HomeMy WebLinkAbout2007-02-13
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AGENDA
Nantucket Land Bank Commission
Regular Meeting of February 13,2007
Land Bank Meeting Room, 22 Broad Street
Nantucket, Massachusetts
CALL TO ORDER
Minutes of the regular meeting of January 23, 2007
A. CITIZEN BUSINESS/ANNOUNCEMENTS
B. TRANSFER HEARING - No. 24281, Carol A. Surface
C. PROPERTY MANAGEMENT
1. Miacomet Golf Course
D. TRANSFER BUSINESS
E. FINANCIAL BUSINESS
1. Monthly Transfer Statistics
2. Warrant Authorization - Cash Disbursements
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F. REGULAR BUSINESS
1.2007 Annual Town Meeting Articles Update
2. Public Notice Review
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G. PROPERTY MANAGEMENT
1. Property Management Update
2. Maxcy Pond Easement Discussion
3. Hemeon House Relocation Update
4. Andrews Property - Leaseback Discussion
5. Equipment Request - Brushcutter
6. Wanoma Way - Beach Stairs Discussion
7. Ladies Beach - Wedding Request
8. Nobadeer Farm Road - Tennis Club Request
9. Milestone/Polpis Road - Property Cleanup
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EXECUTNE SESSION
ADJOURNMENT
Land Bank Commission
February 13,2007
Page 2
owned property. The Commission reviewed correspondence from the purchaser's attorney, Rhoda
H. Weinman, Esq., explaining the circumstances which caused the error and asking the Commission
to allow Ms. Martin 120 days to pay the fee and seeking a waiver of the interest and penalty. Based
upon the extraordinary circumstances which prevented the purchaser from discharging the full Land
Bank fee at the time of transfer, upon a motion made and duly seconded, it was VOTED to approve
the request as presented.
2. Transfer Record Nos. 27648 through 27739: The Commission reviewed transfers for the
period of January 1,2007, through January 31, 2007.
a. Current "M" Exemptions and Liens: The Commission authorized placing liens
against the following properties as a result of the purchasers claiming the "M" exemption as first
time buyers of real property:
No. 27660 Stephany T. Goldsmith
No. 27668 Jonathan M. Wisentaner and Lisa Wisentaner
No. 27689 Kerry Kennedy Flynn
No. 27726 Berta Scott and Bill Mogensen
3. "M" Exemption Update:
a. Release of Lien - No. 18424 Christopher 1. Loftus: Upon a motion made and duly
seconded, it was VOTED to authorize the issuance of a Release of Lien as a result of the purchaser
fulfilling all of the requirements of Section 12, subsection (-m-).
E. TRANSFER HEARING DECISION - No. 24281, Carol A. Surface: Pursuant to the
requirements of Massachusetts General Court Acts of 1983, Chapter 669 (the "Act"), as amended,
Section 14 (a) after a discussion of the matter, a review of the proposed decision and determination,
and after a hearing held 4:00 P.M., Tuesday, January 27,2007, and continued to 4:00 P.M.,
Tuesday, February 13,2007, at the Land Bank Meeting Room, 22 Broad Street, Nantucket, the
Commission entered a decision and determination. Upon a motion made and duly seconded, it was
VOTED that the Decision and Determination as presented are consistent with the instructions
provided to counsel by the Commission and therefore it was accepted as presented. A copy of the
signed Decision and Determination shall be attached to the minutes of this meeting and
incorporated therein by reference. The vote was unanimous.
F. FINANCIAL BUSINESS:
1. Monthly Transfer Statistics: The January 2007 statistics were presented to the
Commission.
2. Warrant Authorization - Cash Disbursements: Upon a motion made and duly seconded, it
was VOTED to execute the February 13,2007, warrant document in the amount of$175,399.59 to
be provided to the county treasurer.
Land Bank Commission
February 13,2007
Page 4
6. W anoma Way - Beach Stairs Discussion: The Director informed the Commission of an
offer from abutter Frank Matarazzo to pay for the construction and installation of stairs at the Land
Bank's Tom Nevers beach property. Upon a motion made and duly seconded, it was VOTED to
accept the offer as presented.
