Session Laws

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. For purposes of this act, the words and phrases set forth in this section shall have the following meanings:-

"Fund", shall refer to the Martha's Vineyard Land Bank Fund established under the provisions of section eight.

"Institutional lender", any bank as defined in section one of chapter one hundred and sixty-seven of the General Laws, any insurance company as defined in section one of chapter one hundred and seventy-five of the General Laws, and any mortgage company or investment company that made more than twenty mortgage loans in the calendar year preceding the year of the relevant mortgage for the purposes of subsection (m) of section twelve, and any national bank, federal savings and loan, federal savings bank, bank holding company, or state or federally chartered credit union.

"Land bank", the Martha's Vineyard Land Bank, established by section two.

"Land bank commission", the Martha's Vineyard land bank commission, established by section three.

"Purchaser", the transferee, grantee or recipient of any real property interests.

"Purchase price", all consideration paid or transferred by or on behalf of a purchaser to a seller or his nominee, or for his benefit, for the transfer of any real property interest, and shall include, but not be limited to, all cash or its equivalent so paid or transferred, all cash or other property paid or transferred by or on behalf of the purchaser to discharge or reduce any obligation of the seller; the principal amount of all notes or their equivalent, or other deferred payments, given or promised to be given by or on behalf of the purchaser to the seller or his nominee; the outstanding balance of all obligations of the seller which are assumed by the purchaser or to which the real property interest transferred remains subject after the transfer, determined at the time of transfer but excluding real estate taxes and other municipal liens or assessments which are not overdue at the time of transfer; and the fair market value at the time of transfer of any other consideration or thing of value paid or transferred by or on behalf of the purchaser, including, but not limited to, any property, goods or services paid, transferred or rendered in exchange for such real property interest.

"Real property interest", any present or future legal or equitable interest in or to real property, and any beneficial interest therein, including the interest of any beneficiary in a trust which holds any legal or equitable interest in real property, but shall not include any interest which is limited to any or all of the following: the dominant estate in any easement or right of way; the right to enforce any restriction; any estate at will or at sufferance, and any estate for years having a term of less than thirty years; the reversionary right, condition, or right of entry for condition broken; the interest of a mortgagee or other secured party in any mortgage or security agreement; and the interest of a stockholder in a corporation, or a partner in a partnership.

"Seller", the transferor, grantor or immediate former owner of any real property interests.

"Time of transfer", of any real property interest shall mean, the time at which such transfer is legally effective as between the parties thereto, and, in any event, with respect to a transfer evidenced by an instrument recorded with the appropriate registry of deeds or filed with the assistant recorder of the appropriate registry district, not later than the time of such recording or filing.

"Town advisory board", a town board created in each of the towns of Chilmark, Edgartown, Gay Head, Oak Bluffs, Tisbury, and West Tisbury to assist the land bank commission in administering this act, such advisory board to consist of one representative duly appointed, either from its membership or otherwise, by each of the following town boards should they exist: conservation commission, planning board, board of assessors, board of health, park and recreation commission, board of selectmen and water commission.

SECTION 2. There is hereby established a Martha's Vineyard land bank, to be administered by a land bank commission established by section three, for the purpose of acquiring and holding and managing land and interests in land of the types set forth in section five.

This act shall not affect the eligibility of any member town to receive funds under the land conservation program created under section eleven of chapter one hundred and thirty-two A of the General Laws, or under any similar state program.

