Print
  • Acts
  • 1997
  • Chapter 144 AN ACT ESTABLISHING THE CAPE COD LAND BANK.

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


SECTION 1. For the purpose of this act, the following words shall have the following meanings:-

"Land bank commission", the land bank commission shall be the county commissioners of Barnstable county or their successors.

"Land Bank Fund", town and regional land bank funds for the acquisition of open space.

"Matching funds", monies or other consideration provided by a town to purchase an option in an interest in land, in an amount equal to one-half the total cost of implementing each affordable housing initiative to meet the 50-50 match obligation under this act. Such funds may be expended from available funds, or borrowed and appropriated, or may be from private contributions or donations, including the charitable contribution or portion of bargain sales as defined by the Internal Revenue Code or state or federal funds.

"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 remains subject after the transfer, determined at the time of transfer, but excluding real estate taxes and other municipal liens or assessments which are not overdue at the time of transfer; and the fair market value at the time of transfer of any other consideration or thing of value paid or transferred by or on behalf of the purchaser, including but not limited to, any property, goods or services paid, transferred or rendered in exchange for such real property interest.

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

"Real property interest", any present or future legal or equitable interest in or to real property, and any beneficial interest therein, including the interest of any beneficiary in a trust which holds any legal or equitable interest in real property, but shall not include any interest which is limited to any or all of the following: the dominant estate in any easement or right of way; the right to enforce any restrictions; any estate at will or at sufferance, and any estate for years having a term of less than 30 years; the reversionary right, condition, or right of entry for condition broken; the interest of mortgagee or other secured party in any mortgage or security agreement.

"Seller", 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 an instrument is recorded with Barnstable county registry of deeds or filed with the assistant recorder of the Barnstable county registry district.

"Town open space committee", or "town committee", an agency, board, department, commission, or committee appointed, designated or established by the board of selectmen, or in the town of Barnstable by the town council, to carry out the provisions of this act relative to acquiring open space. The town open space committee may be a nonprofit organization established pursuant to chapter 180 of the General Laws.

SECTION 2. There is hereby established a Cape Cod land bank commission and a Cape Cod Land Bank Fund, to be administered by the land bank commission for the purpose of acquiring land and interests in land for the protection of public drinking water supplies, open space, and conservation land, the creation of walking and bicycling trails, and the creation of recreational areas.

Towns may use land bank funds, in whole or in part, as matching funds for the purpose of providing a match under the land conservation program created under section 11 of chapter 132A of the General Laws or under any other state or federal open space acquisition program consistent with the purposes of this act. The availability of funds under this act shall not affect the eligibility of any town to receive funds under said section 11 of said chapter 132A or to receive funds from any state or federal open space acquisition program. Not more than 3 per cent of said funds may be used for maintenance and improvement to property purchased with land bank funds.

The land bank commission is hereby constituted as a body politic and corporate and public instrumentality and the exercise of the powers herein conferred upon the land bank shall be deemed to be the performance of an essential governmental function.

SECTION 3. The board of selectmen in each town of Barnstable county, and in Barnstable the town council, shall appoint a town open space committee to carry out the purposes of this act. Land bank commission and town committee members shall serve without compensation. The land bank commission shall recommend to the town public acquisition of specified land areas to further regional goals. The land bank commission shall print an annual report.

SECTION 4. There is hereby established a fee on the transfer or conveyance of any real property interests in Barnstable county. Said fee shall be in the amount of 1 per cent of the total purchase price excluding the first $100,000 in total value. The fee imposed by this section shall be paid by the seller to the register of deeds at the time of transfer. The fee shall be the liability of the seller of such real property interest and any agreement between the seller and the purchaser or any other person with reference to the allocation of the responsibility for bearing such fee shall not affect such liability of the seller. Failure to comply with this requirement shall not affect the validity of any instrument.

