08/09/2023 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS MEETING MINUTES AUGUST 9, 2023 There was an issue raised by the Town Planner presuming that the lots were held in common ownership because the husband owned one lot in 1962 through 1998,and the wife owned the other property. Attorney Kirrane said that it is not what case law provides. It is not a presumption of the law that a lot held by a husband and an adjacent lot held by a wife is presumed to be common ownership. The case is clear that there is no presumption in master's law that a wife is controlled by her husband as long it can be shown that there are sham conveyances happening. There was one deed in 1962 to the husband,there was one deed in 1962 to the wife there were no intermediary deeds going back and forth on multiple lots that would suggest there was some sham conveyance. The wife continues to own the lot at 7 Cricket Way until she deeded it with her son, and the other lot was deeded from the husband to the son as Trustee of the Trust on which the son's wife is the beneficiary. There are no multiple conveyances and there were no conveyances during various points when the Zoning Bylaws changed. 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 read the cases and wants to hear the thoughts of the Building Commissioner and the Board. David Morris mentioned that the lot is in the flood zone, and if this get through one hurdle, it's unlikely to receive a Variance from this Board. Chairman Bonvie mentioned that the last case law does make some sense, although the Court said you should not presume. He noticed that most of the deeds were conveyed for one dollar.He asked Attorney Kirrane if he could provide scheduled beneficiary documentation. Mr.Bonvie stated that he had reviewed all the deeds that were provided, and believes that there is control among both the properties. 2