Section 1. As used in this chapter, the following words and terms shall have the following meanings, unless the context clearly indicates a different meaning or intent:-

• "Acquire", obtain by gift, purchase, devise, grant, rental, rental purchase, lease or otherwise. "Acquire" shall not include a taking by eminent domain, except as provided in this chapter. "Annual income", a family’s or person’s gross annual income less such reasonable allowances for dependents, other than spouse, and for medical expenses as the housing authority, or, in the event that there is no housing authority, the department of housing and community development, determines.
• "Community preservation committee", the committee established by the legislative body of a city or town to make recommendations for community preservation, as provided in section 2.
• "Community preservation fund". the fund established under section 5.
• "Community preservation", the acquisition, creation and preservation of open space, the acquisition, creation and preservation of historic structures and landscapes, and the creation and preservation of community housing.
• "Community housing", low and moderate income housing for individuals and families, including low or moderate income senior housing.
• "Historic Structures and Landscapes", any building, structure or real property that is listed or eligible for listing on the State Register of Historic Places or has been determined by the local preservation commission to be significant in the history, archeology, architecture or culture of the city or town.
• "Legislative body", that agency of the city or town government which is empowered to enact ordinances or by-laws, adopt an annual budget and other spending authorizations, loan orders, bond authorizations and other financial matters and whether styled a city council, board of aldermen, town council, town meeting or by any other title.
• "Low income housing", housing for those persons and families whose annual income is 80 per cent or less of the area wide median income as determined by the federal department of housing and urban development.
• "Low or moderate income senior housing", housing for those persons having reached the age of 60 or over who would qualify for low or moderate income housing.
• "Moderate income housing", housing for those persons and families whose annual income is 100 per cent or less of the area wide median income as determined by the federal department of housing and urban development.
• "Open space", shall include, but not be limited to land to protect existing and future well fields, aquifers and recharge areas, watershed land, agricultural land, grasslands, fields, forest land, fresh and salt water marshes and other wetlands, ocean, river, stream, take and pond frontage, beaches, dunes and other coastal lands, lands to protect scenic vistas, land for wildlife or nature preserve, and land for recreational use.
• "Real property", land, buildings, appurtenant structures and fixtures attached to buildings or land, including where applicable, real property interests.
• "Real property interest", a 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: an 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 a mortgagee or other secured party in a mortgage or security agreement.
• "Recreational use", active or passive recreational use, including but not limited to the use of land for non-commercial youth and adult sports, and the use of land as a park, playground or athletic field. Such recreational use shall not include horse racing, dog racing, or use of land for a stadium, gymnasium or similar structure.

Section 2. (a) A city or town that accepts this chapter shall establish by ordinance or by-law a community preservation committee as set forth in this section. The committee shall consist of not less than five nor more than nine members. The legislative body shall determine the composition of the committee, the length of term, and the method of selecting its members, whether by election or appointment, or by some combination thereof. The committee shall include, but not be limited to, one member of the conservation commission established under section 8C of chapter 40 by said commission, one member of the historical commission established under section 8D of said chapter 40 as designated by said commission, one member of the planning board established under section 81A of chapter 41 as designated by said board, one member of the board of park commissioners established under section 2 of chapter 45 as designated by said board, and one member of the housing authority established under section 3 of chapter 121B as designated by said authority, or persons, as determined by the legislative body, acting in the capacity of or performing like duties of said commissions, board or authority if they have not been established in a city or town. If there are no persons acting in the capacity of or performing like duties of said commission, board or authority, the ordinance or by-law shall designate those persons.

(b) The community preservation committee shall study the needs, possibilities and resources of the city or town regarding community preservation. The committee shall consult with existing municipal boards, including the conservation commission, the historical commission, the planning board, the board of park commissioners, and the housing authority, or persons acting in that capacity or performing like duties, in conducting such studies. The community preservation committee shall make recommendations (1) to the conservation commission, for the acquisition, creation and preservation of open space, (2) to the historical commission, for the acquisition and preservation of historic resources, (3) to the board of park commissioners, for the acquisition, creation and preservation of land for recreational use, (4) to the housing authority, for the creation, preservation and support of community housing, and (5) to each said commission, board or authority, or to such persons who are acting in that capacity or performing like duties, for rehabilitation or restoration of such open space, historic resources, land for recreational use, and community housing that is acquired or created as provided in this section. With respect to community housing, the community preservation committee shall recommend, wherever possible, the reuse of existing buildings or construction of new buildings on previous developed sites. The community preservation committee may include in its recommendation to each said commission, board or authority a recommendation to set aside for later spending funds for specific purposes that are consistent with community preservation but for which sufficient revenues are not then available in the community preservation fund to accomplish that specific purpose, or to set aside for later spending funds for general purposes that are consistent with community preservation.

