Community Preservation Act Questions and Answers

BEFORE PROCEEDING FURTHER PLEASE READ THE FOLLOWING IMPORTANT INFORMATION:
The Community Preservation Coalition has compiled this information on the Community Preservation Act (the "Act") and related regulations. While we endeavor to provide accurate and up-to-date information, it should be noted that this is in no way intended to offer legal advice or opinion. The information contained herein is subject to change based on subsequent regulatory clarification from state agencies and any court decisions that may interpret provisions of the Act. The information below should not be used without the advice of legal counsel. The City Solicitor or Town Counsel should be involved at the earliest practical moment to provide legal advice. We reserve the right to make changes or to correct any error or omission in any portion of the content of this Web site.

Affordable Housing
Open Space
Historic Preservation
Adminstration/Maintenance
Revenue/Surcharge/Trust Fund Related
The CPA and Town Meeting
The Community Preservation Committee
Local Control
Recreation

Affordable Housing

• Does the establishment of a Housing Trust Fund allow for expenditures from it without town meeting votes and without going through the proposal cycle each year? If possible, we would like to build a fund that could be used to buy-down or acquire property when it becomes available.
• Can a town give preference to town employees (i.e. teachers, fire fighters, police, government employees) for CPA funded affordable housing or does it have to be open to anyone?
• May CPA funds be used to convert a town-owned structure that was not purchased with CPA money into affordable housing?
• Does CPA money have to be spent on a specific project or could a general transfer be approved? Could CPA money be transferred to a housing authority, for example, to be spent as expenses come up, provided they all are allowable under CPA?
• Can new construction under the CPA qualify for 40B?
• A town is interested in building a mixed low-income/market price housing development. May CPA funds be used to partially fund the development and if so, how would the percentage is determined? If 25% of the units are affordable, can they fund up to 25% of the total cost with CPA or are there other considerations?
• What ADA low-income housing programs might work well with the CPA by providing matching or supplemental funding. Is there a list somewhere, or could you mention a few?
• What is the connection between the CPA and Executive Order 418?
• If we increase open space, wont we be limiting the land that is available for affordable housing?
• Under "support" of housing, would be it allowable to use CPA funds to hire a Housing Advocate who would work with people to help them find housing, do housing crisis intervention and case management, help eligible people find financing (maintain welfare benefits, fuel assistance), work to prevent homelessness, etc.?
• Can a town use CPA funds on state owned housing buildings?
• We are considering a one-time payment to a developer who is developing a historic mill into rental units. The project requests $1.5 million to the developer in order to make 15% of the units affordable for 30 years. The Town would receive no asset/ownership for this payment. Is this an allowable use of CPA funds?
• Is it possible to apply for seed money from the CPA funds for the up-front work required to get affordable housing projects initiated? It is not for a particular project, but for preparing for one or several projects.
• A piece of property links the land between Town Hall and the Highway Department property. Presently all office space, the library, and the police department are housed in the Town Hall. The owners of the property have offered the town the right of first refusal before they put it on the market. Is there something we can do with CPA Funds to acquire the home and make it available for affordable housing and give the back portion to the Town to expand town facilities?
• One of the proposals for our CPA funds this year is for $5000 to hire a consultant to set up a Housing Trust Fund. Is this allowable?
• Can wheelchair ramps & ADA work be done with CPA funds at a private residence?
• I have a question about the use of CPC funds for incidental project costs. Could CPC funds be used for such costs (pre-development expenses) for a Community Housing project if they are the only CPC contribution to the project (so that they would not be part of a larger appropriation for the project?) Also, if such funds only are necessary in the event that the project does NOT go forward (i.e., funds raised elsewhere would cover these costs if the project does go forward), can we still appropriate the funds to be used for this purpose?
• May CPA administrative funds be used to hire a part-time staff person to handle the periodic lotteries for the affordable housing units in town? These are housing developments that were not created or subsidized in any way with CP funds. Is it permissible to use admin funds for this?
• Does the CPA statute define any formal income guidelines?
• We have 5-6 properties that are on the tax taking role that could be buildable lots, as well as a couple that would be great Open Space parcels. All have seriously flawed titles or no-one claiming ownership. The problem is the town has no money right now to finance the foreclosure process. Can we use CPA money for this?
• How would the CPC go about purchasing land for affordable housing and is it possible?
• If the CPC approves money for the purchase of land for affordable housing, can we design the criterion for how we want the land to be developed, ie Comply with local zoning by-laws, no 40 B exemptions, some open space and recreation on the site and historic in style for structures and when would we put those restrictions on the parcel? Or would we just make that part of the RFP once we own the land and want people to make bids?
• We are requesting town meeting support for CPA funds for a set-aside fund to be retained as a special CPA fund earmarked for appropriate affordable housing activities. My question is whether we can add gift monies received from developers to this fund in order to provide local matching funds and help build the fund up. We have a separate gift fund in the Town and anticipate the receipt for more funds this year which would go into yet another separate gift fund. We would like to pull these altogether into one fund and the CPA fund seems to be the most logical place to do that. I note in reading the CPA statute that the state CPA Fund can receive gift money and other private funds and assume that it also applies to local funds.
• Is there anything precluding the local "Housing Authority" from being a member of CPA or receiving CPA funds?

