Moving the goal posts

THE COMMUNITY PRESERVATION Act arose from the noble desire to give municipalities more tools to fight urban sprawl and to make housing affordable so residents could continue to live where they grew up. But over the last several years the focus in many communities has begun to shift to more parochial concerns. Cities and towns, many of them among the wealthiest in the state, are building sidewalks, sprucing up parks, and installing synthetic turf athletic fields—and using the Community Preservation Act to stick the state with half the tab.

The eight-year-old Community Preservation Act provides matching funds to municipalities that vote to add a surcharge to their property taxes of up to 3 percent, with the new revenue earmarked for historic preservation initiatives or projects that create or preserve affordable housing, open space, or recreational areas. Supporters say the CPA has saved more than 8,000 acres of open space, created more than 1,000 units of affordable housing, and financed hundreds of historic preservation projects statewide.

But recreation, which garnered almost no attention when the Community Preservation Act was debated and approved by the Legislature in 2000, is now the fastest-growing category of spending under the law. It’s also the most controversial. With municipalities hungry for cash and no one regulating what they do with their CPA funds, many communities have become quite imaginative in defining what it means to create or preserve recreational space.

Wayland and Acton, for example, concluded that replacing a grass football field with a synthetic turf field created new recreational space. Falmouth felt that the installation of bike racks and benches around town qualified. Weston says it is preserving playing fields at its high school by using CPA funds to install a drainage and irrigation system. Newton believes rehabbing existing rundown parks creates new recreation space.

In Sudbury, a wealthy town west of Boston, local officials say the sidewalks that run alongside certain residential streets are actually new recreational facilities serving pedestrians, joggers, bikers, skateboarders, and rollerbladers. Town officials say the residential sidewalks, paid for with $400,000 in CPA funds, are no different from bike trails or park walkways.

“Why isn’t walking considered a recreational opportunity?” asks Jody Kablack, Sudbury’s town planner and community preservation specialist. “We firmly believe these are recreational.”

There is no referee making calls on whether individual CPA expenditures are out of bounds. The law authorized the state Department of Revenue to issue rules and regulations covering CPA expenditures, but agency officials never followed through, in part because they felt the statute didn’t give them any enforcement powers.

The Revenue Department has answered a few spending queries from confused towns, but those opinion letters don’t carry the force of law, and many towns have ignored them. The only real pushback to CPA spending decisions has come from local taxpayers who have filed lawsuits claiming their towns are spending CPA money illegally.

“Towns are strapped for money. They see this pot of money. They know what they are doing is wrong, but there’s tremendous pressure to satisfy these soccer moms,” says Jeffrey Seideman, one of several Newton residents who successfully challenged in court his city’s plan to use $766,000 in CPA funds to fix up two neighborhood parks.

Newton has appealed that case to the state Supreme Judicial Court, and Newton’s state senator is leading the charge on Beacon Hill for legislation that would widen the political base of the Community Preservation Act, toss more state money into the pot, and give cities and towns the flexibility to use CPA money for virtually any type of recreation project.

A JUMP IN RECREATION SPENDING

No one tracks how the state’s 133 CPA communities spend their money. State officials plan to start gathering more information on expenditures later this year, but until then the best information comes from the Community Preservation Coalition, a Massachusetts organization funded by two California–based environmental groups, the Conservation Campaign and the Trust for Public Land.

Stuart Saginor, executive director of the coalition, says recreation is the smallest but fastest-growing spending category within the CPA. The law requires participating communities to split 30 percent of their CPA funds equally between open space, affordable housing, and historic preservation projects. The remaining 70 percent can be spent in any of the three categories, plus recreation.

According to the Community Preservation Coalition’s website, recreation spending jumped from $800,000 in fiscal 2002 to nearly $8 million in fiscal 2006. Total recreation spending from fiscal 2002 through fiscal 2006, the most recent year available, was $15.5 million. During that same period, spending on open space ($87.5 million), affordable housing ($68.1 million), and historic preservation ($41.0 million) was much higher, but all three categories grew more slowly. Affordable-housing spending actually declined 17 percent between fiscal 2005 and fiscal 2006.

