Wow, the Preserve Newton Parks group (centered on Albemarle but also comprising people from around the city) has put together a gangbuster memorandum of law suggesting why use of that park would activate the provisions of Article 97 of the state constitution. They’ve sent it to the Parks & Recreation Commission, which would have to approve change in use of the park, as well as the City Council. I quote their email below, including a link to the memo:
Dear Parks & Recreation Commission Members,
Our citizen action group, Preserve Newton Parks, has put together a memo on Article 97 as it relates to development on Albemarle.
Our memo covers the following topics:
- What is Article 97?
- What land is protected under Article 97?
- How is Article 97 protection demonstrated?
- How would Article 97 apply to the proposed siting of a senior center on existing parkland?
- Is the site of the senior center protected by Article 97?
- Is the site of the senior center “use of [park land] for other purposes?”
- Does the City intend to comply with Article 97?
- How would a challenge to the City’s proposal be made?
We ask that you consider the entire document in order to build a full understanding of the issues concerning this site, given that last Monday’s presentation of the Capital Improvement Plan listed only two sites as options for the new building, and one of them was Albemarle. Your vote against this park as an option for construction would serve to protect the city from ongoing legal investigation into this issue and would serve as a fiscally responsible path for Newton.
Under topic #5, you’ll find the following excerpt:
It is represented that the proposed senior center will occupy only the “hardscape” areas of the Albemarle Park, leaving the fields untouched. The areas upon which the facility is proposed to be located includes the field house, basketball courts (also used for street hockey), tennis courts, and Gath Pool. Although the City’s legal reasoning has not yet been publicly presented, one argument will likely be that because these areas are not green space, they do not qualify as “park land” eligible for protection under Article 97. This is unpersuasive, where the Court’s articulation of “park” and “park land” has never excluded hardscape recreational facilities, nor otherwise made such a distinction. Reported cases impose no criteria of “greenness” or natural state on park land. Instead, the Court’s discussion in Smith v. City of Westfield references the “broader considerations of exercise, refreshment, and enjoyment” as among public health benefits of parks. Where the areas of Albemarle Park proposed as the site of the senior center are used by the public for swimming, tennis, basketball, street hockey – as well as other recreational activities as part of Day Middle School physical education – it would seem a difficult case for the City to make that these areas are not “park land” as the Supreme Judicial Court has described it.⁵ It is reasonably safe to presume that the proposed site for the senior center is “park land” under its current state and use.
Thank you for your consideration of this important matter.
Cedar Pruitt, M.Ed.
Mic dropped! Boom!!
Well done, Preserve Newton Parks.
This much loved park in this beautiful community north of the pike deserves the same passionate protection and preservation as Webster Woods.
I’m looking forward to hearing of other options for the dedicated senior center that the seniors said they wanted in the survey conducted by the city (on the city website). Newton center triangle, the current center, the Armory and the old acquinas school plot have been suggested by many astute Newtonians.
The meeting on 10/24 with city officials had great discussion of options such as the Newton Centre Triangle and other public space. Several very enthusiastic and uber prepared people had other private locations to add to the city’s list. I just attended the Horace Mann facilities meeting tonight. Some of the same folks I saw at the NewCAL meetings were there as well. They have honed their ability to be angry and many look ready on both projects to talk about solutions.
I might rephrase that sentiment. The Albemarle siting of a community center and the move of the H-M School to the old swing space affects the identical population of people, so I’d expect the same people to attend meetings on both issues. That same group of people might be quite tired of endless meetings about these two important issues – I would be too.
But, in fact, they are reasonable people who’ve put together a thorough, reasoned paper with data to establish their position on the Albemarle siting. The MSBA guidelines provide the recommended space allocations for an elementary school, so it’s easy to use that document as a data point on the facility issue.
But, yes, I would imagine they are ready for some solutions.
The memo fails to address exactly how Article 97 applies to Albemarle–there’s no evidence the City ever promised the state it would preserve the land triggering Article 97.
Let’s pretend for a moment that Article 97 applies. The City can easily address these concerns by 1) shrinking the footprint of the building, 2) offset the building addition by converting some existing parking to recreational use, and/or 3) claiming the structure directly supports recreational use, i.e. it’s an “adult rec center”.
