In this blog post, I want to talk about how easy it is for a publicly owned property that seemingly has strong preservation restrictions on it to be re-classified based on an administrative technicality and be made available for sale or other use.
At our October 11, 2016 City Council meeting, we took up measure number 2016-087, An Order to Transfer the Care, Custody and Control of Margaret Rice Park form the Tax Title Custodian to the Mayor for General Municipal Purposes.
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| The 3 lots that have been known since 1999 as 'Margaret Rice Park' |
Here's a map of the properties, which are outlined in red (for reference, Amesbury Sports Park is outlined in pink). That is I495 crossing across the top of the map, with the interchange with Rt. 150 in the upper right and the Merrimack River in the lower right.
History
The 3 lots had come into the City's possession in the 1990's as a tax title taking. In 1999, the City Council voted by a 2/3 majority to designate
the 3 lots, indicated in the records as 'under the control of the Mayor', as "park land" and that care and custody of it be given over to the Amesbury Parks and Recreation Commission. This action was designed to give the land a high level of protection as park land for the general public's use. [Read the 1999 Order HERE.]
Under the MA General Law cited in the Council's 1999 designation - MGL Chap. 40, Sec. 15a, such designated park land can ONLY be taken out of 'protected' park land status by a 2/3 vote of the MA General Court (the legislature). This is possible to do but is not a simple or fast process.
In 2000, the Council passed an order establishing park signage and in 2001 it passed an order providing for the development of "Recreational Athletic Fields" at the site (as part of the ongoing saga to develop soccer fields in Amesbury).
[NOTE: from the records that we were provided, there is no clear legislative record of how and when the properties came to be known as "Margaret Rice Park" (after Amesbury's revered citizen-historian) but the properties seem to have been known by this name about since park designation was made.]
It's worth noting that the three lots off S. Martin Road is hardly pristine woodlands or fields. It was formerly a gravel pit, used (as I understand it) for fill when I-495 was constructed through town. As such, it also contains dumped fill and construction material and may well require environmental remediation, should ANY future user put it to use. The properties are, however, adjacent to several public and private open space properties, including the Merrimack Landing Conservation Area, which I wrote about HERE.
Attention turns to the properties again
The 3 Park lots have more or less languished since the late 1990's, used mostly by all-terrain vehicles and dirt bike riders (both, illegally). The lots became of interest to the City as the recently proposed hockey rink complex came in to view. The 3 lots could potentially used for access to the proposed rink site on Waste Management property or, more likely, it may be attractive for ancillary commercial development.
With that project and those potential uses in view, the City began exploring how it might go about de-designating the Park and making it available for sale and/or development. As the City explored the legislative route (by seeking support of our local representation at the State House), it also explored the legal record of the properties, including the City Council's 1999 actions creating the Park in the first place.
The devil is in the details
Research by the City's legal firm - Kopelmann and Paige turned up - or rather, failed to turn up - a critical piece of the 1999 designation process. When 'taken' by the City as tax title taking, the 3 properties had become the custody of the City's 'Tax Title Custodian', in our case, the City's Collector/Treasurer. Here's the complicated part: in order for the 3 properties to have been under the 'care and custody' of the Mayor, there would need to have been a record, something as simple as a 1 paragraph letter, from the Collector/Treasurer indicating that the properties were no longer needed to cover a tax lien and were therefore discharged to the City - with the Mayor as executive - for general purpose use. And in the absence of such a document, the City's counsel argued that ALL of the City Council's subsequent actions designating it park land, turning it over to Parks and Recreation Commission, etc., were null and void and could be completely ignored.
"Margaret Rice Park is not a Park"
This brings us back to the October vote. The action that we took that night was to fill in the gap of that missing 'transfer' from tax title custodian to the city, so that the City could now use it for 'general purposes,' including selling it in whole or part, leasing it, etc.
Here's why I abstained. As I said at the vote, I'm not opposed to taking the properties out of park land designation nor opposed to using them for future commercial or other uses; as I said, they are not exactly prime woodland or open space. However, I was very uncomfortable with the fact that the legitimacy of our vote clearly assumed the nullification of prior Council that was very clear in its intent, based on the absence of a single document (note: our City records may not be 100% sound). I was especially uncomfortable ignoring almost 20 years of precedent on these properties inasmuch as they were theoretically protected open space properties. I saw no reason for the City not to pursue the likely successful process of having the State Legislature cleanly and officially vote to remove 'park land' status from the property.
The Moral of the Story
The moral of the story, for me, is that is very easy to find an administrative or legislative flaw in a process or in a body of documentation, if you want a particular outcome. In this case, that outcome was to make the protection status on some City-owned parcels rapidly disappear.
The recently established Open Space Committee has taken as our first order of business a thorough inventory of Amesbury's Open Space properties and this includes a review of the levels and types of protection on properties AND the soundness of those protections. Suffice it to say that most of our prime and prominent properties, including the vast majority of Woodsom Farm, have NO protections on them and, as we can see, decades of use precedence or even official past actions may not matter, when the right commercial or industrial development comes into view.
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