. I am going to assume that is what

14 the conversation was at the time.

15 Q. So we established that my intention

16 was to divide lot one into two lots, correct?

17 A. That is what the minutes say.

18 Q. What will be the requirements in

19 order to be able to subdivide a lot into two lots?

20 A. There is an acreage requirement and

21 a frontage requirement.

22 Q. What is the frontage requirement?

23 A. It's 200 feet on a public way.

24 Q. How many feet does lot one have on

1 Exhibit 10?

2 A. Again, I am going to say if you

3 wanted to divide it into two lots there is no

4 division on this map so I don't know where the

5 division would occur. I couldn't tell you what

6 part of what lot would front on Maybrook Road.

7 Q. Right now we are talking about the

8 frontage requirement for two lots. What is the

9 frontage requirement for two lots?

10 A. Two separate lots each one would

11 have to have 200 feet frontage.

12 Q. How many feet do we have here for

13 lot one along Maybrook Road?

14 A. This map says 514.

15 Q. Is that more or less than 400 feet?

16 A. That is right.

17 Q. In other words, the requirement in

18 terms of frontage on a legal road will be

19 sufficient?

20 A. If that is the way it was divided.

21 There are no divisions on this map. There are no

22 divisions on this map.

23 Q. That is correct.

24 A. Right. So I can't tell you what

1 your divisions how they would front because I

2 don't have any here.

3 Q. We do have more than 400 feet

4 frontage; is that correct?

5 A. Yes.

6 Q. Then we do have more than two acres;

7 is that correct?

8 A. Yes.

9 Q. I would like to go back to Exhibit

10 28. Ms. Benveniste, did you have any reservations

11 about my claim that the way leading through lot

12 one is a preexisting private way?

13 A. I don't understand the question.

14 Sorry.

15 Q. I will try to rephrase it. What is,

16 in your opinion, the legal status of the way

17 leading from Maybrook Road to the back of lot one

18 on Exhibit 10?

19 A. I don't know what the leading status

20 of the road is.

21 MR. MCCAUGHEY: Mr. Frei, I would

22 have to ask you to indicate where you want

23 to draw my client's attention on the map.

24 Please take a seat.

1 MR. FREI: I can do that. No

2 problem.

3 Q. (By Mr. Frei) So you don't have an

4 opinion about the legal status?

5 A. I don't have the information as to

6 what the legal status of the road is. A legal

7 status is a legal status. I don't have the

8 information.

9 Q. Do you think the legal status of

10 this way effects the outcome of my first ANR?

11 A. You are no longer referring to this

12 map in what you are talking about. You are now

13 referring to the first application to the ANR,

14 which occurred in July.

15 Q. That is correct.

16 A. If I am going to answer a question

17 about that, I would prefer to have that map in

18 front of me instead of this one.

19 Q. Let me rephrase that. We just

20 established that lot one on Exhibit 10 could be

21 divided into two lots. Each one of the two lots

22 would also meet the requirements in terms of

23 frontage and acreage; is that correct?

24 A. Yes.

1 Q. So at that time, I am talking May 7,

2 2002, the legal status of this way leading through

3 lot one was not an issue?

4 A. That is not true.

5 Q. That is not true?

6 A. Correct.

7 Q. So what is the truth?

8 A. The truth is that the status --

9 well, I mean, I am sorry. The legal status of the

10 road was not what our concern was.

11 Q. So it was not your concern but it

12 was an issue?

13 A. No.

14 Q. It was not an issue; it was not a

15 concern to yours?

16 A. The legal status of the road was not

17 an issue. We had other concerns about it.

18 Q. Let me ask you something. If I am

19 going to proceed, are you later on going to go

20 back and are you going to question the legality of

21 the private way? Because at one point in time, we

22 will have to conclusively determine if this

23 private way in your opinion is just a driveway.

24 MR. MCCAUGHEY: Objection.

1 A. I think we both can agree that the

2 roadway that you are referring to is not a public

3 road.

4 Q. (By Mr. Frei) Yes.

5 A. Good. Whether it is a private way

6 or a roadway that is designated some other status

7 besides a private way, the concerns of the

8 Planning Board remain accessibility, quality of

9 the road, can vehicles pass, et cetera, so that

10 the status of the road itself as long as it is not

11 public is not the issue that we were concerned

12 about. It was the quality of the road.

13 Q. I want to establish that this way is

14 a private way according to the statute of

15 Massachusetts General Law. I do not want to

16 establish that it is adequate. First I want to

17 just concentrate if it is actually according to

18 the statute a private way. Do you understand

19 this?

20 A. I understand that.

21 Q. So my question, again, are you going

22 to bring up this issue later on again or do you --

23 in your opinion is this way a legal private way?

24 MR. MCCAUGHEY: Objection.

1 A. In my understanding with the law, it

2 is not my determination to make if a road is a

3 private or not. You keep asking me for my

4 opinion. As far as my understanding of the law, a

5 roadway is determined to be public or private by

6 some way that doesn't involve me so that I would

7 need to find out the status of the road. It is

8 not something that I determine.

9 Q. (By Mr. Frei) Let's try to do that.

10 A. Let's try to do what?

11 Q. Let's try to establish the fact that

12 it is a private way according to the statute.

13 Let's go back to Exhibit 28 page two of two. I'll

14 read the whole thing. I don't want to read it

15 again. But on the seventh line of the second

16 paragraph on page two it says under C, "The way in

17 existence when the subdivision control law became

18 effective in the city or town in which the land

19 lies." Do you read that the same way, Ms.

20 Benveniste?

21 A. Yes.

22 Q. And do you agree with me, Ms.

23 Benveniste, that this sentence is in the paragraph

24 where a subdivision so called ANR subdivision is

1 defined?

2 A. Yes.

3 Q. So do you agree with me that there

4 are three different definitions of legal statutory

5 ways which can provide frontage; is that correct?

6 A. Yes.

7 Q. So you do agree that C applies to my

8 situation?

9 A. No, I do not.

10 Q. You do not?

11 A. No. I am going to say this again.

12 I am not going to make a determination as to

13 whether that roadway is private or not. I do not

14 feel it is my role or within my authority to do

15 that so I am not going to.

16 Q. Isn't it correct that as chairman of

17 the Planning Board it is your duty to make such

18 determinations?

19 A. No. It is not my duty to determine

20 whether a road is public or private, no. It is

21 not my duty.

22 MR. MCCAUGHEY: I would like to take

23 a break.

24 A. Thank you.

1 (A recess was taken)

3 MR. FREI: Back on the record.

4 Q. (By Mr. Frei) Ms. Benveniste, isn't

5 that what zoning bylaw is all about, frontage and

6 acreage?

7 A. I answered the question already.

8 Q. Will you please answer my question?

9 A. I answered the question already.

10 Q. Ms. Benveniste, how can you make a

11 determination if an ANR is actually an ANR if you

12 don't know the status of legal roads?

