HomeMy WebLinkAboutArticle 82 2016 ATM
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-- Assessor’s Map 67, Parcel 481
-- Assessor’s Map 67, Parcel 121
-- Assessor’s Map 67, Parcel 400
-- Assessor’s Map 67, Parcel 401
-- Assessor’s Map 67, Parcel 402
-- Assessor’s Map 67, Parcel 398
-- Assessor’s Map 67, Parcel 397
-- Assessor’s Map 67, Parcel 396
-- Assessor’s Map 67, Parcel 395
-- Assessor’s Map 67, Parcel 394
-- A portion of Pilot Whale Lane abutting the parcels described above.
Section 2. This act shall take effect upon its passage.
ARTICLE 82
(Home Rule Petition: Community Housing and Sewer Funding)
To see if the Town will vote to request its representatives in the General Court to introduce
legislation seeking a special act the text of which is set forth below and to authorize the
General Court, with the approval of the Board of Selectmen, to make constructive changes in
the text thereto as may be necessary or advisable in order to accomplish the intent of this
legislation in order to secure passage; or to take any other action related thereto.
An Act Authorizing the Town of Nantucket to Impose a Real Estate Transfer Fee for Affordable
and Workforce Housing and Related Capital Improvements
SECTION 1. For purposes of this act, the words and phrases set forth in this section shall
have the following meanings:
“Affordable Housing Restriction" is a recorded instrument held by a qualified holder which
encumbers and/or restricts a real property interest so that the real property interest is
perpetually or for a term of at least thirty (30) years limited to use as a residence occupied by a
low or moderate income household which earns less than a specified income level, the upper
limit of which may not exceed one hundred seventy-five percent (175%) of the Nantucket
median income. A “qualified holder” is a governmental body or charitable corporation or trust
which qualifies under the terms of Massachusetts General Laws Chapter 184 (“Chapter 184”)
to hold an affordable housing restriction. Without limiting the generality of the foregoing,
“Affordable Housing Restriction” includes but is not limited to any instrument which conforms to
the requirements of (i) a Nantucket Housing Needs Covenant as described in Chapter 301 of
the Acts of 2002 and defined in the Town of Nantucket Code.
"Housing and Community Development Fund", shall refer to a discrete fund or account,
established by the county treasurer of the Nantucket County under the provisions of this act.
"Eligible Applicants", shall refer to non-profit and for-profit corporations and organizations,
individuals, and public entities.
"Purchaser", shall refer to the transferee, grantee or recipient of any real property interest.
"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
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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; 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", shall refer to 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, the interest of a partner or
member in a partnership or limited liability company, the interest of a stockholder in a
corporation, the interest of a holder of an option to purchase real property, the interest of a
buyer or seller under a contract for purchase and sale of real property, and the transferable
development rights created under chapter 183A of the General Laws; but shall not include any
interest which is limited to any 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; any estate for years
having a term of less than 30 years; any reversionary right, condition, or right of entry for
condition broken; and the interest of a mortgagee or other secured party in any mortgage or
security agreement.
"Seller", shall refer to the transferor, grantor or immediate former owner of any real property
interest.
"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” shall refer to the Town of Nantucket acting by and through the Board of Selectmen.
SECTION 2. There is hereby imposed a fee equal to one per cent (1%) of the purchase
price upon the transfer of any real property interest in any real property situated in Nantucket
County. Said fee shall be the liability of the seller 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 seller.
The fee shall be paid to the Town of Nantucket, 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 and the seller 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 Town, 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
Nantucket County, and the assistant recorder for the registry district of Nantucket County, shall
not record or register, or receive or accept for recording or registration, any deed, except a
mortgage deed, to which has not been affixed such a certificate executed by the Town or its
designee. Failure to comply with this requirement shall not affect the validity of any instrument.