Open Space

• If there are 50 acres, say, and three acres will be used for wells and 47 acres to provide protection to the wells by keeping them in conservation, is the 47 acres eligible for CPA funding if part of the funding (for the 3 acres) comes from the water fund?
• Does a town that is contributing CPA funds to a neighboring town have to retain some kind of interest in the land? Is it possible for both of them to own it jointly?
• An opportunity may be arising where a landowner is willing to work with the town to sell his development rights on a few parcels of quality watershed/habitat/ agricultural land. Can CPA funds be used to explicitly purchase a conservation restriction (CR) that meets many of the town’s goals, but does not explicitly purchase the property? Also, at what point must a parcel purchased with CPA funds have a CR in place? Must this be done immediately after purchase?
• Are there any options available to a town to purchase open space before they have formed a Community Preservation Committee (but after passage of the CPA)?
• Our town is interested in purchasing a piece of open space that has a transmission tower on it. The current landowner receives fees for leasing space on the tower. Would we be allowed to use CPA funds to purchase the land (and the tower) and then continue to lease space on the tower to offset the cost of the acquisition?
• The Board of Selectmen has a warrant article on the agenda for Spring Town Meeting in which the town will vote to authorize the Selectmen to draft a conservation restriction, and then negotiate and grant the CR to an appropriate conservation agency. Could the Town Meeting vote approving the acquisition of the property using CPA funds include the CR, all as part of the same package, thus making a subsequent vote unnecessary?
• Can CPA funds be appropriated to a city or town conservation fund?
• Would it be okay to use CPA funds for ADA improvements to open space (i.e. adding a handicap parking spot, ramps, etc)?
• It is my understanding that under state law the money distributed under EOEA’s Self Help program is required to go into the general fund. My town is looking at an open space acquisition but the money will come from the CPA not the General Fund. In this case, if we are awarded the grant money, it makes sense that the Self Help reimbursement would go back into the CPA fund and not the general fund. Is this possible?
• Once a parcel has been acquired by a municipality for open space using CPA funds, is it possible, several years down the road, for the municipality to use that land for a public purpose such as a school, if necessary; or does the deed restriction remain in effect regardless that the new intended use will serve a public purpose
• Can a CPA Committee purchase a house with land then turn around and sell the house to recover some of the money and keep the land?
• We are struggling with how to handle waste water, primarily sewage. A small fraction of the town is on sewers, the balance on Title V septic systems. The Town would like to use CPA funds to acquire land to be used to expand the existing sewage treatment plant, specifically for effluent recharge (putting treated sewage back into the ground). In an sense this is similar to wellhead protection as well as protection of marshes and embayments because you are reducing the pollutants that are going into these resource areas by treating the water more thoroughly before it enters the ground on its way to the potable aquifer and the recreational waterways. Is there any chance this would be allowed without further amendment to the CPA?
• Are appraisals necessary for any land purchase? And what about reconciling discrepancies between assessments and what figures might result from an appraisal?
• Why is it that municipal governments and their various boards/commissions, including the Con Com, cannot hold CRs when the town also owns the fee interest in the land.