13 A. I don't know how to answer that.

14 Q. Ms. Benveniste, who else can I ask?

15 You are the chairman.

16 A. I don't know how to answer that

17 either.

18 Q. Are you aware of your

19 responsibilities your having sitting in this Board

20 as chairman?

21 MR. MCCAUGHEY: Objection.

22 Q. (By Mr. Frei) You still have to

23 answer.

24 A. Yes.

1 Q. And in your opinion, you are

2 exercising that responsibility in your responsible

3 way?

4 A. I answered the question already. I

5 told you what my duties were in terms of this. I

6 answered the question already.

7 MR. FREI: I am handing Ms.

8 Benveniste a document. It's Exhibit 2. I

9 would like her to identify this document.

10 A. I don't know what this document is.

11 Q. (By Mr. Frei) It's a deed.

12 A. Okay.

13 Q. To the property, which is identical

14 to lot two on Exhibit 10. The lot which has

15 28,950 square foot.

16 A. Where is lot two? The one you said

17 that is not part of this discussion?

18 Q. Yes.

19 A. Then I don't know why I am

20 discussing it.

21 Q. We are discussing it because we are

22 in the process of establishing the legal status of

23 the way leading through lot one on Exhibit 10 that

24 which we are doing.

1 A. I am not going to establish the

2 legal status of the road, so you can show me any

3 documents you like. I am not going to establish

4 the legal status of that road.

5 Q. Why?

6 A. I've already stated it.

7 Q. Will you please count how many times

8 the description of the deed on Exhibit 2 makes

9 mentioning of a private way?

10 A. There are seven words private way

11 that you highlighted.

12 Q. Is it correct that this deed

13 actually refers seven times to a private way?

14 A. I haven't read it.

15 Q. Will you please read it?

16 A. May I read it out loud?

17 Q. If you want to.

18 A. "A certain piece or parcel of land

19 situated in Holland in the County of Hampden and

20 Commonwealth of Massachusetts bounded and

21 described as follows: Beginning at an iron pipe

22 driven into the ground in the easterly line of the

23 private way, which point is the south westerly

24 corner of the herein described parcel of land and

1 which point is about 450 feet northerly from the

2 southeast corner of the intersection of said

3 private way and a highway events running easterly

4 in the distance of 47 feet to an iron pipe

5 etcetera."

6 Q. That would be this here, 47?

7 A. I do not understand what they are

8 referring to nor do I understand what highway they

9 are referring to.

10 Q. That is why I am helping you. The

11 highway they are referring to is Maybrook Road.

12 A. Again, I am not going to specify

13 that that is a private road. You can show me the

14 deed if you like. It's not within my authority

15 and opinion to make a determination as to whether

16 things are private roads.

17 Q. You still have to answer my

18 questions. Are you done reading?

19 A. Yes.

20 Q. My question, again, does the deed

21 refer to that private way seven times?

22 A. Yes.

23 Q. What is the date on that deed?

24 A. It looks like 27th July 1942.

1 Q. What type of zoning bylaws were in

2 effect in the Town of Holland at that time?

3 A. I don't know.

4 Q. Are you still reading that?

5 A. No.

6 Q. Thanks.

7 MR. FREI: I am handing another

8 document Exhibit 25 for Ms. Benveniste. I

9 would like her to identify such a document.

10 Q. (By Mr. Frei) Would you please

11 identify this document?

12 A. It's a letter from the town clerk

13 addressed to Peter Frei.

14 Q. Would you please read the contents?

15 A. "Mr. Frei, the Town of Holland

16 original bylaws zoning were adopted October 28,

17 1975 according to our records."

18 Q. Is it fair to say that this letter

19 concerns that the first time the Town of Holland

20 adopted zoning bylaws was in 1975?

21 A. I guess so.

22 Q. The date on the deed, does that date

23 of 1942 predate the adopting of zoning bylaws in

24 the Town of Holland?

1 A. Yes.

2 Q. Ms. Benveniste, do you still think

3 the way leading through Exhibit 10 part one is a

4 driveway and not a legal road?

5 A. I already answered the question.

6 Q. Which was you don't want to know or

7 you don't care to know?

8 MR. MCCAUGHEY: Objection.

9 A. Excuse me?

10 Q. (By Mr. Frei) I think it would do

11 us all a favor if you would answer the questions.

12 MR. MCCAUGHEY: Don't respond to

13 that.

14 A. That is not a question.

15 Q. (By Mr. Frei) No, it's not. It's a

16 comment.

17 MR. MCCAUGHEY: If the comments keep

18 coming, we are going to go home.

19 MR. FREI: I am handing another

20 exhibit to Ms. Benveniste and I would like

21 her to identify it.

22 Q. (By Mr. Frei) I cannot lean over so

23 I think you need to unfold it. Would you please

24 identify this document?

1 A. It's a topographical map edited and

2 published by geological service.

3 Q. What is the date on the map?

4 A. 1942 to 1943 revised from areal

5 photographs taken 1966 field check 1967.

6 Q. Is it correct that those dates

7 predate the adoption of the first zoning bylaw in

8 the Town of Holland?

9 A. Yes.

10 Q. Have you ever seen this map before?

11 A. I can't recall.

12 Q. Who issued the map?

13 A. I don't know. United States

14 Department of the Interior Geological Survey

15 Quadrangle Massachusetts, Connecticut.

16 Q. Can you see that there is actually a

17 road or a way leading onto the property on Exhibit

18 10?

19 A. No. I am not good at reading these

20 kinds of maps.

21 Q. In other words --

22 A. It's a topographical map. I am

23 really unclear about all these lines and things

24 like that so, no.

1 MR. MCCAUGHEY: Mr. Frei, if you can

2 indicate to me where you would like to draw

3 her attention, I will bring her attention

4 to it. Would you like to do that?

5 MR. FREI: Sure.

6 MR. MCCAUGHEY: Why don't you ask

7 her about the yellow highlighted area if

8 she can identify it.

9 MR. FREI: I cannot. It's difficult

10 for me because I am not supposed to lean

11 over there.

12 MR. MCCAUGHEY: The other way of

13 doing that is you highlighted an area. If

14 you draw her attention to that yellow area,

15 ask her if she can identify that yellow

16 area.

17 Q. (By Mr. Frei) Ms. Benveniste, can

18 you identify the yellow area?

19 A. There it says Maybrook Road. And

20 then outside of it, it says Bronson Road. It's

21 Hamilton Reservoir.

22 Q. Can you make out the outline of the

23 peninsula?

24 A. Yes.

1 Q. Can you make out the lines, which

2 indicate that there is a road?

3 A. There is a dark line in the circle.

4 There are three dots and there is a dotted line.

5 Q. Would it be fair to say that that

6 dotted line is a road?

7 A. I couldn't tell you. Already

8 answered.

