Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H3804 Compare Versions

Only one version of the bill is available at this time.

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2	2	HOUSE DOCKET, NO. 3050 FILED ON: 1/20/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 3804
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Dylan A. Fernandes
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act establishing the Martha’s Vineyard housing bank.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Dylan A. FernandesBarnstable, Dukes and Nantucket1/17/2023 1 of 28
16	16	HOUSE DOCKET, NO. 3050 FILED ON: 1/20/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 3804
18	18	By Representative Fernandes of Falmouth, a petition (subject to Joint Rule 9) of Dylan A.
19	19	Fernandes for legislation to establish the Martha’s Vineyard housing bank funded by a fee upon
20	20	the transfer of any real property in member towns. Revenue.
21	21	The Commonwealth of Massachusetts
22	22	_______________
23	23	In the One Hundred and Ninety-Third General Court
24	24	(2023-2024)
25	25	_______________
26	26	An Act establishing the Martha’s Vineyard housing bank.
27	27	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
28	28	of the same, as follows:
29	29	1 SECTION 1: For purposes of this act, the words and phrases set forth in this section
30	30	2shall have the following meanings:
31	31	3 “Anti-flipping restriction”, a restriction that limits the time and price at which a real
32	32	4property interest or real property in connection with which a real property interest is held may be
33	33	5transferred following receipt of the real property interest from the housing bank or the receipt of
34	34	6housing bank funding with respect to the real property interest, as shall be set forth in regulations
35	35	7adopted by the commission. Any person who transfers a real property interest in contravention of
36	36	8an anti-flipping restriction shall pay a penalty equal to 100 per cent of the amount of housing
37	37	9bank funding received and 100 per cent of the amount by which the purchase price exceeds the
38	38	10permissible purchase price established by the commission’s regulations. 2 of 28
39	39	11 “Area median income”, the median income for Dukes County, with adjustments made for
40	40	12smaller and larger families, as such median income shall be determined from time to time by the
41	41	13United States Department of Housing and Urban Development.
42	42	14 “Commission”, the Martha’s Vineyard housing bank commission established by section
43	43	153.
44	44	16 "Community housing", rental and ownership housing units for use as year-round housing
45	45	17by those residents of Martha's Vineyard earning up to 240 per cent of area median income, or
46	46	18such lower limit determined by the Commission with respect to, or otherwise applicable to,
47	47	19particular housing units.
48	48	20 “Community housing restriction”, a perpetual restriction, whether or not stated in the
49	49	21form of a restriction, easement, covenant or condition in any deed, mortgage, will, agreement, or
50	50	22other instrument limiting the use of real property or housing units to occupancy for community
51	51	23housing.
52	52	24 “Housing bank”, the Martha’s Vineyard housing bank established by section 2.
53	53	25 "Legal representative", with respect to any person, shall mean any other person acting
54	54	26under a written power-of-attorney executed by that person; provided, however, that any affidavit
55	55	27attesting to the true and complete purchase price of a real property interest, submitted to the
56	56	28commission pursuant to section 15, may also be signed on behalf of that person by an attorney
57	57	29admitted to practice in the commonwealth.
58	58	30 “Purchaser”, the transferee, grantee or recipient of any real property interests. 3 of 28
59	59	31 “Purchase price”, all consideration paid or transferred by or on behalf of a purchaser to a
60	60	32seller or a seller’s nominee, or for the seller’s benefit, for the sale, lease, exchange, or transfer of
61	61	33any real property interest, and shall include, but not be limited to: (i) all cash or its equivalent so
62	62	34paid or transferred; (ii) all cash or other property paid or transferred to discharge or reduce any
63	63	35obligation of the seller; (iii) the principal amount of all notes or their equivalent, or other
64	64	36deferred payments, given or promised to be given to the seller or the seller’s nominee; (iv) the
65	65	37outstanding balance of all obligations of the seller which are assumed by the purchaser or to
66	66	38which the real property interest transferred remains subject after the transfer, determined at the
67	67	39time of transfer, but excluding real estate taxes and other municipal liens or assessments which
68	68	40are not overdue at the time of transfer; and (v) the fair market value, at the time of transfer, of
69	69	41any other consideration or thing of value paid or transferred, including, but not limited to, any
70	70	42property, goods or services paid, transferred or rendered in exchange for such real property
71	71	43interest.
72	72	44 "Real property interest", any present or future legal or equitable interest in or to real
73	73	45property, and any beneficial interest therein, including the interest of any beneficiary in a trust
74	74	46which holds any legal or equitable interest in real property, the interest of a partner or member in
75	75	47a partnership or limited liability company which holds any legal or equitable interest in real
76	76	48property, the interest of a stockholder in a corporation which holds any legal or equitable interest
77	77	49in real property, the interest of a holder of an option to purchase real property, the interest of a
78	78	50buyer or seller under a contract for purchase and sale of real property, the transferable
79	79	51development rights created under chapter 183A of the General Laws; the dominant estate in any
80	80	52easement or right of way, the right to enforce any restriction, an estate at will or at sufferance, or
81	81	53an estate for years or leasehold interest. 4 of 28
82	82	54 “Seller”, the transferor, grantor or immediate former owner of any real property interests.
83	83	55 “Shared appreciation equity loan,” a loan agreement pursuant to which the housing bank
84	84	56receives a percentage of a property’s appreciation upon transfer for consideration.
85	85	57 “Time of transfer”, of any real property interest shall mean, the time at which such
86	86	58transfer is legally effective as between the parties thereto, and, in any event, with respect to a
87	87	59transfer evidenced by an instrument recorded with the appropriate registry of deeds or filed with
88	88	60the assistant recorder of the appropriate registry district, not later than the time of such recording
89	89	61or filing.
90	90	62 “Town advisory board”, a town board created in each member town to assist the
91	91	63commission in administering this act, each to consist of 1 representative duly appointed, either
92	92	64from its membership or otherwise, by each of the following town boards: select board,
93	93	65conservation commission, planning board, zoning board, board of assessors, housing committee,
94	94	66board of health and, if one exists, wastewater committee. Should a position become vacant, a
95	95	67member appointed by the respective board to complete the unexpired term shall fill said vacancy.