Historic Preservation

• We have a proposal before us from the Veterans organization to use Historic Preservation funds to pay for part of the construction of a Veterans Memorial - titled “Celebration of Freedom” based on the fact that it will make prominent, important parts of the town’s history. The request is that CPA funds would be used to provide all historic text and engravings on the memorial (title, dedication statement, service emblems, captions on structure and benches - e.g. names of those died in service from town - logos of the five military services, seal of the town and US, etc. Would this qualify for CPA funds?
• To what extent, if any, can CPA funds be used for the historic preservation of privately owned structures?
• An old school in town is to be renovated and will become a teen center, meeting rooms, Park and Rec. office, etc. An indoor pool and gym are to be added as new construction. Total cost of the project is projected at $10.5 million. The Park and Recreation Commission is administering this project, and they plan to apply for upwards of $2 million for renovation of the 1925 school, under historic preservation. Could an argument be made that only exterior rehabilitation and perhaps code issues would qualify under historic preservation? Or could tearing out walls and reconfiguring for the new use (i.e., teen center, etc.) also be justified as historic preservation?
• A significant historic school building exists in our town center. The building and surrounding property is owned and managed by a private trust that have little in the way of financial resources. The trust has a charter that limits the use of the building to educational purposes only. For over 60 years, the town leased the building for $1 per year for classroom space. Must the town have ownership or hold a deed restriction on the property in order to pay for restoration of the building with Community Preservation funds?
• At our historic town hall, we are planning to install insulated glass windows that will have dividers between the two panes of glass to replicate the paned windows we now hove, but the panes will actually be one large single pane of glass. I wanted to make sure that replacing the windows with new windows that are not exactly like the old ones would be okay.
• Is it possible to provide CPA funds as reimbursement for non-municipal expenditures previously made on an historic preservation project? This might arise in the case of a possible project to rehabilitate a sawmill. The sawmill's roof collapsed under the snows of this past winter. It may need to be repaired before our town meeting is able to approve the funds. Could we as a committee recommend to town meeting that CPA funds be used reimburse the owners of the sawmill for repairs and rehabilitation that have already been done?
• There are a number of towns that would like to do borrow money through bonding to do historic preservation work on structures that were not purchased with CPA funds. There is some confusion regarding what types of work are permissible under the CPA
• We would like to obtain facsimile artifacts and enlarged, sturdily mounted photos that could be used in a classroom, the library or for speaking events; over time we'd like to have some professional archaeologists as public speakers, improve the public and school libraries' collections on related topics and a variety of other activities to make the town more aware of its local history. When the activities mentioned above are so tied in with the preservation and promotion of local history, are any of them something that might be eligible for CPA funds?
• The town is looking at a parcel of land incorporating open space, recreation fields and a cemetery. Does the CPA allow for acquisition of cemeteries? Does it fall under open space or recreation somehow? I know that Mount Auburn Cemetery in Cambridge supports wonderful bird habitat and folks walk there regularly.
• Our senior center, which is housed in our historic old town hall, wants to rebuild their handicap ramp, which is not up to code. Is that is an allowed use for historic funds?
• Are you aware of any precedents where cities or towns with the CPA legislation on the books have actually awarded CPA money to churches for restoration? Would such a project be allowed, or is it unconstitutional?
• The fact that a historic building is part of a school does not actually make it any different from any other privately owned structure in terms of its eligibility for CPA preservation funding, correct?
• We have a historic building in town that needs to be renovated. What I'm not sure of is the extent to which CPA historic preservation funds could be applied to the renovation, i.e. renovation versus restoration. Do you have any guidelines we could use?
• We have a request for new construction (a new room for an exhibit area) to expand a very small municipally owned historic building. Would this be considered upgrading or adaptively reusing the historic site? The new room would be open to the public and the exterior design has been favorably reviewed by the Historical Commission.

Adminstration/Maintenance

• There is going to be a meeting between some municipal officials and the CPC committee to ascertain the city/town’s focuses for CPA spending. Is this okay? Or is it an abrogation of the public's right and responsibility to define spending?
• What is the thinking on the prohibition on using CPA funds for maintenance? After a structure is built or restored, who is responsible for its maintenance?
• What happens to administrative funds that appropriated for a fiscal year but are not spent?
• Has anyone mentioned the use of CPA funds, only for specific CPA projects when needed, to augment an effort to hire a Consulting Planner for a town?
• Are there any hard and fast rules for what the administrative expenses under the CPA can be used for? Could they be used for some consultant work in developing CPA projects? Does it matter if consultants are paid for from the administrative funds or the specific use funds?
• How much should we expect the implementation of CPA to cost us in increased administrative costs? Will adoption cause significant increases in workload and expenses for town finance offices?
• What happens to unspent administrative funds at the close of the fiscal year – do they remain in an administrative account for the CPC?