9 Q. Now, I would like to go back to

10 Exhibit 29, which is a printout of Chapter 40A

11 Section 6. I would like to read the definition of

12 a nonconforming lot, which is in the fourth

13 paragraph. "Any increasing area of frontage,

14 width, yard or depth requirements of zoning

15 ordinances or bylaw shall not apply to a lot for

16 single and two-family residential use, which at

17 the time of recording or endorsement, whichever

18 occurs sooner or was not held in common ownership

19 with any adjoining land, conformed to then

20 existing requirements and had less than the

21 proposed requirement but at least 5,000 square

22 foot of area and 50 feet of frontage."

23 Did you read this the same way?

24 A. Yes.

1 Q. So in other words, is it correct

2 that this description applies to lot two on

3 Exhibit 10, which is this lot here?

4 A. Again, you are referring to the

5 currently existing lot that you said was not part

6 of this discussion, right?

7 Q. I am referring to lot number two,

8 which is 28,950 square foot and I am referring to

9 that lot in the process of establishing the legal

10 status of the way leading through the property on

11 Exhibit 10.

12 A. I am going to say this again. I

13 will not determine the status of this way today.

14 Q. My question was not if you will do

15 that. My question was: Does this apply to lot

16 two? In other words, does lot two have at least

17 5,000 square foot in area?

18 A. You said earlier we were not talking

19 about lot two.

20 Q. Will you please answer my question?

21 A. I don't know. I haven't looked at

22 lot two. It's not part of this case.

23 Q. Let me help you. Lot two I am

24 referring to has 28,950 square foot. Is that more

1 or less than 5,000 square foot?

2 A. It's more.

3 Q. So that requirement applies,

4 correct?

5 A. I don't know.

6 Q. The other requirement is 50 feet

7 frontage along the statutory road, which is the

8 definition A, B, C of Chapter 41 Section 81L. How

9 many frontage feet, how many feet frontage does

10 lot two have; can you read it?

11 A. Didn't you just say what the

12 frontage was before?

13 Q. No, we were talking about footage.

14 A. 165 feet.

15 Q. So is 165 feet more or less than

16 50 feet?

17 A. More.

18 Q. So it is fair to say that

19 requirement applies too?

20 A. I don't know.

21 Q. And is satisfied?

22 A. I don't know.

23 Q. Earlier on you claimed to be

24 familiar with Chapter 40A Section 6; is that

1 correct?

2 A. Yes.

3 Q. You also claimed to understand to

4 your best ability what is actually written in that

5 statute; is that correct?

6 A. Yes.

7 Q. You also claimed that you actually

8 applied this section in dealing with this

9 situation; is that correct?

10 A. Yes.

11 Q. I am going to hand you Exhibit 20.

12 I would like you to examine it and identify this

13 document to me.

14 A. It says it's a plaintiff's motion

15 for summary judgment.

16 Q. Yes. Will you please read the

17 docket number?

18 A. I don't know where the docket number

19 is located. 96-71.

20 MR. FREI: For the record, we are

21 looking at Exhibit 20, which is a court

22 document from Superior Court Department

23 Hampden County. And as Ms. Benveniste

24 stated, it is docket number 9671. It's

1 plaintiff's motion for summary judgment.

2 It refers to an earlier lawsuit and same

3 parties. Plaintiff was me, Peter Frei.

4 The defendant was Town of Holland. It was

5 a dispute over a zoning issue in which the

6 superior judge ruled that lot number two on

7 Exhibit 10 falls under the definition of

8 Chapter 40 Section 6.

9 Q. (By Mr. Frei) Ms. Benveniste, do

10 you have a problem with this document?

11 A. Specify.

12 Q. Do you agree with the judge or you

13 don't agree with the judge?

14 A. The judge is the determination of

15 the law.

16 Q. Thanks. So do you think we

17 established now that the way running through lot

18 number one on Exhibit 10 is, in fact, a statutory

19 way?

20 A. I already answered the question.

21 Q. So you are still not sure?

22 A. I didn't say I wasn't sure.

23 MR. MCCAUGHEY: I would like to

24 interject. If we continue to ask about

1 something that has been asked five or six

2 times, if we cannot move on to a different

3 area, we are leaving. The party, the

4 witness has responded, in my opinion, five

5 or six times to the same question and we

6 need to move on or we will leave.

7 Q. (By Mr. Frei) Let's go back to

8 Exhibit 19 minutes of May 17, 2002. The last

9 sentence of the paragraph, which deals with my

10 business I had with the Planning Board reads, "We

11 will research this further." What kind of

12 research did you do, Ms. Benveniste?

13 A. We looked into the applicable laws.

14 We spoke to the building inspector. That is what

15 we did.

16 Q. What were your questions?

17 A. I don't recall.

18 Q. I am going to hand you Exhibit 13

19 minutes of May 21, 2002. Will you please identify

20 the document and tell me if it is correct?

21 A. It looks correct to me. It says,

22 "The minutes of May 21, 2002."

23 Q. First sentence of the fourth

24 paragraph reads, "Peter Frei returned to further

1 discuss with us. They decided to obtain an ANR

2 approval for division of Mr. Frei's lot." Is that

3 correct?

4 A. Yes.

5 Q. Next sentence reads, "Mr. Frei

6 brought copies of Massachusetts General Law

7 sections to argue his case. Deb informed him that

8 the issues related to the subdivision control law

9 Section 41 of Massachusetts General Law and gave

10 him cases, which address issues similar to his."

11 Do you read it the same way?

12 A. Yes.

13 Q. I am going to hand you another

14 document now Exhibit 11. Do you remember seeing

15 this before?

16 A. No. I know you handed us a bunch of

17 stack of documentation over various periods of

18 time. I don't remember this specific one.

19 Q. It's Exhibit 11 consisting of eight

20 pages of case law and the statute. Will you

21 please go through it and confirm to me there is a

22 copy of Chapter 40A Section 6 within those

23 documents, please?

24 A. Yes.

1 Q. Do you remember reading it at that

2 time?

3 A. I don't recall.

4 Q. I am handing you another exhibit.

5 It's Exhibit 21. I will like you to identify the

6 document. What is it, Ms. Benveniste?

7 A. A piece of paper with a question on

8 it. There is an ink drawing on the back.

9 Q. Have you seen it before?

10 A. I don't recall.

11 Q. I am reading off Exhibit 13 minutes

12 of May 21. "Deb informed him that the issues

13 related to the subdivision control law Section 41

14 of MGL and gave him cases, which address issues

15 similar to his. Her primary concern was to issue

16 of practical access from the public road to the

17 building portion of the building on his lot." Do

18 you remember now, Ms. Benveniste?

19 A. Specify, please.

20 Q. Do you remember now that you gave me

21 material as described in what I just read in the

22 minutes on May 21, 2002?

23 A. I did find cases that I felt applied

24 to your situation. I do not recall the specific

1 names of those cases at that time.

2 Q. Are those the cases on the document?

3 MR. MCCAUGHEY: You don't have to

4 answer that. We already responded to that.

5 Can we move on?

6 MR. FREI: For the record, Exhibit

7 21 is a document Ms. Benveniste handed me

8 on May 21, 2002.

9 MR. MCCAUGHEY: Objection. You are

10 not a witness.