(c) After receiving the recommendations of the community preservation committee, each such commission, board or authority shall make available in one or more public places, including the town or city hall, copies of the recommendations, and shall hold one or more public informational hearings on the recommendations within 30 days of their receipt from the community preservation committee, notice of which Must be posted publicly and published for each of the two weeks preceding such hearing in a newspaper of general circulation in the city or town. The commission, board or authority may amend or modify the recommendations in its discretion after the public hearings and comments, and shall approve its recommendations by majority vote. A copy of the vote with a written explanation shall be transmitted to the community preservation committee. If the commission, board or authority takes no final action relative to the recommendations within 60 days after the date on which the recommendations are first referred to said commission, board, or authority, the recommendations shall be approved. The commission, board or authority may request an extension from the community preservation committee for good cause shown. After such receipt from the commission, board, or authority, the community preservation committee shall vote to accept or reject their actions, and make its recommendations to the legislative body, or may request the commission, board or authority to reconsider its earlier action. If the commission, board or authority refuses to reconsider within a reasonable time, or reconsiders and affirms its earlier action, then the community preservation committee and the commission, board or authority shall both make their recommendations to the legislative body. If the community preservation committee votes to reject the actions of the commission, board or authority, the commission, board or authority may make their recommendation to the legislative body. Recommendations to the legislative body shall include their anticipated costs. The community preservation committee shall approve its actions by majority vote.

(d) After receiving such approval, the legislative body shall then take such action and approve such expenditures from the community preservation fund as it deems appropriate to carry out the recommendations of the community preservation committee. In every fiscal year the legislative body shall spend, or set aside for later spending, not less than 10 per cent of the annual revenues in the community preservation fund for open space, but not including land for recreational use, not less than 10 per cent of said annual revenues for historic resources, and no less than 10 per cent of said annual revenues for community housing. In every fiscal year the legislative body shall make such appropriations from the community preservation fund as it deems necessary for the administrative and operating expenses of the community preservation committee, but said appropriations shall riot exceed 5 per cent of the annual revenues in the community preservation fund. Funds that are set aside shall be held in the community preservation fund and spent in that year or later years, but funds set aside for a specific purpose shall be spent only for that purpose. Any funds set aside may be expended in any city or town in the commonwealth. The community preservation funds shall not replace existing operating funds, only augment them.

(e) For the purposes of community preservation, and upon the recommendation of the community preservation committee and approval by the appropriate commission, board or authority, as provided for in this section, a city or town may take by eminent domain under chapter 79 of the General Laws, the fee or any lesser interest in any real property or waters located in such city or town, provided such taking has first been approved by a two-thirds vote of the legislative body. Upon a like recommendation and vote, a city or town may expend monies in the community preservation fund, if any, for the purpose of paying, in whole or in part, any damages for which such city or town may be liable by reason of any such taking for the purposes of community preservation.

Section 3. (a) A real property interest in open space that is purchased with monies from the community preservation fund shall be retained in natural, scenic, or open condition and shall be bound by a permanent deed restriction in the nature of a conservation restriction that meets the requirements of sections 31 through 33 of chapter 184, 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 city or town and the commonwealth. Said deed restriction may also run to the benefit of a nonprofit, charitable corporation or foundation selected by the city or town with the right to enforce said restriction.

(b) Real property interests acquired under this chapter shall be owned and managed by the city or town, but the legislative body may delegate management of such property to the conservation commission, the historical commission, the board of park commissioners, or the housing authority, or, in the case of interests to acquire sites for future wellhead development by a water district, a water supply district or a fire district. The legislative body may also delegate management of such property to a nonprofit organization created under chapter 180 or chapter 203. Section 4. (a) Upon acceptance of this chapter, or upon the acceptance of any amendment to the funding mechanism, and upon notice of such acceptance given (1) in the case of the deeds excise, to the register of deeds in each registry in which realty in that city or town is located, or (2) in the case of the tax on real property, to the municipal tax collecting authority, the accepted tax shall be imposed. If the deed, instrument, writing, or tax on real property relates to realty in more than one city or town, the consideration allocable to each city or town shall be set forth separately therein.

