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AGENDA
Nantucket Land Bank Commission
Regular Meeting of July 12, 2011
Land Bank Meeting Room, 22 Broad Street
Nantucket, Massachusetts
CALL TO ORDER: 4:00 P.M.
A. CITIZEN BUSINESS/ANNOUNCEMENTS
B. EXECUTIVE SESSION
C. MINUTES OF THE SPECIAL MEETING OF JUNE 24, 2011 AND REGULAR MEETING
OF JUNE 28, 2011
D. TRANSFER BUSINESS
E. FINANCIAL BUSINESS
1. Monthly Transfer Statistics ; _~
2. Warrant Authorization -Fiscal Year 2011 Cash Disbursements
3. Warrant Authorization -Cash Disbursements
4. Fiscal Year 2011 Year End Budget Comparison __
5. Fiscal Year 2012 Budget Approval ~~-
F. REGULAR BUSINESS
1. Property Acceptance -Surfside Area Road Layout Parcels from Town of
Nantucket
2. Property Acceptance -Surfside Railroad Corridor from Town of Nantucket
3. Property Conveyance - Madaquecham Coffin Setoff Lots F & I to Town of
Nantucket
G. PROPERTY MANAGEMENT
1. Property Supervisor's Monthly Report
2. Maintenance Facility/125 Somerset Road -Execution of Design Services Contract
3. Hummock Pond -Water Quality Discussion
4. Cisco Civic Association -Request for Beach Stairs and Dead Pine Tree Removal
5. Miacomet Golf Course -Planning Discussion
ADJOURNMENT
MINUTES
Nantucket Land Bank Commission
Regular Meeting of July 12, 2011
Land Bank Meeting Room, 22 Broad Street
Nantucket, Massachusetts
CALL TO ORDER: 4:05 p.m.
PRESENT: Bartlett, Gardner, Paterson, Reinhard, Stackpole.
STAFF PRESENT: Eric Savetsky, Executive Director; Jesse Bell, Administrator/Fiscal Officer;
Susan Campese, Assistant Administrator; Bruce Perry, Resource Planner/Ecologist.
A. CITIZEN BUSINESS/ANNOUNCEMENTS:
1. Receipt of Correspondence -Chris Drake: Mr. Savetsky presented a letter from Chris
Drake in support of building a new clubhouse at Miacomet Golf Course. Upon a motion made and
duly seconded, it was unanimously VOTED to waive the reading of the letter, as the Commission
had previously received and reviewed it via email.
2. Burchell Property/24 Mizzenmast Road -Meeting Update: Mr. Savetsky reported on a
meeting with several members of the Pine Valley Homeowners Association to discuss their
concerns about the Land Bank creating vehicle access off Mizzenmast Road to the Burchell
property. Mr. Savetsky informed the members that his first preference would be to ask the Planning
Board for intermittent access from Appleton Road in order to occasionally bring farm equipment
onto the property. The members requested the courtesy of some advance notice and an opportunity
to voice their concerns should the Land Bank decide to go forward with creating an access off
Mizzenmast. The Commission expressed no opposition to Mr. Savetsky's plan or the Association's
request.
Mr. Perry left the meeting at 4: 09 p. m.
B. EXECUTIVE SESSION: Upon a motion made and duly seconded, it was unanimously VOTED
to go into executive session in order to discuss the purchase, exchange, lease or value of real
property. Each member was polled individually. All members voted yes. The Chairman declared
that discussion of these matters in open session may be detrimental to the Land Bank's negotiating
position and that the Commission would reconvene into regular session following executive session.
RETURN TO OPEN SESSION
Mr. Perry and Property Supervisor Jeffrey Pollock entered the meeting at 4:31 p. m.
C. APPROVAL OF MINUTES: Upon a motion made and duly seconded, it was unanimously
VOTED to accept, approve and release the regular session minutes of June 28, 2011, and the special
meeting minutes of June 24, 2011, as written.
Land Bank Commission
July 12, 2011
D. TRANSFER BUSINESS:
Page 2
1. Transfer Hearing Decision and Determination - No. 31665 John J. McAtee, Jr.: 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 at 5:40 p.m., Tuesday, June 28, 2011, 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 staff 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.