Revenue/Surcharge/Trust Fund Related

• If I were to have made between my wife's part-time job & my full time job $100K last year & this year I find myself unemployed, how does CPA deal with this when our family is now surviving on my wife's $20K part time job & my unemployment? If I file for an abatement, it will show what I earned last year, but not take in account that I was laid off from my job since then. Is there a way to still get the abatement?
• Are the state matching CPA funds distributed to towns based on actual surcharge dollars collected or those assessed?
• How can communities calculate the effects of the low-income exemption?
• The local Historical Society, a private nonprofit, is about to launch a $2 million fundraising campaign. They have come to us requesting $275,000 specifically for an Archival Center. They have said that they will not break ground until 2-3 years in the future and they do not need the money until then but they want the commitment for use in fundraising. The Community Preservation Committee has proposed that we commit $175,000 in next year’s funds and $100,000 in following year. Our Town Manager says that DOR says the Town Meeting cannot appropriate funds that far in advance. Is that true?
• We have found that one of the big reasons people do not take advantage of the low-moderate income exemption is the lengthy and confusing paperwork that is required. Is there any way around this?
• A married couple lives together. One is over 60 the other is not. How would the elderly CPA exemption work in this case?
• What is the impact of the state-matching percentage if we reduce the surcharge from 3% to some lower number? If there is sufficient money in the fund, can the match still be 100%?
• What is the process for lowering the CPA surcharge?
• After our community passes the CPA and residents taxes are increased, how do we know that state funding will not dry up? What happens if the State Legislature just decides to change the CPAs funding mechanism?
• How should the fund be set up as the money from the surcharge starts to come in?
• Is there a limit as to how far ahead a town can plan to bond for CPA? are 10 year, 20 year (or more) bonds allowed?
• For purposes of calculating the low and moderate income exemption to the CPA surcharge, what happens if a senior has a non-senior living with them? Could they still qualify for the senior exemption?
• What is a budgeted reserve and why would my city/town need one?
• Is the surcharge tax deductible, as part of the real estate taxes paid for property owners on the Federal Tax return?
• What would be the impact of a Proposition 2 ½ override on the CPA surcharge?
• We have bonded $500,000 over 5 years. How do other communities appropriate the expenditure each year for the annual amount of the bond repayment?
• What CPA funds can be spent after the tax rate is set in a community?
• What happens when a person or organization wants to make a donation to a towns CPA fund? Are these additional funds eligible for the state match?

The CPA and Town Meeting

• Once an article is approved at an Annual Town Meeting for use of CPA funds to purchase land and then the meeting is adjourned, can the Board of Selectmen put an article on a Special Town Meeting Warrant, months later, to rescind the original article which was approved at the Annual Town Meeting?
• We are trying to determine how other communities are structuring their warrant articles, i.e., does each proposal have a separate article? If we bundle them, is there an opportunity for line-item veto of individual projects or must Town Meeting approve all or nothing?
• How much latitude does Town Meeting have to alter the recommendations of the CPC? If there is a warrant article which TM then debates, can they make modifications to it and pass the new modified article, or would they run into trouble since they are not allowed to do anything not recommended by the CPC? Is there a shade of gray that might be acceptable, like changing the number of acres of an open space purchase or the number of affordable units in a housing project, but leaving the central tenants of the project unchanged? What if there are members of the CPC at TM and changes are done with their blessing?
• On CPA warrant articles, do we have to use exact dollar amounts for proposed appropriations or can we just use percentages?
• A citizen decides to amend the warrant article to add a new project that had not been previously considered by the CPC. I believe this would be outside the scope of the article, since the project never had adequate review by either the CPC or the public by virtue of holding a public hearing on the project. I am unclear at to whether a citizen could amend the warrant article to add back in a project that was previously denied funding through the CPC when making its determinations.
• Is within the CPC's purview to amend the warrant article on a previously denied project? How about amending the article as late as the actual day of town meeting?
• Finance Committees typically review all warrant articles, comment on them, and can make recommendations to make alterations to the article. Their opinion or redraft of the article is printed in the warrant directly after the originally submitted warrant article. They are the only entity in the town that has the ability to alter an article before it is debated on town meeting floor. Does the Finance Committee have the ability to recommend and change the article to decrease the amount funded to a line item? Could the Finance Committee decide to amend the warrant article to add a new project that had not been previously considered by the CPC? Could the Finance Committee amend the warrant article to add back in a project that was denied funding through the CPC when making its determinations?
• Do we have to have separate votes at Town Meeting for each CPA project?
• Should a CPC recommend more projects than it can afford for each category in case Town Meeting does not approve one or more projects in the different funding areas?
• What happens if a Town Meeting rejects a Community Preservation Committee recommendation for CPA spending? Is the spending that was recommended but rejected automatically then reserved in some account? Or does the committee have to go back and re-recommend something else right away so that the money can be spent or reserved for some other CPA purpose? Or, at town meeting, are they allowed to reject spending for one purpose and negotiate with the committee right then and there to spend it for something else?