7. Ladies Beach - Wedding Request: The Commission considered a request from Stephany
Goldsmith to hold a wedding ceremony for ten people and reception for fifty people at Ladies
Beach on September 8th, 2007, with a 10 ft. by 10 ft. open sided tent and non-amplified music.
Upon a motion made and duly seconded, it was VOTED to approve the request as presented subject
to the appropriate cleanup and that all parking is kept to one side of the property.
8. Nobadeer Farm Road - Tennis Club Request: The Director reported on recent requests
and discussions with the owners of the Nantucket Tennis & Swim Club regarding restrictions at the
property and the existing right of first refusal to the Land Bank. The Commission determined to
take no action on the matter until certain issues with the restrictions were resolved.
9. Milestone/Polpis Road - Property Cleanup: The Director reported that a trespasser at the
Land Bank's Milestone/Polpis Road property whose abandoned belongings, debris and garbage
were removed and disposed of by property management staffwas requesting restitution for his
abandoned gear and equipment. In response to the magnitude of the abuse to the property created by
the trespasser, the Commission determined to deny the request and to ask staff to notify the local
police of the incident.
I. EXECUTIVE SESSION: Upon a motion made and duly seconded, it was VOTED to go into
Executive Session. Each member was polled individually. All members voted yes. The Chairman
noted that the Commission would reconvene into regular session and that the purpose of going into
executive session was to discuss matters related to ?minutes? and land acquisition.
RETURN TO OPEN SESSION
ADJOURNMENT: Upon a motion made and duly seconded, it was VOTED to adjourn at 6:30 P.M.
Attested to:
John
Accepted, Approved, and Released by the VOTE
of the Commission this 13th day of March 2007.
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TRANSFER BUSINESS
Nantucket Land Bank Commission
Regular Meeting of February 13,2007
1. Transfer Hearing (continued):
No. 24281 Carol A. Surface
2. Transfer Discussion:
No. 27725 Meredith Martin
3. January Transfers - Record Nos. 27648 through 27739:
a. Current "M" Exemptions:
No. 27660 Stephany T. Goldsmith
No. 27668 Jonathan M. Wisentaner and Lisa Wisentaner
No. 27689 Kerry Kennedy Flynn
No. 27726 Berta Scott and Bill Mogensen
4. "M" Exemption Update:
a. Release of Lien:
No. 18424 Christopher J. Loftus
NANTUCKET LAND BANK COMMISSION
22 Broad Street
Nantucket, Massachusetts, 02554
DECISION AND DETERMINATION
In the matter of:
Carol A Surface ("Surface"),
pursuant to Notice of Assessment dated November 15, 2006, regarding
Premises at 29 Washam an Avenue (Assessor's Map 55 Parcel 578), Nantucket,
Massachusetts.
FACTS
1. Pursuant to the requirements of the 1983 Acts and Resolves of the Massachusetts General
Court, Chapter 669, as amended (the "Act"), Section 14(a), the Nantucket Islands Land Bank
Commission (the "Land Bank") hereby enters this determination and decision, after a hearing
held 4:00 P.M., Tuesday, January 27,2007, and continued to 4:00 P.M., Tuesday, February 13,
2007, at the Land Bank Meeting Room, 22 Broad Street, Nantucket. This determination and
decision is based upon the Commission's record in this matter, including evidence and
documents provided at the hearing.
2. Surface is the record owner of the Premises by virtue of the Notice of Lease recorded in
Nantucket Registry of Deeds Book 885 Page 211 recorded April 27, 2004, indicating that she
paid $850,000 for the Premises. This transfer (the "Transfer"), which is Land Bank Transfer No.
24281, was reported as being eligible for Exemption M, and is the subject of this Decision. (See
Exhibit A)
3. At the time of the Transfer, Surface reported her address to be 41C Stubbs Road, Flat 33-
A, Hong Kong. (See Exhibit A) The address at which Land Bank mail currently reaches her is
8 Pak Pat Shan Road, Le Palais #7, Tai Tam, Hong Kong. (See Exhibits R and T, among others.)
4. On May 3, 2004, the Land Bank sent Surface a letter (Exhibit B) confirming her claim of
the M Exemption in connection with the transfer, stating in part:
The Nantucket Islands Land Bank Commission is happy that you have been able to take
advantage of the 'M' exemption, which was added to the Nantucket Islands Land Bank
Act to help reduce the cost to first-time home buyers breaking into the home ownership
market with the intent of becoming full time Nantucket residents. (Emphasis added.)