11 MR. FREI: Consisting of --

12 MR. MCCAUGHEY: If you continue to

13 put evidence in as you were the witness, we

14 are going to leave.

15 MR. FREI: -- 14 lines of text.

16 MR. MCCAUGHEY: I understand you are

17 pro se, and we are trying to be patient.

18 This is a question and answer session.

19 It's not an opportunity for you to testify.

20 Q. (By Mr. Frei) Ms. Benveniste, do

21 you have knowledge of any of these cases, which

22 are listed on Exhibit 21?

23 A. I don't recall the specifics of

24 these cases at this time.

1 Q. Do you recall if you read them at

2 all at one point in time?

3 A. I don't recall.

4 Q. I read, again, off of Exhibit 13

5 minutes of May 21st. "Deb informed him that the

6 issues related to subdivision control laws Section

7 41 Section L and gave him cases, which address

8 issues similar to his." Ms. Benveniste, it

9 clearly states you gave me cases; is that correct?

10 A. Yes.

11 Q. But you don't recall what kind of

12 cases?

13 A. I already answered.

14 Q. Ms. Benveniste, do you recall if you

15 gave me just narratives or if you handed me full

16 text versions of cases?

17 A. I don't recall.

18 Q. I am referring to Exhibit 21.

19 Again, Ms. Benveniste, can you see any narratives

20 which apply to my situation of my ANR on this

21 document Exhibit 21?

22 A. I don't feel competent to be making

23 a determination as to your ANR status in the

24 middle of this deposition. You are asking me to

1 make a decision about something and I don't feel

2 this is the time or place. I don't feel able to

3 make a determination as to whether those cases

4 apply to your ANR project at this time in this

5 environment.

6 Q. I am going to hand you a document.

7 It's Exhibit 12. I will like to ask you, Ms.

8 Benveniste, to identify it for me?

9 A. It's a piece of paper that says,

10 "Memorandum in support of request for ANR plan

11 under GLC 41-S 81P." It's a stack of documents,

12 papers.

13 Q. Have you ever seen it before?

14 A. It looks like a copy of what you

15 gave to us during one of these meetings.

16 Q. If you look at these cases, do you

17 remember reading any of this material after it was

18 in your possession?

19 A. I don't recall.

20 Q. Back to Exhibit 13 minutes of

21 May 21st. I read off of the minutes. "Her

22 primary concern was the issue of practical access

23 from the public road to the buildable portion of

24 his lot." Do you read it the same way?

1 A. Yes.

2 Q. I don't have any other way but just

3 to use these documents even so you don't remember

4 them and you just assume it's going to be what I

5 gave you at that time.

6 MR. MCCAUGHEY: Objection. We

7 are not going to do that.

8 Q. (By Mr. Frei) It's actually

9 established in other places that those copies are

10 in effect. The copies --

11 MR. MCCAUGHEY: If you have a

12 question to ask, you have to ask a

13 question.

14 Q. (By Mr. Frei) The copies --

15 MR. MCCAUGHEY: Can we take a break?

16 MR. FREI: Sure.

18 (A recess was taken)

20 MR. MCCAUGHEY: Back on the record.

21 I just want to say this. I have a

22 a timetable probably at 12:30 I have to

23 leave, so I am hoping we can move forward

24 number one. Number two, I'd ask him not to

1 repeat questions again so that we can move

2 forward. Obviously, if he wants to spend

3 more time after 12:30, we have to

4 reschedule for another time.

5 MR. FREI: No. I am not willing and

6 I am not able to do that.

7 MR. MCCAUGHEY: Then we will go to

8 court and consider it at that time.

9 MR. FREI: You know, that is up to

10 you. I insist on going forward.

11 MR. MCCAUGHEY: Go forward. I am

12 telling you.

13 MR. FREI: If you leave, you do that

14 without my permission.

15 MR. MCCAUGHEY: That is fine.

16 Q. (By Mr. Frei) Let's go back to

17 Exhibit 13 minutes of May 21, 2002. "Mr. Frei

18 argued that a private road was acceptable for

19 access for an ANR. He also thinks that his lot is

20 subject to be grandfathered as to a private way

21 was established in the original house built in

22 1942." Do you disagree with that statement? In

23 other words, do you disagree to what I think?

24 A. We didn't make a determination at

1 that time, because there was no application at

2 that time.

3 Q. That is correct. I'll read it

4 again. I will like you to answer if my thinking

5 was correct or if you disagree with my thinking.

6 It says, "He also thinks that his lot is subject

7 to being grandfathered as to a private way was

8 established in the original house built in 1942."

9 MR. MCCAUGHEY: Objection. Don't

10 answer that. You already answered it.

11 Q. (By Mr. Frei) Do you have an

12 opinion to this sentence?

13 A. I already answered it.

14 Q. Okay. Let's turn our attention to

15 the meeting of June 18, 2002. I am handing you a

16 copy of Exhibit 14 and I will like you to identify

17 it for me.

18 A. It says, "Minutes of June 18th for

19 Planning Board July 2002."

20 MR. FREI: Do you want a copy, Mr.

21 Johnson?

22 MR. JOHNSON: No.

23 Q. (By Mr. Frei) So, Ms. Benveniste,

24 according to the minutes on June 18, 2002, I

1 finally submitted my first ANR with the Board; is

2 that correct?

3 A. Yes.

4 Q. It also states that I submitted case

5 law, I think I thought applied as well; is that

6 correct?

7 A. Yes.

8 Q. It also states that you have some

9 reservations about the ANR; is that correct?

10 A. It doesn't state that.

11 Q. Deb spoke -- I am reading off the

12 minutes. "Deb spoke with Jack Keogh about this

13 application and he said he will check further but

14 it doesn't look to him either that this division

15 meets the criteria for an ANR. We will also check

16 with the town attorney. We requested that Mr.

17 Frei return for our next scheduled meeting in

18 July, and we will give him our decision at that

19 time." Is it correct that there were issues you

20 didn't endorse during that time?

21 A. Yes, that is true.

22 Q. Let's turn to Exhibit 12 to the case

23 Gallitano vs. Board of Survey & Planning of

24 Waltham. Would you please turn to page nine?

1 A. (Witness complying)

2 Q. This case addresses an issue you had

3 with my ANR. I am going to read part of it. "In

4 the circumstances, the city's Planning Board was

5 without authority to decline to endorse a plan as

6 a plan not requiring approval under the

7 subdivision control law on the basis that despite

8 literal compliance of each lot with the applicable

9 area and frontage requirements, the plan would

10 leave certain of the lots without easy access to

11 utility and municipal services and, as to one of

12 the lots, would create a traffic hazard.

13 The decision of the Supreme Judicial

14 Court in Gifford vs. Planning Board of Nantucket,

15 376 Mass. 801 in 1978 was not intended to broaden

16 the powers of Planning Boards and, in general,

17 should not be read as applying to a plan in which

18 the buildable portion of each lot is connected to

19 the required frontage by a strip of land not

20 narrower than the required frontage at any point."

