CPA is All About the Land - Protections and Requirements for the Outdoor Recreation Category

Since the Outdoor Recreation category of CPA was amended in 2012, communities have been making incredible investments in parks, playgrounds, athletic fields, and other CPA recreation projects. But the renewed activity has brought some confusion on the type of land where CPA funds can be used. For any recreation project using CPA funds, it’s important to make sure that the land is formally dedicated to recreational use.

When it comes to the recreation category of CPA, the Massachusetts Department of Revenue states that "CPA is intended to promote outdoor recreational pursuits which take place on open land in a relatively natural state." Section 2 of the CPA legislation provides further clarification with the definitions of “Open Space” and “Land for Recreational Use” in section two of the Act:

“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, lake 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.

Land for recreational use is further defined, in the same section, as follows:

“Recreational use”, active or passive recreational use including, but not limited to, the use of land for community gardens, trails, and noncommercial youth and adult sports, and the use of land as a park, playground or athletic field. “Recreational use” shall not include horse or dog racing or the use of land for a stadium, gymnasium or similar structure.

As you can see, all the examples above are types of land that are permanently dedicated to conservation and recreational uses—there are no buildings, structures, or other incompatible uses on the property. In Massachusetts, this type of dedicated recreation land is permanently protected under Article 97 of our state constitution. In most cases, for a property to be eligible for CPA funding in the Outdoor Recreation category, it must be protected under Article 97.

How to Identify if Land is Eligible for CPA Recreational Funds

When considering a CPA proposal for Outdoor Recreation, it’s imperative that the CPC first determine if the property is dedicated to recreational use. There are a few ways protected recreational land can be identified—here are some examples:

• The land is under control of the Board of Park Commissioners (or whatever board, committee or department has care, custody and control of parks and recreation land).
• The property was protected as land for recreational use in the deed or legislative body vote to acquire the land. You may have to go back in the municipal records to see the purpose for which the land was acquired, or download the information from the Registry of Deeds.
• A previous action triggered article 97 protection, such as the receipt of state or federal recreational grants or a legislative body vote to change the use of the land to recreation.
• Conservation Restrictions on the land have been recorded at the Registry of Deeds.

Any of the above cases will provide clear, legal protections for such land under Article 97 of the state’s constitution, and those protections are not present on general municipal land. That is why the most important prerequisite for using CPA recreational funds is that the land must be permanently dedicated to recreation.

What if a nonprofit is seeking CPA Recreation funding for land that they own?

Providing CPA funding for non-profit organizations can be beneficial for a community, but it can be difficult to reach the above level of protection on privately-owned land. If a non-profit is applying for CPA funds to make recreational improvements on land that they own, it is very unlikely that it will be an eligible project without first restricting the land to recreational use. Using CPA funds to construct or improve recreational facilities on privately owned land would generally require the state to approve a restriction on that land to ensure that it is permanently protected. Organizations may not want to restrict their property, to leave their options open for the future. But the entire point of CPA is to provide permanent quality of life improvements for residents, so that is the trade-off for using a restricted funding source like CPA.

What about “open” areas outside municipal buildings?

Many CPC’s inquire whether specific outdoor spaces on municipal land might qualify for CPA funding under the Outdoor Recreation category, such as:

• Landscaping surrounding the Town Hall
• Outdoor spaces or gardens located outside the town Library or Senior Center
• Trees or greenspace incorporated into municipal sidewalks or downtown spaces
• Streetscape improvements within the “right of way” of roads or highways

These types of proposals do not typically qualify for CPA funding. Looking back at the definitions of Open Space and Recreation under CPA, recreational land does not have buildings or structures on the property. Oftentimes, the presence of a building on the same legal lot is the easiest way to tell the difference between true recreational land and all other types of land! For projects like this to qualify for CPA funding, the municipality would have to take steps to permanently protect the outdoor sections of such land. Municipal officials might have the same reluctance to restrict general municipal land that some private organizations do. But if the municipality wishes to keep the land unrestricted, then it should use an unrestricted funding source, like general municipal funds. A good mantra for CPA recreational projects: “Restricted funding should be used on restricted land.”

What issues can occur if CPA funds are utilized for improvements on unrestricted property?

As we’ve seen, unrestricted land does not benefit from any legal protection under Article 97. That usually means that the use of the land can be changed by a simple vote of the legislative body. If that happens and the CPA recreational improvements are removed, large sums of public funding from CPA are being wasted when circumstances regarding the property changes.

Unfortunately, Article 97 protection isn’t 100% foolproof, but there is a much higher bar to clear if a municipality wants to change the use of protected recreational land involving approval by the state and the state legislature. This document from the Executive Office of Energy and Environmental Affairs describes the process municipalities must use to change the use of Article 97 land.

The final decision on CPA appropriations always lies with the local CPC and the legislative body. To avoid any potential mismanagement of CPA funding, communities should carefully consider whether its CPA investment is protected from future harm—and the easiest way to accomplish this is to ensure that the land is protected under Article 97.

Dec. 2024