SECTION 5. More than one transfer of a portion of the same or an adjacent property interest to the same grantee occurring on the same day shall be presumed to be a single transfer for the purposes of computing the fee owed hereunder. The register shall report any known or suspected activities to evade payment of the fee to the land bank commission as soon as is practicable. If the land bank commission, based upon a report from the register or on its own determines that one or more purchases were segmented to evade the fee or that an unwarranted exemption was obtained by fraud, mistake or otherwise, or that the amount of fee paid was in error, it may, after providing the seller with seven days notice by registered or certified mail and after holding a public hearing, impose a lien on the subject property equal to the amount of the fee, plus interest, it deems owed. 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 12 per cent per annum. The land bank commission shall notify the seller in writing by registered or certified mail of its determination concerning the deficiency within 15 days after said hearing. Any party aggrieved by a determination of the commission may, after payment of said deficiency, appeal to superior court department of the trial court within 30 days after the mailing of notification of determination of the commission. Upon the failure to timely petition for a hearing or appeal in said court the seller shall be bound by the terms of the notification assessment or determination and shall be barred from contesting the fee and any interest as determined by the commission. For the purposes of this section the seller shall be deemed to have received notice if mailed to the respective address listed on the subject deed or instrument of conveyance by registered mail. The land bank commission may issue a waiver or release of any lien imposed under 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 6. The register of deeds for the county of Barnstable, and the assistant recorder of the registry district of the county of Barnstable, shall not record or register any deed, except a mortgage deed, relative to real property interest in land situated in Barnstable county for which the registry has not received the fee established by section 4 unless the register determines that the transfer qualified for one of the following exemptions:

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

(ii) transfers for consideration of $100,000 or less in value;

(iii) transfers pursuant to the Barnstable county HOME program, Soft Second Loan program, Local Initiative Programs, Habitat for Humanity, HUD and state affordable housing programs of nonprofit housing agencies certified by the land bank commission;

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

(v) For transfers of developed industrial or commercial properties, the sale price in excess of $1,000,000 shall be exempt; provided that a certificate of the land bank commission attesting to the eligibility of the transaction under this section is recorded with the deed.

All other transfers for which an exemption is claimed under this section shall include a recitation in the deed affirming the exempt status of the purchaser. For the purposes of this act, except as set forth in clause (v), the register may presume that a recitation in the deed qualifies the transfer for exemption from the fee. Upon receipt of said fee or upon a determination of exemption the register shall affix a stamp indicating the fee has been paid or that the transfer is exempt from payment of said fee.

SECTION 7. The register shall collect the fee established by section 4 and shall pay over said fees to the county treasurer who shall maintain a separate rate account of the same for the purposes of this section. The county treasurer shall establish individual accounts for the land bank commission and for each town within Barnstable county. The county treasurer shall administer all transactions for the individual accounts. Of the revenues collected under this act, 10 per cent shall be directly administered by the land bank commission in accordance with the provisions of this act. The remaining 90 per cent of the revenues collected shall be transferred to the individual town accounts in proportion to the amount of collected land bank revenues derived from the transfer of any real property interest within each respective town. When an interest subject to the fee lies within more than one town, the county treasurer shall deposit the fee in the account of the town in which the register has determined the largest portion of the interest lies. For the acquisition of a real property interest in open space, the county treasurer shall pay over to the town treasurer an amount equal to the amount certified by the town treasurer as expended for purposes of this act.

The Barnstable county commissioners shall authorize the county treasurer to release funds from individual town accounts when such town request meets the criteria established above. The county treasurer shall pay over to the land bank commission from the land bank commission account an amount equal to that authorized by a vote of the land bank commission as certified by the clerk of the commission. The Barnstable county commissioners shall authorize the county treasurer to release funds pursuant to a certified land bank commission vote. The county treasurer shall release funds only for the purposes set forth in section 2.

Indebtedness may be incurred by a town for the purposes authorized by this act. Such indebtedness may be retired by expenditures from the fund as applied for and received by the town in accordance with the provisions of this act.

SECTION 8. The land bank commission shall, subject to the provisions of this act, have the power and authority to fund the purchase of fee simple interests, and any lesser interests, including an option to purchase land, in any parcel of land situated within Barnstable county including any improvements thereon; provided, however, that the land bank commission shall, in considering any expenditure, use as guidelines local and regional open space plans, local and regional housing plans, and regional plans, if any. At the direction of the land bank commission, interests acquired through the land bank commission may be held and managed by the town in which the interest lies, a nonprofit organization established pursuant to chapter 180 or chapter 203 of the General Laws, or, in the case of interests to acquire sites for future wellhead development, by a water company, a water district, a water supply district, or a fire district.

