SJC: Property tax surcharges cannot be used to improve parks

October 24, 2008 01:41 PM Email| Comments (7)| Text size – +

By Martin Finucane, Globe Staff

The state's highest court has ruled that property tax surcharges collected by some communities under the Community Preservation Act, a state law intended to preserve open space, cannot be used to improve existing parks.

The Supreme Judicial Court upheld a lower court ruling in a lawsuit brought in 2006 by 10 taxpayers in Newton, who challenged the city's appropriation of $765,825 in CPA funds for projects at Stearns Park and Pellegrini Park.

Newton appealed the lower court ruling, arguing that the funds could be used because the law authorized spending the money, among other things, for the "creation and preservation of land for recreational use."

But the SJC, in a five-page ruling by Justice Francis X. Spina, said the law allowed spending the money "for the creation of land for recreational use, not the creation of new recreational uses on existing land already devoted to that purpose."

"Land for recreational use is not being created where a municipality chooses simply to enhance or redevelop that which already exists as such," the ruling said.

The court also rejected Newton's contention that the projects were meant to "preserve" the parks.

"Newton is not seeking to 'preserve' the parks by protecting them from decay and destruction, but to improve substantially the parks' over-all quality, attractiveness, and usage," the court said.

The court did note that CPA funds could be used when land that was blighted or used for some other purposes was converted to recreation land.

The Community Preservation Act was enacted in September 2000. If communities vote to adopt the law, they can collect a 1 to 3 percent property tax surcharge, which is matched by the state. The funds that accumulate can be used for acquiring land for open space or recreation, as well as affordable housing, and historical preservation.

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7 comments so far...

The dirty little secret is If these two parks were in a more affluent area in Newton then this lawsuit would have never been pursued.

Posted by Chris October 24, 08 02:26 PM

The CPA is a bad law. It lets rich communities get a state subsidy to beautify their communities that poorer communities cannot afford to match. Now, the SJC is saying that you can use the CPA to spruce up old buildings, but you can't use it to spruce up old parks? That is an assinine reading of an assinine law.

Posted by Pat October 24, 08 02:56 PM

The CPA is not a bad law. It has been an important tool on behalf of municipalities throughout the state to tackle problems that, while not as "sexy" as a new school or rec. center, are also very important quality of life issues for residents throughout the state. The CPA allows communities to choose the amount (anywhere from .5 to 3%) then the state matches that money. The total is required to be disbursed on behalf of open space, historic preservation and affordable housing. The biggest problem with the CPA is not a disparity between rich and poor communities, but a general misunderstanding among residents about what the kitty is supposed to pay for

Posted by AE October 24, 08 03:26 PM

The CPA is just another hidden tax cloaked in good intentions. Given the state's current financial crisis, what's to prevent the state from merely not awarding the matching funds. Could not the line item in the state budget for CPA matching funds be cut given the state's deficit? Of course! Then the town citizens are stuck with a tax and no matching funds. CPA....bad law! Whatever safeguards in place, if any, to make sure the state keeps its part of the bargain with respect to the CPA, they can always be changed. The legislature already declared that they will not be bound by the income tax repeal vote if it passes!

Posted by rozo1955 October 24, 08 03:50 PM

The CPA is a good law, as a town can use the money to buy land before the 40B's take over the town.

Posted by Tim October 24, 08 04:05 PM

Chris doesn't know what he's talking about. I was the lead plaintiff in the suit. We first attempted to bring the suit against the city for attempting to use CPA funds to install an artificial turf field at Newton South High School. That would have been a very high end project. That case was rejected because the funds, though requested, hadn't yet been approved. The next instance of Newton approving expenditure for the misuse of CPA funds was for Stearns and Pelligrini parks. By preventing the towns from raiding the CPA fund for special interest projects, money is left in the fund for its intended purposes, one of which is affordable housing.

Posted by Jeff Seideman October 24, 08 04:53 PM

>>>"The dirty little secret is If these two parks were in a more affluent area in Newton then this lawsuit would have never been pursued."<<<

wow, i had no idea parts of Newton are considered "the hood"!

Posted by joe the citizen October 24, 08 05:23 PM