21 My question is: Do you remember

22 reading this?

23 A. No.

24 Q. Ms. Benveniste, in Exhibit 12 are

1 those full text case versions of court findings

2 two to five cases on Exhibit 21 we discussed

3 earlier?

4 A. Excuse me? Are you asking me are

5 these the full text case versions of those?

6 Q. Yes.

7 A. I don't know.

8 Q. Will you please verify?

9 A. There is a case in here I don't see

10 listed on this list.

11 Q. Which one would that be?

12 A. Commonwealth vs. Wendell J. Tabor,

13 Jr.

14 Q. That is probably on the opposite

15 page. Where the next case starts there is another

16 one.

17 A. There is another one here that isn't

18 part of this. William H. Herbert vs. State Ballot

19 Law Commission & Others. Long Pond Estates, Ltd.

20 vs. Planning Board of Sturbridge & Others is not

21 here either, yes.

22 Q. So there is some additional

23 information on Exhibit 12, which is not on Exhibit

24 20; is that correct?

1 A. No.

2 Q. No?

3 A. It's not correct.

4 Q. Didn't you just say yes but this is

5 not on there and this is not on there?

6 A. It's Exhibit 21.

7 Q. Okay. I am sorry. I correct

8 myself. I ask again. Exhibit 12 contains all the

9 case law, which is referred to on Exhibit 21?

10 A. Yes.

11 Q. It just has some parts of additional

12 cases?

13 A. Yes.

14 Q. Is it correct, Ms. Benveniste, that

15 the minutes to the meeting of June 18th do not

16 mention that a vote was taken during the meeting

17 on my application?

18 A. That is true.

19 Q. Was there a vote taken during the

20 meeting, which occurred on May 21, 2002?

21 A. You had not submitted an application

22 on May 21st. We had nothing to vote on.

23 Q. I am handing Exhibit 8 to you, Ms.

24 Benveniste, with the request to identify the

1 document.

2 A. It looks like this is an ANR

3 application map that you submitted for the June

4 meeting.

5 Q. What day of June?

6 A. I am assuming from what we wrote on

7 the June 18th in the minutes that is when you

8 submitted a formal request. I am assuming you

9 submitted this map at that time.

10 Q. The next meeting took place on

11 July 2, 2002; is that correct?

12 A. I don't know. I don't have those

13 minutes in front of me.

14 Q. Just a moment and I will give you a

15 copy.

16 A. Would you repeat your question,

17 please?

18 Q. The next town meeting with the

19 Planning Board took place on July 2, 2002; is that

20 correct?

21 A. Yes.

22 Q. I just handed you Exhibit 16, which

23 I will like to introduce as minutes of July 2,

24 2002 with Town of Holland Planning Board. I am

1 going to read the paragraph in regards to my

2 application. "Peter Frei, 101 Maybrook Road

3 appeared before the board for the decision of

4 their request for an ANR for Mr. Frei's property.

5 We informed Mr. Frei that based on an anonymous

6 vote we are denying the request based on several

7 factors, which we discussed with the building

8 inspector and the town attorney Mr. McCaughey. We

9 believe that the decision would make a

10 nonconforming lot more nonconforming."

11 Will you please explain to me this?

12 A. I think it's self-explanatory.

13 * Q. You claim that it was a

14 nonconforming situation. What was the

15 nonconforming situation?

16 A. The buildable portion of -- well,

17 let's see now. There is one lot up here. There

18 is a second lot here. Then there is lot A. My

19 recollection is that lot A was conforming and that

20 was not creating a difficulty for us. The

21 difficulty --

22 Q. You are referring to lot one, right,

23 on Exhibit 10?

24 A. No. I am not referring to lot one

1 on Exhibit 10. I am referring to lot A on Exhibit

2 8.

3 Q. Okay.

4 MR. MCCAUGHEY: Will you let the

5 witness finish her answer, please. Go

6 ahead.

7 A. My recollection is we did not have a

8 problem with lot A. We did have a problem with --

9 see the difficulty, part of the difficulty is that

10 this is a different map than the map submitted for

11 the second application and so the back part of it

12 is different. But it looks like this lot one back

13 here is separate from lot A. It's lot one that we

14 have a problem with, because the buildable portion

15 of the lot is very very far away from the access

16 to the public road. And the road that it fronts

17 on, we determined was not adequate for general

18 traffic as well as municipal vehicles.

19 MR. MCCAUGHEY: Would you read the

20 last question back that he asked her.

22 * (Question read)

24 Q. (By Mr. Frei) Let's go back to my

1 question. What was the nonconforming situation

2 before it became more nonconforming through this

3 application?

4 A. I don't understand the question.

5 Q. I'll read it again. "We believe

6 that the division would make a nonconforming lot

7 more nonconforming." So is it correct we have a

8 situation, which you will look at nonconforming

9 and then I make an application for an ANR and then

10 it becomes more nonconforming?

11 A. Yes.

12 Q. What was nonconforming on this

13 situation before my ANR application?

14 A. I don't recall.

15 Q. It hasn't changed. It still is the

16 same situation.

17 MR. MCCAUGHEY: It's not a question.

18 Q. (By Mr. Frei) Will you please try

19 to answer?

20 MR. MCCAUGHEY: Don't answer the

21 question any more. If you are satisfied,

22 you answered it.

23 A. It's to the best of my ability to

24 answer the question.

1 Q. (By Mr. Frei) Then my next question

2 is: What is more nonconforming now?

3 A. I already answered the question.

4 Q. Is it correct that this subdivision

5 creates two lots out of one lot and each lot

6 satisfies the requirements of the subdivision

7 control law?

8 A. No.

9 Q. So which requirement is not

10 satisfied?

11 A. The access to the buildable portion

12 of the second lot.

13 Q. The second lot being the reminder of

14 this lot here?

15 A. Which lot here are you referring to?

16 Q. This here.

17 A. I don't know if they understand what

18 this here refers to.

19 Q. It's defined as reminder of book

20 7120 page 529.

21 A. Where it says lot one in pencil?

22 Q. Where it says reminder of book 7120

23 page 529. I am talking about this portion. That

24 is what you are referring to?

1 A. Yes. That is what I am referring

2 to.

3 Q. If I am not mistaken, you claim that

4 through this subdivision this lot becomes

5 unaccessible?

6 A. I already answered that question.

7 Q. So in other words, you have an issue

8 about accessibility of this portion of the

9 property?

10 MR. MCCAUGHEY: It's already been

11 asked and answered, please.

12 A. Okay.

13 Q. (By Mr. Frei) Let's go back to

14 Exhibit 12 the Gallitano case.

15 A. Yes.

16 Q. I will like you to go to the page,

17 which is marked 270, where there is like a drawing

18 of a subdivision. It's this page here.

19 A. 270?

20 Q. It's on page ten of Exhibit 12. Did

21 you find it?

22 A. I am asking you if it is page 270?

23 Q. Yes. Would you please read the

24 case?

