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Home My WebLink About0116 BAY ROAD � g f � I ' o 1 O p, ,r+. .. w_h� 'a. y — .f�-!""-.�'1.r.�...,i.��'w• �°''�� - �A.�'.,i�_.r'T�1..K f� _ �4a" _ �Jn "V n s ` , � � � � � � a oFTMe>� The Town -of Barnstable 1639. .0� Department of health Safety and Environmental Services Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner March 17, 1998 Albert J. Schulz { Attorney At Law William Charles Place 7 Parker Road ' Osterville,MA 02655-2034 Re: Parcels 21 and 22 -Assessors Map No. 7 r 108 and 116 Bay Road, Cotuit Dear Attorney Schulz: After reconsideration by our legal staff, I am now informed that they agree with you and that Lots 86 and 87 Bay Road, Cotuit, were separately owned. As a result,both are buildable from a zoning standpoint. Sincerely, Ralph M. Crossen --- Building Commissioner - RMC/lbn. g980317c ALBERT J. SCHULZ ATTORNEY AT LAW WILLLAM CHARLES PLACE 7 PARKER ROAD OSTERVILLE,MASSACHUSETTS 02655-2034 I TELEPHONE(508).428-0950 FACSIMILE(508)420-1560 February 26, 1998 PAI Ralph Crossen /i Building Commissioner Town of Barnstable 367 Main Street. Hyannis, MA 02601 ` Re: Parcels 21 and 22 -Assessors Map No. 7 108 and 116 Bay Road, Cotuit, IVA Dear Mr. Crossen: On behalf of the owners of Lot 87, Bay Road, Cotuit (Assessors Map 7, Parcel 22), I request that you review and reconsider your decision, rendered on or about January 29, 1998, that Lots 86 and 87 were held in common ownership. I believe that your decision was an unwarranted extension of the Appeals Court's holding in Planning Board of Norwell v. Serena, 406 Mass. 1008 (1990). As you know, in Serena, a husband'and wife owned one lot as tenants by the entirety and the other as sole trustees and beneficiaries of a trust. The Court, in deciding that both lots were held in common ownership, ruled that"all of the land of each of the Serenas was available to avoid or reduce the diminished non-conformity of either lot viewed in isolation." In the present case, the title to Lot 87 passed under the will of Manuel Z. Sherman, Barnstable County Probate No: 90P-1307-EP1. A 1/3.interest passed.to Richard Issenberg.and Milton Issenberg, in trust, for the benefit of Kent Issenberg' The law of trusts provides that one holding title to land as trustee under a will is the"owner". Animal Rescue League of Boston v. Bourne's Assessors, 310 Mass. 330 (1941); see also Daley v. Daley, 300 Mass. 17(1938). The trustee owns the property subject to the terms of trust. Kaufman v. Federal National Bank, 287 Mass. 97 (1934). Under the terms of Mr. Sherman's will, he specifically authorized the trustees to "all the acts and exercise all powers, rights and privileges which an absolute owner of the same would have been without limitation". This trust lasts for ten (10) years, with a maximum distribution to i I The owners of Lot 86 are Peter Issenberg, Richard Issenberg and Kent Issenberg, individually, as joint tenants. r Kent of$25,000.00. It is clear, therefore, that"all" of the land of"each" of the owners was not available to avoid or reduce the dimensional non-conformity as required by.Serena. This is not a case where lots were specifically "checkerboarded" in order to avoid merger. In fact, Mr. Sherman's will was executed prior to the Serena decision. In conclusion, I hope that you will re-review my previous correspondence in light of the narrow holding in Serena, and rule that Lots 86 and 87 were never held in common ownership. Sincerely, Albert J. S lz AJS/wmg File No. 20537 cc: Robert D. Smith, Esq., Town Attorney Ruth J. Weil, Esq., Assistant Town Attorney 9 ALBERT J. SCHULZ ATTORNEY AT LAW WILLIAM CHARLES PLACE 7 PARKER ROAD OSTERVILLE,MASSACHUSETTS 02655-2034 TELEPHONE(508)428-0050 FACSIMILE(508)420-1536 January 22, 1998 Ralph Crossen Building Commissioner Town of Barnstable 367 Main Street Hyannis, MA 02601 RE: Parcels 21 and 22 - Asses No. 7 108 and 116 Bay Road Cotuit MA Dear Mr. Crossen: I have examined the record title to two adjoining parcels of land on Bay Road, Cotuit, shown as Parcels 21 and 22 on Assessor' s Map No. 7 . These parcels are also shown as Lots 86 and 87 on a plan of land recorded in Plan Book 15, Page 67 . My report on these two lots is as follows : LOT 86 (vacant land) Title to Lot 86 is assumed in Thomas H. Lyons, by deed of John E. Frazier and Blanche R. Frazier, dated June 5, 1953 recorded in Book 843 , Page 575 . Thomas H. Lyons conveyed Lot 86 to Milton Issenberg and Ruth F. Issenberg by deed dated July 10, 1979, recorded in Book 2950, Page 209 . By deed__ A.New-emmber -330g,, 1�9r9D and, rxe�corded� n Book Ctenants, �, —®- ilton and Ruth Issenberg conveyed Lot 86 to Kent enberg, Richard Issenberg and Peter Issenberg as joint who are the current owners of record. - LOT 87 (improved real estate) Title to Lot 87 is assumed in Manuel Z. Sherman by deed of Robert A. McNutt, Jr. , dated March 28, 1962, recorded in Book 1171, Page 360 . Manuel Z. Sherman died testate in 1990, Barnstable Probate and Family Court Docket No. 90P-1307-EP1 . Under the provision of Mr. Sherman' s will, his property passed, in equal shares, to the following persons, as tenants in common: a) Richard b) Peter"'Issenberg c) Richard Issenberg and Milton Issenberg, as Trustees D I under the Will of Manuel Sherman for the benefit of Kent Issenberg. By deed dated, June 22 , 1994 and recorded in Book 9263 , Page 232 , the above legatees conveyed Lot 87 to Craig F. Flemming, the current owner of record. The issue of common ownership was addressed by the Supreme Judicial Court in the case of Planning Board of Norwell v. Serena, et al, 406 Mass . 