SJC rules funds can't go to park improvements

Community preservation decision upheld by court

The state's highest court has ruled that a property tax surcharge collected by communities under the Community Preservation Act cannot be used to improve parks, a decision that will probably affect park and recreation area improvement projects across the state.

More than 130 communities participate in the Community Preservation Act,, a law that pools a surcharge from participating communities to pay for the acquisition of new park land, affordable housing, and historic renovation. Since its inception in 2000, the Community Preservation Act has funded more than 3,000 open space and preservation projects, from the purchase of 27.5 acres of open space in Weston to the construction of artificial turf fields at Lincoln-Sudbury and Acton high schools.

"I'm sure every community in the Commonwealth is watching this decision," said David Luberoff, executive director of the Rappaport Institute at Harvard's Kennedy School of Government.

The Supreme Judicial Court's decision yesterday upheld a lower court ruling in a lawsuit brought by 10 taxpayers in Newton two years ago. The group challenged the city's appropriation of $765,825 in community preservation funds for improvement projects at Stearns Park and Pellegrini Park, including a new basketball court, tot lot, and baseball dia mond.

Many of the plaintiffs are current or former members of the Newton Taxpayers Association, a tax watchdog group that has advocated for lower taxes. Their lawyer and cohort, Guive Mirfendereski, called the ruling "very, very good."

The act was enacted in 2000 and allows communities to vote on whether to adopt a 1 percent to 3 percent real estate tax surcharge. Money collected locally is matched by the state from a trust fund subsidized through $10 and $20 transaction fees imposed statewide at the Registry of Deeds. Communities may use the funding for income-linked housing, open space, historic preservation, and recreation projects.

Mirfendereski said many Newton residents spoke out against the city's passage of the act because it increased the tax rate. But Mirfendereski said he and the plaintiffs were later outraged to see the city spend community preservation money on questionable projects.

For example, the city proposed spending $2.9 million of the funds to install an artificial turf field at Newton South High School. And the city spent $180,000 in community preservation funds to fix windows at the local YMCA.

"The YMCA charges fees; Why can't they go to their members for this?" Mirfendereski said of the funding. City officials "were dipping into this honey pot and there were all sorts of misappropriations."

The lawsuit specifically challenged the city's plan to use money to renovate Stearns and Pellegrini parks.

A judge ruled in favor of the plaintiffs last year, but lawyers for the City of Newton appealed the decision, arguing that the law authorized spending community preservation money, among other things, for the "creation and preservation of land for recreational use."

In yesterday's five-page ruling by Justice Francis X. Spina, the court affirmed the lower court's finding, saying the law allowed spending of community preservation money "for the creation of land for recreational use, not the creation of new recreational uses on existing land already devoted to that purpose."

Jeremy Solomon, a spokesman for Mayor David Cohen of Newton, said yesterday that the ruling was a disappointment. The city, which is in the midst of a $198 million high school construction project, will not reallocate funds to pay for improvements at the parks.

Both parks are heavily used, he said. Stearns Park is a 3.5-acre parcel that includes benches, game tables, and walkways. Pellegrini Park is 4.5 acres and includes a soccer and softball field, two tennis courts, and children's play structures.

"I think even those that brought this suit would agree it's a shame that improvements to the park may not happen for the time being," Solomon said. "This would have been good for the city."

The ruling also will have no effect on community preservation appropriations already expended by cities and towns.

Stuart Saginor, executive director of the Community Preservation Act Coalition, said the ruling will affect park improvement projects statewide.

That is why the coalition supports legislation filed by state Representative Cynthia Stone Creem, a Newton Democrat, that amends the act to allow cities and towns to use community preservation money on existing parks and recreation areas. (The legislation, however, will not allow the act to pay for artificial turf fields.)

The legislation is not expected to pass this session, according to Creem's office.

"The [SJC] ruling really highlights the need for the Legislature" to act, Saginor said. "Every community has parks and athletic fields in need of preservation. The CPA could be a tremendous resource."

Megan Woolhouse can be reached at mwoolhouse@globe.com.