07/26/2023 ZONING BOARD OF APPEALS Minutes (2)

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MASHPEE ZONING BOARD OF APPEALS APPEAL OF THE BUILDING COMMISSIONER' S DECISION DEER Realty Trust, Janice Copp Burns, Trustee 363 Monomoscoy Road, Map 120 Parcel 18 Mashpee, MA 02649 AP-2023-42 Attorney Christopher Kirrane presented the Appeal application. Also present was Owners, Earl and Janice Burns. Attorney Kirrane requested a determination from the Building Commissioner that 363 Monomoscoy was a protected lot under the zoning bylaws and 40A Section 6. Nonconforming lots are protected from dimensional increases and setbacks with lot area so long as they remain in separate ownership at the time of the zoning changes. This particular case the bylaw changed in 1988 when flood zone requirements were added. This lot has 6,800 sq. ft. and would have been a buildable/protected lot,but flood zone requirements were included within the lot area, and 363 Monomoscoy became a non-conforming lot. Attorney Kirrane submitted information to the Building Commissioner that the lot at 363 Monomoscoy was in separate ownership and continues to be in separate ownership.The Building Commissioner determined that 363 Monomoscoy Road is in fact held in common ownership with 7 Cricket way which is owned by Dena Burns and Earl Bums Jr. Dena is Earl's mother but 7 Cricket Way is owned by Earl and Dena who control 7 Cricket Way. The DEER Realty Trust was setup by Earl who is the original Trustee, and his wife is a Trustee. Dena Burns at no time had any control over the property or the Trust, and has nothing to do with 363 Monomoscoy vs. the 7 Cricket Way property. Earl has control over what he can do with 363 Monomoscoy independent of Dena, but has no control over 7 Cricket Way independent of Dena. Chairman Bonvie stated for the record that he read Attorney Kirrane's presentation and case law. Mr. Bonvie said he also spoke to the Town Planner. In his opinion, both entities are related and are held in common, and control both properties. Mr. Bonvie could not find anything in the case law documentation that a judge specifically states it is not a merger. The Board read a letter into the record from David Morris, Building Commissioner addressed to Attorney Kirrane dated May 24,2023; "In response to your request for a determination dated May 12, 2023, I am of the opinion that 7 Cricket Way and 363 Monomoscoy had been held in common ownership at the time of the zoning change and are for zoning purposes merged as one. Further, I am of the opinion that Erlmest Burns Jr. is in control of both lots currently. I believe that in this case, conveyances to family members does not constitute separate ownership.As far a zoning relief from the Board, I am of the opinion that an accessory structure may be proposed and will require relief from the Board. If you feel aggrieved by this decision,you may appeal. " The Board read an email from Evan Lehrer, Town Planner dated July 25, 2023 into the record. "What I remember is that there seemed to have been some deliberate conveyances of the parcels between the husband and wife who owned these parcels in attempt to keep them under separate ownership. At one point in time the husband had title to one property, and the wife held title to the other while living in the same household as tenants in the entirety. I question that there was truly separate dominion and control over the two properties between the husband and wife prior to conveying 363 to their son subsequent the death of the father and thus think that the Commissioner's determination is appropriate. " 2