SECTION 3. The land bank shall be administered by a land bank commission, a public body corporate, consisting of seven persons, of whom there shall be one person who is a legal resident of each of the towns of Chilmark, Edgartown, Gay Head, Oak Bluffs, Tisbury, and West Tisbury, each person to be elected for a three year term, in the same manner as other elected town officials, provided that the initial terms, drawn by lot by the initial six appointed members, shall be staggered so that two members are elected each year, following the initial election of members; and provided, further, that the county commissioners shall, respectively, appoint the initial six members, including one person who is a legal resident of each of the six towns that comprise the land bank to serve from the effective date of this act until the first elections of the regular members at each town's first regular or special town election following the effective date of this act. The secretary of environmental affairs or his designee shall be a voting member of the land bank commission. Members shall serve without compensation. The initial appointed members shall adopt temporary rules and regulations to the extent necessary to conduct business until the regular members are elected. The land bank commission shall elect a chairman and a secretary/treasurer from among its regular members; shall adopt, after holding a public hearing and after requesting recommendations from the town advisory board of each of the six member towns that comprise the commission, rules and regulations for conducting its internal affairs and procedural guidelines for carrying out its responsibilities under this act. The land bank commission shall also adopt a management plan for managing each of its land holdings in a manner consistent with section five. In preparing a management plan for any parcel of land, the land bank commission shall use, as guidelines, the open space and master plans, if any, of the town or towns in which such parcel is located and shall request the recommendations of the town advisory board of any such town or towns; and the adoption or change of any such management plan shall be subject to the approval of the town advisory board of any such town or towns. Decisions of the land bank commission shall be by a majority vote, of those present and voting, and no business shall be transacted without four town representative members present; provided that decisions to acquire interests in land and to request state approval of any proposed disposition of an interest in any parcel of land or of any change in its use shall require the affirmative approval of at least four town representative members of the land bank commission. The land bank commission shall keep accurate records of its meetings and actions and shall file an annual report which shall be printed in the annual report of each member town.

SECTION 4. The land bank commission shall, subject to the provisions of this act, have the power and authority to: (a) acquire, by purchase or gift, fee simple interests, and any lesser interests, in any parcel of land situated within any of the towns that comprise the land bank commission, of the types set forth in section five, including any improvements thereon; provided, however, that the land bank commission shall, in considering any such acquisition, use as guidelines the open space and master plans, if any, of the town or towns in which such parcel is located, and provided further that any such acquisition shall require the approval of the town advisory board of any such town or towns; (b) accept gifts of funds to further the purposes of the land bank; (c) take any such interests in land by eminent domain pursuant to chapter seventy-nine of the General Laws, but only by a vote of the land bank commission in which at least four town representative members vote in favor of such taking and further, only after having been authorized to do so in each instance by a two-thirds majority vote of each town that comprises the land bank commission at its annual or special town meeting, and further, only after first making a reasonable effort to negotiate the acquisition thereto by purchase; (d) dispose of all or any part of its interests in any parcel of land, or change the use of such parcel, but only with the approval of the town advisory board of the town or towns in which such parcel is located and with the approval of the secretary of environmental affairs and subject to the provisions of Article XCVII of the Articles of Amendment to the Constitution of the Commonwealth, to the extent applicable; (e) incur debt, pledging the full faith and credit of each of the towns that comprise the land bank commission but only after having been authorized to do so in each instance by a two-thirds majority town meeting vote of each town; or of the county of Dukes County, but only after having been authorized to do so in each instance by a two-thirds majority town meeting vote of each town in the county of Dukes County; and incur debt, without such town meeting authorization, by pledging the full faith and credit of the land bank commission; (f) prepare an annual budget, which shall be subject to approval by the town advisory boards of the majority of the member towns of the land bank commission; (g) hire such staff and obtain such professional services as are necessary in order to perform its duties; (h) administer and manage its interests in any parcel of land in a manner consistent with section five and with the land management plan adopted for such parcel under section three; and (i) expend funds to supplement municipal, state, or federal funds for the purchase of interests in land of the types set forth in section five.

SECTION 5. Interests in land to be acquired shall be situated in a member town and may consist of any of the following: (a) land to protect existing and future well fields, aquifers and recharge areas; (b) agricultural lands; (c) forest land; (d) fresh and salt water marshes and other wetlands; (e) ocean and pond frontage, beaches, dunes, and adjoining backlands, to protect their natural and scenic resources; (f) land to protect scenic vistas; (g) land for nature or wildlife preserve; (h) easements for trails and for publicly owned lands; and (i) land for passive recreational use.