96	96	68Members shall hold 3-year staggered terms with the length of the terms of each of the initial
97	97	69town advisory board members to be designated by the town select board. All decisions of the
98	98	70town advisory boards shall be by two-thirds vote of those present and voting at a meeting at
99	99	71which a majority of the members is present.
100	100	72 “Transfer price restriction”, a perpetual restriction, whether or not stated in the form of a
101	101	73restriction, easement, covenant or condition in any deed, mortgage, will, agreement, or other
102	102	74instrument limiting the price at which real property may be transferred or the rental rates that 5 of 28
103	103	75might be charged, based on a formula as shall be set forth in regulations adopted by the
104	104	76commission.
105	105	77 “Year-round housing”, shall be as defined in regulations adopted by the commission;
106	106	78provided that year-round housing shall not include housing units in which the primary occupants
107	107	79reside for less than 11 months during any 1-year period.
108	108	80 “Year-round housing restriction”, a perpetual restriction whether or not stated in the form
109	109	81of a restriction, easement, covenant or condition in any deed, mortgage, will, agreement, or other
110	110	82instrument limiting the use of the real property to occupancy for year-round housing.
111	111	83 SECTION 2: There shall be a Martha’s Vineyard housing bank, to be administered by a
112	112	84commission established by section 3, for the purpose of creating and preserving both year-round
113	113	85housing and community housing. The housing bank shall be a body politic and corporate and a
114	114	86public instrumentality, and the exercise of the powers herein conferred upon the housing bank
115	115	87shall be deemed to be the performance of an essential governmental function.
116	116	88 SECTION 3: (a) The housing bank shall be administered by a commission
117	117	89consisting of: 1 town-representative member elected by each of the member towns, each of
118	118	90whom shall be a legal resident of the member town he or she represents; and 1 at-large member
119	119	91elected by island-wide vote who shall be a legal resident of Martha’s Vineyard. Each town-
120	120	92representative member shall be elected to a 3-year term in the same manner as other elected town
121	121	93officials. Notwithstanding the foregoing, (a) the commission shall initially consist of: 1 town-
122	122	94representative member appointed by the select board of each of the member towns, to serve until
123	123	95the first election of a town-representative member at such town’s regular or special town election
124	124	96following the effective date of this act, and (b) the terms of the initial town-representative 6 of 28
125	125	97members elected as set forth herein shall be drawn by lot by representatives appointed by the
126	126	98member towns’ select boards prior to the first election of any town-representative member, and
127	127	99shall be staggered so that, as nearly as possible, an equal number of terms expire each year
128	128	100following the first election of town-representative members. The initial at-large member shall be
129	129	101appointed by the county commissioners to serve from the effective date of this act until the first
130	130	102election of the at-large member following the effective date of this act. The election of the at-
131	131	103large member of the commission shall be conducted at the biennial state election in 2024 and
132	132	104succeeding elections of the at-large member shall take place at the biennial state election. The
133	133	105nomination of candidates for election to such office shall be in accordance with sections 6 and 8
134	134	106of chapter 53 of the General Laws; provided, however, that no more than 10 signatures of voters
135	135	107shall be required on the nomination papers for such office. Notwithstanding the provisions of
136	136	108section 10 of chapter 53 of the General Laws, nomination papers for said candidates shall be
137	137	109filed with the office of the state secretary on or before the tenth Tuesday preceding the day of the
138	138	110election. Such nomination papers shall be subject to the provisions of section 7 of said chapter
139	139	11153. Upon election or appointment to the commission, the at-large commission member shall be
140	140	112sworn to the faithful execution of his or her duties by the town clerk of the town in which he or
141	141	113she resides.
142	142	114 (b) Should a vacancy occur during the term of any town-representative member, the
143	143	115select board of the town represented by such member shall appoint an interim member to serve
144	144	116for the unexpired portion of the term. Should a vacancy occur during the term of the at-large
145	145	117member, the county commissioners shall appoint an interim member to serve for the unexpired
146	146	118portion of the term. 7 of 28
147	147	119 (c) The commission shall elect a chair and a vice chair from among its members and shall
148	148	120elect a secretary and a treasurer who may be the same person, but who need not be members of
149	149	121the commission.
150	150	122 (d) Decisions of the commission shall be by majority vote of those present and voting at a
151	151	123meeting at which a majority of the members is present.
152	152	124 (e) If approved by each town advisory board, members of the commission may be paid a
153	153	125stipend, provided that such stipend shall not exceed $2,000 annually unless a higher amount is
154	154	126both authorized by a majority vote of town meeting in each member town and approved by each
155	155	127town advisory board.
156	156	128 (f) The commission shall keep accurate records of its meetings and actions and shall file
157	157	129an annual report which shall be distributed with the annual report of each member town.