2. June 2011 Transfers -Record Nos. 31712 through 31776: The Commission reviewed
transfers for the period of June 1, 2011 through June 30, 2011.
a. Current "M" Exemptions and Liens: The Commission authorized the placing of a
lien against each of the following properties as a result of the purchasers claiming the "M"
exemption as first-time buyers of real property:
No. 31713 Anthony Salvatore Nastus, Jr. and Martha Page W. Martineau
No. 31739 Austen H. Winters
No. 31772 Ricardas Utaras and Daiva Utariene
No. 31776 John S. Becker and Bethany M. Becker
3. Transfer Update:
a. Additional Information Provided: Based upon the submission of additional
information, the Commission found the following transfers to be in order:
No. 31673 Mary B. Holland Revocable Trust
No. 31702 Albert Swietlik and Anna Swietlik
E. FINANCIAL BUSINESS:
1. Monthly Transfer Statistics: Monthly transfer statistics reports comparing fiscal years
2010 and 2011 and calendar years 2010 and 2011 through June 2011 were presented.
2. Warrant Authorization -Fiscal Year-End 2011: Upon a motion made and duly seconded,
it was VOTED to execute the fiscal year-end June 30, 2011 warrant document in the amount of
$157,022.21 to be provided to the county treasurer.
3. Warrant Authorization -Cash Disbursements: Upon a motion made and duly seconded, it
was VOTED to execute the July 12, 2011 warrant document in the amount of $4,554.00 to be
provided to the county treasurer.
Land Bank Commission
July 12, 2011
Page 3
4. Fiscal Year 2011 Budget Comparison: Mr. Savetsky presented the Fiscal Year 2011
Budget Comparison showing approved vs. actual expenditures for the Commission's review.
Commissioner Paterson suggested creating a reserve fund in order to cover the debt service and
operating expenses for leaner income years.
5. Fiscal Year 2012 Budget: The Commission discussed the Fiscal Year 2012 draft budget.
Upon a motion made and duly seconded, it was unanimously VOTED to approve the proposed
budget as presented.
F. REGULAR BUSINESS:
1. Property Acceptance -Surfside Area Road Layout Parcels from the Town of Nantucket:
Mr. Savetsky explained that the Town sought to convey two strips of land to the Land Bank created
by the elimination of paper roads known as Vernon Street and Waverly Street and identified as
Parcels T and U on Plan No. 2010-53, as it would add to current Land Bank holdings in the area.
Upon a motion made and duly seconded, it was unanimously VOTED to accept the grant of
property by the Town, the conveyance of which was authorized by Article 77 adopted at the 2010
Annual Town Meeting.
2. Property Acceptance -Surfside Railroad Corridor from Town of Nantucket: Mr. Savetsky
reported that the Town sought to convey over 32 acres of land to the Land Bank; one parcel off
Western Avenue known as Parcel 1 on Plan No. 38 of 201 1, and another parcel shown on a plan
entitled "Old Railroad Bed" on Plan No. 8 of 2001, the conveyance of which is contemplated by the
Land Bank's Memorandum of Understanding with the Town dated January 27, 2010. Upon a
motion made and duly seconded, it was unanimously VOTED to accept the grant of property by the
Town, the conveyance of which was authorized by Article 75 adopted at the 2007 Annual Town
Meeting.
3. Property Conveyance - Madaquecham Coffin Setoff Lots F & I to Town of Nantucket:
Mr. Savetsky presented a deed from the Land Bank conveying Lots F & I on Plan No. 62 of 2010 to
the Town of Nantucket as part of the Memorandum of Understanding with the Town dated January
27, 2010. Upon a motion made and duly seconded, it was unanimously VOTED to execute the deed
and convey these lots to the Town of Nantucket. Chairman Stackpole commended Mr. Savetsky and
Town Planning Director Andrew Vorce for their good work on this complicated project.