5. Commencing on April 27, 2006, the Land Bank began contacting Surface to obtain
infol111ation indicating whether or not she qualified for the M Exemption, since public records
reviewed by Land Bank staff were ambiguous on the question (See Exhibit D.) Months of
inquiries produced no response from Surface, except a copy of her Massachusetts driver's license
1
Exhibit H. Correspondence from the Nantucket Land Bank Commission dated July 21,
2006, to Carol A. Surface at 29 Washaman Avenue, Nantucket, MA seeking additional
information regarding her current domicile;
Exhibit 1. Correspondence from the Nantucket Land Bank Commission dated July 21,
2006, (without attachments) to Carol A. Surface at The Summit, Flat 33A, Hong Kong
City, Hong Kong seeking additional infonnation regarding her domicile;
Exhibit J, Undated correspondence from Carol A. Surface to the Nantucket Land Bank
Commission including envelope without a return address, postmarked Hong Kong and
Massachusetts driver's license of Carol Anne Surface;
Exhibit K. Correspondence from the Nantucket Land Bank Commission dated August
15,2006, to Carol A. Surface at The Summit, Flat 33A, Hong Kong City, Hong Kong
seeking additional documentation;
Exhibit L. Correspondence from the Nantucket Land Bank Commission dated August
15,2006, to Carol A. Surface at 29 Washaman Avenue, Nantucket, MA seeking
additional documentation;
Exhibit M. Correspondence from the Nantucket Land Bank Commission dated October
16,2006, to Carol A. Surface at 29 Washam an Avenue, Nantucket, MA (Cc: Carol A
Surface at The Summit, Flat 33A, Hong Kong City, Hong Kong) seeking additional
documentation;
Exhibit N, Correspondence from the Nantucket Land Bank Commission dated October
16, 2006, to Carol A. Surface at 29 Washaman Avenue, Nantucket, MA returned
unopened and postal stamped "UNCLAIMED".
Exhibit 0, Notice of Assessment against Transfer No. 24281 from the Nantucket Islands
Land Bank Commission dated November 15, 2006, to Carol A. Surface at 29 Washaman
Avenue, Nantucket, MA and attached cover from Kenneth W. Holdgate, Jr., Chairman,
Nantucket Islands Land Bank Commission;
Exhibit P. Notice of Assessment against Transfer No. 24281 from the Nantucket Islands
Land Bank Commission dated November 15,2006, to Carol A. Surface at 29 Washam an
Avenue, Nantucket, MA returned unopened and postal stamped "UNCLAIMED";
Exhibit Q. Correspondence from Emily Avery dated December 1, 2006, to Kenneth W.
Holdgate, Jr., Chairman, Nantucket Islands Land Bank Commission, requesting a hearing
on Land Bank Notice of Assessment dated November 15, 2006;
Exhibit R, Undated correspondence received by the Nantucket Land Bank on December
8, 2006, from Carol A. Surface to the Nantucket Land Bank Commission including
envelope postmarked Hong Kong with return address listed as 8 Pak Pat Shan Road,
LePalais #7, Tai Tam, Hong Kong, and Massachusetts 2005 Nonresident/Part-Year
Resident Income Tax Return (Form 1-NR/PY) of Carol Anne Surface;
3
the transfer the purchaser's actual domicile within two years of the time of transfer; . .
(Emphasis added.)
The preamble of said Section 12 places the burden of proof on Surface to show that the
Transfer qualifies for the claimed exemption.
As stated in the Act, the M Exemption is available only to a person who has established
his or her "actual domicile" in Nantucket within two years after purchasing a property. Under
Section 4.16 (9) of the Land Bank Rules and Regulations effective July 1,2002, as amended,
(the "Regulations"), "Domicile shall be determined on a case by case basis using the standards
and tests applied by Massachusetts courts in determining domicile."