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The Town shall deposit all fees received hereunder with the Town treasurer. The treasurer
shall deposit such fees as follows: 75% in the Affordable Housing Trust Fund and the
remainder in capital project funds as determined by the Board of Selectmen, unless such
allocation is changed by the affirmative vote of two-thirds of voters at an annual or special town
meeting. The fee imposed hereunder shall be due simultaneously with the time of transfer of
the transfer upon which it is imposed. Notwithstanding the foregoing, whenever there is a
conveyance of real property interests and a conveyance of personalty related thereto at or
about the same time, the allocations of payments between real estate and personalty agreed to
by the purchaser and seller shall not determine the amount of the fee due pursuant to this
section; instead, the Town may require payment of the fee referred to in real property interests
so conveyed as determined by the Town.
SECTION 3. At any time within seven days following the issuance of the certificate of
payment of the fee imposed by section two, the seller or his legal representative may return
said certificate to the Town 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 seller or his legal representative.
SECTION 4. The following transfers of real property interests shall be exempt from the fee
established by section 10. Except as otherwise provided, the seller shall have the burden of
proof that any transfer is exempt under this section and any otherwise exempt transfer shall not
be exempt in the event that such transfer (by itself or as part of a series of transfers) was made
for the primary purpose of evading the fee imposed by Section 10.
(a) Transfers to the government of the United States, the commonwealth, and any of their
instrumentalities, agencies or subdivisions, including but not limited to transfers to the Town of
Nantucket, the County of Nantucket.
(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 interest transferred was made as a gift without
consideration to the extent of the difference between the fair market value of the real property
interest transferred and the amount of consideration claimed by the seller 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 interest transferred, at the time of transfer.
(d) Transfer to the trustees of a trust in exchange for a beneficial interest received by the
purchaser 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 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
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property interest so transferred will 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 or limited liability company 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 or seven hundred and twenty-one of the Internal Revenue
Code of 1986, as amended; provided, however, that such transfer shall be exempt only in the
event that (1) with respect to a corporation, the transferor retains an interest in the newly
formed corporation which is equivalent to the interest the transferor held prior to the transfer, or
(2) with respect to a partnership or limited liability company, the transferor retains after such
formation rights in capital interests and profit interests within such partnership or limited liability
company which are equivalent to the interest the transferor held prior to the transfer.
(j) Transfers made to a stockholder of a corporation in liquidation or partial liquidation of the
corporation, and transfers made to a partner of a partnership or to a member of a limited
liability company in dissolution or partial dissolution of the partnership or limited liability
company; but the transfer shall be exempt only if (i) with respect to a corporation, the
transferee receives property (including real property interests and other property received)
which is the same fraction of the total property of the transferor corporation as the fraction of
the corporation's stock owned by the transferee prior to the transfer or (ii) with respect to a
partnership or limited liability company, the transferee receives property (including real
property interests and other property received) which is the same fraction of the property of the
partnership or limited liability company as the fraction of the capital and profit interests in the
transferor formerly owned by the transferee.
(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 in Nantucket
County and in part of other property interests, to the extent that the property transferred
consists of property other than real property situated in Nantucket county; provided that the
purchaser shall furnish the Town 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.
(m) The first $2 million of the sale price of any transfer or series of transfers of real property
interests in a single parcel. Said exemption may be adjusted for inflation as determined
annually by the affirmative vote of two-thirds of voters at an annual or special town meeting.
For purposes of this subsection, "inflation" shall mean the increases, if any, in the total of prices
paid for real property transfers year to year for real property within the Town of Nantucket.
(n) Transfers of minority interests in corporations, trusts, partnerships or limited liability
companies which are publicly traded, which trades are not part of a series of transfers which
together constitute a transfer of control of a corporation, trust, partnership or limited liability
company.
SECTION 5. (a) The Town 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 Trust Fund and the Housing Fund. 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.
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(b) Schedules of beneficiaries of trusts, list of stockholders of corporations and lists of
partnerships filed with the Trust Fund for the purpose of determining or fixing the amount of the
fee imposed under section ten or for the purpose of determining the existence of any
exemption under section twelve shall not be public records for the purposes of section ten of
chapter sixty-six of the General Laws.
SECTION 6. A seller who fails to pay all or any portion of the fee established by section two
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 seller 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 chapter, 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
Town 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 Town
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 Town shall be paid by the seller in addition to said fee.