This same group claiming to represent “all parks” is also suggesting the center be built on the Newton Centre Green’s hardscape–very NIMBY.
David M, in 2017, the MA SJC concluded that
parkland protected by Art. 97 includes land dedicated by municipalities as public parks that, under the prior public use doctrine, cannot be sold or devoted to another public use without plain and explicit legislative authority.
Since that ruling, to qualify as a park no “promise” or registration is required – prior public use can be used instead. And no, the city cannot easily address this issue. Article 97 is has a complicated process – nothing about designating parks for any other purpose is simple.
This new ruling has not been tested yet because no municipality has gone to court to attempt to take parkland for another designated use since then. If Newton attempted to, it would be a long drawn out, expensive court process.
The municipal parking lot in Newton Center is not part of the Newton Centre Green.
I don’t think the triangle parking lot, if that’s what you are referring to, is part of the Newton Center Green.
So nice to agree with @Jane: “They are reasonable people.” And thoughtful, and they do their homework.
Josh Morse was quite clear. Newton Centre Green is not on the table. And no one is suggesting it should be
David M – Can you explain why you think Albemarle is the proper location? I’ve found that most people who think this is a great idea live in another part of the city.
Unfortunately, you post anonymously, so your answer will have to be taken with a grain of salt. If you want to use a term such as NIMBY to describe your fellow Newtonites, perhaps you should consider posting under your real name.
David M – Can you explain why you think Albemarle is the proper location? I’ve found that most people who think this is a great idea live in another part of the city.
Unfortunately, you post anonymously, so your answer will have to be taken with a grain of salt. If you want to use a term such as NIMBY to describe your fellow Newtonites, perhaps you should consider posting under your real name.
Hats off to the Preserve Newton Parks Group and to the residents sharing their expertise and views.
As Mayor Fuller’s team develops policies to protect and grow city owned open space, I hope more consideration is given to the issue of where the need for open space is greatest.
The largest land preservation effort currently underway is focused on a 17+ acre Webster Woods parcel at a proposed cost of over $17 million in combined Community Preservation Act (CPA) and City funds. This wooded area is in a section of Newton that has the most open space and among the lowest population diversity & density.
Albemarle Park is located in a section of Newton that has among the least open space per resident and ranks among the most economically diverse & densely populated. Further, the public need for open space in this part of the City will only increase as the development proposed by the Washington Street vision happens.
The Newton Planning Department and City Solicitor offices should benefit from this excellent memo. However, Mayor Fuller’s recent pledge to initiate a taking action against BC for the Webster Woods parcel suggests that costly, protracted lawsuits with constituents are becoming a policy tool the City is more open to using in these matters.
Keep up the great work Preserve Newton Parks!
Back in August I emailed the City Solicitor about what I saw as their flawed legal process going forward. First, that park siting of NewCAL is impermissible in the absence of first determining no feasible and prudent alternative (Massachusetts General Laws Chapter 45, as implemented in the Newton Parks & Recreation Manual (pages 44-45)). Second, that Article 97 of the Amendments to the Massachusetts Constitution, essentially requiring a 2/3 vote of each house of the Massachusetts legislature, before Newton can proceed with NewCal in the Park. And I pointed out that this has particular applicability here because of the recent case, Smith v. Westfield, 478 Mass. 49 (2017).
In that email I more than suggested that the City “eliminate all Newton park and outdoor recreation sites from NewCAL consideration” concluding that “opponents are hoping not to be required to seek an injunction down the road.”
The Solicitor did email as part of her reply that, “The Law Department is aware of the statutes, regulations and law that apply to projects of this nature and will advise the City accordingly as the details of the project come to light.”
Copies of the exchange were sent to the Mayor and all City Council members. I point this out because the City proceeding forward since then has been under the above notice.
Marti, your reading of the memo is incorrect–there’s no case law that supports your theory that any land used and managed as a park is protected by Article 97.
Jim E., similarly, you’re barking up the wrong tree. According to this very memo, here’s what the SJC ruled in 2017:
>“the determinative factor” was the city’s acceptance of Federal conservation funds to rehabilitate the playground, which carried with it a requirement that the playground could not be converted to use other than for public outdoor recreation absent the approval of the (state) Secretary of Environmental Affairs. Id. “Regardless of whether the parcel had been dedicated earlier as a public park, it became so dedicated once the city accepted Federal funds pursuant to this condition.”