158	158	130 SECTION 4: The commission shall have the power and authority to:
159	159	131 (a) acquire, by purchase, lease, gift, grant, contribution, devise or transfer from any
160	160	132person, firm, corporation or other public or private entity, any real property interest, including a
161	161	133year-round restriction, within any of the member towns; provided, however, that the commission
162	162	134shall, in considering any such acquisition, use as guidelines town or regional master plans,
163	163	135wastewater plans, watershed management plans, open space plans, and climate and energy goals;
164	164	136 (b) acquire, by purchase, gift, grant, contribution, devise or transfer, personal property,
165	165	137and accept and receive money, by gift, grant, contribution, devise or transfer, from any person,
166	166	138firm, corporation or other public or private entity, including but not limited to grants of funds or 8 of 28
167	167	139other property tendered to the housing bank in connection with any ordinance or by-law or any
168	168	140general or special law or any other source;
169	169	141 (c) sell, lease, exchange, transfer or convey any real property interest or personal property
170	170	142at public auction or by private contract for such consideration and on such terms as to credit or
171	171	143otherwise as the commission may determine, subject to restrictions as described in section 12;
172	172	144 (d) subject to the requirements described in section 11, extend grants, loans, guarantees,
173	173	145lines of credit, interest subsidies, rental assistance, or any other means of funding the
174	174	146commission deems advisable to further the goals of the housing bank;
175	175	147 (e) execute, acknowledge and deliver deeds, assignments, transfers, pledges, leases,
176	176	148covenants, contracts, promissory notes, releases, grant agreements and other instruments sealed
177	177	149or unsealed, necessary, proper or incident to any transaction in which the commission engages
178	178	150for the accomplishment of the purposes of the housing bank;
179	179	151 (f) incur debt by pledging the full faith and credit of the housing bank subject to the
180	180	152limitations set forth in this act, provided that the commission may incur debt only to the extent
181	181	153that its projected annual debt service obligation prior to maturity with respect to any existing and
182	182	154any new debt will not, in the aggregate, exceed 10 per cent of the average annual revenues
183	183	155received by the housing bank during its prior three fiscal years, commencing with the initial
184	184	156partial fiscal year following the effective date of this act; and provided further that, for the
185	185	157purpose of determining the housing bank’s projected annual debt service obligation, any interest
186	186	158other than a fixed rate shall be calculated as the rate payable for the most recent 12 month period,
187	187	159or the period for which the indebtedness has been outstanding if less than 12 months, and the rate
188	188	160payable on the date that the indebtedness is incurred for any new indebtedness; 9 of 28
189	189	161 (g) hire such staff and obtain such professional services as are necessary in order to
190	190	162perform its duties; and
191	191	163 (i) after holding a public hearing and after requesting recommendations from the town
192	192	164advisory board of each of the member towns, adopt, amend or rescind such rules, regulations and
193	193	165procedures as the commission deems necessary or appropriate to carry out the provisions of this
194	194	166act.
195	195	167 Notwithstanding anything herein to the contrary, any expenditure or use of housing bank
196	196	168funds, including any loans or disbursement of down payment assistance provided by the housing
197	197	169bank, and any acquisition of a real property interest, whether by purchase, lease, gift, grant,
198	198	170contribution, devise or transfer, shall require approval by the town advisory board or boards in
199	199	171the town or towns in which the project will be located or in which a real property interest will be
200	200	172acquired.
201	201	173 SECTION 5. Each member town is hereby authorized to appropriate money to be
202	202	174deposited in the fund as provided in section 13.
203	203	175 SECTION 6. The housing bank is hereby empowered to issue its bonds and notes,
204	204	176including notes in anticipation of bonds, for the purpose of acquiring real property interests and
205	205	177providing funding as provided in section 4(d). The proceeds of such bonds or notes may be used
206	206	178to pay, in whole or in part, acquisition costs; to provide reserves for debt service and other
207	207	179expenses; to pay consulting, appraisal, advisory and legal fees and costs incidental to the
208	208	180issuance and sale of such bonds or notes; to purchase, refund or renew bonds or notes previously
209	209	181issued; and to pay any other costs and expenses of the housing bank necessary for the
210	210	182accomplishment of its purposes. Bonds or notes issued under this act shall be authorized by the 10 of 28
211	211	183commission which shall have full power and authority to determine the amount, form, terms,
212	212	184conditions, provisions for the payment of interest and all other details thereof and to provide for
213	213	185their sale and issuance at such price and in such manner as the commission shall determine,
214	214	186subject only to any limitations set forth in this act; provided, however, that the issuance of bonds
215	215	187or notes by the commission shall require the approval of two-thirds of the town advisory boards.
216	216	188All bonds or notes issued hereunder shall be payable solely from the fees and other revenues of
217	217	189the housing bank pledged to their payment and shall not be deemed a pledge of the full faith and
218	218	190credit of any town in the county of Dukes County, the county of Dukes County, or the
219	219	191commonwealth.
220	220	192 The commission may enter into any agreements, including without limitation a loan
221	221	193agreement and a trust agreement, necessary to effectuate and to secure any bonds or notes issued
222	222	194by the housing bank. Such agreements may pledge or assign, in whole or in part, the revenues
223	223	195and other money held or to be received by the housing bank. Such agreements may contain
224	224	196provisions for protecting and enforcing the rights, security and remedy of the holders of such
225	225	197bonds or notes, including, without limiting the generality of the foregoing, provisions defining
226	226	198defaults and providing for remedies in the event thereof which may include the acceleration of
227	227	199maturities and covenants setting forth the duties of, and limitations on, the housing bank in
228	228	200relation to the custody, safeguarding, investment and application of money, the issuance of
229	229	201additional debt obligations, the use of any surplus proceeds of the borrowing, including any
230	230	202investment earnings thereon, and the establishment of special funds and reserves.
231	231	203 The pledge of any such agreement shall be valid and binding and shall be deemed
232	232	204continuously perfected for the purposes of the Uniform Commercial Code from the time when
233	233	205the pledge is made; the revenues, money, rights and proceeds so pledged and then held or 11 of 28
234	234	206thereafter acquired or received by the housing bank shall immediately be subject to the lien of
235	235	207such pledge without any physical delivery or segregation thereof or further act; and the lien of
236	236	208any such pledge shall be valid and binding against all parties having claims of any kind in tort,
237	237	209contract or otherwise against any member town or the county of Dukes County, irrespective of
238	238	210whether such parties have notice thereof. No document by which a pledge is created need be
239	239	211filed or recorded except in the records of the housing bank and no filing need be made under the
240	240	212Uniform Commercial Code.
241	241	213 The trustee with respect to any such trust agreement entered into pursuant to this section
242	242	214shall be a trust company or a bank having the powers of a trust company within the
243	243	215commonwealth. Any such trust agreement may provide that any money received thereunder may
244	244	216be held, deposited or invested by the trustee, notwithstanding the provisions of section 13,
245	245	217pending the disbursement thereof, in any deposits or investments which are lawful for the funds
246	246	218of savings banks and shall provide that any officer with whom or any bank or trust company with
247	247	219which such money shall be deposited shall act as trustee of such money and shall hold and apply
248	248	220the same for the purposes hereof and thereof, subject to such regulation or limitation as this act
249	249	221or such trust agreement may provide.