The town committees shall recommend acquisitions of interests in real property and other expenditures consistent with section 9 to the town meeting, or, in Barnstable, the town council, and towns may expend funds in the individual town account for purposes consistent with this act. In considering the recommendation of any such acquisition, town committees shall use, as a guideline local and regional open space plans, master plans, and local comprehensive plans, if any. Real property interests acquired by a town under this act shall be owned and managed by the town in which the interest is located; provided, however, that the board of selectmen may delegate management of such property to a nonprofit organization created under chapter 180 or chapter 203 of the General Laws, or, in the case of interests to acquire sites for future wellhead development, by a water company, a water district, a water supply district, or a fire district.

SECTION 9. Any real property interest in open space purchased with land bank funds shall be retained in natural, scenic, or open condition and shall be bound by a permanent deed restriction limiting the use of the interest to the purpose for which it was acquired. Said deed restriction shall run with the land and shall be enforceable by the land bank commission. Real property interests shall be situated in Barnstable county and may consist of any of the following: (a) land to protect existing and future well fields, aquifers and recharge areas; (b) agricultural lands; (c) forest land; (d) fresh and salt water marshes and other wetlands; (e) ocean and pond frontage, beaches, dunes and other coastal lands; (f) land to protect scenic vistas; (g) land for natural or wildlife preserve; (h) land and easements for trails; and (i) land for recreational use. Notwithstanding the foregoing, the land bank commission and towns may make improvements to promote recreation that are not inconsistent with such use.

Each town may elect, upon a vote of the town meeting, to transfer any portion of its town account to the Cape Cod Land Bank Fund for the purposes set forth in this section.

SECTION 9A. If there should be any unforeseen or inordinate costs associated with the facilitation and administering of the Cape Cod land bank, the monies appropriated for said costs from the Cape Cod Land Bank Fund shall be nominal, not to exceed 1 per cent of the total amount of revenues collected from the transfer tax.

SECTION 10. The county commissioners shall fix a date and provide funding for an election in each of the 15 towns comprising Barnstable county not sooner than 30 days nor later than 180 days after the effective date of this section. Each municipality shall conduct a special election pursuant hereto on the date so fixed and shall certify the results thereof to the county commissioners and the state secretary. The town clerk of each municipality shall place upon the ballot at such election the following question:

"Shall 'an act establishing the Cape Cod Land Bank', which establishes a Cape Cod Land Bank to protect public drinking water supplies, acquire open space and conservation land, provide bicycling and walking trails, and enhance opportunities for recreation and to be funded by a 1 per cent fee on all land transfers at the Barnstable County Registry of Deeds, but exempting the first $100,000 of purchase price, be accepted?"

SECTION 11. After the first five years following the effective date of this act and every two years thereafter, towns participating in the Cape Cod land bank program shall have the right, initiated by a petition signed by 250 registered voters, to place on the next town election ballot a question to determine whether or not the town wishes to remain as a participant in the Cape Cod land bank. If the town votes to terminate its participation in the Cape Cod land bank program, the vote shall be effective at the beginning of the next fiscal year. A town which voted to terminate its participation in the Cape Cod land bank may subsequently reenter the program by use of the same procedure. A vote to reenter the program shall be effective at the beginning of the next fiscal year.

SECTION 12. Section 10 of this act shall take effect upon its passage. The remaining provisions of this act shall take effect upon its approval by a majority of all votes cast in Barnstable county pursuant to said section 10.

Senate, November 6, 1997.

This Bill having been returned by the Lieutenant-Governor, Acting Governor, with his objections thereto in writing (see Senate 1997) has been passed by the Senate, the objections of the Lieutenant-Governor, Acting Governor, to the contrary notwithstanding, two-thirds of the Senate (25 yeas to 8 nays) having agreed to the same.

Sent to the House of Representatives for its action.
Thomas F. Birmingham, President.
Edward B. O'Neill, Clerk.

House of Representatives, November 12, 1997.

Passed by the House of Representatives, notwithstanding the objections of the Lieutenant-Governor, Acting Governor, two-thirds of the members present (128 yeas to 28 nays) having approved the same.

Thomas M. Finneran, Speaker.
Robert E. MacQueen, Clerk.

Office of the Secretary, November 17, 1997.