G. PROPERTY MANAGEMENT:
1. Property Supervisor's Monthly Report: Mr. Pollock presented a list of projects worked on
by property management staff over the last two months, reporting that several signs and property
boxes had been stolen near Nobadeer beach and that generally, staff had been busy seven
days/week cleaning up the beaches as well as illegal dumping on various properties. He suggested
that the Commission consider looking into some kind of surveillance cameras as a possible future
solution. Some of the Commissioners suggested trimming trails and roads at the Rodts property,
Washing Pond Road property and the Craig property. Mr. Pollock indicated that those were on the
Land Bank Commission Page 4
July 12, 2011
schedule for this fall. The Commission commended Mr. Pollock on how well the properties looked,
thanking him and the rest of the staff for their hard work so far this season.
2. Carter Property -Permitting Update: Mr. Perry informed the Commission that due to
circumstances resulting from several continuances by the Historic District Commission (H.D.C.),
the move off/demo permit for the house on the Carter property had been withdrawn. However, a
new application had been filed and would be on the agenda for the H.D.C.'s meeting on July 26,
2011.
3. Hummock Pond -Water Quality Discussion: Mr. Perry reported that signs warning of the
danger of the Blue Green Algae in Clarks Cove and North Head of Hummock were posted on
Nantucket Conservation Foundation property, however no signs were posted on Land Bank
property. Mr. Perry recommended that the Land Bank refrain from posting any signs until the
Health Department declared the poor water quality to be an emergency.
4. Cisco Civic Association -Request for Beach Stairs and Dead Pine Tree Removal: Mr.
Savetsky read an email from Carol Langer of the Cisco Civic Association requesting the removal
of dead pine trees along Hummock Pond Road, Heller's Way and Saccacha Avenue, in addition to
a request to install removable beach stairs at Cisco. After some discussion, the Commission asked
staff to assess the dead pine tree situation in that area and report back to the Commission. Mr. Perry
reported that Jeff Carlson, Beach Manager for the Town and David Fronzuto, Marine
Superintendent had indicated they would handle the removable stair issue.
5. Cisco and Gardner Property Use Request: Mr. Savetsky reported that he had approved a
request to hold a surfing competition ("Ozone Surf Classic") event on Sunday, August 7, 2011 with
parking on the Gardner property and shuttle service to Cisco Beach, where there will be a judges
platform and PA system on the beach, along with six port-a-potties, a dumpster and BBQ set up in
the parking lot. Knowing that all funds generated by this event are provided to island charities that
focus on children's programming and community activities the Commission concurred with Mr.
Savetsky's approval.
6. Miacomet Golf Course -Planning Discussion: Mr. Savetsky presented a draft public
statement for the Commission's review. Commissioner Gardner suggested accelerating the debt
service payments for the course as part of the feasibility study. Chairman Stackpole said the club
would probably never be able to pay the principal on the golf note. Mr. Savetsky said scaling back
on proposed amenities for the clubhouse with some subsidizing from the Land Bank every year
would allow for continued affordability for members as well as the public. Commissioner Bartlett
stated he was against having a member's only area in the clubhouse. Mr. Savetsky showed aerials of
the course and Commissioner Bartlett suggested pursuing the taking of the paper portion of Bartlett
Road which would solve several potential setback problems. Mr. Savetsky said an eminent domain
taking might be necessary, but the damage awards would be minimal. Mr. Savetsky handed out a
list of questions to consider for the next `golf planning' meeting.
Land Bank Commission
July 12, 2011
Page 5
ADJOURNMENT: U motion made and duly seconded, it was VOTED to adjourn at 6:06 p.m.
Attested to: /ln
Allen B. Reinhard, Secretary
Accepted, Approved, and Released by the VOTE
of the Commission this,26th day of July, 2011.