250	250	222 It shall be lawful for any bank or trust company within the commonwealth to act
251	251	223as depository of the proceeds of bonds or notes, revenues or other money hereunder and to
252	252	224furnish such indemnifying bonds or to pledge such security, if any, as may be require by the
253	253	225commission. Any trust agreement entered into pursuant to this section may set forth the rights
254	254	226and remedies of the holders of any bonds or notes and of the trustee and may restrict the
255	255	227individual right of action by any such holders. In addition to the foregoing, any such trust
256	256	228agreement may contain other such provisions as the commission may deem reasonable and 12 of 28
257	257	229proper. All expenses incurred in carrying out the provisions of such trust agreement may be (i)
258	258	230treated as part of the cost of operation of the housing bank and (ii) paid from the revenues or
259	259	231other funds pledged or assigned to the payment of the principal of and the premium, if any, and
260	260	232interest on the bonds or notes or from any other funds available to the housing bank. In addition
261	261	233to other security provided herein or otherwise by law, bonds or notes issued under this section
262	262	234may be secured, in whole or in part, by insurance or by letters or lines of credit or other credit
263	263	235facilities issued to the housing bank by any bank, trust company or other financial institution,
264	264	236within or without the commonwealth, and the housing bank may pledge or assign any of its
265	265	237revenues as security for the reimbursement by the housing bank to the issuers of such letters or
266	266	238lines of credit, insurance or credit facilities of any payments made hereunder.
267	267	239 SECTION 7. Bonds and notes issued under the provisions of this act are hereby made
268	268	240securities in which all public officers and public bodies of the commonwealth and its political
269	269	241subdivisions, all insurance companies, trust companies in their commercial departments, savings
270	270	242banks, cooperative banks, banking associations, investment companies, executors,
271	271	243administrators, trustees and other fiduciaries may properly and legally invest funds, including
272	272	244capital in their control or belonging to them. Such bonds and notes are hereby made securities
273	273	245which may properly and legally be deposited with and received by any state or municipal officer
274	274	246or any agency or political subdivision of the commonwealth for any purpose for which the
275	275	247deposit of bonds or obligations of the commonwealth is now or may hereafter be authorized by
276	276	248law.
277	277	249 SECTION 8. Notwithstanding any of the provisions of this act or any recitals in any
278	278	250bonds or notes issued under this act, all such bonds and notes shall be deemed to be investment
279	279	251securities under the Uniform Commercial Code. 13 of 28
280	280	252 SECTION 9. The housing bank and all its revenues, income and real and personal
281	281	253property used solely by the housing bank in furtherance of its public purposes shall be exempt
282	282	254from taxation and from betterments and special assessments and the housing bank shall not be
283	283	255required to pay any tax, excise or assessment to or for the commonwealth or any of its political
284	284	256subdivisions. Bonds and notes issued by the housing bank, their transfer and the income
285	285	257therefrom, including any profit made on the sale thereof, shall at all times be exempt from
286	286	258taxation within the commonwealth. The provisions of section 27C of chapter 29 of General Laws
287	287	259shall not apply to this section or any other provisions of this chapter.
288	288	260 SECTION 10. The housing bank shall address the greatest community need as
289	289	261determined from time to time by the commission according to prevailing data, and subject to the
290	290	262provisions of this act. Not less than 75 per cent of the expenditures and funding commitments
291	291	263approved by the commission in any fiscal year shall be allocated to activities or projects on
292	292	264properties previously developed with existing buildings, or to fund infrastructure, including
293	293	265wastewater disposal and utilities, associated with such projects.
294	294	266 The commission shall require that all projects funded in whole or part by the housing
295	295	267bank under section 11 minimize disturbances to the local ecology. New construction funded in
296	296	268whole or part by the housing bank shall: be prohibited from using fossil fuels on site except as
297	297	269needed during construction, renovation, repair, temporary use for maintenance, or vehicle use.
298	298	270All new construction funded in whole or in part by the housing bank shall be required to (i)
299	299	271achieve a home energy rating service rating of zero and (ii), to the maximum extent possible,
300	300	272produce no new net nitrogen pollution. New construction on undeveloped properties of more
301	301	273than five acres funded in whole or part by the housing bank shall be required to (i) preserve a
302	302	274minimum of 40 per cent of the property as open space, and (ii) minimize tree removal. The 14 of 28
303	303	275foregoing requirements shall apply to all units in a project receiving housing bank funding
304	304	276including income-restricted, market-rate, and other units. Satisfaction of each of the provisions
305	305	277of this section shall be as determined by the commission.
306	306	278 SECTION 11. Grants, loans, guarantees, lines of credit, interest subsidies, rental
307	307	279assistance, or any other means of funding provided pursuant to section 4(d) shall be made in
308	308	280accordance with this section. The housing bank shall solicit applications for activities and
309	309	281projects within its member towns through a competitive process, which shall include annual
310	310	282public notice of funding availability. Only activities and projects that create, preserve or support
311	311	283perpetual year-round housing, community housing or housing-related infrastructure that serves
312	312	284perpetual year-round housing or community housing, shall be eligible for funding. Eligible
313	313	285activities and projects shall include:
314	314	286 (a)purchase and rehabilitation of existing structures;
315	315	287 (b)construction of rental and ownership housing, including on-site or off-site
316	316	288infrastructure;
317	317	289 (c)purchase of real property interests, including easements;
318	318	290 (d)down payment assistance, grants, and loans including shared appreciation equity
319	319	291loans, on such terms as the commission may determine from time to time;
320	320	292 (e)rental assistance programs;
321	321	293 (f)modernization and capital improvements of existing rental and ownership
322	322	294housing;
323	323	295 (g)creation of apartments and other ancillary housing; 15 of 28
324	324	296 (h)housing counseling, predevelopment costs and technical assistance associated
325	325	297with creating community housing or housing-related infrastructure; and
326	326	298 (i)mixed-use development projects.