No evidence has come to our attention indicating that the Transfer may not satisfy the
requirements for the M Exemption, except the question whether the facts and circumstances
indicate that Surface established the Premises as her "actual domicile" by April 27, 2006.
Consequently, this Decision focuses solely on the domicile question and does not address the
other requirements for the M Exemption.
The Massachusetts Supreme Judicial Court has stated:
No exact definition can be given of domicile; it depends upon no one fact or combination
of circumstances, but from the whole taken together it must be determined in each
particular case.
Thorndike v. City of Boston, 42 Mass. 242 (1840) as quoted in Bailey and Van Dom,
Massachusetts Practice VoL 4 Section 17: 1.
With reference to the Supreme Judicial Court's decision in Hershko.ffv. Board of
Registrars of Voters of Worcester, 366 Mass. 570,321 N.E.2d 656 (1974), Bailey and Van Dom,
Massachusetts Practice Vol. 4 Section 17: 1 provides this summary regarding determination of
domicile:
The considerations in determining the domicile or a change of domicile of a taxpayer. . .
may be summarized as follows:
1. Each individual has one domicile. It may be a domicile of origin (birth), a domicile
by operation oflaw (acquired by wife on marriage) or a domicile of choice
(accomplished by a change of residence).
2. Each individual retains his or her existing domicile until a new domicile has been
established at another place.
3. A new domicile may be acquired only by (a) abandoning the present domicile, (b)
establishing a physical residence at a new place and (c) intending to make the new
residence a home permanently or for an indefinite time, with no present intention of
returning to the previous home.
We apply these basic concepts to the facts and circumstances which have come to our
attention regarding Surface and her use of the Premises. In addition, we note that the Act states
5
Boat Ownership Registered
In Nantucket (Exhibits S, Y)
Shellfish License
Resident License (Exhibits S, Y)
Steamship Authority
Enrolled in Islander Program (Exhibits S, Y)
Dates Physically Present
14-18 days stated at hearing; 3-4 weeks stated in Exhibit Z
Rental of the Premises
A "few" weeks (Exhibit Z)
Other Residences Owned
None (Exhibit Z)
Prior Residences
Connecticut and Michigan (Exhibit Z)
Prior/Current Domicile
Not Known
Phone Listing
None (Exhibit D) (Reason cited for no phone listing is that
Surface is a psychologist, but there is no indication that she
conducts a practice as a psychologist on Nantucket.)
Real Estate Tax Bills
Hong Kong address provided to Assessor (Exhibits C, D)
Family/Social Connections
None Known
The numerous factors listed certainly indicate that Surface has established a residence on
Nantucket. She has not met the burden of establishing that Nantucket is her "actual domicile",
since most of the actions taken to establish the purported domicile were accomplished within a
short period in 2004 (driver's license, voter registration, shellfish license, boat registration).
Thereafter, Surface has only intermittently been to Nantucket. She has shown little regard for
receipt of mail sent to the Premises and has no phone listing there, indicating a lack of social
connection to Nantucket. Of particular concern is the fact that Surface's physical presence on
Nantucket has been insufficient to create an "actual", or full time, domicile.
Our decision is strongly influenced by the statement of no domicile implied by Surface's
decision to file a non-resident 2005 Massachusetts income tax return. Massachusetts statute
requires a resident form of tax return to be filed by a "resident" as defined in Massachusetts
General Laws Chapter 62 Section I (t). That definition says in pertinent part:
(t) "Resident" or "inhabitant", (I) any natural person domiciled in the commonwealth, or
(2) any natural person who is not domiciled in the commonwealth but who maintains a
permanent place of abode in the commonwealth and spends in the aggregate more than
one hundred eighty-three days of the taxable year in the commonwealth. . .(Emphasis
added. )
In light of the quoted definition, by electing to file a non-resident Massachusetts income
tax return, Surface indicated that she was NOT domiciled in Massachusetts in 2005. Based on
7
MINUTES
Nantucket Land Bank Commission
Regular Meeting of February 13,2007
Land Bank Meeting Room, 22 Broad Street
Nantucket, Massachusetts
CALL TO ORDER: 4:00 P.M.