The Community Preservation Committee

• Can a Community Preservation Committee (CPC) enter into agreements prior to local legislative approval? For example, it is often the case that they would like to go to Town Meeting with a concrete project proposal. What if that requires that they sign an option on a property? It would be helpful if they could go to Town Meeting and be able to tell folks that they have a guarantee they can purchase the land.
• How much should the CPC take on? In small towns where Committee members also have numerous other responsibilities, is it reasonable to ask that people do considerable research and planning before they bring potential CPA projects before the Committee?
• Must we recluse ourselves if we are a member/officer of the proponent of a project (e.g. Land Trust, Open Space Committee, Historic Commission, Housing Authority, etc.) comes before us with a project? Or only if there is an actual conflict or personal/financial interest in a proposed project? It seems that inevitably this issue will come up with every project since all three funding areas must have representation on the committee.
• Section 5 (3) (c) says the CPC must have a quorum to conduct business, which is a majority of the committee members, and that it shall approve its actions by majority vote. Is that a majority of the full committee, or just a majority of the quorum that shows up at that particular meeting?
• In section 5 (b) of the CPA, the Community Preservation Committee is directed to "study the needs, possibilities and resources of the city or town regarding community preservation. " What kind of a report should be produced as a result of this directive and to whom should it be submitted?
• How do Community Preservation Committees (CPCs) handle their operating budgets? Do they submit them to the town administrator for inclusion in the overall town budget or manage them independently, like a Conservation Commission's special fund. If they go into the overall town budget, what happens if Town Meeting doesn't approve the budget?
• Can a CPC make a recommendation for the expenditure of CPA funds without a public hearing; also can we do a single request before other proposals have come to the committee?

Local Control

• The CPA is a state law and some people are worried that there will be many strings attached.

Recreation

• The Parks and Rec Dept. has requested seed money for a feasibility study for a new pool for Memorial Park. Would this be eligible for CPA funding?
• If a town creates new tennis courts with CPA recreation funds, can fees be charged for use of the courts? If so, should the proceeds of these fees then be deposited back into the CPA fund, or could some or all of them go into a more general town fund or a town enterprise fund (if such a fund maintains the facility)?
• If CPA funds are used to pay for playing fields adjacent to a school, with the idea that they be available to school sports teams, can the school claim first rights to the playing fields? In other words, can it say that the fields will be used by their soccer team from 4-7 every day or do the fields have to be open to the public at any time?
• Is it okay to use CPA funds to build a playground on public school property?
• Could CPA funds be used to purchase or maintain easements for town recreation trails, including snowmobiles or does the CPA limit recreation to non-motorized activities.
• Have any towns utilized CPA funds for recreational projects, other than purchasing land? If raw land is purchased for recreational use, it might require some improvements to make it usable for recreation, including grading, installation of an irrigation system, construction of a parking lot, etc. Are these improvements valid uses of CPA funds? Would they be valid uses if applied to an already owned piece of land that needs only the improvements to become a recreation area?
• A rail trail corridor, in its entirety, is owned by the Massachusetts Executive Office of Transportation and Construction (EOTC). Recent conversations with the EOTC indicate that they would enter into a license agreement for a town to design, construct, and maintain the trail. Therefore, the EOTC would still own the land and the town would be allowed to create a rail trail on the property. The terms of the license agreement would be for 1 year with automatic renewal unless either party gave the other 30 days notice. The EOTC has indicated that they do not have any future plans for to reinstate rail service along this corridor.

  The clauses of the CPA as it relates to rail trail development states that funding for recreational purposes is limited to the "acquisition, preservation, and creation of land for recreational use." Further, acquisition is defined as obtaining "by gift, purchase, devise, grant, rental, rental purchase, lease or otherwise."

  Could a municipality use its local CPA discretionary funds for creation of the rail trail, through the acquisition of land by means of a license agreement with the EOTC?

• The text of the Act does not appear to mention anything about being able to use the 70% of CPA funds (after the obligatory 10 percent to use of the three uses) for recreation. Where does this come from?