327	327	299 In selecting proposals for funding, the commission shall prioritize proposals that: (i) are
328	328	300close to existing services; (ii) are not in priority habitat areas as defined under the Massachusetts
329	329	301Endangered Species Act, or any successor act; and (iii) mitigate the effects of climate change,
330	330	302such as projects which (a) do not involve acquisition of fossil fuel equipment and (b) have a
331	331	303master plan to delineate a path to fossil-fuel free operation and net-zero annual site energy
332	332	304consumption. In considering projects for funding, the commission shall use as guidelines town or
333	333	305regional master plans, wastewater plans, watershed management plans, open space plans, and
334	334	306climate and energy goals.
335	335	307 SECTION 12. Anti-flipping restrictions shall be imposed on all activities and projects
336	336	308receiving housing bank funding pursuant to section 11, any housing units created, rehabilitated
337	337	309or acquired pursuant to this act, and any sale, lease, exchange, transfer or conveyance of real
338	338	310property by the housing bank, and additional restrictions shall be imposed as set forth in this
339	339	311section. Year-round housing restrictions shall be imposed in connection with the extension of
340	340	312loans or grant of down payment assistance. In all other circumstances in which the housing bank
341	341	313provides funding pursuant to section 11, or sells, leases, exchanges, transfers or conveys real
342	342	314property, or housing units are created, rehabilitated or acquired pursuant to this act, the activity
343	343	315or project, the real property, and any such housing units shall be subject to year-round housing
344	344	316restrictions, community housing restrictions, and transfer price restrictions. 16 of 28
345	345	317 Any community housing restriction, year-round housing restriction, transfer price
346	346	318restriction or anti-flipping restriction held by the commission pursuant to this chapter shall be
347	347	319construed as a restriction held by a governmental body with the benefit of section 26 of chapter
348	348	320184 of the General Laws and shall not be limited in duration by any rule or operation of law, but
349	349	321shall run in perpetuity. Notwithstanding any general or special law to the contrary, any
350	350	322community housing restriction, year-round housing restriction, transfer price restriction or anti-
351	351	323flipping restriction imposed by the commission pursuant to this chapter, whether or not held by
352	352	324the commission, shall be deemed to be an affordable housing restriction within the meaning of
353	353	325section 31 of chapter 184 of the General Laws and shall not be limited in duration by any rule or
354	354	326operation of law, but shall run in perpetuity.
355	355	327 SECTION 13. The commission shall meet its financial obligations by drawing upon a
356	356	328fund, to be set up as a revolving or sinking account within the treasury of the county of Dukes
357	357	329County. Deposits into the fund shall include (a) funds appropriated, borrowed or transferred to be
358	358	330deposited into the fund by vote of the county commissioners of the county of Dukes County or of
359	359	331town meetings of the member towns; (b) voluntary contributions of money and other liquid
360	360	332assets to the fund; (c) revenues from fees imposed upon the transfer or real property interests as
361	361	333set forth in section 15 occurring after the effective date of this act; (d) proceeds from the
362	362	334disposition of personal property, real property interests or other assets of the housing bank; and
363	363	335(e) proceeds of loans made by the housing bank. Grants or gifts of money or other assets to the
364	364	336housing bank shall be expended only for the purposes of the grant or gift and subject to any
365	365	337restrictions or limitations imposed thereon by the grantor or donor thereof, and to all the
366	366	338restrictions, limitations, and guidelines laid out elsewhere in the Act. 17 of 28
367	367	339 All expenses lawfully incurred by the commission in carrying out the provisions of this
368	368	340act shall be evidenced by proper vouchers and shall be paid by the county treasurer of said
369	369	341county only upon submission of warrants duly approved by the commission. The county
370	370	342treasurer of said county shall prudently invest available assets of the fund in accordance with the
371	371	343regulations and procedures adopted by the commission and all income thereon shall accrue to the
372	372	344fund.
373	373	345 SECTION 14. The commission, or its designee, shall keep a full and accurate account of
374	374	346its actions including a record as to when, from or to whom, and on what account money has been
375	375	347paid or received under this act. These records shall be subject to examination by the director of
376	376	348accounts or the director’s agent. There shall be an annual audit conducted by a duly recognized
377	377	349accounting firm and a copy of said audit distributed to the select board of each member town.
378	378	350The Dukes County treasurer shall keep a full and accurate account stating when, from or to
379	379	351whom, and on what account money has been paid or received relative to the activities of the
380	380	352commission and the housing bank.
381	381	353 SECTION 15. There is hereby imposed a fee equal to 2 per cent of the purchase price
382	382	354upon the transfer of any real property interest with respect to any real property located in a
383	383	355member town or towns. Said fee shall be the liability of the purchaser of such real property
384	384	356interest, and any agreement between the purchaser and the seller or any other person with
385	385	357reference to the allocation of the responsibility for bearing said fee shall not affect such liability
386	386	358of the purchaser. Such fee shall be paid to the commission or its designee, and shall be
387	387	359accompanied by a copy of the deed or other instrument evidencing such transfer, if any, and an
388	388	360affidavit signed under oath or under the pains and penalties of perjury by the purchaser or the
389	389	361purchaser’s legal representative, attesting to the true and complete purchase price and the basis, 18 of 28
390	390	362if any, upon which the transfer is claimed to be exempt in whole or in part from the fee imposed
391	391	363hereby. The commission or its designee shall promptly thereafter execute and issue a certificate
392	392	364indicating that the appropriate fee has been paid or that the transfer is exempt from the fee and
393	393	365stating the basis for the exemption. The register of deeds for the county of Dukes County, and
394	394	366the assistant recorder for the registry district of the county of Dukes County, shall not record or
395	395	367register, or receive or accept for recording or registration, any deed, except a mortgage deed,
396	396	368relative to a real property interest in real property situated in any town that is a member of the
397	397	369commission to which has not been affixed such a certificate, executed by the commission or its
398	398	370designee. Failure to comply with this requirement shall not affect the validity of any instrument.
