1
1 COMMONWEALTH OF MASSACHUSETTS
2 Hampden, ss. Dept. of the Trial Court
3 Superior Court Department
4 Docket No. HDCV2002-1196
5
6
7 *********************************
8 PETER FREI, *
9 Plaintiff *
10 vs. *
11 TOWN OF HOLLAND PLANNING BOARD, *
12 ET AL., *
13 Defendants *
14 *********************************
15
16
17 DEPOSITION OF: DEBRA HENRIETTE BENVENISTE
18 CATUOGNO COURT REPORTING SERVICES
19 1414 Main Street
20 Springfield, Massachusetts
21 October 16, 2003 9:00 a.m.
22
23 Kristen M. Edwards
24 Court Reporter
2
1 APPEARANCES:
2
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
9
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.
17
18 Also present:
19 Earl Johnson
20
21
22
23
24
3
1 I N D E X
2
3 WITNESS: DEBRA HENRIETTE BENVENISTE
4
5 EXAMINATION BY: PAGE:
6 Mr. Frei 4
7
8
9 EXHIBITS: PAGE:
10 Exhibit 14, minutes of June 18, 2002....5
11 Exhibit 16, minutes of July 2, 2002.....6
12 Exhibit 22, letter......................8
13 Exhibit 7, letter......................10
14
15 (Exhibits retained by Mr. Frei)
16
17
18
19
20
21
22
23
24
4
1 MR. FREI: My name is Peter Frei. I
2 am the plaintiff. I would say for the
3 record that I suggest the usual
4 stipulations. It is hereby stipulated that
5 all objections except objections as to the
6 form of the questions and motions to strike
7 are reserved and may be raised at the time
8 of trial for the first time. It is further
9 stipulated that the deposition will be read
10 and signed within 30 days of receipt and
11 the right to do so will be waived. The
12 signing before a notary public will be
13 waived.
14
15
16 DEBRA HENRIETTE BENVENISTE, Deponent,
17 having first been duly sworn, deposes and states
18 as follows:
19
20
21 EXAMINATION BY MR. FREI:
22
23 Q. Ms. Benveniste, would you please
24 identify this document?
5
1 A. It looks like the minutes of
2 June 18, 2002 Planning Board.
3 MR. FREI: Sorry. I don't have any
4 other copies. Just that one. I would like
5 to introduce this as Exhibit 14.
6
7 (Exhibit 14, minutes of June 18,
8 2002, marked)
9
10 Q. (By Mr. Frei) Ms. Benveniste, did
11 the board take a formal vote during this meeting
12 of June 18th?
13 A. I don't believe so. It doesn't
14 indicate that in the minutes.
15 Q. Could you please identify this? Can
16 I have this back, please?
17 A. This is the minutes of July 2, 2002
18 Planning Board.
19 Q. It's also Exhibit 16, right?
20 A. It's written at the top.
21 MR. FREI: I would like to introduce
22 that as Exhibit 16.
23
24
6
1 (Exhibit 16, minutes of July 2,
2 2002, marked)
3
4 Q. (By Mr. Frei) Ms. Benveniste, did
5 the board take a formal vote on the meeting of
6 July 2nd?
7 A. Yes.
8 Q. Was I present when you took a vote?
9 A. Yes, I believe so.
10 Q. It reads here, "What Mr. Frei refers
11 to as a private road appears on visual inspection
12 to be more of a very long and poorly maintained
13 driveway. This is the only access to the public
14 way, Maybrook Road." Do you read this the same
15 way?
16 A. Yes.
17 Q. It says "visual inspection." Did
18 you actually take a visual inspection?
19 A. I did not. Other members of the
20 board did.
21 Q. Would you know who, the names of the
22 members?
23 A. I believe Earl did and Joanne May
24 have. I don't recall exactly.
7
1 Q. Do you recall the date when that was
2 taken, when this visual inspection took place?
3 A. No.
4 Q. Did you inform me prior to
5 inspecting my private way?
6 A. Since I didn't do it, I would not
7 have informed you.
8 Q. Do you have knowledge if somebody
9 else informed me?
10 A. No, I do not have knowledge.
11 Q. Under the heading old business in
12 the same document, the second sentence of the
13 second paragraph reads, "We informed Mr. Frei that
14 based on a unanimous vote we are denying the
15 request for an ANR for Mr. Frei's property." Can
16 you explain why you used language we informed Mr.
17 Frei?
18 A. It seems self-explanatory to me. We
19 informed you of what the vote was.
20 Q. Would you please identify this
21 document?
