July 2014: In the summer of 2012, the Community Preservation Act (CPA) was amended by the state legislature to allow broader uses of CPA funds on recreational projects. Those changes to CPA allowed communities, for the first time, to rehabilitate their existing recreational lands and outdoor recreational facilities with CPA funds. Prior to this, only recreational lands and facilities that had been acquired or created with CPA funds could be rehabilitated with CPA funds. In just the first year after the change, CPA communities approved over $42 million in spending on recreational projects.
Despite the 2012 changes however, there are a few types of recreational projects that are still prohibited when using CPA funds, and these include horse and dog racing and the use of land for a stadium, gymnasium or similar structure. Note that this prohibition has been a part of the CPA legislation since its beginning in 2000, and still stands following the 2012 CPA amendments.
In the CPA statute (Massachusetts General Laws, Chapter 44B) the definition of "Recreational use" in Section 2 is actually part of the definition of "open space", as follows:
"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."
“Recreational use” is further defined, in this 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.
Because of the specific language included in the above descriptions, it’s clear that CPA is designed to fund recreational activities that take place in outdoor, open, and more natural settings such as parks, playgrounds, and athletic fields, as well as community gardens, hiking and biking trails and the like. As the Department of Revenue puts it, "CPA is intended to promote outdoor recreational pursuits which take place on open land in a relatively natural state." On the other hand, recreational activities which require the construction or rehabilitation of large, and often indoor structures, like stadiums and gymnasiums, are prohibited. This makes sense when one considers that CPA was originally modeled on the Nantucket and Cape Cod Land Bank programs. These programs aimed to provide communities facing strong development pressure with the tools needed to protect important, environmentally sensitive, and character-defining parcels of land for open space and recreation.
While there is no definition of the word “stadiums” in the CPA legislation, the Random House dictionary defines one as "a sports arena, usually oval or horseshoe-shaped, with tiers of seats for spectators." While athletic fields, perhaps with small movable bleachers, are clearly fine, large high school stadiums with fixed bleachers, press boxes and similar large structures are problematic.
Other Recreational Structures
So one may ask - are all “structures” on recreational land prohibited under CPA? Not necessarily. Open air structures and park-like amenities such as pergolas, bandstands, pagodas, walkways, monuments, playground equipment, pools, and the like are definitely in keeping with the CPA, so long as those activities take place on land dedicated to recreation.
Although a bathroom facility is technically a "structure," DOR has also stated that to the extent that any such structures are “reasonably necessary to directly support the use of the outdoor recreational facility” they would be allowable. The example they cited was a bathroom facility at a town beach. Although indoors, the bathroom is not a structure being used for recreation itself, as those types of structures aren't allowed, but it does directly support and is necessary for the outdoor recreational use. Equipment storage sheds are another such example.
Hopefully this article has shed some light on why stadiums and indoor recreational structures are not eligible for CPA funding, either for new construction or rehabilitation. However, many proposed CPA projects are complex, and when in doubt, it’s always wise to consult your municipal counsel for a definitive legal opinion.