SECTION 7. (a) The Town shall notify the purchaser and the seller 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 Town 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 Town within thirty days after the mailing of said notice. The Town shall notify the purchaser
and the seller 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 Town 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 determination of the Town. Upon the failure to timely petition for a hearing, or
appeal to said courts, within the time limits hereby established, the purchaser and seller 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
Town. All decisions of said courts shall be appealable. Every notice to be given under this
section by the Town shall be effective if mailed by certified or registered mail to the purchaser
or the seller 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 Nantucket County, such notice
shall be effective when so mailed to the purchaser or seller 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 Nantucket County.
(b) All fees, penalties and interest required to be paid pursuant to this chapter shall
constitute a personal debt of the seller and may be recovered in an action of contract or in any
other appropriate action, suit or proceeding brought by the Town; said action, suit or
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proceeding shall be subject to the provisions of chapter two hundred and sixty of the General
Laws.
(c) If any seller 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
Town upon all property and rights to property, whether real or personal, belonging to either
such purchaser or such seller. 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
Town (i) with respect to real property or fixtures, in the registry of deeds for Nantucket 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 C of the General Laws.
(d) Sellers applying for an exemption under subsections (a) through (o) of section four shall
be required at the time of application for exemption to execute an agreement legally binding on
sellers and separately legally binding upon any Legal Representative of the sellers (1)
assuming complete liability for any fee, plus interest and penalties if any, waived on account of
an allowed exemption subsequently determined to have been invalid, and (2) submitting to the
jurisdiction of the trial court of the commonwealth sitting in Nantucket County. Fees, plus
interest and penalties if any, shall be calculated as of the date of the initial property transfer.
Execution of the above-described agreement shall not be required of any mortgagee, pledge,
purchaser or judgment creditor unless notice of the agreement has been recorded or filed by
the Town.
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 Town, 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 Town 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 Town may issue a waiver or release of any lien imposed by this section. Such waiver or
release shall be conclusive evidence that the lien upon the property covered by the waiver or
release is extinguished.
SECTION 8. The provisions of this act are severable, and if any provision hereof, including
without limitation any exemption from the fee imposed hereby, shall be held invalid in any
circumstances such invalidity shall not affect any other provisions or circumstances. This act
shall be construed in all respects so as to meet all constitutional requirements. In carrying out
the purposes and provisions of this act, all steps shall be taken which are necessary to meet
constitutional requirements whether or not such steps are required by statute.
SECTION 9. If the Town has determined that a fee is due by asserting the application of the
evasion of fee doctrine described in section 13, then the seller shall have the burden of
demonstrating by clear and convincing evidence as determined by the Town that the transfer,
or series of transfers, possessed both: (i) a valid, good faith business purpose other than
avoidance of the fee set forth in section 10 and (ii) economic substance apart from the asserted
fee avoidance benefit. In all such cases, the transferee shall also have the burden of
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demonstrating by clear and convincing evidence as determined by the Town that the asserted
non-fee-avoidance business purpose is commensurate with the amount of the fee pursuant to
section 10 to be thereby avoided.
SECTION 10. This act shall take effect ninety (90) days following the date of passage.
(Board of Selectmen)
FINANCE COMMITTEE MOTION: Moved that the Town’s representatives to the General Court
are hereby requested to introduce the legislation set forth below and that the General Court be
authorized, with the approval of the Board of Selectmen, to make constructive changes in the
text thereof as may be necessary or advisable in order to accomplish the intent of this
legislation in order to secure its passage:
An Act Authorizing the Town of Nantucket to Impose a Real Estate Transfer Fee for Affordable
and Workforce Housing
SECTION 1. For purposes of this act, the words and phrases set forth in this section shall
have the following meanings:
“Affordable Housing Restriction" is a recorded instrument held by a qualified holder which
encumbers and/or restricts a real property interest so that the real property interest is
perpetually or for a term of at least thirty (30) years limited to use as a residence occupied by a
low or moderate income household which earns less than a specified income level, the upper
limit of which may not exceed one hundred seventy-five percent (175%) of the Nantucket
median income. A “qualified holder” is a governmental body or charitable corporation or trust
which qualifies under the terms of Massachusetts General Laws Chapter 184 (“Chapter 184”)
to hold an affordable housing restriction. Without limiting the generality of the foregoing,
“Affordable Housing Restriction” includes but is not limited to any instrument which conforms to
the requirements of (i) a Nantucket Housing Needs Covenant as described in Chapter 301 of
the Acts of 2002 and defined in the Town of Nantucket Code.