22 A. This is a note that I wrote
23 indicating that the ANR was denied on June 24,
24 2002.
8
1 Q. Did you write this?
2 A. Yes.
3 Q. Did you sign this letter?
4 A. Yes.
5 MR. FREI: I would like to introduce
6 this as Exhibit 22.
7
8 (Exhibit 22, letter, marked)
9
10 Q. (By Mr. Frei) How do you explain
11 that you wrote a letter of denial on the ANR on
12 June 25th, which you just claimed you voted on on
13 July 2nd, which is like a week later?
14 A. Good question. There were two
15 applications that you made. And since I don't
16 have all the minutes in front of me, it's hard for
17 me to reconstruct. I believe that the July 2nd --
18 these minutes have to do with the different
19 application in this decision.
20 Q. So, Ms. Benveniste, you are telling
21 me that's actually the letter of denial for my
22 first application?
23 A. I don't know, Mr. Frei. I don't
24 have the minutes in front of me. I don't feel
9
1 comfortable about making statements about
2 documentation that I don't have in front of me.
3 Q. Which minutes would you like to see?
4 A. I would like to see all the minutes
5 that had to do with all of your applications to us
6 here. So if you are going to ask me about them, I
7 would like to have them in front of me.
8 Q. Time doesn't allow me to do that.
9 A. Okay.
10 Q. Ms. Benveniste, did you mail me a
11 copy of that letter you have in front of you?
12 A. Yes.
13 Q. Do you recall the date when you sent
14 me that letter?
15 A. I have a certificate of mailing in
16 my file that is not here. But I have one, which
17 will prove that it was mailed to you on whichever
18 date that I cannot recall it was mailed. It was
19 within some timely fashion when I wrote it.
20 Q. Will you please identify this
21 document for me?
22 A. This is the minutes of October 15,
23 2002 Planning Board.
24 Q. Will you like to read it just for
10
1 yourself to refresh your memory of what happened
2 during that meeting?
3 A. (Witness complying)
4 Q. Are you done?
5 A. Yes.
6 Q. Did the members of the board vote on
7 my second ANR during the meeting on October 15th?
8 A. Yes.
9 Q. While you took that vote, do you
10 recall if I was present and also Beth Leoni, which
11 was accompanying me at that time?
12 A. No. I believe you were not there.
13 I believe you left already.
14 Q. Will you please identify this
15 document for me?
16 A. This is the note that I wrote to you
17 denying the written denial of this, I believe
18 application, the October 15th application.
19 MR. FREI: I will like to introduce
20 this as Exhibit 7.
21
22 (Exhibit 7, letter, marked)
23
24 Q. (By Mr. Frei) Ms. Benveniste, you
11
1 use language on here as of this date, the Planning
2 Board denies the ANR application and so forth. I
3 would like to indicate on that day you made a
4 decision?
5 A. No.
6 Q. Ms. Benveniste, did you send me a
7 copy of this letter?
8 A. I believe so.
9 Q. Do you recall when you mailed me
10 that letter?
11 A. No, I don't. Sorry. I have the
12 records at the Town Hall.
13 Q. If you turn it around, you can
14 actually see a copy on the back of the envelope.
15 A. Um-hmm.
16 Q. Can you tell me the date when it was
17 stamped?
18 A. November 21st of '02.
19 Q. During the meeting of November 19th,
20 I asked you for a copy of this letter; do you
21 recall that? I came to the meeting and I asked
22 you for a copy of this letter.
23 A. I don't recall.
24 Q. You don't recall I came to the
12
1 meeting and I couldn't believe that you actually
2 filed a copy of the letter with Mr. Ford and then
3 we walked to his office?
4 A. I remember several interactions with
5 you, Mr. Frei. I can't recall what date they
6 occurred.
7 Q. Ms. Benveniste, I am going to hand
8 you a copy of Exhibit 9 minutes of November 19th
9 Planning Board. If you will like to read that?
10 A. November 19th. Okay.
11 Q. It's the last paragraph on page one.
12 A. Yes.
13 MR. MCCAUGHEY: Could I look at it,
14 please?
15 MR. FREI: Sorry about that. I have
16 more copies here.
17 Q. (By Mr. Frei) Do you recall now?
18 A. Yes.
19 Q. Ms. Benveniste, you've been a member
20 of the Planning Board for quite some time now?
21 A. Could you clarify what quite some
22 time means?
23 Q. When did you join the Planning
24 Board?
13
1 A. I apologize. I know I told you the
2 last time I was here. To be perfectly frank, I
3 don't remember.
4 Q. So you've had quite a few ANRs
5 submitted to the board during those years you
6 served on the Planning Board?