PRESENT: Johnson, Reinhard, Stackpole. ABSENT: Bartlett, Holdgate.
Minutes of the previous regular meeting held January 23, 2007: Upon a motion made and duly
seconded, it was VOTED to accept, approve and release the minutes of January 23,2007, as written.
A. CITIZEN BUSINESS/ANNOUNCEMENTS: None.
B. PROPERTY MANAGEMENT:
I. Miacomet Golf Course - Operations Update: The Director presented an update on golf
club operations including matters related to memberships, personnel concerns, and building and
course renovations. The Commission asked staff to make sure that a completion date for the
renovations is included in the builder's contract.
C: TRANSFER HEARING CONTINUANCE - No. 24281, Carol A. Surface:
Pursuant to Section 14 of the Land Bank Act, the Commission continued a hearing from January 23,
2007, held on the matter of the Notice of Assessment from the Nantucket Land Bank Commission
dated November 15,2006, to Carol A. Surface.
The hearing was tape recorded.
Emily Avery Esq. was present to act as representative for Carol A. Surface.
The hearing was opened by acting Chairman, Commissioner Stackpole.
Ms. Hunter presented correspondence to the Commission which had been submitted by Attorney
Avery for the Commission's review at the hearing continuance and asked that the document be
entered into the record as follows:
Exhibit Z, Correspondence from Emily Avery dated February 1,2007, to Kenneth W. Holdgate, Jr.,
Chairman, Nantucket Islands Land Bank Commission.
There being no further information or evidence to be provided, upon a motion made and duly
seconded, it was VOTED to close the hearing.
D: TRANSFER BUSINESS:
1. Transfer Discussion - No. 27725, Meredith Martin: Ms. Hunter summarized the transfer
and informed the Commission that Meredith Martin had erroneously claimed exemption from the
fee as a transfer eligible for the "M' first time buyer's exemption since Ms. Martin has previously
Land Bank Commission
February 13, 2007
Page 3
G. REGULAR BUSINESS:
1. Public Notice Review:
a. Zoning Board of Appeals Notice - Howard / Miacomet Road: The Commission
discussed a Zoning Board of Appeals Notice for the Howard property on Miacomet Road and asked
staff to monitor the matter and bring back for discussion at a later date.
b. Conservation Commission Abutters Notice - Wanoma Way: The Commission
reviewed a Conservation Commission abutter notice seeking permits to construct a beach house,
deck and stairs down to the Land Bank's Tom Nevers property and asked staff to raise the issue
with Conservation Commission and inform them that the Land Bank plans to construct its own
stairs for public access to the beach.
2. 2007 Annual Town Meeting Update: The Director provided an update on the Land
Bank's Town Meeting articles and informed the Commission that he will be meeting with the
Finance Committee to discuss the article seeking the full faith and credit of the town to help secure
a more favorable rate on a Land Bank bond issuance. After a lengthy discussion, upon a motion
made and duly seconded, it was VOTED to increase the bond issuance amount from 30 million
dollars to 35 million dollars.
H. PROPERTY MANAGEMENT:
I. Property Management Update: The Director provided an update on recent property
management activities including a progress update on the building renovations to the Marble
Cottage and Marble Barn.
2. Maxcy Pond Easement Discussion: Commissioner Reinhard provided an update on the
status of the easement to the Old Settlers Cemetery abutting Maxcy Pond property.
3. Hemeon House Relocation Request: The Director reported that requests for receiving the
Hemeon house for removal have been received from the Nantucket Housing Authority, Frances
McCarthy and Chip Webster. Upon a motion made and duly seconded, it was VOTED to offer the
Hemeon house to the applicants in the above listed order subject to the recipient's ability to have
the house relocated by the summer season.
4. Andrews Property - Leaseback Discussion: The Commission considered a request from
Virginia Andrews to extend the terms of her life estate for ten years with exclusive use ofthe property
in exchange for full use of the beach. The Commission determined to revisit the matter at a later date.