(b) After receipt of notice of the tax by the register of deeds or the municipal tax collecting authority, the register of deeds or the municipal tax collecting authority shall collect the tax in the amount and according to the computation specified in such notices and shall pay the amounts so collected, not less frequently than monthly for the deeds excise and quarterly or semi-annually, according to the schedule for collection of property taxes for the tax on real property, to the city’s or town’s treasurer. If a deeds excise is imposed, an amount equal to 0.5 per cent of such tax shall be deducted and retained from the amounts so collected, to reimburse the registry for its expenses in collecting and remitting such excise. The register of deeds or the municipal tax collecting authority shall cause appropriate books and accounts to be kept with respect to such tax, which shall be subject to examination by the city or town upon reasonable request from time to time.

(c) the penalty provisions of sections 6A, 7, 8 and 9 of chapter 64D concerning the deeds excise shall apply to the deeds excise, and the remedies provided by chapter 60 of the General Laws for the collection of taxes upon real estate shall apply to the tax on real property as created by this chapter. Section 5. Notwithstanding the provisions of section 53 of chapter 44 or any other general or special law to the contrary, a city or town that accepts this chapter shall establish a separate account to be known as the community preservation fund, in this section called the fund, of which the municipal treasurer shall be the custodian. The authority to approve expenditures from the fund shall be limited to the legislative body, and the municipal treasurer shall pay such expenses in accordance with chapter 41. The following funds shall be deposited into the fund: (a) all funds collected from the additional tax under section 4 or bond proceeds in anticipation of revenue pursuant to section 4;

(b) all funds received from the commonwealth or any other source for such purposes; and © proceeds from the disposal of real property acquired with funds from the community preservation fund. The treasurer may deposit or invest the proceeds of the fund in savings banks, trust companies incorporated under the laws of the commonwealth, banking companies incorporated under the laws of the commonwealth which are members of the Federal Deposit Insurance Corporation or national banks, or may invest the proceeds in paid up shares and accounts of and in co-operative banks or in shares of savings and loan associations or in shares of federal savings and loan associations doing business in the commonwealth, or in the manner authorized by section 54 of chapter 44, and any income therefrom shall be credited to the fund. The expenditure of revenues from the fund shall be limited to implementing the recommendations of the community preservation committee and providing administrative and operating expenses to the committee.

Section 6. A city or town that accepts this chapter may issue, from time to time, general obligation bonds or notes in anticipation of revenues to be raised pursuant to section 4, the proceeds of which shall be deposited in the community preservation fund. Bonds or notes so issued may be at such rates of interest as shall be necessary and shall be repaid as soon after such revenues are collected as is expedient. Cities or towns that choose to issue bonds pursuant to this section shall make every effort to limit the administrative costs of so issuing bonds by cooperating among each other using methods including, but not limited to, common issuance of bonds or common retention of bond counsel. Except as otherwise provided in this chapter, bonds or notes issued pursuant to this section shall be subject to the applicable provisions of chapter 44. The maturities of each issue of bonds or notes issued under this chapter may be arranged so that for each issue the amounts payable in the several years for principal and interest combined shall be as nearly equal as practicable in the opinion of the officers authorized to issue said bonds or notes or, in the alternative, in accordance with a schedule providing for a more rapid amortization of principal.

Section 7. The community preservation committee shall keep a full and accurate account of all of its actions, including its recommendations and the action taken on them and records of all appropriations or expenditures made from the community preservation fund. The committee shall also keep records of any real property interests acquired, disposed of or improved by the city or town upon its recommendation, including the names and addresses of the grantors or grantees and the nature of the consideration. Said records and accounts shall be public records.

Section 8. (a) A city or town that accepts this chapter shall not be precluded from participating in state grant programs. State grant programs may include local adoption of this chapter among the criteria for selection of grant recipients. Funds in the community preservation fund may be made available and used by the city or town as the local share for state or federal grants upon recommendation of the community preservation committee and approval of the appropriate municipal commissions, board or authority, and the legislative body, as provided for in section 2, provided that such grants and such local share are used in a manner consistent with the recommendations of the community preservation committee.

(b) The executive office of environmental affairs may, subject to appropriation, establish a program to provide for matching funds to be awarded to cities or towns in one or more selected regions, counties, or watersheds for open space acquisition. To be eligible to participate in such grant program, a city or town shall have accepted this chapter as set forth herein.