7 A. Yes. We probably have approximately
8 ten a year, I think something like that.
9 Q. Do you recall refusing to endorse
10 any ANRs while you were on the board besides the
11 two ANRs I submitted?
12 A. People withdrew their applications
13 rather than receive a denial. There were several
14 incidences of that over time.
15 Q. Would that be in the minutes?
16 A. Yes.
17 Q. How many meetings does the average
18 applicant of an ANR attend?
19 A. While their application is before us
20 you mean?
21 Q. Yes.
22 A. It depends on the time frame of the
23 21 days and when our meetings occur. We meet the
24 first and the third Tuesday of the month, so
14
1 sometimes people can get two meetings in and
2 sometimes one depending on the time.
3 Q. So is it correct to assume that they
4 actually submit an application and then they will
5 come back the next time and you will have a
6 decision?
7 A. Sometimes that occurs. Most
8 frequently we would grant an ANR application the
9 night that it is given to us. Most ANR
10 applications are fairly straight forward. There
11 is only a couple of factors that we have to
12 decide. And if they are met, then we approve it.
13 If there are questions or if we want more
14 information if we are within the time frame, we
15 can ask the person to come back and provide it.
16 If we are outside the time frame, what we suggest
17 to people is they not submit their application
18 that night because without the information we'd
19 have to deny it. So if they wanted to come back
20 the following evening and give us the information
21 that we needed, then they will be able to proceed.
22 Q. In my case is it correct to assume
23 that I gave you all the information you requested?
24 A. We didn't request any information
15
1 from you, Mr. Frei. I don't recall.
2 Q. Let's turn our attention to the
3 meeting of October 15th. That will be Exhibit 6.
4 Ms. Benveniste, I will read to you the first
5 sentence of the first paragraph on page two of the
6 meeting of October 15, 2002. Quote, "Peter Frei
7 returned with a new ANR application for the same
8 lot that was denied in July of this year." Do you
9 read it the same way?
10 A. Yes.
11 Q. Then the next sentence reads, "He
12 plans to widen the road to 18 feet. We explained
13 that the same issues apply even with the road
14 widened to 18 feet and we voted to deny this
15 application as well." Do you read it the same
16 way?
17 A. Yes.
18 Q. Is this your recollection of what
19 took place during that meeting that night?
20 A. I am sorry?
21 Q. Ms. Benveniste, is this a true
22 recollection of what happened that night?
23 A. You are asking me if I lied in the
24 minutes?
16
1 Q. No.
2 A. No. I don't understand what you are
3 asking me.
4 Q. What is written here is really what
5 took place that night?
6 A. You are asking me if I wrote
7 accurately about what happened or I made something
8 up?
9 Q. Yes. No.
10 A. No. I did not make anything up. I
11 apologize. I am speaking for someone else. The
12 clerk does not make things up. This was written
13 as it was.
14 Q. Ms. Benveniste, someone altered the
15 contents of this by striking out the word "will"
16 and added voted to in handwriting; is that
17 correct?
18 A. Yes.
19 Q. Do you know who did that?
20 A. I believe it was Joanne May, the
21 clerk.
22 Q. Do you know when she did that?
23 A. She would have done that at the next
24 meeting that we met after this one. This was the
17
1 15th. I know normally we would have had a meeting
2 the first week of November except we often have
3 trouble with the first week of November because
4 elections fall during that week. I don't think we
5 had a meeting that week, and I think that we had
6 originally rescheduled it to the 12th. Then I
7 think that one also got postponed to the 19th. If
8 I recall correctly, the next time we met was
9 November 19th and that is when we would read these
10 to the board members and then change them if
11 necessary and then vote to accept them.
12 Q. Do you know why Ms. May altered this
13 sentence?
14 A. Yes. We had a discussion about it
15 at the time that the minutes were read to the
16 meeting, and it was felt that it was not clear the
17 way it was written. That the word "will" sounded
18 as if something hadn't happened when, in fact, we
19 had wrote it so we voted to change it.
20 Q. The next sentence reads, "He left us
21 a map and asked us to consider this application."
22 Do you read it the same way?
23 A. Yes.
24 Q. In other words, I ignored your vote
18
1 and then left a map?
2 A. I would not accept those other words
3 to indicate this.
4 Q. No. What I am asking is after you
5 took a vote I asked you to consider my ANR, no?
6 A. I don't know. What you are saying
7 isn't clear to me.
8 Q. The next sentence reads, "Debra will
9 talk to Jack Keough, the Building Inspector, about
10 this again and will submit the decision within the
11 21 day required period." Do you read it the same
12 way?