"Eligible Applicants", shall refer to non-profit and for-profit corporations and organizations,
individuals, and public entities.
"Purchaser", shall refer to the transferee, grantee or recipient of any real property interest.
"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; 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", shall refer to 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
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trust which holds any legal or equitable interest in real property, the interest of a partner or
member in a partnership or limited liability company, the interest of a stockholder in a
corporation, the interest of a holder of an option to purchase real property, the interest of a
buyer or seller under a contract for purchase and sale of real property, and the transferable
development rights created under chapter 183A of the General Laws; but shall not include any
interest which is limited to any 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; any estate for years
having a term of less than 30 years; any reversionary right, condition, or right of entry for
condition broken; and the interest of a mortgagee or other secured party in any mortgage or
security agreement.
"Seller", shall refer to the transferor, grantor or immediate former owner of any real property
interest.
"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” shall refer to the Town of Nantucket acting by and through the Board of Selectmen.
SECTION 2. There is hereby imposed a fee equal to one per cent (1%) of the purchase
price upon the transfer of any real property interest in any real property situated in Nantucket
County. Said fee shall be the liability of the seller 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 seller.
The fee shall be paid to the Town of Nantucket, 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 and the seller 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 Town, 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
Nantucket County, and the assistant recorder for the registry district of Nantucket County, shall
not record or register, or receive or accept for recording or registration, any deed, except a
mortgage deed, to which has not been affixed such a certificate executed by the Town or its
designee. Failure to comply with this requirement shall not affect the validity of any instrument.
The Town shall deposit all fees received hereunder with the Town treasurer. The treasurer
shall deposit such fees in the Affordable Housing Trust Fund. The fee imposed hereunder shall
be due simultaneously with the time of transfer of the transfer upon which it is imposed.
Notwithstanding the foregoing, whenever there is a conveyance of real property interests and a
conveyance of personalty related thereto at or about the same time, the allocations of
payments between real estate and personalty agreed to by the purchaser and seller shall not
determine the amount of the fee due pursuant to this section; instead, the Town may require
payment of the fee referred to in real property interests so conveyed as determined by the
Town.
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SECTION 3. At any time within seven days following the issuance of the certificate of
payment of the fee imposed by section two, the seller or his legal representative may return
said certificate to the Town 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 seller or his legal representative.
SECTION 4. The following transfers of real property interests shall be exempt from the fee
established by section 10. Except as otherwise provided, the seller shall have the burden of
proof that any transfer is exempt under this section and any otherwise exempt transfer shall not
be exempt in the event that such transfer (by itself or as part of a series of transfers) was made
for the primary purpose of evading the fee imposed by Section 10.
(a) Transfers to the government of the United States, the commonwealth, and any of their
instrumentalities, agencies or subdivisions, including but not limited to transfers to the Town of
Nantucket, the County of Nantucket.
(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 interest transferred was made as a gift without
consideration to the extent of the difference between the fair market value of the real property
interest transferred and the amount of consideration claimed by the seller 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 interest transferred, at the time of transfer.
(d) Transfer to the trustees of a trust in exchange for a beneficial interest received by the
purchaser 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 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 interest so transferred will 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 or limited liability company 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 or seven hundred and twenty-one of the Internal Revenue
Code of 1986, as amended; provided, however, that such transfer shall be exempt only in the
event that (1) with respect to a corporation, the transferor retains an interest in the newly
formed corporation which is equivalent to the interest the transferor held prior to the transfer, or
(2) with respect to a partnership or limited liability company, the transferor retains after such
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formation rights in capital interests and profit interests within such partnership or limited liability
company which are equivalent to the interest the transferor held prior to the transfer.