1 A. The entire thing?

2 Q. Starting at 269.

3 A. Where is that?

4 Q. It is the previous page.

5 A. Please specify where you want me to

6 read.

7 Q. Where it starts with Leo Gallitano &

8 Another vs. Board of Survey and Planning of

9 Waltham.

10 A. "In the circumstances, a city's

11 Planning Board was without authority to decline to

12 endorse a plan as a plan not requiring approval

13 under the subdivision control law on the basis

14 that, despite literal compliance of each lot with

15 the applicable area and frontage requirements, the

16 plan would leave certain of the lots without easy

17 access to utility and municipal services and, as

18 to one of the lots, would create a traffic

19 hazard."

20 Q. Would you stop here?

21 A. Yes.

22 Q. Is this like the same situation that

23 I have here, difficult access to one of the lots?

24 A. I can't say.

1 Q. Will you please proceed?

2 A. "The decision of the Supreme

3 Judicial Court in Gifford vs. Planning Board of

4 Nantucket, 376 Mass. 801 (1978), was not intended

5 to broaden the powers of Planning Boards and, in

6 general, should not be read as applying to a plan

7 in which the buildable portion of each lot is

8 connected to the required frontage by a strip of

9 land not narrower than the required frontage at

10 any point."

11 Q. I will like to interrupt here. Does

12 this sound like it applies to my situation?

13 A. I don't know. I am not familiar

14 with the specifics of this case.

15 Q. Please proceed.

16 A. "Civil action commenced in the

17 Superior Court Department on February 28, 1979.

18 The case was heard by Ronan J. Robert J. Brophy,

19 Assistant City Solicitor, for the defendant Peter

20 B. Collins, for the plaintiff Armstrong J. The

21 plaintiffs, Leo and Mary Gallitano, won a parcel

22 of land in Waltham containing 7.048 acres and

23 numbered 595 Beaver Street. On January 28, 1979,

24 they submitted to the defendant, Board, plan

1 showing a four-way division of the parcel,

2 requesting that it be endorsed under G.L.c.41 81P,

3 as a plan not requiring approval.

4 After a hearing the Board on

5 February 9, 1979, declined to give the requested

6 endorsement. The Gallitanos appealed under

7 G.L.c.41, 81BB, to the Superior Court. On

8 July 24, 1979, a judge of that court entered a

9 judgment under Mass.R.Civ.P.56, 365 Mass. 824

10 (1974), ordering that the requested endorsement be

11 given. The case is before us on the Board's

12 appeal from that judgment."

13 Q. Can I interrupt there? Do you

14 understand that first the Board declined it and

15 then he took it to court and the judge forced the

16 Board to endorse the plan despite the difficult

17 access to one of the lots?

18 A. The judge overturned the Planning

19 Board's decision in the case, as far as I

20 understand.

21 Q. Yes. Will you please proceed?

22 A. "Facts which are, in our opinion,

23 decisive of the appeal are not in dispute. The

24 proposed division, shown in rough diagram in

1 figure one, would divide the Gallitano's parcel

2 into four lots (1A, 1B, 1C and 1D), each meeting

3 the requirements of the Waltham zoning ordinance

4 for a buildable lot in the residential district

5 where the parcel is located. The ordinances

6 specifies not minimum frontage requirement; each

7 of the lots has frontage on Beaver Street, an

8 accepted public way, for a distance not less than

9 the 20 feet specified in G.L.C.41, 81L.

10 Measured against the literal requirements of 81L,

11 therefore, the Gallitanos' plan does not show a

12 subdivision.

13 Waldor Realty Corp. vs. Planning

14 Board of Westborough, 354 Mass. 639, 641 (1968).

15 The Board supported its motion for summary

16 judgment with affidavits of city official

17 responsible for fire and police protection,

18 traffic control and public works. These

19 affidavits, apparently inspired by and geared to

20 the analysis in Gifford vs. Planning Board of

21 Nantucket, 376 Mass. 801 (1978), sought to

22 establish that, despite literal compliance of each

23 of the lots with the applicable area and frontage

24 requirements, the plan, if followed, would leave

1 certain of the lots without access (or without

2 easy access) to utility and municipal services.

3 Lot 1A, with 40 feet of frontage, was mentioned in

4 this regard; but principal attention focused on

5 lot 1B. That has a 20 foot frontage and is no

6 wider (or narrower) than 20 feet, measured by

7 shortest distance from sideline to sideline, for a

8 distance of 76 feet, roughly, from Beaver Street.

9 The lot then widens to permit

10 compliance with the width and side yard

11 requirements (100 feet and 20 feet, respectively)

12 for buildable lots in the relevant zoning

13 district. Treating the 20 foot strip as an access

14 driveway, the affidavits claimed that it

15 intersected the street at so acute an angle (see

16 figure 2) as to make entrance by a westbound

17 vehicle difficult or impossible unless the vehicle

18 should cross the center line of Beaver Street or,

19 alternatively, stop and back up. The drive was

20 said to be necessarily blind to oncoming westerly

21 traffic and to create a traffic hazard in light of

22 heavy traffic on Beaver Street. The affidavits

23 asserted that houses built on lots 1A and 1B would

24 likely be invisible from the road and that this

1 would jeopardize fire and police protection in

2 emergencies. The cost of running gas, electric,

3 water and sewer lines was said to be inordinately

4 high. One affiance, the chairman of the

5 defendant, Board, concluded that lots 1A and 1B

6 have too narrow a frontage, too long a neck and

7 enter Beaver Street at too acute an angle.

8 It is obvious that all of the

9 difficulties complained of are possible even in

10 municipalities which require minimum frontage but

11 which do not regulate the widths or angles of

12 driveways and do not limit the setbacks of

13 dwellings or require that they be visible from the

14 street. It is equally obvious that a zoning

15 ordinance which, like Waltham's, requires building

16 lots to be 100 feet wide but allows them to have

17 as little as 20 feet of frontage contemplates that

18 some degree of development will be permissible on

19 back lots" --

20 Q. Can I interrupt for a moment?

21 A. Yes.

22 Q. Do you have any restrictions in that

23 form in the local zoning bylaws in terms of

24 visibility from the street, size of the lot other

1 than acreage?

2 A. We have setback requirements, zonage

3 setback requirements.

4 Q. But no specific requirements to the

5 shape of a lot?

6 A. No.

7 Q. Thanks. Will you please read?

8 A. I can keep reading. "It is equally

9 obvious that a zoning ordinance with, like

10 Waltham's, requires building lots to be 100 feet

11 wide but allows them to have as little as 20 feet

12 of frontage contemplates that some degree of

13 development will be permissible on back lots

14 exempt from Planning Board control. Such is the

15 choice made by a municipality, which fails to

16 expand the 20 foot minimum frontage requirement of

17 G.L.c.41 81L. If not a conscious choice, but

18 merely an omission, it is probably one beyond the

19 power of a Planning Board to rectify: for a

20 Planning Board controls development principally

21 through its regulations. Canter vs. Planning

22 Board of Westborough."

23 Q. Do you understand what they say

24 here?

