Friday, November 30, 2007
Buddy can you spare a dime (or 500-K)?
After years of debate at committee meetings and multiple Town Meeting approvals and a Referendum vote at the ballot box upholding Town Meeting's approval, construction snafus, and even a Department of Environmental Protection citation, the Plum Brook soccer fields may not be out of the woods yet.
According to a November 15 memorandum to municipal clients from our new town law firm Kopelman and Paige, “…one trial court judge has found that the language of the CPA intentionally prohibits municipalities from using CPA funds to rehabilitate or restore land for recreational use that was not acquired or created with CPA funds.”
Amherst acquired Plum Brook back in 1974, twenty-five years before creation of the Community Preservation Act. Town officials decided to use CPA money for soccer field construction, borrowing $500,000 and paying it off on the installment plan using CPA funds with the first $40,000 payment commencing in FY04.
It’s not an ‘Only In Amherst’ thing, town officials everywhere spend CPA money as though it were a gift from God. Jealously guard your General Fund dollars but treat water/sewer fund money, Chapter 90 (state road money) or CPA funds as somehow less valuable and therefore subject to less scrutiny.
Exactly why the Town Manager gave away over $200,000 in effluent to Umass over the next five years. He figured the “Strategic Agreement” would bring in a few more dollars to the General Fund and who cares about the Sewer Fund, except of course for the thousands of taxpayers in town who also pay sewer fees.
Wednesday night Town Meeting overwhelmingly voted not to ask the Select board to rethink their Umass water giveaway; now after this recent court decision, Town Meeting may have to rethink the financing of the Plum Brook Soccer fields.
And no, we can’t use Sewer funds.
UPDATE (early afternoon Saturday):
In a message dated 12/1/07 10:01:36 AM, krystyobolyte writes (and attached the court case PDF):
This is the trial court level case. Caution - this is not binding precedent; only cases from the Appeals Court or SJC are binding on the trial courts. So, this is not yet established as the "law of the land." It does indicate that there is at least one judge out there who holds this opinion, and it wasn't appealed.
In a message dated 12/1/07 10:15:05 AM, Amherst AC writes:
Yeah, I read it prior to posting yesterday; as well as Kopelman and Paige's take on it. And I believe it is under Appeal, so when the esteemed Appeals Court gets around to it then, I believe, it will become the law of the land.
And even if it were not under appeal, Kopelman and Paige state: "While the Seideman case, which is now under appeal, is a Superior Court case and creates no precedent for other courts considering similar facts, it may be persuasive to other trial court judges." Seemed pretty persuasive to me.
Whenever I push the envelope, I always ask myself what would a jury think? And after reading the CPA regulations it is quite clear both Newton and Amherst (and God knows how many other communities over the past few years) screwed up.