HomeMy WebLinkAboutWhite Variance reponse to 3.23.22 hearing issues. 4.25.22 LAW OFFICES OF
THEOD®ftE A. SCHILLING, P.C.
12 PARKER ROAD, OSTERVILLE, ➢IASSACHUSETTS 02655
TELEPHONE 508.775.0700; FAX 508.775.0792
www.lawcapccod.conn EMAIL: tas(&.Iawcanecod.com
VARIANCE NO. 2022.006 WHITE
On March 23, 2022, there was a Zoom Hearing for the above-captioned Variance
Petition. There were a number of questions and misunderstandings that I will now attempt to
correct.
I.We are petitioning for a Variance on rear yard setback from 10' to 3'. The house is
located ten feet from the rear yard setback (see Plan in Plan Book 301, Page 1),
Attached to the house is a small deck and sideway steps for access to a rear door.
We agree to remove the deck and stairs, if required. There are a number of access
doors to this house .See Attachment I
2.It was stated that Homestead Realty Trust owned Lots 1 and 2 according to the
Barnstable Assessors' records; this is not true. Sae attached copies of the Assessor's
records for 438 South Street (Lot 2), and sales history, which shows two sales to
Allen White, one of which was a Confirmatory Deed for the same Lot 2 and no sales
for Lot 1. See 434 South Street (Lot 1) sales history, which also shows two deeds to
Allen J. White, Trustee of Homestead Realty Trust, one of which was a
Confirmatory Deed for the same Lot 2,See Attachments 2&3
3.11mnestead Realty Trust with Allen J. White as Trustee is a Nonninec Trust which is a
unique trust in Massachusetts. Unlike revocable and irrevocable trusts where the
Trustee has the control of the real estate, the Trustee of a Nominee Trust, which is
not a true Trust, holds the property for the beneficiaries and the beneficiaries
exercise control over the property without any control in the Trustee, without their
permission. No merger took place in 2003 since both Lots were not controlled by
the same person. The Homestead Realty Trust Schedule of Beneficial Interest (see
attached) was and is controlled by the Beneficiary, Eden A. White, one-hundred
percent ownership which schedule is dated April 7, 1997.See Attachments 4 &5
4.1t was stated that merger created a defective title, which is not true. The chain of
title depends on the transfer of property from owner to owner for at least 50 years.
Lot 1 and Lot 2 have an unbroken complete chain of title of ownership making their
record title valid, which cannot be effective by any changes in zoning. Title is
usually conveyed by good, clear and record marketable title. Zoning, which is
outside the control of any owner, effects marketability of title, not based on owner's
actions but based on Town issuing zoning changes and in this particular area at
least five times during 1975 and 2003. It is exceedingly difficult for anyone to track
the effect of these changes on these Lots. Clearly, in 1975 an ANR Plan 301-1
1
created Lots 1 and 2 under the then Zoning Law. These same Lots still exist today,
based on that Plan. The original land in 1975 was subdivided into these two Lots
based upon the then zoning requirements to create one improved Lot and one
buildable Lot. Due to the improved Lot and the buildings located thereon, Lot 1
was created very irregularly clue to the buildings and the side and rear yard
setbacks. This created an irregularly shaped Lot which is a condition allowed for
variance, especially since it is different than all the other Lots ill the area. As shown
on Assessor's Plan of South Street lots and surrounding area. See attachment 6
5.Since zoning merger tools place in February 1985 when this section was RB1 and was
changed to a minimum area size of 45,560 rendering both Lots non-compliant.
Since Allen J. White and the beneficiary of the Homestead Realty Trust owned and
controlled Lot I and Lot 2, they are not deoned to be under the same ownership
and control since 2003, however, previously merged in 1985, so there was no self-
imposed hardship that created this situation.
6. Lot 2 has been and is still own by Jared Pane Trustee of the own by South Street
Investment Trust since 4/17/12. He was given notice the petition for variance.
He would not object to this variance since he has the sane problem with is lot that
cannot be corrected by owner of lot 1.
�L
Conclusions:
A. I believe we have met one or both of the three requirements concerning soil,
shape and topography due to the irregular shaped Lot, which was caused by
creating a Lot for the buildings then in existence and generally, not effecting
other Lots in the zoning district.
B. A literal enforcement would be a substantial hardship since without the
granting of the Variance there is no other way to remove the marketability issue
of this Lot,
C. In 1975, the year that the Lots were created, and remain the same today, with
the surrounding Lots in the area being about the sane size, or smaller, this
would not be in derogation of the intent of zoning.
2
Questions and Statements made at the March 23, 2022, Hearing:
1. Lots were merged in 1985 and act by Allen J. White in 2003. See
discussion or Nominee Trust and Assessor's records.
2. Merger can be fixed by title insurance— not true. Title insurance does not
and cannot fix title problems or marketability issues, including zoning
issues. It only can insure against enforcement of the same.
3. Title is defective due to merger; not true —see discussion.
Based on all of the above, it is my opinion that this Board can and should
issue a Variance. There is no nenv construction; no changes from 1975; and
there is no way that we can make the owner of Lot 2 part of our
application, who has received notice and has not objected to the same.
3
. . . - - .