399	399	371The commission or its designee shall deposit all fees received hereunder with the county
400	400	372treasurer of the county of Dukes County as part of the fund established by section 13. The fee
401	401	373imposed hereunder shall be due simultaneously with the time of transfer upon which it is
402	402	374imposed.
403	403	375 SECTION 16. The commission is authorized to enter into one or more agreements with
404	404	376the Martha’s Vineyard land bank commission established by Chapter 736 of the Acts of 1985, as
405	405	377amended, through which the housing bank may delegate to the Martha’s Vineyard land bank
406	406	378commission the record keeping requirements set forth in section 14, collection of fees,
407	407	379processing of applications for exemptions and issuance of certificates and pursuant to section 15,
408	408	380processing of applications for refunds pursuant to section 17, the imposition of interest or
409	409	381penalties pursuant to section 19, sending of notices and conduct of hearings pursuant to section
410	410	38220, providing for compensation or reimbursement of costs incurred by the Martha’s Vineyard
411	411	383land bank commission from fees collected pursuant to this act and any other matter that may be
412	412	384delegated pursuant to section 4A of chapter 40 of the General Laws. Notwithstanding section 4A 19 of 28
413	413	385of chapter 40 or any general or special law to the contrary, such agreement or agreements may be
414	414	386for a term in excess of 25 years.
415	415	387 SECTION 17. At any time within 7 days following the issuance of the certificate of
416	416	388payment of the fee imposed by section 15, the purchaser or the purchaser’s legal representative
417	417	389may return said certificate to the commission or its designee for cancellation, together with an
418	418	390affidavit signed under oath or under the pains and penalties of perjury that the transfer, with
419	419	391respect to which such certificate was issued, has not been consummated, and thereupon the fee
420	420	392paid with respect to such transfer shall be forthwith returned to the purchaser or the purchaser’s
421	421	393legal representative.
422	422	394 SECTION 18. The following transfers of real property interests shall be exempt from the
423	423	395fee established by section 15. Except as otherwise provided, the purchaser shall have the burden
424	424	396of proof that any transfer is exempt hereunder.
425	425	397 (a)transfers to the government of the United States, the commonwealth, and any of
426	426	398their instrumentalities, agencies or subdivisions;
427	427	399 (b)transfers which, without additional consideration, confirm, correct, modify or
428	428	400supplement a transfer previously made;
429	429	401 (c)transfers made as gifts with consideration of less than $100; in any proceedings to
430	430	402determine the amount of any fee due hereunder, it shall be presumed that any transfer for
431	431	403consideration of less than fair market value of the real property interests transferred was made as
432	432	404a gift without consideration to the extent of the difference between the fair market value of the
433	433	405real property interests transferred and the amount of consideration claimed by the purchaser to
434	434	406have been paid or transferred, if the purchaser shall have been at the time of transfer the spouse, 20 of 28
435	435	407the lineal descendant, the lineal ancestor of the seller, by blood or adoption, and otherwise it
436	436	408shall be presumed that consideration was paid in an amount equal to the fair market value of the
437	437	409real property interests transferred, at the time of transfer;
438	438	410 (d)transfer to the trustees of a trust in exchange for a beneficial interest received by
439	439	411the seller in such trust; distribution by the trustees of a trust to the beneficiaries of such trust;
440	440	412 (e)transfers by operation of law without actual consideration, including but not
441	441	413limited to transfers occurring by virtue of the death or bankruptcy of the owner of a real property
442	442	414interest;
443	443	415 (f)transfers made in partition of the land and improvements thereto, under the
444	444	416provisions of chapter 241 of the General Laws;
445	445	417 (g)transfers to any charitable organization as defined in clause third of section 5 of
446	446	418chapter 59 of the General Laws, or any religious organization, provided that the real property
447	447	419interests so transferred shall be held by the charitable or religious organization solely for its
448	448	420public, charitable or religious purposes;
449	449	421 (h)transfers to a mortgagee in foreclosure of the mortgage held by such mortgagee,
450	450	422and transfers of the property subject to a mortgage to the mortgagee in consideration of the
451	451	423forbearance of the mortgagee from foreclosing said mortgage;
452	452	424 (i)transfers made to a corporation, limited liability company or partnership at the
453	453	425time of its formation, pursuant to which transfer no gain or loss is recognized under the
454	454	426provisions of section 351 of the Internal Revenue Code; 21 of 28
455	455	427 (j)transfers made to a stockholder of a corporation in liquidation of the corporation,
456	456	428transfers to a member in liquidation of a limited liability company, and transfers made to a
457	457	429partner of a partnership in liquidation of the partnership;
458	458	430 (k)transfers consisting of the division of marital assets under the provisions of
459	459	431section 34 of chapter 208 of the General Laws or other provisions of law;
460	460	432 (l)transfers of property consisting in part of real property interests situated within a
461	461	433town that is a member of the commission and in part of other property interests, to the extent that
462	462	434the property transferred consists of property other than real property situated within a town that
463	463	435is a member of the commission provided that the purchaser shall furnish the commission with
464	464	436such information as it shall require or request in support of the claim of exemption and manner
465	465	437of allocation of the consideration for such transfers;
466	466	438 (m)the first $1,000,000 of the purchase price of all transfers of real property interests,
467	467	439or a higher exemption as determined annually by the commission;
468	468	440 (n)transfer of a real property interest that is subject to and used consistent with an
469	469	441affordable housing restriction as defined in section 31 of chapter 184 of the General Laws;
470	470	442provided, however, that the affordable housing restriction has a term remaining at the time of the
471	471	443transfer of not less than 5 years; and provided further, that the purchaser shall make the real
472	472	444property with respect to which the real property interest is held and that is the subject of the
473	473	445transfer, the purchaser’s actual domicile within 2 years of the time of transfer and shall remain
474	474	446permanently or for an indefinite time and without any certain purpose to return to a former place
475	475	447of abode for a period lasting not less than the fifth anniversary of the transfer. Notwithstanding
476	476	448this paragraph, if the real property interest is transferred again within 5 years and the later 22 of 28
477	477	449transfer complies with this paragraph, the fee, interest and penalty shall not be due. The fee
478	478	450exempted hereunder shall become due, together with the accumulated interest and penalties
479	479	451calculated from the date of the transfer exempted hereunder, if: (i) the commission or its
480	480	452designee determines that a purchaser has not made the real property with respect to which the
481	481	453real property interest is held and that is the subject of the transfer the purchaser’s actual domicile
482	482	454within 2 years of the time of transfer; (ii) the holder of an affordable housing restriction
483	483	455determines within 5 years of the transfer that the real property interest to which it pertains is not
484	484	456being used consistent with the requirements of the affordable housing restriction; or (iii) a later
485	485	457transfer within 5 years does not comply with this paragraph. The purchaser shall certify as to the
486	486	458foregoing and the commission shall attach to the deed a certificate that shall recite the fact that
487	487	459there is running with the land a lien equal to the amount of the fee exempted plus accumulated
488	488	460interest and penalties until such time as all conditions of this paragraph have been met.