John J. S
MONTHLY TRANSFER STATISTICS FISCAL YEAR 2010
FY10 Total Exempt Taxable Total Gross Gross Revenue _ _
Month Transfers Transfers Transfers Value Value Taxable Received
Jul-09 61 41 20 $44,644,114 $42,991,125 $878,323
_
Aug-09 ____
37 25 12 $17,214,552 $12,649,226 $252,985
Sep-09 92 46 46 _ _
$67,744,386 $64,608,073 $1,280,828
Oct-09 __ _
85 38 47 __
$90,032,410 $87,070,640 $1,741,413
Nov-09 _
_
94 60 _
34 $61,669,385 $57,127,164 $1,150,543
Dec-09 114 78 36 $60,119,575 $49,272,425 $985,449
Jan-10 60 _
48 12 $13,437,926 $12,194,500 $243,890
Feb-10 __
67 44 23 $59,068,081 $54,426,906 _$1,083,956
____
_
Mar-10 ______
74 42 32 $39,115,847 $34,074,250 $681,485
Apr-10 50 26 _
24 $30,068,735 $28,979,000 $587,080
May-10 72 49 23 $44,629,928 $35,100,208 __ $702,004
Jun-10 84 _
46 38 $66,797,096 $38,947,596 $779,553
I
THRUJUN10
Average
890
74
543
45
347
29
594,542,034
$49,545,170
517,441,113
$43,120,093
10,367,508
$863,959
Low __
37 25 12 $13,437,926 $12,194,500 $243,890
_
High __
114 78 47 $90,032,410 $87,070,640 _ $1,741,413
MONTHLY TRANSFER STATISTICS FISCAL YEAR. 201;;1
FY11 Total Exempt Taxable Total Gross Gross Revenue
__ --- -
Month
Transfers
Transfers
Transfers
Value
Value Taxable
Received
Jul-10 55 31 24 $26,038,861 $23,613,361 $476,267
Aug
-10 64 36 28 $29,410,325 $26,700,825 $534,017
_
_
Sep-10 93 _
36 57 $150,939,438 $146,404,272 $2,936,085
Oct-10 _
104 53 51 $100,725,494 $96,991,400 $1,947,828
Nov-10 77 41 36 $61,023,719 $49,529,365 $990,5_87
_
Dec-10 ______
141 _
78 63 $97,606,194 $93,574,944 $1,879,499
Jan-11 __
78 65 ___
13 _
$21,162,865 $14,910,365 $298,207
Feb-11 62 39 _
_
23 _
$23,477,453 $21,996,953 $439,9_3_9
__
Mar-11 63 39 24 $33,663,500 $31,223,500 $628,470
Apr-11 __
57 20 37 $40,311,309 $39,448,100 $788,962
May-11 __
64 37 27 $44,795,705 $39,482,705 $799,654
Jun-11 65 30 35 $72,953,340 $64,374,340 $1,287,487
THRU JUN 11
Average 923
77 505
42 418
35 $702,108,204
$58,509,017 $648,250,130
$54,020,844 $13,007,003
$1,083,917
Low 55 20 13 $21,162,865 $14,910,365 $298,207
High 141 78 _ 63 $150,939,438 $146,404,272 $2,936,085
MONTHLY (UNAUDITED)
TRANSFER BUSINESS
Nantucket Land Bank Commission
Regular Meeting of July 12, 2011
1. Transfer Hearing Decision and Determination
No. 31665 John J. McAtee, Jr.
2. June 2011 Transfers -Record Nos. 31712 through 31776
a. Current "M" Exemptions:
No. 31713 Anthony Salvatore Nastus, Jr. and Martha Page W. Martineau
No. 31739 Austen H. Winters
No. 31772 Ricardas Utaras and Daiva Utariene
No. 31776 John S. Becker and Bethany N. Becker
3. Transfer Update:
a. Additional Information Provided:
No. 31673 Mary B. Holland Revocable Trust
- Received completed Form B, Part F (Purchaser's Affidavit)
No. 31702 Albert Swietlik and Anna Swietlik
- Received completed Form B, Part G (Seller's Affidavit)
