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.