SECTION 6. The land bank commission shall retain any real property interest acquired pursuant to this act predominantly in its natural, scenic or open condition, and shall not restrict access to any property interest on the basis of residency or domicile. With respect to any such real property interest, the land bank commission shall not permit any of the following without the approval of the town advisory board of the town or towns in which such real property is located and without the approval of the secretary of environmental affairs: (a) construction or placing of buildings, roads, signs, billboards, or other advertising utilities or other structures on or above the surface, (b) dumping or placing of soil or other substance or material as landfill, or dumping or placing of trash, waste or unsightly or offensive materials, (c) removal or destruction of trees, shrubs, or other vegetation, (d) excavation, dredging, or removal of loam, peat, gravel, soil, rock, or other mineral substance in such manner as to affect the surface, (e) surface use except for purposes permitting the land or water area to remain predominantly in its natural condition, (f) activities detrimental to drainage, flood control, water conservation, erosion control, or soil conservation, or (g) other acts or uses detrimental to such retention of land or water areas. In determining whether or not to approve a request from the land bank commission to use or improve any real property interest acquired by the land bank commission in a manner otherwise prohibited by this section, the secretary of environmental affairs shall consider whether such request is in the interest of conservation and any national, state, regional or local program in furtherance thereof, and also any public, state, regional or local comprehensive land use or development plan affecting the land, and any known proposal by a governmental body for use of the land.

SECTION 7. The land bank commission shall file annually with the secretary of environmental affairs a report of its activities during the year preceding such filing. The report shall list all real property interests currently held by the land bank commission, including a description of the use thereof, and shall include all acquisitions, improvements and dispositions of real property interests by the land bank commission during such year. The report shall also include a current plan for its future operations which shall be, as far as possible, consistent with the open space and master plans of each of the towns and with any regional planning in the area. The secretary of environmental affairs may require any other information which said secretary deems important.

SECTION 8. The land bank commission shall meet its financial obligations by drawing upon a fund, to be set up as a revolving or sinking account within the treasury of the county of Dukes County. Deposits into the fund shall include (a) funds appropriated, borrowed, or transferred to be deposited into the fund by vote of the county commissioners of the county of Dukes County or of town meetings of the towns that comprise the land bank commission; (b) voluntary contributions of money and other liquid assets to the fund; (c) revenues from fees imposed upon the transfer of real property interests as set forth in section ten occurring after the effective date of this act as set forth in section fifteen, together with payments of interest and penalties under section thirteen; and (d) proceeds from disposal of real property or interests. All expenses lawfully incurred by the land bank commission in carrying out the provisions of this act shall be evidenced by proper vouchers and shall be paid by the county treasurer of said county only upon submission of warrants duly approved by the land bank commission. The county treasurer of said county shall prudently invest available assets of the fund, and all income thereon shall accrue to the fund.

SECTION 8A. An account shall be established by the land bank commission for each member town of the land bank. The county treasurer shall administer all transactions for the individual town accounts. Of the revenues collected under this act, fifty per cent shall remain in the fund, to be directly administered by the land bank commission in accordance with the provisions of this act. The remaining fifty per cent of the revenues collected shall be transferred to the individual town accounts in proportion to the amount of collected land bank revenues derived from transfer of any real property interest in any real property within each respective town. The town advisory board of each member town shall control the disbursement of funds of its respective land bank account; such revenue to be used for purchases allowable under this act within its town borders and for land bank purchases outside its town borders.

SECTION 9. The land bank commission shall keep a full and accurate account of its actions including a record as to when, from or to whom, and on what account money has been paid or received relative to this act, and as to when, from and to whom and for what consideration real property interests have been acquired, improved, or disposed of. Said records or accounts shall be subject to examination by the director of accounts or his agent pursuant to section forty-five of chapter thirty-five of the General Laws.

Said county treasurer shall keep a full and accurate account stating when, from or to whom, and on what account money has been paid or received relative to the activities of the land bank commission and the land bank. Said account shall be subject to examination by the director of accounts or his agent pursuant to section forty-four of chapter thirty-five of the General Laws.

