Magazine article Parks & Recreation

Law Review: Park Land in Perpetuity

Magazine article Parks & Recreation

Law Review: Park Land in Perpetuity

Article excerpt

Land left in a trust must follow the original intent of the conveyance.

In 1930, the will of Mary P.C. Cummings left a gift of real estate known as "Babylon Hill" to the City of Boston to hold "in trust" and keep the parcel "forever open as a public pleasure ground, and to maintain and care for the same in a suitable manner in accordance with that purpose."

In the event the "City of Boston shall decline or fail to accept said real estate in Woburn and Burlington for the purposes aforesaid" the will provided that the land was to be given to "the Playground and Recreation Association of America, in trust for the same purposes and upon the same terms and conditions as are herein prescribed concerning the taking of the same by the said City of Boston." (The Playground and Recreation Association of America was one of the predecessor organizations of NRPA.)

Fast-forward 75 years; the City of Boston still holds the land and it is open to the public, but the tract remains relatively undeveloped, certainly for active recreational use. In August of 2005, the Boston Globe reported that " [m]oney to endow and care for the new Rose Kennedy Greenway [in downtown Boston] could come from an unlikely source: a couple hundred acres of wooded land and fields bequeathed to the city 75 years ago," i.e., "the Cummings Trust, which holds 218 acres of idle land in Burlington and Woburn estimated to be worth $30 million."

The Globe piece referenced a letter to Mayor Thomas Menino from the Boston Finance Commission which claimed "the city could honor the intent of the trust by selling the land for some kind of development and using the proceeds to pay for upkeep of the Greenway." In the opinion of the Commission, "there has been no use made of the land" for a number of years. A number of local individuals and groups, most notably the Woburn Residents' Environmental Network (WREN), favor continuation of existing passive recreational use of the site and oppose any attempt on the part of the City to sell the land for development.

In February 2006, a Woburn alderman reported that he had "met with the City of Boston and they agreed not to move forward with any development until both Burlington and Woburn are comfortable with the outcome." The alderman noted further that the Finance Commission had no power to sell and develop that land.

While he favored making "a strong case for a passive use and completely fulfilling the spirit of the will of Mrs. Cummings," the alderman thought the City of Boston would prefer "to build a golf course and derive some income from a lease to Woburn and Burlington."

Below are two other examples of parcels of land that were left to cities through a trust, that could set precedence for cases like the one above.

Public Charitable Trust

In the case of Cohen v. City ofLynn, 33 Mass. App. Ct. 271; 598 N.E.2d 682 (1992), the City conveyed land to a private developer because it claimed the parcel was "no longer usable for park purposes." Plaintiffs claimed "the conveyance violated the city's obligations under a public charitable trust which they claimed arose in 1893 when the parcel was acquired by deeds which state the land is to be used 'forever for park purposes'."

A state statute authorized the state attorney general to bring an action in state court "to enforce the purpose or purposes of any gift or conveyance which has been accepted by any city for a specific purpose or purposes in trust or otherwise, or the terms of such trust." In the event the purposes of the trust had terminated, the statute authorized the state court to decide how to use the property.

In this particular instance, the trial judge had concluded that "the parcel was still impressed with the public charitable trust originally established, and it had not been demonstrated that it had become impossible or impracticable to carry out the trust purposes." In so doing, he noted that the parcel was "suitable for park purposes," possessing "a beautiful scenic ocean view. …

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