Spending priorities vary among municipalities. Cambridge, for example, spends 80 percent of its money on affordable housing and nothing on recreation. (More than half of all CPA-created affordable housing is in Cambridge.) But most communities have been steering increasing amounts of their CPA money to recreation, in part because demand from residents is so high and funding for ballparks and parks is scarce. “There are so many existing facilities in need of rehabilitation,” says Jessica Erickson, assistant town planner in Falmouth.

CPA communities must vote to impose a surcharge on their property tax bills ranging from 1 percent to 3 percent. Matching state money is drawn from the state’s Community Preservation Trust, which is funded by surcharges of $10 to $20 on real estate transactions at Registry of Deeds offices across the state.

The state has matched local money dollar for dollar so far — a total of $68 million in fiscal 2008 and roughly $250 million since the CPA was passed — but the state’s match is expected to decline this year to as low as 65 percent, as the number of CPA communities slowly rises and income from registry surcharges drops off with the real estate slowdown.

A report issued last year by the Rappaport Institute for Greater Boston at Harvard University indicated that CPA money flows predominantly to wealthier cities and towns because they can afford the property tax surcharge and their high property values tend to generate a higher state match. (See “Study Says CPA Steers Money to Wealthy Towns,” Inquiries, CW, Summer ’07).

The top 10 recipients of state CPA money include Cambridge, which has received nearly $34 million to date, and Newton, which has received $11 million. The others in the top 10 are Barnstable, Weston, Nantucket, Westford, North Andover, Sudbury, Duxbury, and Plymouth. Weston is the state’s wealthiest community and Sudbury is the fifth-wealthiest. The average median household income of the top 10 CPA communities is $83,166—or 65 percent higher than the statewide average.

Communities with more moderate incomes, including Quincy, Waltham, and Bridgewater, have passed CPA referendums in recent years, but noticeably absent are most of the state’s medium-to-large cities, including Worcester, Springfield, Pittsfield, Lynn, New Bedford, Fall River, Lawrence, Lowell, Brockton, and Gloucester. Boston voters rejected the CPA by a lopsided margin of 56 percent to 43 percent in 2001.

OPEN TO INTERPRETATION

The Community Preservation Act allows communities to use matching funds for the acquisition, creation, and preservation of land for open space, affordable housing, and recreation. CPA funds can also be used to rehabilitate or restore land in each category, but only if the land was originally purchased with CPA funds. (CPA money can also be used to acquire, preserve, and rehabilitate or restore historic properties.)

The law does a good job of defining nouns—open space, affordable housing, historic preservation, and recreation—but it’s not as precise with the verbs. Creation isn’t defined at all. Preservation is defined as “the protection of personal or real property from injury, harm, or destruction, but not including maintenance.”

In June 2002, the town of Norfolk sought guidance from the Revenue Department on whether it could use CPA funds for 11 recreation projects. Daniel Murphy, chief of the agency’s property tax bureau, did not address the specific Norfolk projects but instead provided broad guidance. He wrote that CPA funds could be used to buy a new recreational site, develop a new recreational site on town-owned land that’s not currently being used for recreation, or preserve an existing town-owned recreation site.

Murphy’s letter said preservation “might include such projects as repair or replacement of a roof to protect a structure from damage from the elements or installation of a sprinkler system to protect it from fire damage. It does not include ordinary maintenance or upkeep of the property, nor improvements intended to enhance or extend its use or life.”

He also said a community could not restore or rehabilitate any recreational property unless it was originally purchased with CPA funds. Murphy added, “Community preservation fund monies cannot ordinarily be used to simply replace equipment, or install additional equipment, amenities or improvements, on an existing recreational property.”

Norfolk officials took the advice to heart and canceled many of their projects. But many other towns have stretched the law to fit their needs.