489	489	461 (o)transfer of a real property interest which is limited to any of the following: the
490	490	462dominant estate in any easement or right of way; the right to enforce any restriction; any estate at
491	491	463will or at sufferance; any estate for years having a term of less than thirty years; any reversionary
492	492	464right, condition, or right of entry for condition broken; and the interest of a mortgagee or other
493	493	465secured party in any mortgage or security agreement.
494	494	466 SECTION 19. A purchaser who fails to pay all or any portion of the fee established by
495	495	467section 15 on or before the time when the same is due shall be liable for the following additional
496	496	468payments in addition to said fee:
497	497	469 (a) Interest. The purchaser shall pay interest on the unpaid amount of the fee to be
498	498	470calculated from the time of transfer at a rate equal to 14 per cent per annum. 23 of 28
499	499	471 (b) Penalties. Any person who, without fraud or willful intent to defeat or evade a fee
500	500	472imposed by this act, fails to pay all or a portion of the fee within 30 days after the time of
501	501	473transfer, shall pay a penalty equal to 5 per cent of the outstanding fee as determined by the
502	502	474commission for each month or portion thereof that the fee is not paid in full; provided, however,
503	503	475that in no event shall the amount of any penalty imposed hereunder exceed 25 per cent of the
504	504	476unpaid fee due at the time of transfer. Whenever the commission or its designee determines that
505	505	477all or a portion of a fee due under section 15 was unpaid due to fraud with intent to defeat or
506	506	478evade the fee imposed by this chapter, a penalty equal to the amount of said fee as determined by
507	507	479the commission or its designee shall be paid by the purchaser in addition to said fee.
508	508	480 SECTION 20. (a) The commission or its designee shall notify a purchaser by
509	509	481registered or certified mail of any failure to discharge in full the amount of the fee due under this
510	510	482act and any penalty or interest assessed pursuant to sections 18 or 19. The commission or its
511	511	483designee shall grant a hearing on the matter of the imposition of said fee, interest or penalty if a
512	512	484petition requesting such hearing is received by the commission within 30 days after the mailing
513	513	485of said notice. The commission or its designee shall notify the purchaser in writing by registered
514	514	486or certified mail of its determination concerning the deficiency, penalty or interest within 15 days
515	515	487after said hearing. Any party aggrieved by a determination of the commission or its designee
516	516	488concerning a deficiency, penalty or interest may, after payment of said deficiency, appeal to the
517	517	489district or superior court within 3 months after the mailing of notification of the commission or
518	518	490its designee. Upon the failure to timely petition for a hearing, or appeal to said courts, within the
519	519	491time limits hereby established, the purchaser shall be bound by the terms of the notification,
520	520	492assessment or determination, as the case may be, and shall be barred from contesting the fee, and
521	521	493any interest and penalty, as determined by the commission or its designee. All decisions of said 24 of 28
522	522	494courts shall be appealable. Every notice to be given under this section by the commission or its
523	523	495designee shall be effective if mailed by certified or registered mail to the purchaser at the address
524	524	496stated in a recorded or registered instrument by virtue of which the purchaser holds any real
525	525	497property interest, the transfer of which gives rise to the fee which is the subject of such notice;
526	526	498and if no such address is stated or if such transfer is not evidenced by an instrument recorded or
527	527	499registered in the public records in the county of Dukes County, such notice shall be effective
528	528	500when so mailed to the purchaser in care of any person appearing of record to have a fee interest
529	529	501in the real property in which the real property interest is held, at the address of such person as set
530	530	502forth in an instrument recorded or registered in the county of Dukes County.
531	531	503 (b) All fees, penalties and interest required to be paid pursuant to this act shall constitute
532	532	504a personal debt of the purchaser and may be recovered in an action of contract or in any other
533	533	505appropriate action, suit or proceeding brought by the commission; said action, suit or proceeding
534	534	506shall be subject to chapter 260 of the General Laws.
535	535	507 (c) If any purchaser liable to pay the fee established by this act neglects or refuses to pay
536	536	508the same, the amount, including any interest and penalty thereon, shall be a lien in favor of the
537	537	509commission upon all property and rights to property, whether real or personal, belonging to such
538	538	510purchaser. Said lien shall arise at the time of transfer and shall continue until the liability for such
539	539	511amount is satisfied. Said lien shall in any event terminate not later than 6 years following the
540	540	512time of transfer. Said lien shall not be valid as against any mortgagee, pledgee, purchaser or
541	541	513judgment creditor unless notice thereof has been filed by the commission (i) with respect to real
542	542	514property or fixtures, in the registry of deeds for the county of Dukes County, or (ii) with respect
543	543	515to personal property, in the office in which a security of financing statement or notice with
544	544	516respect to the property would be filed in order to perfect a nonpossessory security interest 25 of 28
545	545	517belonging to the person named in the relevant notice, subject to the same limitations as set forth
546	546	518in section 50 of chapter 62C of the General Laws.