DOCUMENTS AND EXHIBITS
Nantucket Land Bank Commission
Regular Meeting of July 12, 2011
Documents and Exhibits List
1. Correspondence -Chris Drake
2. June 16, 2011 Inquirer & Mirror Article
3. Transfer Hearing Decision and Determination
4. Monthly Transfer Report
5. Current "M" Exemption Liens (see transfer business for record nos.)
6. Additional Information Provided -Confidential (see transfer business for record nos.)
7. Monthly Transfer Statistics and Graphs for June 2011
8. Check Warrant Summary dated June 30, 2011
9. Check Warrant Summary dated July 12, 2011
10. Fiscal Year 2011 Year End Budget Comparison
11. Fiscal Year 2012 Budget
12. Maps of Waverly St. and Vernon St. lots conveyed from the Town of Nantucket to the Land
Bank
13. Maps of the Surfside Railroad Corridor parcels conveyed from the Town of Nantucket to the
Land Bank
14. Maps of Madaquecham Coffin Setoff Lots F & I conveyed to the Town of Nantucket from
the Land Bank
15. Deed conveying Madequecham Coffin Setoff Lots F & I to the Town of Nantucket from the
Land Bank
16. Property Supervisor's Monthly Update
17. Civic Association's request
18. Draft Public Statement regarding Miacomet Golf Club
19. Aerials of Miacomet Golf
20. Questions for Golf Planning Discussion
NANTUCKET LAND BANK COMMISSION
22 Broad Street
Nantucket, Massachusetts, 02554
DECISION AND DETERMINATION
In the matter of
John J. McAtee, Jr. ("McAtee"),
pursuant to Transfer No. 31665, in which a Land Bank Fee was paid under protest.
Premises at 226 Polpis Road, Nantucket, Massachusetts (Tax Map 26, Parce122.4).
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, June 28, 2011, at the Land Bank Meeting Room, 22 Broad Street,
Nantucket. This determination and decision is based upon the Commission's record in this
matter.
2. The current record owner of the Premises is McAtee by virtue of deed filed in the
Nantucket Land Registration District (the "District") as Document No. 133610 on May 9, 2011
(the "2011 Deed"), which is the transfer being reviewed in this hearing. See Exhibit A. At the
time of the 2011 Deed, the assessed value of the Premises was $8,080,500. See Exhibit B.
3. Immediately prior to filing the 2011 Deed, the Premises was owned by Lynn K. Glenn
a/k/a Lynn Glenn McAtee, Trustee of The John J. McAtee, Jr. Qualified Personal Residence
Trust, under trust agreement dated May 11, 1996, filed in the District at Document No. 72017
(the "Trust"). See Exhibits B and F. The Trust acquired title to the Premises from McAtee by
deed dated May 11, 1996, filed in the District as Document No. 72016 (the "1996 Deed"). The
1996 Deed was Land Bank Transfer No. 14285, which was exempt from the Land Bank fee
under Exemption D. See Exhibit F. At the time of the 1996 Deed, the appraised value of the
Premises was $2,000,000. See Exhibit B.
4. According to its terms, the Trust is an irrevocable trust. For the first fifteen (15) years,
the Trust was for the benefit of McAtee. Since McAtee was alive at the end of fifteen (15) years,
the entire Trust corpus, including the Premises, was to be distributed on May 11, 2011, in equal
shares to his two children. See Exhibit F.
5. Rather than allow the Trust to distribute the Premises to his children according to the
Trust terms, McAtee opted to "substitute" in the corpus of the Trust property of equal value to
the Premises. This resulted in the 2011 Deed, given "in consideration of the Grantee's
reacquisition of the Premises by the substitution of other property having an equivalent value of
EIGHT MILLION EIGHTY THOUSAND FIVE HUNDRED ($8,080,500.00) DOLLARS". See
Exhibit A.
6. According to counsel for McAtee, due to provisions of the United Stated Internal
Revenue Code and regulations and rulings thereunder, the substitution memorialized by the 2011
Deed resulted in no federal income tax being incurred by the Trust or by McAtee. See Exhibits
B, C, and F. We have assumed this analysis to be true without inquiring into its accuracy. Based
on the lack of federal income tax arising from the 2011 Deed, McAtee claimed that the 2011
Deed should be exempt from the Land Bank fee pursuant to Section 12(c) of Act. See Exhibits
A and B. Notwithstanding the claim of exemption, McAtee paid a Land Bank fee of $161,610 at
the time the 2011 Deed was filed.
7. With regard to the "C" Exemption, Section 12 of the Act states in pertinent part:
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. 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.
(-c-) Transfers made as gifts without consideration. In any proceeds (sic) 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.