SECTION 10. There is hereby imposed a fee equal to two per cent of the purchase price upon the transfer of any real property interest in any real property situated in a member town or towns provided that the fee percentage may be reduced by a two-thirds vote in favor of such reduction at the annual town meetings of a majority of the member towns in a single calendar year. Said fee shall be the liability of the purchaser of such real property interest, and any agreement between the purchaser and the seller or any other person with reference to the allocation of the responsibility for bearing said fee shall not affect such liability of the purchaser. Such fee shall be paid to the land bank commission or its designee, and shall be accompanied by a copy of the deed or other instrument evidencing such transfer, if any, and an affidavit signed under oath or under the pains and penalties of perjury by the purchaser or his legal representative, attesting to the true and complete purchase price and the basis, if any, upon which the transfer is claimed to be exempt in whole or in part from the fee imposed hereby. The land bank commission, or its designee, shall promptly thereafter execute and issue a certificate indicating that the appropriate fee has been paid or that the transfer is exempt from the fee, stating the basis for the exemption. The register of deeds for the county of Dukes County, and the assistant recorder for the registry district of the county of Dukes County, shall not record or register, or receive or accept for recording or registration, any deed, except a mortgage deed, relative to a real property interest in land situated in any town that is a member of the land bank commission to which has not been affixed such a certificate, executed by the land bank commission or its designee. Failure to comply with this requirement shall not affect the validity of any instrument. The land bank commission shall deposit all fees received hereunder with the county treasurer of the county of Dukes County as a part of the fund established by section eight. The fee imposed hereunder shall be due simultaneously with the time of transfer upon which it is imposed.

SECTION 11. At any time within seven days following the issuance of the certificate of payment of the fee imposed by section ten, the purchaser or his legal representative may return said certificate to the land bank commission or its designee for cancellation, together with an affidavit signed under oath or under the pains and penalties of perjury that the transfer, with respect to which such certificate was issued, has not been consummated, and thereupon the fee paid with respect to such transfer shall be forthwith returned to the purchaser or his legal representative.

SECTION 12. The following transfers of real property interests shall be exempt from the fee established by section ten. Except as otherwise provided, the purchaser shall have the burden of proof that any transfer is exempt hereunder:

(a) transfers to the government of the United States, the commonwealth, and any of their instrumentalities, agencies, or subdivisions;

(b) transfers which, without additional consideration, confirm, correct, modify or supplement a transfer previously made;

(c) transfers made as gifts without consideration; in any proceedings to determine the amount of any fee due hereunder, it shall be presumed that any transfer for consideration of less than fair market value of the real property interests transferred was made as a gift without consideration to the extent of the difference between the fair market value of the real property interests transferred and the amount of consideration claimed by the purchaser to have been paid or transferred, if the purchaser shall have been at the time of transfer the spouse, the lineal descendant, or the lineal ancestor of the seller, by blood or adoption, and otherwise it shall be presumed that consideration was paid in an amount equal to the fair market value of the real property interests transferred, at the time of transfer;

(d) transfer to the trustees of a trust in exchange for a beneficial interest received by the seller in such trust; distributions by the trustees of a trust to the beneficiaries of such trust;

(e) transfers by operation of law without actual consideration, including but not limited to transfers occurring by virtue of the death or bankruptcy of the owner of a real property interest;

(f) transfers made in partition of land and improvements thereto, under the provisions of chapter two hundred and forty-one of the General Laws;

(g) transfers to any charitable organization as defined in clause third of section five of chapter fifty-nine of the General Laws, or any religious organization, provided that the real property interests so transferred shall be held by the charitable or religious organization solely for its public, charitable or religious purposes;

(h) transfers to a mortgagee in foreclosure of the mortgage held by such mortgagee, and transfers of the property subject to a mortgage to the mortgagee in consideration of the forbearance of the mortgagee from foreclosing said mortgage;