(j) Transfers made to a stockholder of a corporation in liquidation or partial liquidation of the
corporation, and transfers made to a partner of a partnership or to a member of a limited
liability company in dissolution or partial dissolution of the partnership or limited liability
company; but the transfer shall be exempt only if (i) with respect to a corporation, the
transferee receives property (including real property interests and other property received)
which is the same fraction of the total property of the transferor corporation as the fraction of
the corporation's stock owned by the transferee prior to the transfer or (ii) with respect to a
partnership or limited liability company, the transferee receives property (including real
property interests and other property received) which is the same fraction of the property of the
partnership or limited liability company as the fraction of the capital and profit interests in the
transferor formerly owned by the transferee.
(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 in Nantucket
County and in part of other property interests, to the extent that the property transferred
consists of property other than real property situated in Nantucket county; provided that the
purchaser shall furnish the Town 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.
(m) The first $2 million of the sale price of any transfer or series of transfers of real property
interests in a single transaction. Said exemption may be adjusted as determined by the
affirmative vote of two-thirds of voters at an annual or special town meeting.
(n) Transfers of minority interests in corporations, trusts, partnerships or limited liability
companies which are publicly traded, which trades are not part of a series of transfers which
together constitute a transfer of control of a corporation, trust, partnership or limited liability
company.
SECTION 5. (a) The Town 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 Trust Fund and the Housing Fund. 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.
(b) Schedules of beneficiaries of trusts, list of stockholders of corporations and lists of
partnerships filed with the Trust Fund for the purpose of determining or fixing the amount of the
fee imposed under section ten or for the purpose of determining the existence of any
exemption under section twelve shall not be public records for the purposes of section ten of
chapter sixty-six of the General Laws.
SECTION 6. A seller who fails to pay all or any portion of the fee established by section two
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 seller 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 chapter, 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
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Town 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 Town
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 Town shall be paid by the seller in addition to said fee.
SECTION 7. (a) The Town shall notify the purchaser and the seller 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 Town 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 Town within thirty days after the mailing of said notice. The Town shall notify the purchaser
and the seller 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 Town 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 determination of the Town. Upon the failure to timely petition for a hearing,
or appeal to said courts, within the time limits hereby established, the purchaser and seller
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 Town. All decisions of said courts shall be appealable. Every notice to be given under this
section by the Town shall be effective if mailed by certified or registered mail to the purchaser
or the seller 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 Nantucket County, such notice
shall be effective when so mailed to the purchaser or seller 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 Nantucket County.
(b) All fees, penalties and interest required to be paid pursuant to this chapter shall
constitute a personal debt of the seller and may be recovered in an action of contract or in any
other appropriate action, suit or proceeding brought by the Town; said action, suit or
proceeding shall be subject to the provisions of chapter two hundred and sixty of the General
Laws.
(c) If any seller 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
Town upon all property and rights to property, whether real or personal, belonging to either
such purchaser or such seller. 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 Town (i) with respect to real property or fixtures, in the registry of deeds for Nantucket
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 C of the General Laws.
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(d) Sellers applying for an exemption under subsections (a) through (o) of section four shall
be required at the time of application for exemption to execute an agreement legally binding on
sellers and separately legally binding upon any Legal Representative of the sellers (1)
assuming complete liability for any fee, plus interest and penalties if any, waived on account of
an allowed exemption subsequently determined to have been invalid, and (2) submitting to the
jurisdiction of the trial court of the commonwealth sitting in Nantucket County. Fees, plus
interest and penalties if any, shall be calculated as of the date of the initial property transfer.
Execution of the above-described agreement shall not be required of any mortgagee, pledge,
purchaser or judgment creditor unless notice of the agreement has been recorded or filed by
the Town.
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 Town, 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 Town 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 Town may issue a waiver or release of any lien imposed by this section. Such waiver or
release shall be conclusive evidence that the lien upon the property covered by the waiver or
release is extinguished.