Following are provisions of the Land Bank Rules and Regulations in force at the time of the
2011 Deed pertaining to application of the "C" Exemption:
4.06 THE "C" EXEMPTION
(1) As stated in Section 12 (c) of the Act, the "C" exemption applies to "Transfers made
as gifts without consideration. In any proceeds (sic, should be "proceedings") to
2
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 by gift without consideration to the extent of the difference between the fair market
value of the Real Property Interests transferred and the amount of the 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."
(2) Any claim of exemption "C" shall require filing with the Land Bank documentation
indicating the relationship between the Purchaser and the Seller.
(3) A claim of the "C" exemption may be forwarded to the Internal Revenue Service
(4) The Purchaser may submit evidence at the time the exemption is claimed to rebut the
presumption that the consideration equalled fair market value, however the presumption
shall not be rebutted except by a demonstration of clear and convincing evidence.
(5) In the event that a gift is claimed and the recipient is a nominee, full disclosure of the
equitable ownership is required, including a schedule of beneficiaries, or if the
beneficiary is a Partnership, a schedule of the partners, or if the beneficiary is a
Corporation, a schedule of stockholders, as applicable, each schedule stating the interest
received by the applicable parties. In the event that a gift is claimed and the recipient is a
Partnership or a Corporation, a schedule of the partners or stockholders, as applicable,
and the interests received by the parties thereto must be provided.
(6) The exemption shall be automatically denied if any document required under this
Section is not provided.
8. By counsel's letter dated May 12, 2011, McAtee requested a hearing regarding refund of
the fee paid on May 9, 2011, in the amount of $161,610. See Exhibit C.
9. The following exhibits were made a part of the Commission's official record without
objection by McAtee and are incorporated herein by reference:
Exhibit A, Transfer Documents Record No. 31665 dated May 9, 2011, including Forms
A and B and Statutory Quitclaim Deed from Lynn K. Glenn a/k/a Lynn Glenn McAtee,
Trustee of The John J. McAtee, Jr. Qualified Personal Residence Trust to John J.
McAtee, Jr., individually, registered as Document No. 133610 and noted on Certificate of
Title No. 17325 at the Nantucket Registry District;
Exhibit B, Memorandum from Edward Foley Vaughan, Esq. dated May 9, 2011 (with
enclosures of Internal Revenue Code Section 675 and Revenue Ruling 85-13, 1985-1
3
C.B. 184) to the Nantucket Land Bank Commission describing the transaction as a family
gift under the "C" exemption and referencing the Internal Revenue Code for its tax
treatment of the transaction;
Exhibit C, Correspondence from Edward Foley Vaughan dated May 12, 2011 to the
Nantucket Land Bank Commission (with enclosures of the above-referenced letter from
Edward Foley Vaughan dated May 9, 2011 with its enclosures, as well as a copy of Trust
Agreement dated May 11, 1996, registered as Document No. 72017 and noted on
Certificate of Title No. 17325 at the Nantucket Registry District) requesting a refund of
the Land Bank fee paid on May 9, 2011 in the amount of $161,610;
Exhibit D, Correspondence from Land Bank counsel Valerie Swett dated May 20, 2011
to Edward Foley Vaughan requesting an explanation of how the application of the
Internal Revenue Code leads to exemption from the Land Bank fee;
Exhibit E, Correspondence from Valerie Swett, Esq. dated June 20, 2011 to Edward
Foley Vaughan notifying Mr. Vaughan of the hearing on the matter scheduled to take
place on June 28, 2011 at 6:00 p.m., and requesting additional written explanation of his
position by the close of business on June 21, 2011;
Exhibit F, Correspondence from Edward Foley Vaughan, Esq. dated June 21, 2011 to
Valerie Swett, Esq., characterizing the transaction as a family gift under the "C"
exemption, citing case law which suggests that the recital of dollar consideration is
inconclusive evidence of consideration, and referencing the tax treatment of the
transaction from the perspective of the Internal Revenue Code (with enclosures of
unprocessed Land Bank Forms A and B; different examples showing present valuation
formulas depending on the factors of one's life and a term of years; Trust Agreement
dated May 1 1, 1996, registered as Document No. 72017 and noted on Certificate of Title
No. 17325 at the Nantucket Registry District; Quitclaim Deed from John J. McAtee, Jr. to
John J. McAtee, Jr. Qualified Personal Residence Trust, registered as Document No.