(i) transfers made to a corporation or partnership at the time of its formation, pursuant to which transfer no gain or loss is recognized under the provisions of section three hundred and fifty-one of the Internal Revenue Code of 1954;

(j) transfers made to a stockholder of a corporation in liquidation of the corporation, and transfers made to a partner of a partnership in dissolution of the partnership;

(k) transfers consisting of the division of marital assets under the provisions of section thirty-four of chapter two hundred and eight of the General Laws or other provisions of law;

(l) transfers of property consisting in part of real property interests situated within a town that is a member of the land bank commission and in part of other property interests, to the extent that the property transferred consists of property other than real property situated within a town that is a member of the land bank commission provided that the purchaser shall furnish the land bank commission with such information as it shall require or request in support of the claim of exemption and manner of allocation of the consideration for such transfers; and

(m) the first one hundred thousand dollars of the purchase price of a transfer made to a purchaser who, or whose spouse at the time of transfer, has at no time prior to said transfer owned or possessed any real property interest as defined in section one either within or without a town that is a member of the land bank commission provided that the purchaser intends to make the real property interest which is the subject of the transfer the purchaser's actual domicile within two years of the time of transfer, with the intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode; provided, further, that in the event of a subsequent transfer within five years of the transfer exempted from the fee under this subsection, other than the transfer of a mortgage to an institutional lender, the fee exempted shall become due, together with accumulated interest and penalties, and in addition to any fee otherwise due as a result of the subsequent transfer. The purchaser shall certify as to the foregoing, and the land bank commission shall attach to the deed a certificate which shall recite the fact that there is running with the land a lien equal to the amount of the fee exempted plus accumulated interest and penalties until such time as all conditions of this subsection have been met.

SECTION 13. A purchaser who fails to pay all or any portion of the fee established by section ten on or before the time when the same is due shall be liable for the following additional payments in addition to said fee:

(a) Interest. The purchaser shall pay interest on the unpaid amount of the fee to be calculated from the time of transfer at a rate equal to fourteen per cent per annum.

(b) Penalties. Any person who, without fraud or willful intent to defeat or evade a fee imposed by this act, fails to pay all or a portion of the fee within thirty days after the time of transfer, shall pay a penalty equal to five per cent of the outstanding fee as determined by the land bank commission for each month or portion thereof thereafter that the fee is not paid in full; provided, however, that in no event shall the amount of any penalty imposed hereunder exceed twenty-five per cent of the unpaid fee due at the time of transfer. Whenever the land bank commission determines that all or a portion of a fee due under this chapter was unpaid due to fraud with intent to defeat or evade the fee imposed by this chapter, a penalty equal to the amount of said fee as determined by the land bank commission shall be paid by the purchaser in addition to said fee.

SECTION 14. (a) The land bank commission shall notify a purchaser by registered or certified mail of any failure to discharge in full the amount of the fee due under this act and any penalty or interest assessed. The land bank commission shall grant a hearing on the matter of the imposition of said fee, or of any penalty or interest assessed, if a petition requesting such hearing is received by the land bank commission within thirty days after the mailing of said notice. The land bank commission shall notify the purchaser in writing by registered or certified mail of its determination concerning the deficiency, penalty or interest within fifteen days after said hearing. Any party aggrieved by a determination of the land bank commission concerning a deficiency, penalty or interest may, after payment of said deficiency, appeal to the district or superior court within three months after the mailing of notification of the land bank commission. Upon the failure to timely petition for a hearing, or appeal to said courts, within the time limits hereby established, the purchaser shall be bound by the terms of the notification, assessment or determination, as the case may be, and shall be barred from contesting the fee, and any interest and penalty, as determined by the land bank commission. All decisions of said courts shall be appealable. Every notice to be given under this section by the land bank commission shall be effective if mailed by certified or registered mail to the purchaser at the address stated in a recorded or registered instrument by virtue of which the purchaser holds any interest in land, the transfer of which gives rise to the fee which is the subject of such notice; and if no such address is stated or if such transfer is not evidenced by an instrument recorded or registered in the public records in the county of Dukes County, such notice shall be effective when so mailed to the purchaser in care of any person appearing of record to have a fee interest in such land, at the address of such person as set forth in an instrument recorded or registered in the county of Dukes County.

