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MASHPEE ZONING BOARD OF APPEALS <br /> MEETING MINUTES <br /> JULY 26, 2023 <br /> NEW HEARINGS <br /> 363 Monomos�ad. Petitioner,DEER Realty Trust, Janice Copp Burns, Trustee requests an <br /> Appeal of the Building Commissioner's Decision under M.G.L. Chapter 40A §§8 and 15. <br /> Petitioner disputes the Building Commissioner's determination that the lot has merged with 7 <br /> Cricket Way, and is entitled to a building permit on the basis that the lot is grandfathered under <br /> the Zoning Bylaw §174-21 (A), and M.G.L. c. 40A §6. <br /> Attorney Christopher Kirrane presented the Appeal application. Also present was Owners, Earl <br /> and Janice Burns. Attorney Kirrane requested a determination from the Building Commissioner <br /> that 363 Mono was a protected lot under the zoning bylaws and 40A Section 6. Nonconforming <br /> lots are protected from dimensional increases and setbacks with lot area so long as they remain <br /> in separate ownership at the time of the zoning changes. This particular case the bylaw changed <br /> was in 1988 when flood zone requirements were added. This lot has 6,800 sq. ft. and would have <br /> been a buildable/protected lot but flood zone requirements were included within lot area, and this <br /> lot 363 Monomoscoy became a non-conforming lot. <br /> Attorney Kirrane submitted information to the Building Commissioner that the lot at 363 <br /> Monomoscoy was in separate ownership and continues to be in separate ownership.The Building <br /> Commissioner determined that 363 Monomoscoy Road is in fact held in common ownership with <br /> 7 Cricket way which is owned by Dena Burns and Earl Burns Jr. Dena is Earl's mother but 7 <br /> Cricket Way is owned by Earl and Dena who control 7 Cricket Way. The DEER Realty Trust <br /> was setup by Earl who is the original Trustee, and his wife is a Trustee. Dena Burns at no time <br /> had any control over the property or the Trust, and has nothing to do with 363 Monomoscoy vs. <br /> the 7 Cricket Way property. Earl has control over what he can do with 363 Monomoscoy <br /> independent of Dena, but has no control over 7 Cricket Way independent of Dena. Attorney <br /> Kirrane believes that the Building Commissioner's determination will uphold up in a Court of <br /> Law. <br /> Chairman Bonvie said he spent 3-4 hours reading over Attorney Kirrane's presentation and case <br /> law. Mr.Bonvie said he spoke to the Town Planner, who also agrees with Mr. Bonvie's opinion. <br /> In his opinion,both entities are related and are held in common and control both properties. Mr. <br /> Bonvie could not find anything in the case law documentation that a judge specifically states it <br /> is not a merger. <br /> Attorney Kirrane wanted to know the factual basis that Chairman Bonvie considers these lot held <br /> in common. Mr. Bonvie asked...Janice Burns is the Trustee <br /> Discussion: Earl Burns is a Trustee, along with Dena owns 7 Cricket Way. Mr. Bonvie asked <br /> Attorney Kirrane if he believes Dena and Earl has no control over Earl? Attorney Kirrane said <br /> that is true. Dena has no control over the Trust. Mr. Bonvie does not believe this is true. Earl's <br /> wife Janice is the beneficiary and is also the Trustee. <br /> Attorney Kirrane asked that maybe Town Counsel should review this request.He believes he has <br /> a case law that would help the Board. He also thought that an Affidavit from an Attorney would <br /> be helpful. <br /> s <br />