1 A. Yes.

2 Q. Will you please proceed?

3 A. "And is powerless to pass

4 regulations governing the size, shape, width or

5 frontage of lots."

6 Q. Can I interrupt here?

7 A. Yes.

8 Q. Do you understand that?

9 A. Yes.

10 Q. Do you think that applies to your

11 Board too?

12 A. Specifically what is written here, I

13 think is different from what is going on in for

14 our Board and our town.

15 Q. In what regards?

16 A. What I just finished reading Waltham

17 has frontage requirement of 20 feet. We do not.

18 Ours is 200, so it's different. The point that

19 the judge made in this case was that if you have

20 as little as 20 feet frontage contemplated that it

21 indicates some degree of development will be

22 permissible on back lots exempt from Planning

23 Board control. We don't have back lots exempt

24 from Planning Board control nor do we have 20 feet

1 frontage requirements.

2 Q. That is correct. You do not have

3 requirements to what the shape of a buildable lot

4 is; is that correct?

5 A. Yes.

6 Q. Will you please proceed?

7 A. "As amended through something 1969,

8 c.884, Section 3. See Loring Hills Developers

9 Trust vs. Planning Board of Salem, 374 Mass. 343,

10 350-351 (1978). Gifford vs. Planning Board of

11 Nantucket, supra, on which the board relies,

12 involved a plan showing a division of a parcel

13 into 46 lots, each" --

14 Q. We don't need to read that. Maybe

15 the last paragraph where it says the judgment.

16 The next page, please. The judgment -- is this

17 correct? It reads, "The judgement is amended by

18 striking the award of costs. As so amended, the

19 judgment is affirmed," correct?

20 A. Yes.

21 Q. Did you read it the same way?

22 A. Yes.

23 Q. Do you understand what it means?

24 A. To the best of my ability.

1 Q. What does it mean?

2 A. That line means the judgment is

3 amended by striking the award of costs. I think

4 that means that they are not going to award the

5 costs.

6 Q. Would it be fair to say it also

7 means that the Planning Board did not succeed in

8 denying that ANR application? In other words, the

9 plaintiff exceeded and prevailed; is that correct?

10 A. In that case, yes.

11 MR. MCCAUGHEY: While we are on the

12 record, we can't proceed like this for much

13 longer. Mr. Frei is arguing the law. That

14 is the judge's role in a case. The

15 deposition, the purpose of the deposition

16 is to acquire facts relative to that case.

17 For the last quite of bit of time, that is

18 what we have been doing. The substantial

19 part of time of this deposition is Mr. Frei

20 inquiring of the law and that the law is

21 determined by the judge and not by a

22 deposition. I am going to ask Mr. Frei to

23 have his questions relative to the facts of

24 the case. If not I am going to suggest to

1 my witness that she not answer. We are not

2 going to read cases here line by line to

3 satisfy Mr. Frei.

4 MR. FREI: I would like to state for

5 the record that I am dealing here with a

6 noncooperative defendant.

7 A. I take exception to that. I feel I

8 am being extremely cooperative.

9 MR. FREI: I feel --

10 MR. MCCAUGHEY: Don't interrupt her.

11 I am not talking to you, Ms. Benveniste.

12 He has no right to say you are being

13 uncooperative. If you have a question, ask

14 it.

15 MR. FREI: That is my opinion and I

16 am entitled to my opinion.

17 MR. MCCAUGHEY: That's fine. We are

18 going to leave pretty soon.

19 MR. FREI: You have your opinion and

20 I have my opinion. If I talk, would you

21 please just stop talking and interrupting

22 me, as I do the same with you out of

23 courtesy.

24 MR. MCCAUGHEY: No, I will not. If

1 you are testifying relative to this case, I

2 will not.

3 A. I have made every attempt to

4 cooperate with every question to the best of my

5 ability. I am sorry that Mr. Frei feels that I am

6 being uncooperative.

7 Q. (By Mr. Frei) The next sentence on

8 Exhibit 16 minutes of July 2, 2002 reads, "First

9 as a private road appears in this road inspection

10 to be more of a very long fully length driveway.

11 This is the only access to the public way Maybrook

12 Road." Is that correct; do you read it the same

13 way?

14 A. Yes.

15 Q. Let me ask you a question. Let's

16 turn our attention to Exhibit 8. In what way does

17 creation of lot A change the accessibility of the

18 back lot, which is described as reminder of book

19 7120 page 529, would you please explain?

20 A. I can't.

21 Q. Would you like to hear the question

22 again?

23 A. No.

24 Q. So you cannot explain the issue but

1 there is an issue; is that correct?

2 A. I can't explain the issue, as you

3 stated it.

4 Q. Would you like me to rephrase the

5 question?

6 A. No.

7 Q. The next sentence reads, "At points

8 the property measures approximately three feet

9 wide with steep drop-offs to Hamilton Reservoir,

10 which we consider to be an extreme topographical

11 condition impeding access to the buildable portion

12 to one of the lots." My first question is: Would

13 you please point to that narrow spot, which is

14 10 feet according to the minutes?

15 A. I can't do that.

16 Q. Why not?

17 A. It doesn't indicate enough detail in

18 that map. There is no width described any where

19 there.

20 Q. That is why I brought a ruler. Can

21 you tell me where the most narrow spot is on this

22 map?

23 A. No.

24 MR. FREI: Mr. McCaughey, can you

1 help here?

2 MR. MCCAUGHEY: She answered the

3 question.

4 MR. FREI: So for the record, Ms.

5 Benveniste, looks at Exhibit 8, which is

6 the plan for my first approval not required

7 application with the Board. My question is

8 clear and she refuses to answer.

9 A. I answered the question.

10 MR. FREI: I am going to try a

11 different approach. I am going to mark

12 that spot as spot one on Exhibit 8, and I

13 am asking her to measure that spot. I

14 claim that spot one to be the most narrow

15 spot on Exhibit 8. I will also put a line

16 there, which I am going to define as line

17 one.

18 Q. (By Mr. Frei) For your convenience,

19 Ms. Benveniste, I have a ruler. You just measure

20 it and we will give you how many feet on the scale

21 one divided by 20, which is this scale here.

22 A. I have no training in maps,

23 measuring or anything like that. What I will say

24 about this is that this map does not indicate the

1 width of this road at any given point. Therefore,

2 it is not possible for me to determine from this

3 map how this width changes in any given place.

4 That is my answer to your question.

5 Q. I do not ask about the width of the

6 driveway. I am asking a specific question in

7 terms of a sentence you have on the minutes of

8 July 2, 2002. I read it again. "At points

9 property measures approximately 10 feet wide with

10 steep drop-offs to Hamilton reservoir, which we

11 consider to be a topographical condition impeding

12 access to the buildable portion to one of those

13 lots." I made it very easy for you.