13 A. That is the only part of the
14 sentence but, yes.
15 Q. Why would you talk to Jack Keogh on
16 an application, which you already voted on and
17 denied?
18 A. Because we inform Jack about just
19 about everything we do and especially anything
20 that is complicated or difficult.
21 Q. So you inform him and it's more
22 likely you inform him and you don't ask him for
23 advice?
24 A. We already asked him for advice
19
1 about this. That was indicated in the other
2 minutes during the period of time when we made the
3 decision. But we wanted to let him know that this
4 application was again and that the same project
5 was reapplied for and let him know what happened.
6 Q. You just said during the period of
7 time we make a decision. So you --
8 A. The last one. This was the same
9 parcel.
10 Q. Ms. Benveniste, how big is your
11 meeting room?
12 A. I couldn't tell you. I'm sorry.
13 Q. Just approximately feet by feet.
14 A. I am really bad at measuring things,
15 as you know from the last deposition.
16 Q. What is your guess of how many
17 people could be in that room at any given time; is
18 it a room which accommodates twenty people, fifty
19 or ten or five?
20 A. Twenty people would have to be
21 standing.
22 Q. So how many seats do you actually
23 have in the room?
24 A. There are five seats for the board
20
1 members and then, I believe there are two or three
2 other chairs in the room. We can get more chairs
3 from other places if need be.
4 Q. So while you conduct your business
5 in there, is it correct that you actually call in
6 the people which business you are going to take
7 care of?
8 A. Yes.
9 Q. Is it correct that the people whose
10 business is not debated in the room they wait
11 outside?
12 A. They typically wait outside. They
13 are free to come in if they want to. The door is
14 open. It's a public meeting.
15 Q. But as you said, there is a
16 limitation?
17 A. There is a size limitation to the
18 room. However, if there were people who wanted to
19 hear what was going on, we would do the very best
20 we could to accommodate. And if we think we are
21 going to have large numbers, we will have the
22 meeting in the community room downstairs. But
23 it's a guess on our part on how many people will
24 show up.
21
1 Q. I would like to turn your attention
2 to Exhibit 16. It's Town of Holland Planning
3 Board minutes of July 2, 2002.
4 A. Yes.
5 Q. On the bottom you give out reasons
6 why you refused to endorse my first application,
7 right?
8 A. Yes.
9 Q. And the first reason is, "We believe
10 that the decision would make a nonconforming lot
11 more nonconforming." Do you read it the same way?
12 A. Division.
13 Q. Sorry. What did I say?
14 A. Decision.
15 Q. "We believe that the division would
16 make a nonconforming lot more nonconforming."
17 Would you explain to me in what way the lot was
18 nonconforming prior to my ANR application?
19 A. We would base the decision on the
20 ANR application, so the issue of nonconformity
21 would have to do with the map that you gave to us
22 at the time.
23 Q. But I mean language is ambiguous
24 here. You are talking about or writing about a
22
1 division which would make a nonconforming lot more
2 nonconforming?
3 A. Right.
4 Q. So that clearly states that before
5 the ANR, the lot was nonconforming; is that
6 correct?
7 A. I believe so. I mean, as far as I
8 am concerned, it is a moot point if your lot is
9 nonconforming if I don't have an ANR application
10 in front of me.
11 Q. We can change that. Will you please
12 identify this document plan?
13 A. It's a map. I don't know which one
14 it is, because you submitted different ones for
15 different applications. I really honestly don't
16 know whether this one applied to the July or the
17 October application.
18 Q. What is the date on the map?
19 A. June 3rd of '02.
20 Q. Why would it be relevant which ANR
21 you are looking at because they both are
22 subdivisions of the same parcel?
23 A. If I recall the second application
24 had lots A, B and C. This one doesn't.
23
1 Q. That is correct.
2 A. So they are different.
3 Q. The question is still the same.
4 A. Could you repeat the question,
5 please?
6 Q. In what way is the lot nonconforming
7 prior to the ANR?
8 A. You have a house in your lot, which
9 is indicated in pencil as lot two here that is a
10 nonconforming lot. Again, I would have to check
11 but I have some recollection that these lots may
12 have been merged at some point. If they were, in
13 fact, merged, then whatever they were merged to is
14 nonconforming.
15 Q. During the first part of our
16 deposition, you stated that you never had an issue
17 with my lot where my house is and I am talking
18 about the lot which is on lot two 27,000 square
19 feet?
20 A. Um-hmm.
21 Q. Book 6,519 page 178?
22 A. Right.
23 Q. You stated that you never had an
24 issue with that?