5. Equipment Request - Brushcutter: The Director presented a request from property
management staff to exchange the flail mower for a Bobcat brush-cutter attachment at an estimated
additional cost of $2,800. Upon a motion made and duly seconded, it was VOTED to approve the
request as presented.
MONTHLY TRANSFER STATISTICS FISCAL YEAR 2006
FY06
Month
Jul-05
Aug-05
Sep-05
Oct-05
Nov-05
Dec-05
Jan-06
Feb-06
Mar-06
Apr-06
May-06
Jun-06
Total Exempt Taxable Total Gross
Transfers Transfers Transfers Value
83
92
131
120
91
148
106
87
104
78
96
79
36
45
48
35
48
110
59
54
63
44
50
39
47
47
83
85
43
38
47
33
41
34
46
40
$84,966,423
$79,297,377
$170,977,147
$176,148,013
$75,391,500
$79,616,375
$105,705,774
$52,792,786
$81,793,500
$73,440,925
$91,696,267
$78,671,608
.T~RY:f~~:O~. ...:........~$~.:!:...... .!!!!:!!..H4@.$..............
Average 101 53
Low 78 35
High 148 110
..:$$?4~~$,$~~$$.....:.:.:$t~~;44$,:~qq::.::::::::::::$1.$,:;?1gi~9q.
:4.Z$:::::}H
49
33
85
$95,874,808
$52,792,786
$176,148,013
MONTHLY TRANSFER STATISTICS FISCAL YEAR 2007
FY07
Month
Jul-06
Aug-06
Sep-06
Oct-06
Nov-06
Dec-06
Jan-07
Feb-07
Mar-07
Apr-07
May-07
Jun-07
Hm~Y:F~~:q7
Average
Low
High
MONTHL Y
Gross
Value Taxable
Revenue
Received
$84,366,423
$78,447,377
$155,677,147
$171,285,209
$74,591,500
$65,841,375
$104,705,774
$51,532,000
$80,393,500
$69,424,975
$90,991,600
$77,871,608
$1,691,900
$1,574,140
$3,113,343
$3,429,117
$1,495,630
$1,335,445
$2,094,115
$1,038,640
$1,607,870
$1,388,500
$1,821,832
$1,557,432
$92,094,041
$51,532,000
$171,285,209
$1,845,664
$1,038,640
$3,429,117
Total Exempt Taxable Total Gross Gross Revenue
Transfers Transfers Transfers Value Value Taxable Received
66 34 32 $65,734,501 $64,334,501 $1,286,690
75 49 26 $48,890,581 $46,838,137 $938,763
76 37 39 $107,911,581 $106,311,581 $2,137,232
97 58 39 $91,989,800 $77,540,800 $1,558,816
90 50 40 $82,332,701 $80,332,701 $1,610,654
118 81 37 $37,325,299 $35,325,299 $711,098
91 50 41 $80,227,513 $78,730,747 $1,575,890
49 39 10 $20,137,833 $19,337,833 $455,339
.... ..
:!::::qp'~::!.: : . ...s.~~:)
83 50
49 34
118 81
>:264
...... .
33
10
41
. . ..:.:... :$.~~;:$,4~~$.1 Q:.:::::: :.$.$,q~; 7$1. ;~qq:::::::.::::: :$.1. q:;?74;4$1::
$66,818,726 $63,593,950 $1,284,310
$20,137,833 $19,337,833 $455,339
$107,911,581 $106,311,581 $2,137,232
UNAUDITED
MINUTES
Nantucket Land Bank Commission
Special Meeting ofPebruary 13,2007
Land Bank Meeting Room, 22 Broad Street
Nantucket, Massachusetts
CALL TO ORDER: 2:00 P.M.
PRESENT: Johnson, Reinhard, Stackpole. ABSENT: Bartlett, Holdgate.
A. CITIZEN BUSINESS/ANNOUNCEMENTS: None.
B. EXECUTIVE SESSION: Upon a motion made and duly seconded, it was VOTED to go into
Executive Session. Each member was polled individually. All members voted yes. The Chairman
noted that the Commission would reconvene into regular session and that the purpose of going into
executive session was to discuss matters related to land acquisition.