Acton spent $250,000 to help finance the replacement of a grass field at Acton-Boxborough Regional High School with a synthetic turf field. Town officials say the project created new recreation space since the new field would be available for use 250 days a year, more than three times longer than the existing grass field.

“The vastly extended usage times without the need for rest periods makes the new Leary Field project equivalent to the creation of new play fields elsewhere in town,” Acton’s Community Preservation Committee wrote in its budget request to town meeting.

Acton also spent $175,000 on lights for another athletic field at the high school. The Community Preservation Committee said the lights effectively created new recreational space by allowing residents to play sports at night and not just during the day.

Following the same logic, Wayland contributed $300,000 in CPA money to a $1 million artificial turf field at its high school. The project was approved by the town’s Community Preservation Committee and by town meeting. Two legal opinions sought by town officials indicated the expenditure was legal, even though a Revenue Department official consulted on the expenditure indicated it wasn’t. A group of town residents is now suing the town in Middlesex Superior Court, alleging that the project neither created nor preserved recreation space.

“Synthetic turf was not what was intended by the CPA law, at least in our minds,” says Gene Cosloy, one of the plaintiffs.

“The whole thing comes down to interpretation of the law’s language,” says Jerome Heller, the chairman of Wayland’s Community Preservation Committee. “The law is obviously vague, or else you wouldn’t be having a dispute.”

In a similar case, Sudbury kicked in $960,000 of CPA funds to tear up the grass football field at Lincoln-Sudbury Regional High School and replace it with a synthetic turf field, plus a new track, bleachers, lights, and sound system. Town officials say the CPA investment created new recreational space by giving Sudbury an ownership stake and access rights to a facility that was technically owned by the regional high school. Sudbury residents now use the field for youth soccer and lacrosse games.

Newton has been particularly aggressive in using CPA funds for recreation projects. In 2006, the city proposed spending more than $2 million to finance the installation of synthetic turf fields at Newton South High School. Officials later withdrew the CPA funding after town residents voiced concerns about its legality.

But the city has used CPA funds for a number of park restoration and rehabilitation projects even though the parks were not originally purchased with CPA money. In 2006, a group of Newton residents challenged the legality of a plan to use $766,000 in CPA money to make a series of improvements to two rundown neighborhood parks.

The residents say the city was merely fixing up the parks, not creating or preserving recreational space. Newton argues in its court brief that the word creation in the CPA law should be interpreted more broadly, “to include the creation of new recreational uses within existing parks that make the areas open and accessible to new groups of users.”

Last September, Middlesex Superior Court Judge Brian Henry ruled against Newton. “I do not adopt the interpretation which the city seeks to place on the word ‘creation,’” Henry wrote. “The projects do not ‘create’ land for recreational use and I do not accept the meaning which the city attempts to place on that word.”

But Jeremy Solomon, a spokesman for Newton Mayor David Cohen, says the city is appealing to the state’s Supreme Judicial Court because it believes its interpretation of the law is the correct one. Solomon says the case highlights the vagueness of the CPA. “Towns are confused,” he says.

CLARIFYING THE LAW

In the wake of the Newton decision, dozens of communities have canceled recreation projects in order to steer clear of controversy. For example, Longmeadow’s Community Preservation Committee turned down six recreation projects, including one for a synthetic turf field. “We wanted to be very conservative,” says William Hoff, chairman of the committee. Similarly, Joanne Gibson, head of Concord’s CPA committee, says she saw no need to flirt with the edge of the law. “It’s ambiguous and I don’t think ambiguity is good,” she says.

Erickson, the assistant town planner in Falmouth, says she consulted the town’s legal counsel when she took her post last year and subsequently put a number of recreation projects on hold. She called a number of the town’s past projects “highly questionable” in light of the court ruling.