1008 (1990) . In Serena, husband and wife owned one vacant lot as tenants by the entirety, and were the sole trustees and beneficiaries of a trust which held title to the adjoining vacant lot . The Supreme Judicial Court affirmed Land Court' s judgment which found that since the Serenas had "control" over both lots, such lots were held in common ownership. The present case is clearly distinguishable from Serena. Here, the legal title to one third of Lot 87, prior to its sale, was held by Richard and Milton Issenberg as trustees under the Will of Manuel Sherman for the benefit of Kent Issenberg. Kent, as beneficiary had no "control" over the one-third interest . In fact, the trust under Mr. Sherman' s will does not expire for a period of ten (10) years (copy of will is enclosed) . Since the legal and beneficial interest of a one-third interest in Lot 87 were not in the same persons, and since Kent Issenberg as beneficiary had not control over that interest, it is my opinion that at no time from 1953 to the present were Lots 86 and 87 held in common ownership. Lot 86 is presently listed for sale as a separate building lot . In order to facilitate the sale of this lot, I would appreciate your reviewing my opinion regarding these lots and if you agree with my opinion, sign a copy of this letter where indicated, and return it to me in the enclosed envelope. If you have any questions or need additional information or documentation before a decision can be made, please feel free to contact me . Sincerely, Albert J. Schulz AJS/dab Enclosure 20537opn.ltr i Based on the facts as outlined above, I LwaQ5RD that Lots 86 and 87 were r held in common ownership. �-- Ral h Cros en, Building Inspector ATTEST: o REGISTER LAST WILL AND TESTAMENT OF MANUEL Z . SHERMAN I , MANUEL Z . SHERMAN of Barnstable, Barnstable County and Commonwealth of Massachusetts, •being of sound mind and memory, do make this my last will and testament, hereby revoking all former wills and codicils by me at any time heretofore made. ARTICLE I: I direct that all my estate, inheritance, transfer and other taxes by reason of my death shall be paid of Y my estate. a ARTICLE II . I give, devise and bequeath all my worldly goods, whether real property, personal property or mixed to my nephews , Richard Issenberg, Peter Issenberg and Kent Issenberg or to the survivors of them, in equal shares , share and share alike. However, the shares to Kent Issenberg, are to be placed in trust, the terms of which are herein set forth: TRUST I nominate and appoint Milton Issenberg and Richard Issenberg as trustees hereunder who are authorized to invest the corpus and to do all the acts and exercise all the powers, rights and privileges, which an absolute owner of the same property would have been without limitation. In the event one of the trustees fails to take office or does not complete his term, for any reason whatsoever, I direct the surviving trustee to act solely. The beneficiary shall be Kent Issenberg. This trust shall terminate upon the happening of any of the following three events: /n /`/ 1 Cl Docketed a. The expiration of ten years from this date, whereupon the balance of the corpus shall be distributed to the beneficiary. b. The distribution of all the assets prior to the ten years . c. The death of Kent Issenberg, whereupon the corpus shall be equally divided between Richard Issenberg and Peter Issenberg or all to the survivor. The trustees are authorized and empowered to distribute to Kent, from time to time , in their judgment and discretion, a sum or sums not to exceed Twenty Five Thousand Dollars, including principal and income, in any calendar year. ARTICLE III. I nominate and appoint Richard Issenberg and Peter Issenberg to be my executors hereunder and request that if they are appointed to serve hereunder, they shall be exempt from furnishing any surety or sureties on their bond. LL-J Manuel Z . Sherman 2 On This /-, - day of of ?4 ��ay.1990 Manuel Z . Sherman signed the foregoing instrument in our presence, declaring it to be his last will and testament and thereafter, as witnesses thereof, both of us, at his request, in his presence and in. the presence of each other hereby subscribe our names. S;2� 0 1�� I 3