(b) All fees, penalties and interest required to be paid pursuant to this act shall constitute a personal debt of the purchaser and may be recovered in an action of contract or in any other appropriate action, suit or proceeding brought by the land bank commission; said action, suit or proceeding shall be subject to the provisions of chapter two hundred and sixty of the General Laws.

(c) If any purchaser liable to pay the fee established by this act neglects or refuses to pay the same, the amount, including any interest and penalty thereon, shall be a lien in favor of the land bank commission upon all property and rights to property, whether real or personal, belonging to such purchaser. Said lien shall arise at the time of transfer and shall continue until the liability for such amount is satisfied. Said lien shall in any event terminate not later than six years following the time of transfer. Said lien shall not be valid as against any mortgagee, pledgee, purchaser or judgment creditor unless notice thereof has been filed by the land bank commission (i) with respect to real property or fixtures, in the registry of deeds for the county of Dukes County, or (ii) with respect to personal property, in the office in which a security or financing statement or notice with respect to the property would be filed in order to perfect a nonpossessory security interest belonging to the person named in the relevant notice, subject to the same limitations as set forth in section fifty of chapter sixty-two of the General Laws.

In any case where there has been a refusal or neglect to pay any fee, interest or penalties imposed by this act, whether or not levy has been made, the land bank commission, in addition to other modes of relief, may direct a civil action to be filed in a district or superior court of the commonwealth to enforce the lien of the land bank commission under this section with respect to such liability or to subject any property of whatever nature, of the delinquent, or in which he has any right, title or interest, to the payment of such liability.

The land bank commission may issue a waiver or release of any lien imposed by this section with the approval of the town advisory board of the town or towns in which the property subject to the lien is located. Such waiver or release shall be conclusive evidence that the lien upon the property covered by the waiver or release is extinguished.

SECTION 15. Any town that is a member of the land bank may withdraw therefrom by the affirmative vote of a majority of the voters at any regular or special town election; provided, however, that any real property interest held by the land bank and situated in a town that withdraws from the land bank shall remain within the land bank until such time as the land bank is dissolved. Any town that withdraws from the land bank shall remain liable for all debts and obligations incurred by the land bank for any real property interests situated within said town during the period of such town's membership to the same extent as if the town had remained a member; provided that, such town shall not be liable for debts and obligations incurred by the land bank subsequent to the town's withdrawal. A town that has so withdrawn may petition the legislature to renew its membership.

If membership in the land bank is reduced to fewer than three of the original members, the land bank shall be dissolved. Upon dissolution of the land bank, title to all funds and other properties held by the land bank shall vest in the towns of the county of Dukes County as herein provided after provision is made for payment of all bonds, notes and other obligations of the land bank. Interests in land held by the land bank at the time of dissolution shall be transferred to the town or towns in which the land is situated, and placed under the control and management of the local conservation commission who shall maintain, protect, limit the future use of, improve, or otherwise conserve and properly utilize open spaces of land. Such land shall remain subject to the provisions of Article XCVII of the Articles of Amendments to the Constitution of the Commonwealth. Funds held by the land bank shall be transferred to the towns of the county of Dukes County to be used to further the purposes of this act. Funds shall be transferred to each town in proportion to the fees generated by lands situated within such town over the life of the land bank under this act.

The land bank commission shall submit no amendment of this act to the general court unless and until such amendment has been approved by two-thirds of the member towns by the affirmative vote of a majority of the voters of the towns at any regular or special election.

SECTION 16. Acceptance of this act, by each of the towns of Chilmark, Edgartown, Gay Head, Oak Bluffs, Tisbury, and West Tisbury shall be by the affirmative vote of a majority of the voters at any regular or special town election at which the question of acceptance has been placed on the ballot. This act shall become effective on the date on which acceptance by all of said towns has been effected.