So I ask again, what evidence does anyone have that the City dedicated Albemarle as park use only, thus triggering Article 97 protection?
(hint: bupkis)
David M, you couldn’t be more wrong. The fact that Westfield accepted Federal Funds was only an additional reason that the MA SJC denied their change of use.
In a recent decision, Smith v. City of Westfield (pdf), the Supreme Judicial Court changed direction and held that there are circumstances where municipal parkland may be protected by Article 97 even though the land in question was not taken by eminent domain or acquired for conservation purposes and where there is no restriction recorded in the registry of deeds that limits its use to conservation or recreational purposes. In this case, the SJC found that land may be protected by Article 97, provided the land in question had been dedicated as a public park.
I have already supplied one quote on the change in the way land used as a park falls under Article 97 above. That was not my “theory,” it was a stated fact. But here is another quote concerning why this SJC ruling is considered a landmark case – it changes an Article that has been in place for many years c
The Court further ruled that a municipality is deemed to have dedicated land as a public park where there is a
As I said above, this ruling hasn’t been tested yet, but I don’t want Newton to spend the money to fight this all the way back to the MA SJC. I really wish the mayor had held off on spending $100s of thousands of dollars studying the site until she knew if the site was legally useable.
What’s the old expression? “Hard cases make bad law.” If you were in the city administration and you had other choices to site this facility, and you faced intense political opposition to this site, why would you want to roll the dice in front of a judge as to whether Article 97 applies? Not to mention how divisive, expensive, and time-consuming the fight would be–probably occurring right in the middle of a mayoral re-election campaign?
David M.,
Under the case, as well as subsequent legal discussion/interpretation, it doesn’t matter how the city park got there or was created — it comes under Article 97 as well as following Smith v. Westfield.
Paul,
This is not a hard case. It is slam dunk.
Jim, the only dunking here likely involves doughnuts.
Consider the facts: the land is named the “Russell J. Halloran Sports and Recreation Complex” and the City proposes to expand the existing rec buildings to include space for senior recreational activities, i.e. Newton Center for Active Living (NewCAL). This improvement is consistent with both the EXISTING USE and the DEDICATED purpose.
The Article 97 objection is DENIED.
But let’s pretend Article 97 does apply: are we to believe it only restricts buildings for senior recreation? When neighbors asked the city to expand the pool complex–make the pool usable year round, install more bathrooms–no one objected with Article 97 demanding recreation be limited to “open space” activities! Why object now if not just for NIMBY reasons?
David M.,
I’ve thoroughly researched the law on this and am more than comfortable with my conclusions. But hey, you’re welcome to make your own legal arguments.
NIMBY you say? I and most people I’ve been involved with in opposing NewCAL live on the other side of town.
Just a note to say to @Jim – Preserve Newton Parks appreciates your leadership on this issue. Thank you for leading the way on raising public consciousness about the rights every community in Massachusetts has to their shared park space. We’re all better for understanding those protections.
… and at Albemarle if the city is “too cute by half” and continues to endeavor to distinguish a ‘hardscape’ tennis court and basketball court from a playground (part of Westfield v. Smith) … LOL
If any citizen wanting to keep NewCAL off of Albemarle thinks the mayor will allow this to go in Newton Centre, you haven’t been paying attention to the strategy at city hall. Do you think it is any coincidence that NO new massive condo complexes are planned for anywhere other than north of the mass pike? Why do you think this is “on the back burner” now? Could it be due to the upcoming crucial election? You can bet that if NewCal were planned anywhere near Webster Woods or, coincidentally, the mayor’s own neighborhood, this would never happen.
After spending over 100k to fight to win the Westfield case, it’s gratifying to see that other park supporters across Massachusetts are looking to Smith v. Westfield to defend their parks. People asked my family why we were willing to devote thousands and thousands of hours and so much money to save a playground. We said it was not just for this neighborhood, but for all the other people in Massachusetts who face the losses of THEIR PARKS!!!
Sincerely,
Thomas Smith