Members of the Nantucket Board of Selectmen Whitey Willauer, Brian Chadwick and Michael
Kopko were present for Executive Session.
ADJOURNMENT: 3:00 P.M.
Attested to:
John
Accepted, Approved, and Released by the VOTE
of the Commission this 13th day of March 2007.
(Exhibit J). During that period six of seven mailings to the Premises were returned "Unclaimed"
(Testimony of Craig Hunter at the hearing).
6. On November 15, 2006, fees were assessed regarding the Transfer as not qualifying for
the M Exemption. (Exhibits 0 and P)
7. By letter dated December 1, 2006, from Attorney Emily Avery (Exhibit Q), Surface
requested a hearing regarding the assessment. Hearing was scheduled for January 9,2007
(Exhibit T) and by agreement of the parties, the hearing was deferred to January 27,2007, in
order to allow for an exchange of questions and information (Exhibit V) At the hearing on
January 27,2007, it became apparent that Surface wished to provide additional information, so
the parties agreed on the record at the hearing to continue the hearing to February 13, 2007.
8. By letter dated February 1,2007, from Attorney Emily Avery to Kenneth Holdgate, Jr.,
Chairman, Surface responded to a number of factual questions raised at the January 27 portion of
the hearing. (Exhibit Z.)
9. At the hearing, the following exhibits were made a part of the Commission's official
record without objection by Surface and are incorporated herein by reference:
Exhibit A, Transfer Documents Record No. 24281 dated April 27, 2004, including Form
A and Notice of Lease from The Nashaquisset Cooperative, Inc. to Carol A. Surface;
Exhibit B. Correspondence from the Nantucket Land Bank Commission dated May 3,
2004, to Carol A. Surface at The Summit, Flat 33A, Hong Kong City, Hong Kong re-
stating the requirements of the "M" exemption;
Exhibit C, Town of Nantucket Assessor's printout for 29 Washaman Avenue (Map 55,
Parcel 578);
Exhibit D, Correspondence from the Nantucket Land Bank Commission dated April 27,
2006, to Carol A. Surface at 29 Washaman Avenue, Nantucket, MA seeking additional
information regarding her domicile;
Exhibit E, Correspondence from the Nantucket Land Bank Commission dated June 28,
2006, to Carol A. Surface at The Summit, Flat 33A, Hong Kong City, Hong Kong
seeking additional information regarding her domicile;
Exhibit F, Correspondence from the Nantucket Land Bank Commission dated June 28,
2006, to Carol A. Surface at 29 Washaman Avenue, Nantucket, MA seeking additional
information regarding her domicile;
Exhibit G, Correspondence from the Nantucket Land Bank Commission dated June 28,
2006, to Carol A. Surface at 29 Washaman Avenue, Nantucket, MA returned unopened
and postal stamped "UNCLAIMED",
2
Exhibit S, Correspondence from Emily Avery dated December 13, 2006, to Craig Hunter
(Office Administrator, Nantucket Land Bank Commission);
Exhibit T, Correspondence from the Nantucket Land Bank Commission dated December
15,2006, notifying Emily Avery (Cc: Carol A. Surface, 8 Pak Pat Shan Road, LePalais
#7, Tai Tam, Hong Kong) of the scheduled hearing date;
Exhibit U, Email string including (i) correspondence from Valerie Swett to Emily A very
dated December 15,2006, (9:46 AM) and (ii) correspondence from Emily Avery to
Valerie Swett dated December 15, 2006, (9:51 AM);
Exhibit V, Correspondence from Emily Avery dated January 9, 2007, to Craig Hunter
(Office Administrator, Nantucket Land Bank Commission) asking the Commission to
postpone the hearing on Nantucket Islands Land Bank Notice of Assessment against
Transfer No. 24281 until January 23,2007;
Exhibit W, Correspondence from the Nantucket Land Bank Commission dated January
11,2007, notifying Emily Avery of the re-scheduled hearing date;
Exhibit X, Email string including (i) correspondence from Valerie Swett to Emily Avery
dated January 22,2007, (12: 17 PM) and (ii) correspondence from Emily Avery to Valerie
Swett dated January 22,2007, (1 :00 PM);
Exhibit y, Correspondence from Emily Avery dated January 23,2007, to Kenneth W.