Section 9. A city or town may choose to allocate any portion of its community preservation fund which has been set aside pursuant to the requirements of subsection (d) of section 2 to any project in any city or town which satisfies the purpose for which that fund has been designated.

Section 10. (a) This chapter shall take effect in any city or town upon the approval of a mechanism for funding community preservation by the legislative body and its acceptance by the voters in a referendum as set forth in this section.

(b) Notwithstanding the provisions of chapter 59 or any other general or special law to the contrary, the legislative body may vote to accept this chapter by approving one of the following two mechanisms for funding community preservation: (1) a deeds excise of not more than 1 per cent of the consideration for such deed, instrument, or writing; or (2) a tax on real property of not more than 3 per cent of the real estate tax levy against said property, as determined annually by the board of assessors. The amount of said additional tax shall not be included in any calculation of total taxes assessed for purposes of section 21C of chapter 59. All exemptions and abatements of real property authorized by chapter 59 or any other law for which a taxpayer qualifies as eligible shall not be affected by this chapter. Any amount of the additional tax not paid by the due date shall bear interest at the rate per annum provided in section 57 of chapter 59. If no tax is imposed under chapter 64D, the deeds excise created by this section shall not be imposed. Any taxpayer receiving an exemption or abatement of real property authorized by chapter 59 or any other law shall be exempt from any tax on real property established under this section.

(c) The local legislative body may also vote to accept one or more of the following exemptions from either of the two funding mechanisms: (1) for property owned and occupied as a domicile by persons who would qualify for low income or low income senior housing in that city or town; (2) for class three, commercial, and class four, industrial, properties as defined in section 2A of chapter 59; (3) for the deeds excise, up to $100,000 of the consideration for the deed, instrument, or writing; or (4) for the tax on real property, up to one-half of the real estate tax levy against said property, as determined annually by the board of assessors.

(d) Upon the approval of a mechanism for funding community preservation by the legislative body, the actions of said body shall be submitted for acceptance to the voters of a city or town at the next regular municipal or state election. The city or town clerk or the state secretary shall place it on the ballot in the form of the following question:- "Shall this (city or town) accept chapter 44B of the General Laws, as approved by its legislative body, a summary of which appears below?" (Set forth here a fair, concise summary and purpose of the law to be acted upon, as determined by the city solicitor or town counsel, as the case may be.) If a majority of the voters voting on said question vote in the affirmative, then said provisions shall take effect in said city or town, but not otherwise.

(e) The final date for notifying, or filing a petition with, the city or town clerk or the state secretary to place such a question on the ballot shall be 35 days before the city or town election or 60 days before the state election.

(f) If the legislative body does not vote to accept this chapter at least 90 days before a regular city or town election or 120 days before a state election, then a question seeking acceptance of this chapter through approval of a funding mechanism, with an exemption or exemptions, may be so placed on the ballot when a petition signed by at least 5 per cent of the registered voters of the city or town requesting such action is filed with the registrars, who shall have seven days after receipt of such a petition to certify signatures. Upon certification of the signatures, the city or town clerk or the state secretary shall cause the question to be placed on the ballot at the next regular city or town election held more than 35 days after such certification or at the next regular state election held more than 60 days after such certification.

(g) At any time after imposition of the tax, the legislative body may approve and the voters may accept an amendment to the type, amount and computation of the tax, or to the amount of exemption or exemptions, in the same manner and within the limitations set forth in this section.

(h) At any time after the expiration of five years after the date on which this chapter has been accepted in any city or town, this chapter may be revoked in the same manner as it was accepted by such city or town, but the tax imposed tinder section 4 shall remain in effect in any such city or town, both with respect to unpaid taxes on past transactions and with respect to taxes due on future transactions, until all contractual obligations incurred by the city or town prior to such termination shall have been fully discharged. Upon such termination and discharge of all such obligations, the city or town, if a deeds excise is being collected, shall notify the register of deeds in each registry in which realty in that city or town is located, whereupon such registry shall cease to collect the excise imposed under section 4.

Senate Floor Amendments, September 20, 1999

Mr. Tarr moved that the pending new draft (Senate,No. 1988) be amended by inserting after the word "structure", in line 28, the following word:- "vessel." [ADOPTED] (Senate Journal, p. 731)