By Kathleen M. O'Donnell, Esq. Milton, MA
March 2012: As we near the spring town meeting season, it seems an appropriate time to review some pointers for successful Community Preservation Act articles to acquire land. Every town has its own particular drafting “style” for its warrant articles, but as you put together your drafts for CPA projects, here are some issues to keep in mind.
- If you are looking for authorization to purchase a piece of property, the amount that you request shouldn’t be limited to the purchase price. There may be other costs associated with the purchase that should be included in the article; i.e. appraisals, land surveys, base line studies to establish conservation values, title research, legal fees, costs regarding the issuance of the required restriction on the land, and other closing expenses for the project.
- The Community Preservation Act requires a municipality to grant a perpetual restriction on any real estate interest purchased with CPA funds. Your article should include the authorization to the Board of Selectmen or Mayor to execute a perpetual restriction to a qualified holder. A restriction is a conveyance of an interest in land and the grant of a restriction requires local approval by the legislative body. Consider using language similar to this example:
“and further to direct the Board of Selectmen to grant a permanent conservation restriction on said property pursuant to G.L. c. 44B Section 12 and G.L. c. 184 Sections 31-33”
- If you intend to grant your perpetual restriction to a not-for-profit conservation organization, the amount you request at Town Meeting may have to include a grant to the holder to establish an endowment for ongoing site monitoring by the holder.
- Historic preservation and affordable housing are pretty easy to understand but open space is a category that can be subject to much wider interpretation of allowable uses. Under the definitions included in Section 2 of CPA, use of the broad term “open space” might allow active recreational uses, such as athletic fields. If the municipality wants to set the land aside for conservation and passive recreation only, it would be advisable to make that limitation clear in the warrant article. The article should state if more active uses are anticipated, and it could say that the appropriation would be used not only for the purchase of the land, but also to build tennis courts, soccer fields, and playgrounds, for example.
- Some land purchases are completed with state or federal grant funds, and you’ll want to mention that possibility in the warrant article with language similar to this:
“and further that the Board of Selectmen shall be authorized to file on behalf of the Town any and all applications deemed necessary for grants and/or reimbursements from the Commonwealth of Massachusetts and/or any other grant programs in any way connected with the scope of this article, said gifts or grants to be deposited in the town’s Community Preservation Fund”
- Purchases might also be completed with the assistance of private funds. To reassure Town Meeting, the article could state that the purchase will be partially funded by a stated amount of private funds, and that the land purchase is contingent upon the Town’s receipt of these funds by a date certain. Here’s suggested language:
“and further, to aid in the funding of the purchase of said parcel, a sum of (specify amount) must be donated to and received by the town by (specify exact date) in a gift fund established for that purpose;”
- If the project will be bonded, the Community Preservation Committee (CPC) has the option to specify the term of the bond as part of their recommendation. The amount of the annual debt service payments will vary greatly depending on the term of the borrowing (just like your mortgage) and the amount that has to be set aside for these payments will impact how much CPA funding is available for future projects. Absent a specific recommendation from the CPC on the term of the bond, this decision will be left to the town treasurer.
- If the property is being purchased by the municipality for multiple CPA purposes, the article could refer to a sketch plan that shows the division, if you know how the land will be divided up, or the purchase could be for all CPA purposes, with the uses to be decided after acquisition. To avoid problems after Town Meeting, the warrant article should state the procedure the town will use to make the land use decisions.
Check the legal description of the property and included a reference to the Assessors Map and Parcel and the approximate acreage, for example, 7.6 acres, more or less. If you know that there are easements or other rights that are necessary for your use, add language authorizing acceptance of those easements and rights, in addition to the property itself.
Allow enough time for the necessary review of the article by the Selectmen, the Warrant Committee, the Finance Committee, Town Counsel, etc. And remember that bond counsel should review and approve any article that authorizes borrowing.
Kathleen M. O'Donnell Esq. is a member of the Coalition's Steering Committee. Her real estate practice includes the representation of community preservation committees in the acquisition of conservation land and the support of community housing. She can be reached at 617-794-2794 or firstname.lastname@example.org
The above information is not intended to be legal advice, and municipal counsel should be consulted on proper procedures for all CPA land acquisitions.