First Supreme Judicial Court Decision on CPA

Decision Provides Narrow Definition of Allowable Recreation Projects in Existing Parks


The Massachusetts Supreme Judicial Court has offered its first interpretation of the Massachusetts Community Preservation Act, giving important guidance on the expenditure of community preservation funds for recreational projects.  Ten Newton taxpayers challenged the city’s proposed use of CPA funds on several projects in two city parks.  The plaintiffs alleged that the use of CPA funds for these projects did not constitute the “creation” or “preservation” of land for recreational purposes under Section 5(b)(2) of the CPA Act and, therefore, was not a permitted expenditure of CPA funds. 


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 Newton project at the center of this controversy concerned two parks in Newton, both of which existed as parks prior to the enactment of CPA and included both active and passive recreation.  The 2005 application for funding these projects described a scope of work, including work “designated to improve the parks’ overall appearance by reorganizing existing park facilities,” relocating and building new basketball and tennis facilities, as well as improving fencing, paths, benches and water fountains.



Newton’s Broad Definition of “Creation” and “Preservation” Rejected

Newton asserted that the term “creation,” which is not otherwise defined in the CPA, should be defined to include not only physical creation of land but also creation of “new recreational uses within existing parks that would make the areas open and accessible to new groups of users, including those who are disabled.”  In addition, Newton argued, the proposed projects went well beyond “mere maintenance” by preventing destruction of the green spaces by improved drainage and other upgrades which should be considered “preservation” of the land for recreational use.


The Court rejected both Newton’s “creation” argument as well as its “preservation” argument.  The Court held that “creation” does not include “new recreational uses on existing land already devoted to the purpose.”  The Court also stated that Newton’s activities did not constitute “preservation” but rather were designed to “improve substantially the parks’ over-all quality, attractiveness and usage” which is not permitted under the CPA, unless the park had been originally acquired or created with CPA funds.



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 Newton “must be brought before obligations are incurred by a municipality.”  Recreational projects which violate the holdings in the Newton case, therefore, are not subject to challenge if the municipality has already used the funds for the projects.



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.