•Laew I 1
jjj777...11 9F.v✓aM/N I6
/fBPA/@J 6T' HL �� COMPOUND oa YNE
aW,f .c Sy /Mye s% I W P/.t/9 BE-3cN> /NG
� boof .-aea P.a9�+ /iB i gNNE L• SUL4/V N 2T AL
iPLAHSco� 7 � a/z»so .sue /ya9
n '<`fi62'n'.'w:rwc �� rei. yy . ... ,_ r s�e.as• :::...�
0yr �-
aa tia ro n
8 � '3evAze
� gr114
�
• 'a ...maser %%/ � � � ,„
V
suanlV/s/aN FL/aA/ o.•+ 4~1 l.V Nore'+
AIYFaN.V/S S /9,2�/S rig �L. E /NA 85. u/.9 Pc eiM✓re,e S<3C�.e= �,.< °�
FO.P SHAPE N M.9E.G 'v /97
LAU.2E.VCE• W SULL/✓f9N 2oN/NSi .D•vT.¢/cY �- ,Ee
tavv�+ra.t�Lc- �uev Y �U.LTANYS /Nc.
gPP.�O✓AL NOT 26m.U/�D
Bq.2NSYABLE /PL� �gNN/NCj SOA£a
d �oAreS- a�G� to
WaO
.cws .esgvY zsc L o uzV Y� ,^`
1}
Assessing Division
Map/Block/Lot: 308/ 123/
Property Address /
438 SOUTH STREET 1/
Village: Hyannis
Town Sewer At Address: Active
CWMP Sewer Expansion: None planned at this time
(subject to change with final engineering design)
Road Type: Town
GIS Zoning Value:SFOwner Name as of 1/1/22:
WHITE,ALLEN J
405 SOUTH ST
HYANNIS, MA.02601
Co-Owner Name
Assessed Values
Tax Information
Sales History
Owner: Sale Date Book/Page: Sale Price:
WHITE,ALLEN 1 2004-07-12 00:00:00.0000000 18818/0342 $1
WHITE,ALLEN J 2003-03-14 00:00:00.0000000 16577/0136 $400000
CID TREY INC 1984-01-15 00:00:00.0000000 3993/0180 $110000
CONLEE, BRENDAJ 1980-06-15 00:00:00.0000000 3114/0184 $75000
Photos
Assessing Division
Map/Block/Lot: 308/280/
Property Address
434 SOUTH STREET
Village: Hyannis
Town Sewer At Address: No
CWMP Sewer Expansion: None planned at this time
(subject to change with final engineering design)
Road Type:Town
GIS Zoning Value:SFOwner Name as of 1/1/22:
PANE,JARED J TR
599 MAIN STREET
HYANNIS, MA.02601
Co-Owner Name
SOUTH STREET INV TRU
Sales History
Owner: Sale Date Book/Page: Sale Price:
PANE,JARED J TR 2012-04-17 00:00:00.0000000 26252/0184 $100000
WHITE,ALLEN J TR 2004-07-12 00:00:00.0000000 18818/0344 $1
WHITE,ALLEN J TR 2003-03-14 00:00:00.0000000 16577/0137 $50000
CID TREY INC 1984-01-15 00:00:00.0000000 3993/0180 $110000
CONLEE, BRENDA J 1980-06-2300:00:00.0000000 3114/0185 $0
A "Nominee Trust" is an estate planning tool that is unique to Massachusetts. It is
essentially a realty trust in which the trust holds the property for the
beneficiaries, but the beneficiaries are able to exercise control over the real
property. Given this a Nominee Trust is not a "true trust" such as an irrevocable
trust, which is controlled by a trustee. In an irrevocable trust you relinquish
ownership in the trust property and the control over the trust property is given to
a trustee for the benefit of the trust beneficiaries. In a Nominee Trust the
beneficiaries direct the trustee and may even serve as the trustee. Also, unlike an
irrevocable trust, the beneficiaries of an NT may terminate
I
HOMESTEAD REALTY TRUST
SCHEDULE OF BENEFICIARIES
The following is the beneficiary of the Homestead Realty Trust
established under Declaration of Trust dated April 1 , 1986, and that the
following is its beneficial interest thereunder :
Named Percentage of
Beneficiary Beneficial Interest
Eden A White One Hundred Percent (100%)
I
RECEIPT OF SCHEDULE OF BENEFICIARIES
I , the undersigned, hereby certify that I am the Trustee under said
Declaration of Trust and that the attached Schedule of Beneficiaries has
been filed with me this 2nd day of APRIL, 1997
Allen J ite, Trustee
I
a • • • , '► r x Legend
• ,"", �. '�.� Parcels
a. ... -... .., y - Town Boundary
Railroad Tracks
Buildings
Approx.Building
Buildings
.,.� as y' ,.✓ +� Parking Lots
Paved
Unpaved
Roads
oe, s .A... `..d �,� "r"" a c�t9`+1 Paved Road
Unpaved Road
0 Bridge
Paved Median
"'' '„ '. c^'� - Water Bodies
3 4� w
-__ `�.� .r; '- .�" n,t' r✓ d ,mac S� �✓ a
.X
EN
MAPLE A�r=
Map printed on: 4/22/2022 This map is for inuslrntion purposes only.It is not Parcel lines shown on this ma are only
adequate for legal boundary determination or p Y&They are
'aPhtc Town of Barnstable GYS Unit
Feet regulatory interpretation.This map does not represent ao trae property boundaries a do�present 367 Main Street,Hyannis,MA 02601
0 333 667 anon-the-ground survey.It may be generalized not accurate relationshi sto mare p physical obiec2s on the maP 5o8-862-4624
reflect
artogrphice conditions,missio may contain such asbm7dinglocations.
Approx. Scale: l inch = 333 feet cartographieerrorsoromissions. gis@town.barnstable.ma.us