14 A. You are asking me to measure --

15 Q. To measure the width.

16 A. With this ruler and that -- I

17 suppose I could do that. Of course, I don't know

18 what all those other numbers are.

19 Q. There is one scale. One divided by

20 20.

21 A. It's a six sided ruler. I am not a

22 scientific person. I will try to find where the

23 inches are so that I can give you an accurate

24 measurement of where you measured on this map. It

1 looks like --

2 Q. Will you please measure with the

3 scale one to 20 that I gave you. I don't say

4 feet. One of the six scales has a division one by

5 20. That is the one you need to use.

6 A. Why is that? I don't know what I am

7 doing, Mr. Frei. I don't want to give you an

8 answer. You are asking me for information from

9 myself about something and I am being forced to

10 use this measurement of something, I don't know

11 what it is, to measure something that I don't

12 understand. I don't know how that is going to

13 give you any information.

14 Q. That is the last thing -- I don't

15 want to force you to use anything. I just want to

16 know how wide line one is at the spot one.

17 A. Good. I am going to measure it in

18 inches. That is what I understand. The rest of

19 these I don't know what they are. I am going to

20 try to find the inches.

21 Q. There is also a scale on the plan,

22 which shows you how many feet per inch.

23 A. Are these inches? Could you tell me

24 which one is inches, please?

1 Q. You are asking me to step over here?

2 A. No. Take the ruler back and show me

3 where the inches are.

4 Q. If you use this scale here, it's a

5 scale one divided by 20 and you get the feet. You

6 can check on that with a graphic scale.

7 A. I want to use a regular ruler. I

8 want to measure in something I understand.

9 Q. Down there is a graphic scale. You

10 just hold it to that graphic scale and you will

11 see the feet.

12 A. That is not inches either.

13 Q. One to 20, one divided by 20. That

14 is the scale you need to use, one divided by 20.

15 There is one scale one divided by 20. That is the

16 one you need to use.

17 MR. MCCAUGHEY: No, I can't do it.

18 If you can't do it, just say you can't do

19 it.

20 A. I can't do it.

21 MR. MCCAUGHEY: She says she doesn't

22 recognize it. She is not capable of doing

23 it.

24 MR. FREI: I did it. I already did

1 it. The spot is smaller.

2 MR. MCCAUGHEY: Objection.

3 MR. FREI: The spot is marked and I

4 don't get any help here. I am going to

5 give to the record it's 67 feet.

6 MR. MCCAUGHEY: One more time and we

7 are leaving. That is the last time I am

8 going to allow testimony by the pro se

9 plaintiff in a deposition that he has

10 called against one of the town Planning

11 Board members.

12 MR. FREI: You know, Mr. McCaughey,

13 I don't expect too much from the chairman

14 or the Planning Board. I want to give to

15 the record --

16 MR. MCCAUGHEY: Put on the record we

17 are leaving. We have asked Mr. Frei not to

18 make speeches during the deposition. We

19 have asked him not to repeat questions. We

20 asked him not to resite the law.

21 THE COURT REPORTER: Are you going

22 to want a copy, Attorney McCaughey?

23 MR. MCCAUGHEY: Yes, as soon as

24 possible.

1 MR. FREI: I want to give to the

2 record also that Debra Benveniste just left

3 without my permission for no obvious

4 reasons. She has been very much

5 noncooperative. Very simple questions she

6 is avoiding. She did not cooperate in

7 measuring in very fine one of her claims

8 she made on Exhibit 16, which are the

9 minutes of the July 2nd meeting of the

10 Planning Board in the year 2002.

11 On this map, which is Exhibit 8, is

12 a graphic scale. It shows how many feet to

13 one inch refers to on this map. I brought

14 the ruler to make it easy, which has a

15 scale with the same division as the graphic

16 scale. It would have been a simple task to

17 check the scale of my ruler and compare it

18 with the graphic scale and then just

19 measure the spot that she could not find.

20 Allegedly she was unable to find the narrow

21 spot on Exhibit 8 even so she referred to

22 in her minutes of the meeting of July 2,

23 2002. At that time she didn't have a

24 problem to come up with her claim that the

1 property at some point only measures 11

2 feet. I correct. 10 feet. I finally

3 tried to measure it myself, which I did. I

4 came up with 64 feet instead of 10 feet as

5 outlined on the minutes of July 2, 2002.

6 Thank you.

8 (Deposition suspended at 11:51 a.m.)

1 I, KRISTEN M. EDWARDS, a Notary Public

2 in and for the Commonwealth of Massachusetts, do

3 hereby certify that DEBRA HENRIETTE BENVENISTE

4 came before me on the 11th day of September, 2003

5 at Catuogno Court Reporting Services, 1414 Main

6 Street, Springfield, Massachusetts, and was by me

7 duly sworn to testify to the truth and nothing but

8 the truth as to her knowledge touching and

9 concerning the matters in controversy in this

10 cause; that she was thereupon examined upon her

11 oath and said examination reduced to writing by

12 me; and that the statement is a true record of the

13 testimony given by the witness, to the best of my

14 knowledge and ability.

15 I further certify that I am not a

16 relative or employee of counsel/attorney for any

17 of the parties, nor a relative or employee of such

18 parties, nor am I financially interested in the

19 outcome of the action.

20 WITNESS MY HAND this 14th day of

21 September 2003.

23 Kristen M. Edwards My Commission expires:

24 Notary Public May 18, 2008

1 Today's date: September 14, 2003

2 To: Vincent J. McCaughey, Esq.

3 Copied to: Peter Frei, Pro se

4 From: Kristen M. Edwards

5 Deposition of: Debra Henriette Benveniste

6 Taken: September 11, 2003

7 Action: PETER FREI

8 vs. TOWN OF HOLLAND PLANNING

9 BOARD, ET AL.

11 Enclosed is a copy of the deposition of

12 Debra Henriette Benveniste. Pursuant to the Rules

13 of Civil Procedure, Ms. Benveniste has thirty days

14 to sign the deposition from today's date.

15 Please have Ms. Benveniste sign the

16 enclosed signature page. If there are any errors,

17 please have her mark the page, line and error on

18 the enclosed correction sheet. She should not

19 mark the transcript itself. This addendum should

20 be forwarded to all interested parties.

21 Thank you for your cooperation in this

22 matter.

1 COMMONWEALTH OF MASSACHUSETTS

2 Hampden, ss. Dept. of the Trial Court

3 Superior Court Department

4 Docket No. HDCV2002-1196

6 *********************************

7 PETER FREI, *

8 Plaintiff *

9 vs. *

10 TOWN OF HOLLAND PLANNING BOARD, *

11 ET AL., *

12 Defendants *

13 *********************************

15 I, DEBRA HENRIETTE BENVENISTE, do hereby

16 certify, under the pains and penalties of perjury,

17 that the foregoing testimony is true and accurate,

18 to the best of my knowledge and belief.

19 WITNESS MY HAND, this day of ,

20 2003.

22 _____________________________

23 DEBRA HENRIETTE BENVENISTE

24 KME