4/5/2011 COMMUNITY PRESERVATION ACT COMMITTEE Minutes

Home Browse Search

MessachusettsDeparhnentofRevenue Division of LocalSer*es avlest K Bal,commissioner Robart G.Nunes, Commissioner&Dimcloro un airs ' d May 5,2009 Barbara Cotnam 54 Colonial Drive Chatham,MA 02633 Re: Community Preservation Projects Our File No.2009-269 Dear Ms.Cotnam: This acknowledges your letter asking about the use of community preservation act(CPA)funds by Chatham for a particular project involving recreational land acquired by the town before passage of the CPA. The land in,question was acquired subject to restrictions that limit its use for conservation,wildlife preservation, passive recreation or public beach access. You would like to use CPA funds to develop a park on the site. Town counsel has advised that CPA funds cannot be used for that purpose because the land is held for recreational purposes and was not acquired with CPA monies.You think,however,that they could be used because the public no longer actually uses the land for recreational or any other purpose due to lack of maintenance. Monies in the community preservation fund may be used"for the acquisition,creation and preservation of land for recreational use... and for the rehabilitation or restoration of such land for recreational use... that is acquired or created"under the act. G.L.c.44B,§5(b)(2). Since the town's acquisition of the site predates the CPA,this means the town may only spend fund monies on projects that constitute creation or preservation. You believe that development of the park may constitute creation of recreational land. As you know,"the act does not define the term"creation,"but the Supreme Judicial Court has held that enhancement or redevelopment of land already devoted to recreational purposes is not creation of recreational land under the statute. Seldeman. v. City of Newton, 452 Mass.47(2008). Land for recreational use may be created,however,when the project converts land that is used for another purpose,or has ceased to exist for recreational purposes,to recreational use. Recreational use means active or passive recreational use including,but not limited to,the use of land for community gardens, trails,noncommercial youth and adult sports,and a park,playground or athletic field. We cannot say that the land in question is not"land for recreational use"as defined in the statute. Regardless of the actual use of the site at the present time,we agree with town counsel that the legal restrictions on the use of land make it recreational land for purposes of the CPA. As such, it cannot be improved or redeveloped using CPA funds. I hope this information is helpful. Very trul nyours, / Kathleen Colleary,Chief Bureau of Municipal Finance Law KC Post Ofte Box 9569,Boston,MA 02114.9569,Tel:617-626.230a Fax;617-&*2330 21