Shedding Light on the Meaning of “Create”

By Jennifer M. Goldson, AICP

January 2009: It is helpful to periodically review the definition section of the Community Preservation Act (Section 2 of MGL c.44B), where many of the terms used in the CPA are defined, including community housing, historic resources, and rehabilitation. The definitions provide important information with regard to CPA eligibility. For example, it is within the definition of rehabilitation where we learn that bringing historic resources into compliance with the Americans with Disabilities Act is eligible for CPA funding. 

However, there is one key terms that the CPA statute uses, but does not define: create. Among the uses described in Section 5(b)2 of the statute, CPA funds can be used to create open space, recreation, and community housing. But the uncertain meaning of this term has led to confusion over the eligibility of projects in some communities. A few communities have asked the Department of Revenue (DOR) to provide guidance on their meaning and, in fact, the ambiguous meaning of create was a central part of the recent lawsuit in Newton over CPA recreational spending.

This article intends to shed light on the meaning of the term create and includes a summary of DOR’s responses to inquiries from Chilmark and Norfolk as well as the Massachusetts Supreme Judicial Court’s ruling in Seideman vs. City of Newton.

DOR Guidance
In a letter to Chilmark in 2004, DOR provides guidance on the meaning of create with regard to the eligibility of creating community housing in a mixed-use project: 

The act does not specifically define the terms “creation” or “support”, but we presume the Legislature intended the terms to be given their ordinary and generally understood meaning.  In the case of “creation” that would mean bringing into being, causing to exist or production, which could include new construction or restriction of an existing unit. 

The main point of the Chilmark letter is to clarify that CPA funds can be used to create affordable housing units in a mixed-use development as long as the CPA funds are used just for the affordable units. However, the analysis also helps to clarify that “creation” does not just include new construction but also the conversion of existing market rate units to affordable housing through restrictions. 

In a 2007 letter to Norfolk, DOR considers the eligibility of Norfolk’s proposed water treatment facility, among other projects. The letter suggests that funding the facility would be eligible if it were considered necessary for the creation of a recreational asset – in this case, restoring the water quality of a town-owned pond that had been closed to swimming and fishing due to contamination. The Norfolk letter includes the following analysis:   

Creation could include a number of activities, such as a wholly new use, conversion from one use to another, or restriction of future use, that effectively cause property not used for recreational purposes to become a recreational asset.    

Reading this guidance broadly, it is logical to conclude that CPA funds could be used to transform property for any of the three applicable CPA purposes: recreational land, community housing, or open space. 

Court Ruling
The 2008 Massachusetts Supreme Judicial Court decision in Seideman vs. City of Newton provides additional guidance on the use of the term “create”, as excerpted below. 

. . . the appropriation of CPA funds pursuant to [the statute] . . . is for the creation of land for recreational use, not the creation of new recreational uses on existing land already devoted to that purpose. 

. . . to the extent that a municipality chooses to convert land that had been used for a purpose other than recreational use, including blighted land, or land that, at some point in the past, ceased to exist for recreational purposes, that action by the municipality would constitute the creation of land for recreational use, and CPA funds could be appropriated for the necessary costs of the project.

 . . . It also constitutes a recognition that in many communities there simply is little available open space, but that real property no longer being used for its original purpose can be transformed to create a new purpose, such as recreational use. 

In this decision, the court illuminates the use and interpretation of “create” (as well as the term “preserve” in sections not quoted here). They make it clear that, under the existing CPA law, communities cannot install new facilities (such as playgrounds, basketball courts, and running tracks) in existing parks.

However, the court decision appears to reinforce DOR’s prior guidance in the Norfolk letter, cited above, that converting land previously used for other purposes could be considered CPA-eligible.

Conclusion
While the intent of this article is to help clarify the meaning of “create,” one of the two key terms that are not defined by Section 2, the guidance provided by DOR and the Supreme Judicial Court still leaves open questions regarding eligibility. 

In the recreation category, for example, some questions are still unresolved, such as: At what point does a property cease to exist for its prior purpose? Would conversion of an undeveloped area (e.g., surrounding woodlands) of an existing park be eligible? What determines if a parcel is currently in “recreational use” – is it the land registration, current activities on the land or perhaps dependent upon which municipal board controls the land? While DOR’s guidance and the court’s decision have helped our understanding of the legislative intent, there is clearly more to sort out. 

As Community Preservation Committees evaluate the eligibility of CPA projects going forward, it will be important to keep in mind that each project naturally has a different set of circumstances than those referred to in this article. Seeking additional opinions from DOR and your municipal counsel may be prudent. 

Jennifer M. Goldson, AICP, is a freelance planner who focuses on helping communities implement the CPA. She can be reached at jennifer@jmgoldson.com or 617-990-4971.

The views expressed in this article are those of the author, are not intended to be used as legal advice, and do not necessarily reflect the views of the Community Preservation Coalition.