First Supreme Judicial Court Decision on CPA
Decision Provides Narrow Definition of Allowable Recreation Projects in Existing Parks
The SJC agreed with the plaintiffs and stated that whereas the parks were already devoted to recreational uses, no recreational uses were being “created” when the municipality chose “to enhance or redevelop that which already exists.” The Court further held that the proposed work did not constitute “preservation” of the land because it did not involve the “protection of … real property from injury, harm or destruction,” which is the definition of “preservation” in Section 2 of the Act.
Statutory Requirements and Background of Newton’s Park Projects
Section 5(b)(2) of the CPA permits expenditures “for the acquisition, creation, and preservation of land for recreational use” and “for the rehabilitation or restoration of open space, land for recreational use and community housing that is acquired or created as provided in this section.”
The Court rejected both
Impact On Similar, Previously Constructed Projects in Other CPA Municipalities
The Court also responded to the concerns raised in the
amicus curiae brief submitted by the Town of Acton that CPA expenditures made
by other municipalities before this decision not be subject to legal challenge
in light of the outcome of this case.
The Court noted that a ten taxpayer suit such as the one brought against
Conversion from Non-Park Use Permitted
The Court recognized that municipally owned land that had been “used for a purpose other than recreational use” or land that “at some point in the past ceased to exist for recreational purposes” could be used by a municipality to “create” a recreational use which could be funded under the CPA. The Court saw the possibility of land being transferred by a municipality from a non-recreational use to a new recreational use, with renovations then funded under the CPA. The Court did not address the situation where such non-park land (for example a small forested area in a town) might have been used by residents for “passive” recreation, even if not formally designated for recreation by a town.
The Court appears to also have left an opening for projects in existing parks which have become so deteriorated that they have “ceased to exist” for recreational purposes. The Court said that if a municipality had “land that, at some point in the past, ceased to exist for recreational purposes…CPA funds could be appropriated for the necessary costs of the project.”
Although these and other recreation projects may be allowable under CPA, this is a complicated issue, so the Coalition continues to advise communities to consult with municipal counsel on any current or proposed CPA recreation projects.
Coalition Supports Recreational Amendment to CPA
This decision will force all CPA communities to rethink plans to use CPA funds for restoration or rehabilitation of recreational facilities. As previously reported in CPA Update, legislation has been filed which would amend CPA to allow communities to rehabilitate existing recreational assets, no matter how or when they were acquired. House Bill No.4820 did not pass the full legislature this past session, but it did receive a positive recommendation from the Committee on Community Development and Small Business. It will be re-filed with the new legislative session in January, 2009.
You can read the entire decision in this case here.
You can view the Department of Revenue's analysis of this SJC decision in the most recent issue of the City and Town newsletter here.