547	547	519 In any case where there has been a refusal or neglect to pay any fee, interest or penalties
548	548	520imposed by this act, whether or not levy has been made, the commission, in addition to other
549	549	521modes of relief, may direct a civil action to be filed in a district or superior court of the
550	550	522commonwealth to enforce the lien of the commission under this section with respect to such
551	551	523liability or to subject any property of whatever nature of the delinquent, or in which he has any
552	552	524right, title or interest, to the payment of such liability.
553	553	525 The commission may issue a waiver or release of any lien imposed by this section with
554	554	526the approval of the town advisory board of the town or towns in which the property subject to the
555	555	527lien is located. Such waiver or release shall be conclusive evidence that the lien upon the
556	556	528property covered by the waiver or release is extinguished.
557	557	529 SECTION 21. This act, being necessary for the welfare of the member towns and the
558	558	530county of Dukes County and their inhabitants, shall be liberally construed to effect the purposes
559	559	531hereof.
560	560	532 SECTION 22. Any town on Martha’s Vineyard that is not a member of the housing bank
561	561	533may become a member by the affirmative vote of a majority of the voters at any regular or
562	562	534special town election at which the question of acceptance has been placed on the ballot. All
563	563	535rights, privileges and obligations applicable to the original members of the housing bank shall be
564	564	536applicable to new members, but a new member town shall not be responsible for funding
565	565	537obligations or debt incurred before it became a member. The initial town-representative
566	566	538commission member of a new member town shall be appointed, and thereafter the town- 26 of 28
567	567	539representative members for such town shall thereafter be elected, as provided in section 3;
568	568	540provided that the initial term of the initial elected town representative member shall be for such
569	569	541period as may be determined by the commission in order to preserve staggered terms as required
570	570	542by section 3.
571	571	543 SECTION 23. Any member town may withdraw from the housing bank by the
572	572	544affirmative vote of a majority of the voters at any regular or special town election. The fee
573	573	545established by section 15 shall continue to be collected in any town that votes to withdraw, but
574	574	546only until satisfaction of such town’s pro rata share of all housing bank debt incurred and all
575	575	547funding commitments approved by the town’s town advisory board prior to the date that such
576	576	548town provides notice to the commission that the town has voted at a regular or special election to
577	577	549withdraw from the housing bank. A town’s pro rata share of housing bank debt shall be
578	578	550determined as the ratio of all fees collected on behalf of such town under section 15 during its
579	579	551membership in the housing bank to all fees collected under section 15 on behalf of all member
580	580	552towns during the same period. Upon receipt of notice that a member town has voted at a regular
581	581	553or special election to withdraw from the housing bank, the commission or its designee shall
582	582	554reserve all transfer fees received on behalf of such withdrawing town, in excess of the amounts
583	583	555necessary to pay current debt service on such town’s pro rata share of housing bank debt and to
584	584	556pay funding commitments approved by such town’s town advisory board prior to receipt of such,
585	585	557which amounts shall be applied solely to the payment of such funding commitments, and to
586	586	558housing bank debt allocable to the withdrawing town at its earliest optional redemption date or
587	587	559dates, as the case may be.
588	588	560 In the event of a town’s withdrawal, the commission may expend funds for activities and
589	589	561projects located within the withdrawing town only to the extent that such expenditures were 27 of 28
590	590	562approved prior to the date that such town provides notice to the commission that the town has
591	591	563voted at a regular or special election to withdraw from the housing bank, and provided that
592	592	564transfer fees continue to be collected in that town.
593	593	565 SECTION 24. This act shall expire 30 years from its date of passage unless specifically
594	594	566extended by vote of the commission and an affirmative vote of a majority of the voters at town
595	595	567meetings of at least 4 member towns; provided that, if extended, this act shall remain in effect
596	596	568only for those towns that vote in the affirmative to extend. The fee established by section 15 shall
597	597	569continue to be collected in any town that does not vote to extend this act until satisfaction of both
598	598	570all funding commitments approved by the withdrawing town’s town advisory board and debt
599	599	571incurred by the housing bank prior to (1) the effective date of the extension of the this act if this
600	600	572act is extended notwithstanding the town’s vote, and (2) the expiration of this act, if this act is
601	601	573allowed to expire.
602	602	574 If the member towns of the housing bank are reduced to fewer than 4, the housing bank
603	603	575shall be dissolved. Upon dissolution of the housing bank, the fee established by section 15 shall
604	604	576continue to be imposed until all funding commitments and debt, including but not limited to
605	605	577repayment of bonds and notes of the housing bank, have been paid in full, and the commission
606	606	578shall continue in existence during such time for the sole purpose of collecting and administering
607	607	579such fees. Title to all funds, personal property and real property interests shall vest in the
608	608	580member towns or their designees as herein provided after provision is made for payment of all
609	609	581bonds, notes and other obligations of the housing bank. Personal property and real property
610	610	582interests held by the housing bank at the time of dissolution shall be transferred to the town or
611	611	583towns in which property is situated, or the designee of such town or towns, who shall maintain,
612	612	584protect, limit the future use of, improve, or otherwise preserve such property for year-round 28 of 28
613	613	585housing and community housing purposes as defined in section 1. Funds held by the housing
614	614	586bank shall be transferred to the towns on Martha’s Vineyard in proportion to the fees collected
615	615	587on behalf of each town over the life of the housing bank under this act, to be held in trust for the
616	616	588purpose of holding and managing the real property interests transferred to the towns pursuant to
617	617	589this paragraph.
618	618	590 SECTION 25. Acceptance of this act shall be by the affirmative vote of a majority of the
619	619	591voters at any regular or special town election at which the question of acceptance has been
620	620	592placed on the ballot. This act shall become effective on the date on which acceptance by four
621	621	593towns located on Martha’s Vineyard has been effected.