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 Kirrane does not believe the Town Planner's opinion is accurate. The case law is clear that a husband and wife can certainly own properties that are adjacent to each other without under common ownership or common control. Attorney Kirrane mentioned that one of case a daughter owned one property, and the Trust owned the adjacent property which that daughter was the Trustee, and her mother was the beneficiary. The Court said that this was not common ownership. The reason the Court found that it was not common ownership was because under the Trust, the Trustee owns the fiduciary duty to the beneficiary. The beneficiary is not the mother, it's the Trustee's wife. Mr. Reidy asked if the way the property was utilized by the separate parties over the years in any way determinative. Attorney Kirrane said that the lot at 363 Monomoscoy is vacant. No one uses it. He provided the Gallagher case which sets forth various factors which Courts consider. The Town of Mashpee since 1962 and beyond assessed these properties separately.They are not treated as combined. The field card said that 363 Monomoscoy Road is developable. The mother has no control over 363 Monomoscoy Road. A fence that runs along both 363 Monomoscoy and 7 Cricket Way does not determine as common ownership because it runs beyond these two properties. Chairman Bonvie asked for final comments from the Building Commissioner and the Board. Mr. Morris stated for the record that 363 Monomoscoy Road is in the flood zone, and unlikely to receive a Variance from the Board. Chairman Bonvie noticed that most of the deeds were conveyed for one dollar. He reviewed the deeds, and believes that there is control among both properties. Mr. Reidy does not believe the burden of proof has been fulfilled. The Board finds that both 363 Monomoscoy Road and 7 Cricket Way are held in common ownership with the understanding that Dene R. Burns who owns 7 Cricket Way and Erlmest E. Burns who owns 363 Monomoscoy Road do have "common control" together over these two properties, and that the supplemental case law documentation provided by Attorney Kirrane did not provide specific evidence that both lots were held separately at the time of the zoning change. 3