24
1 A. If, in fact, it was not merged with
2 anything else, then I would not have an issue with
3 it. However, I am not sure at this point whether
4 that lot was merged with other areas of your
5 property. If that is the case, then it makes that
6 lot part of this discussion. So as I said, I am
7 not clear at this moment as to the status of that.
8 The other issue, again, is there is a lot A here
9 and in this map there is no lot B and no lot C.
10 But in the second application, there was a lot A,
11 lot B and lot C.
12 Q. Would you like to see the other ANR;
13 would that help?
14 A. If you are asking me a question, I
15 will answer it.
16 Q. My question is: Would you like to
17 see the second ANR plan; would that help you in
18 your answer?
19 A. No.
20 Q. Ms. Benveniste, just out of
21 curiosity, will you please explain to me you used
22 the term "merge." What does that mean?
23 A. That this lot is not as it appears
24 to be completely separate from the other area on
25
1 the property.
2 Q. You are referring to the lot which
3 is book 6,519 page 178, right?
4 A. Yes.
5 Q. So in other words, because that is a
6 nonconforming lot, according to your merging
7 theory, that merged with the other lot, which is
8 in my possession?
9 A. I am not sure what the question is.
10 Q. The question is: According to your
11 merging theory, my nonconforming lot merged with
12 the adjoining bigger lot and therefore the bigger
13 lot is nonconforming?
14 A. No.
15 Q. No. So how is it exactly?
16 A. As I said, I am not sure. I am not
17 clear on the details about the merger. Therefore,
18 I can't state anything differently about it. When
19 we make these decisions on the board, they are
20 made as a group and people will give their own
21 feedback about certain areas. I recall some
22 discussion about it. I do not recall the
23 specifics. I believe that the nonconformity issue
24 had something to do with that. I apologize that I
26
1 cannot be any clearer about it. I will need to go
2 back and research what the specifics were.
3 Q. That is okay. Did you prepare
4 yourself at all for these depositions? In other
5 words, did you discuss issues with the board
6 members, Mr. McCaughey? In other words, did you
7 prepare yourself to be part of this deposition?
8 A. To the best of my ability.
9 Q. With whom did you talk to?
10 A. I spoke to the board members and I
11 spoke to the attorney and I looked over what
12 documents I had that related to it.
13 MR. MCCAUGHEY: I am going to object
14 to this line of questioning. I am trying
15 to be patient. We have been dealing with
16 legal theories again. We are dealing with
17 nonrelative issues as to conversations.
18 I am going to ask Mr. Frei to apply with
19 the judge's order to inquire of facts that
20 will lead to relevant evidence in this
21 particular case.
22 MR. FREI: Mr. McCaughey, I actually
23 learned this line of questioning during the
24 deposition of the Mildish in which you
27
1 actually asked questions of that nature.
2 MR. MCCAUGHEY: There is an order
3 from the judge in this particular case
4 directing you on how to go forward with
5 this deposition. I am asking you again and
6 I objected to this point. I am asking you
7 to comply with that order. I think you
8 have been doing straight at this time.
9 Q. (By Mr. Frei) Ms. Benveniste, what
10 did you hear about me?
11 A. I beg your pardon?
12 Q. At the Town Hall as they talk about
13 me.
14 MR. MCCAUGHEY: Objection.
15 A. Thank you.
16 Q. (By Mr. Frei) Ms. Benveniste, do
17 you have knowledge about prior litigation between
18 me, the plaintiff, and the town?
19 A. No. Other than what you mentioned
20 yourself in here.
21 MR. FREI: That is all I have.
22 MR. MCCAUGHEY: No questions.
23
24 (Deposition concluded at 9:48 a.m.)
28
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 16th day of October, 2003 at
5 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 27th day of October
21 2003.
22
23 Kristen M. Edwards My Commission expires:
24 Notary Public May 18, 2008
29
1 Today's date: October 27, 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: October 16, 2003
7 Action: PETER FREI
8 vs. TOWN OF HOLLAND PLANNING
9 BOARD, ET AL.
10
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.
23
24
30
1 COMMONWEALTH OF MASSACHUSETTS
2 Hampden, ss. Dept. of the Trial Court
3 Superior Court Department
4 Docket No. HDCV2002-1196
5
6 *********************************
7 PETER FREI, *
8 Plaintiff *
9 vs. *
10 TOWN OF HOLLAND PLANNING BOARD, *
11 ET AL., *
12 Defendants *
13 *********************************
14
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.
21
22 ____________________________
23 DEBRA HENRIETTE BENVENISTE
24 KME