SECTION 8. The fee described by Section 2 shall be of ten-year duration from the date this
legislation take effect. This fee may continue for five-year periods by a majority vote at Town
Meeting reauthorizing the fee. The fee described by Section 2 may be 1) decreased, or 2)
eliminated by a two-thirds vote of Town Meeting. The threshold exemption described in Section
4 (m) may similarly be raised by an affirmative two-thirds vote of Town Meeting. In the event
that Town Meeting does not renew the fee at the ten-year anniversary, or any subsequent five
year anniversary, or Town Meeting votes to eliminate the fee, the balance of any fees
previously collected shall be transferred to the Town of Nantucket and held by the Treasurer in
a separate account, and shall first be used to satisfy any outstanding liabilities or obligations
incurred by the Town of Nantucket or the Affordable Housing Trust as a result of imposition of
the fee, and the remainder may be expended without further appropriation by the Board of
Selectmen for affordable housing purposes. In the event that the liabilities and obligations of
the Town of Nantucket or the Affordable Housing Trust exceed the amounts transferred to the
Town, the fee shall remain in full force and effect until such liabilities and obligations have been
satisfied.
SECTION 9. The provisions of this act are severable, and if any provision hereof, including
without limitation any exemption from the fee imposed hereby, shall be held invalid in any
circumstances such invalidity shall not affect any other provisions or circumstances. This act
shall be construed in all respects so as to meet all constitutional requirements. In carrying out
the purposes and provisions of this act, all steps shall be taken which are necessary to meet
constitutional requirements whether or not such steps are required by statute.
SECTION 10. If the Town has determined that a fee is due by asserting the application of
the evasion of fee doctrine described in Section 2, then the seller shall have the burden of
demonstrating by clear and convincing evidence as determined by the Town that the transfer,
or series of transfers, possessed both: (i) a valid, good faith business purpose other than
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avoidance of the fee set forth in Section 2 and (ii) economic substance apart from the asserted
fee avoidance benefit. In all such cases, the transferee shall also have the burden of
demonstrating by clear and convincing evidence as determined by the Town that the asserted
non-fee-avoidance business purpose is commensurate with the amount of the fee pursuant to
Section 2 to be thereby avoided.
SECTION 11. This act shall take effect ninety (90) days following the date of passage.
ARTICLE 83
(Home Rule Petition: Retired Police Officers to Serve as Special Police Officers)
To see if the Town will vote to request its representatives in the General Court to
introduce special legislation seeking a special act in the form set forth below and to authorize
the General Court, with the approval of the Board of Selectmen, to make constructive changes
in the text thereof as may be necessary or advisable in order to accomplish the intent of this
legislation in order to secure passage; or to take any other action related thereto.
AN ACT AUTHORIZING THE APPOINTMENT OF RETIRED POLICE OFFICERS IN THE
TOWN OF NANTUCKET TO SERVE AS SPECIAL POLICE OFFICERS
Be it enacted by the Senate and the House of Representatives in General Court assembled,
and by the authority of the same, as follows:
SECTION 1. The chief of police in the Town of Nantucket, as the appointing authority, may
appoint as he/she deems necessary, retired police officers as special police officers for the
purpose of performing police details or performing any police duties arising from those police
details or arising during the course of police detail work, whether or not related to the detail
work. The retired police officers must have been regular police officers and retired, based on
superannuation. The special police officers shall not be subject to the maximum age
restrictions applied to regular police officers under chapter 32 of the General Laws, but shall
not be eligible to serve as special police officers if they have reached the age of 70. A special
police officer must pass a medical examination by a physician or other certified professional
chosen by the Town to determine that he/she is capable of performing the essential duties of a
special police officer, the cost of which shall be borne by the special police officer prior to
performing police details.
SECTION 2. Special police officers, appointed under this act, shall not be subject to chapter
31 of the General Laws or sections 99, 100 or 111F or of chapter 41 of the General Laws. Or
section 85H of chapter 23 of the General Laws. Special police officers appointed under this act
shall be subject to chapter 151A of the General Laws.
SECTION 3. Special police officers shall, when performing their duties under section 1, have
the same powers to make arrests and perform other functions as do regular police officers in
the Town of Nantucket.
SECTION 4. Special police officers shall be appointed for an indefinite term, subject to
removal by the Chief of Police of the Town of Nantucket at any time with 14 days’ written
notice. Upon request, the Police Chief shall provide reasons for removal in writing.