Group files suit, calling use of CPA funds illegal
WAREHAM - A Wareham citizens' group is going to court to stop local officials from using $1.1 million in Community Preservation Act funds to pay off a pending court settlement - a case that raises questions about who oversees how towns choose to spend the earmarked money.
Taxpayers For Full Disclosure says the use of the CPA money to pay the court settlement is illegal, even if no state agency is authorized to audit or forbid it. Community Preservation Act money, raised locally but matched by the state, is earmarked for open space or historic preservation, or affordable housing. Towns are expected to follow those guidelines voluntarily.
The citizens group on Wednesday voted to file a request for a court injunction to stop the use of CPA funds for the settlement payment. In doing so, they challenge a recent Town Meeting vote that approved CPA fund use as the best, if not ideal, way to get the town out of a costly legal jam.
Town Meeting. after nearly three hours of debate on Oct. 22, authorized selectmen to take $1.1 million in Community Preservation money to pay a former resident who had not been fairly compensated for the land the town took from her by eminent domain in 2003.
A US District Court jury ruled that the roughly 5 acres on Swifts Beach was worth $1.5 million - more than three times the $450,000 the town had paid Barbara Deighton Haupt.
With a Nov. 16 payment deadline fast approaching, the selectmen, Finance Committee, and Community Preservation Committee urged Town Meeting voters to allow use of the CPA funds to pay Haupt the settlement she was owed.
Supporters of the move said the settlement qualified as a proper use of CPA money, because a land purchase was at the heart of the matter.
"A lot of people were concerned about it," acknowledged Preservation Committee chairwoman Nancy Miller. "They said we were bailing the town out. We didn't look at it that way. We believed using CPA funds for the settlement was preserving open space. Every piece of beach we can save is so important."
John Decas, a member of the Taxpayers For Full Disclosure who urged the settlement be paid through a long-term loan, said the injunction is now necessary to force the town to do what is legal. "We see it as our right, even though it won't be popular," Decas said.
The issue of who oversees town decisions on CPA spending was raised in a July report by Harvard University's Rappaport Institute for Greater Boston. It cited lack of accountability as one of the act's flaws. It recommended that communities be required to report proposed and actual uses of funds to the state in a consistent manner, and that periodic audits of the use of the state's matching funds by communities be mandatory "to ensure funds are being spent on intended purposes."
Taxpayers For Full Disclosure went to New Bedford attorney Philip Beauregard when they learned selectmen planned to tap the preservation fund at Town Meeting to pay the settlement. Beauregard issued a written opinion saying the CPA fund couldn't legally be used because the initial purchase of the land was with a loan, not CPA funds - although some were later used for the purchase.
New Town Administrator John McAuliffe agreed the use of the money for the settlement was not proper, under the law. "The final word I got from the state Department of Revenue was this was a nonpermissible use," McAuliffe said last week. "But DOR said it was a local issue. They weren't an enforcement body."
McAuliffe said paying the $1.1 million from operating funds would have crippled town government, forcing the layoff of 80 of the town's 150 employees. Long-term borrowing only became an option a few days prior to the Town Meeting, McAuliffe said, "and that would still have cost the town $117,000 for the first year."
Voters were given all the options, McAuliffe said, but officials backed the use of the preservation fund as the most viable. "We looked at it as the best of some bad alternatives," he said.
Bill Heaney, a member of Taxpayers For Full Disclosure, said he was outraged by the Town Meeting vote but thought people may have simply been tired as it approached 11 p.m. on Oct. 22. "It was debated for an extraordinary amount of time," Heaney said. "I think in the end, people just wanted to go home," so they agreed with a plan that is "illegal."
"I think 'improper' is a better word than 'illegal,' " said selectmen's chairwoman Brenda Eckstrom. "I would not have supported it if I thought it was illegal."
Christine Wallgren can be reached at CLWallgren@aol.com. 