Holdgate, Jr., Chairman, Nantucket Islands Land Bank Commission.
Exhibit Z. Correspondence from Emily Avery dated Feburary 1,2007, to Kenneth W.
Holdgate, Jr., Chairman, Nantucket Islands Land Bank Commission.
10. Surface has failed to discharge the Land Bank fee assessed in the Notice of Assessment
in the total amount of$4,000.00, plus penalty and interest running from April 27, 2004, the date
of transfer.
FINDINGS
Based on the record before the Commission and the hearing, the Commission finds as
follows:
Surface claimed that the Transfer was exempt from a Land Bank fee pursuant to the "M"
Exemption, which is created by Section 12(m) of the Act, which at the time of the Transfer
provided in part:
The first $200,000 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 Nantucket county;
provided that the purchaser shall make the real property interest which is the subject of
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the person claiming an M Exemption must make a property his or her "actual domicile". We
understand the word "actual" is used in this phrase to add a requirement of physical presence to
the usual judicial meaning of "domicile". As stated in Exhibit B (the Land Bank's standard form
letter to people claiming the M Exemption), the expectation is that recipient of the exemption
will become a "full time resident" of Nantucket.
Counsel for Surface asks us to limit our analysis to a particular list of factual
circumstances enumerated in Caffjm v. Caffyn, 441 Mass. 487, 806 N.E. 2d 415 (2004), a copy of
which is included in Exhibit Y. We decline to do so for several reasons. First, the domicile issue
in Caffyn was decided under the Massachusetts jurisdictional criteria for a divorce action
(M.G.L. Chapter 208), whereas the Transfer pertains to the assessment of a fee which is in the
nature of a tax. It is more appropriate to look at precedent and principles applicable to
determination of domicile for taxation purposes. Second, the determination of domicile depends
on the facts and circumstances of each case and cannot be limited to a list of particular actions.
Third, the wife in Caffyn (the person whose domicile was at issue in the case) had substantial
social and family ties to Massachusetts. She was born in the state and her parents continued to
reside here. When she and her children first arrived, they resided with her parents. Her children
were enrolled in Massachusetts schools. In short, her social and family contacts with
Massachusetts were deep and strong. We have been provided no evidence that Surface has any
such ties in Nantucket.
Our review of the evidence presented discloses the following information regarding data
frequently analyzed in determining the domicile of an individual:
Activity
Surface Data
Driver's License
Massachusetts Driver's License Issued June 2004, showing
the Premises as address (Exhibits J, Y)
2005 Massachusetts Tax Return
Non-Resident Form Filed, showing taxpayer's Hong Kong
address (Exhibit R)
2005 Federal Tax Return
Requested but not supplied (Exhibit U)
Children's School Attendance
No Children (Exhibit Z)
Mail Delivery to Premises
No systematic method for receiving mail addressed to
Premises (Hearing Testimony about Land Bank mail
returned, Exhibit Z)
V oter Registration
Registered in Nantucket 2004 (Exhibits S, Y)
Current Town Census
Not received or completed (will result in voter registration
being dropped) (Exhibit Z)
Primary Physician
Located in Nantucket (Exhibits S, Y)
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this statement, we conclude that Surface did not establish her "actual domicile" at the Premises
prior to April 27, 2006, and therefore the Transfer was not eligible for the M Exemption.
DETERMINATION
ACCORDINGLY, the Commission hereby determines as follows regarding the Transfer:
Transfer No. 24281 is hereby determined to be a non-exempt transfer. The Land Bank
fee assessed November 15, 2006 (Exhibits 0 and P) is hereby affirmed at 2% of$200,000, for a
total fee of $4,000. Interest and penalties as originally assessed shall run from the date of
transfer, being April 27, 2004.
Bank.
We reserve the right to hereafter revise said assessment in the best interests of the Land
Surface has the rights set forth in the Act, for further proceedings in connection with this
Decision and Determination.
WITNESS our hands and seals this 13th day of February, 2007.
DWLIB 208446v2
1141/00
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