72016 and noted on Certificate of Title No. 17325 at the Nantucket Registry District);
FINDINGS
Based on the facts, documentation, and information provided at the hearing, the Commission
finds as follows:
1. The value "substituted" for the Premises as corpus of the Trust at the time of the 2011
Deed was consideration and constituted a "Purchase Price". Section 1 of the Act defines
"Purchase Price" to be "all consideration paid or transferred by or on behalf of a purchaser to a
seller ...". At the hearing, counsel for McAtee confirmed that property worth $8,080,500 was
transferred to the Trust at the time the 2011 Deed was delivered. We find it impossible to
distinguish between "substitution" of valuable property and "consideration" or "Purchase Price"
4
Every arms length transaction for sale of real property involves the buyer "substituting" the
seller's title in the real property sold for property of like value transferred by the buyer. In other
words, every purchase involves a substitution of the type described in the 2011 Deed. The facts
here are undisputed and show that the "substitution" involved a transfer of real property for
property of like value, i.e., consideration. The Act clearly includes the transferred property as the
"Purchase Price" upon which the Land Bank fee is calculated.
2. We find that the treatment of the transfer under the federal tax law is not relevant to
application of the Act to the transfer. McAtee argues that the transfer of $8,080,500 in exchange
for title to the Premises should not be subject to a Land Bank fee because the Internal Revenue
Code does not require the 2011 Deed to be treated as a sale. The Act stands alone as a statutory
scheme for creation of the Land Bank, which is funded by the Land Bank fee. The Internal
Revenue Code and the Act are separate and entirely distinct statutory schemes. The Internal
Revenue Code establishes the rules and requirements for the imposition of federal income tax.
The Act, as noted, imposes a fee on certain real estate transactions on Nantucket for payment
into the Land Bank. The two statutes relate to different subject matter and serve different
purposes. Neither incorporates the other's provisions or turns on application of the other. The
provisions of the Act which are at issue here are unambiguous. In the absence of ambiguity in the
meaning and application of the Act, we decline to refer to any other statute or regulation for the
interpretation of definitions or rules. Even if the Act were ambiguous, the Internal Revenue
Code would be an unlikely source of such interpretation for the foregoing reasons. The Act
contains its own definition of and standard for an exempt "gift" and it is irrelevant that the
Internal Revenue Code might have a different definition of or standard for an exempt "gift".
3. The "C" Exemption does not apply to the 2011 Deed. It is an essential condition
precedent to application of this exemption that a transfer be made without consideration. The
2011 Deed was delivered in exchange for property valued $8,080,500, so consideration was
given and the "C" Exemption cannot apply.
4. With regard to the 2011 Deed, the Trust was a "Seller" and McAtee was a "Purchaser" as
defined in the Act. Section 1 of the Act defines "Seller" as the "transferor, grantor or immediate
former owner of any real property interests." "Purchaser" is defined as "the transferee, grantee
or recipient of any real property interests." McAtee implicitly argues that he and the Trust were
not legally separate from each other because McAtee has been allowed by federal income tax
law to report income and expenses of the Trust on McAtee's personal income tax return. Again,
application of the Internal Revenue Code is not relevant to application of the Act. The Trust is
an irrevocable trust with a trustee and beneficiaries other than McAtee, so it cannot be said that it
was a nominee or alter ego of McAtee.
5. The 2011 Deed was a transfer of a real property interest in real property located in
Nantucket County for which a purchase price was paid to a Seller by a Purchaser.
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DETERMINATION
ACCORDINGLY, the Commission finds that a fee is due pursuant to Section 10 of the
Act and declines to refund the fee of $161,610 paid at the time the 2011 Deed was filed.
McAtee has the rights set forth in the attached copy of the Act, for further proceedings in
connection with this Decision and Determination.
WITNESS our hands and seals this 12th day of July, 2011.
NANTUCKET ISLANDS LAND BANK
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