Weston appropriated $1.25 million in CPA funds for a series of recreational projects at the high school and other parks, but town officials eventually decided that using some of the money for landscaping and for new playground equipment was not appropriate. They are still pushing ahead with plans to “preserve” six rundown tennis courts and a basketball court, and to perform irrigation and drainage work at two grass fields and a baseball diamond.

“What’s difficult for us is the lack of clarity,” says Weston Town Manager Donna VanderClock. “It would be nice if the legislation were clearer.”

But CPA supporters are pushing for more than just clarity. The legislation they are pushing on Beacon Hill would pump more state money into the CPA fund, broaden political support for the law by making it easier for the state’s cities to join, and give towns the ability to spend recreation money pretty much as they see fit.

The bill, filed by state Sen. Cynthia Creem of Newton, seeks to soften the coming downturn in state aid by guaranteeing CPA towns at least a 75 percent match. The guarantee would be funded by sharply higher Registry of Deeds surcharges. The bill says the surcharges, which currently range from $10 to $20, could go no higher than $70. Some municipal officials say a doubling of the existing surcharges is probably needed to keep the match at 75 percent next year.

To make the CPA more enticing to cities, Creem’s bill would also make it possible to obtain state matching funds beyond what would be warranted by the community’s property tax surcharge. The bill would allow a municipality to vote for a 1 percent property tax surcharge but qualify for participation at the 3 percent level by incorporating other existing municipal revenues, including funds from a hotel-motel tax, linkage fees, zoning payments, and property sales.

Marc Draisen, executive director of the Metropolitan Area Planning Council, says cities are enthusiastic about the proposed change. “The Community Preservation Act is one of the most popular local option programs in recent Massachusetts history,” he says.

Creem’s bill would also do away with nearly all CPA recreation spending restrictions, permitting “the replacement of playground equipment and other capital improvements to the land or the facilities thereon which make the land or the related facilities more functional for the related recreational use.”

Originally, Creem’s bill would have given communities a green light to use CPA money for synthetic turf fields. But after opponents cried foul — Sen. Brian Joyce of Milton, co-chairman of the legislature’s Community Development and Small Business Committee, says turf fields became a lightening rod because “they aren’t natural” — the pro-turf provision was replaced with one that explicitly bars the use of CPA funds to purchase turf fields. (Towns could still use CPA money to prepare a field for synthetic turf installation, just not use the funds to buy the turf itself.)

In a sense, supporters of the Community Preservation Act are doing now what they’ve done from the start, cobbling together a political coalition that can deliver state funding for their causes. Former state Sen. Robert Durand, the father of the CPA, spent much of the 1980s in the Legislature bringing together supporters of open space, housing, and historic preservation. He now lobbies on CPA issues for the Community Preservation Coalition and says recreation has become a legitimate quality of life issue.

“There has been some misinterpretation of the law,” Durand acknowledges. “Why not tighten up the language and try to get more communities involved?”

Saginor of the Community Preservation Coalition says the proposed changes are consistent with the original intent of the law, which was to give communities help in funding projects that benefit both individual municipalities and the state as a whole. He says the law encourages preservation of existing assets and notes it had to be amended so towns could restore and rehabilitate historic buildings that weren’t purchased originally with CPA funds. He says the Legislature now needs to give towns the ability to restore and rehabilitate recreational properties not originally purchased with CPA funds. “It’s the same fix,” he says.

But Guive Mirfendereski, the Newton lawyer who is representing residents in their lawsuit over CPA recreational spending, says Creem’s bill is no technical amendment. He says the bill turns the Community Preservation Act into just another form of local aid. He says the bill changes the existing law so dramatically that, if it were to pass, communities should be required to seek voter approval for the CPA again.

“Knowing what I know today, I would not have voted for the adoption of the act back in November 2001,” Mirfendereski told lawmakers.

Barbara Anderson, executive director of Citizens for Limited Taxation, says she also feels hoodwinked by the metamorphosis of the Community Preservation Act. “What started out as a way to preserve open space has become ‘What can we give every town?’” she says. “It’s gotten silly.”