Land for Recreational Use

Land for Recreational Use “Recreational use” for CP purposes is defined in G.L. c. 44B, § 2 as “active or passive recreational use including, but not limited to, the use of land for community gardens, trails, and noncommercial youth and adult sports, and the use of land as a park, playground or athletic field. ‘Recreational use’ shall not include horse or dog racing or the use of land for a stadium, gymnasium or similar structure.” The CPA definition limits recreational use to an outdoor recreational pursuit.

• Acquisition – Acquisition of land for recreational use is allowable. See Acquisition of Open Space above.

• Rehabilitation - Capital improvements, as defined in G.L. c. 44B, § 2, to municipally-owned recreation land that make the land or related recreational facilities more functional for their intended outdoor recreational use are allowable including, but not limited to, installation of trails for walking, hiking, horseback riding or skiing; installation of water lines and pathways in community gardens; installation of irrigation lines for athletic fields; and installations or replacements of outdoor playground equipment.

• Purchase of tennis rackets, basketballs, golf carts and other recreational equipment is not allowable because the expenditure does not acquire, create, preserve, rehabilitate or restore any land for recreational use.

• Installation of bleachers at an athletic field is not allowable because recreational use under the CPA does not include use of land for a stadium or similar structure. G.L. c. 44B, § 2.

• Rehabilitation - Installation of restrooms for the use of a municipally owned outdoor recreational facility such as athletic fields or a swimming pool is allowable as rehabilitation of land for recreational use, provided the restrooms make the land or related recreational facilities more functional for the intended outdoor recreational use. However, the use of CP funds for the installation of restrooms in a building or facility that primarily serves purposes unrelated to the outdoor recreational purpose is not allowable. 54

• Acquisition, Creation and Rehabilitation - Funding for rehabilitation (capital improvements or extraordinary repairs) of an outdoor swimming pool owned by a private nonprofit organization in exchange for the municipality’s receipt of a public recreational use restriction and easement for the public’s use of the swimming pool is allowable if it does not violate the Anti-aid Amendment. In this example, if the municipality had not required a public recreational use restriction and easement for the public’s use in exchange for the CPA funding, the expenditure would likely not satisfy the three-factor test that the courts have established to determine allowable expenditures under the Anti-aid Amendment. (See IGR Section V-C-5 above, for information regarding the Anti-aid Amendment.) A grant agreement with the grant recipient should also be required to ensure grant funds are expended for the approved CP purpose. (For more information on grant agreements, see IGR Section V-B-2-e above.)

• Creation – Funding for the construction of non-commercial athletic fields, outdoor tennis and basketball courts, golf courses and outdoor swimming pools on municipal land is allowable as creation of lands for recreational use.

• Creation – Funding for the installation of soccer fields, including water lines for irrigation, on land owned by a private boosters club is allowable provided the municipality obtains a public recreational use restriction and easement commensurate with its expenditure of CPA funding. (See IGR Section V-C-5 above, for information regarding the Anti-aid Amendment.) A grant agreement with the grant recipient should also be required to ensure grant funds are expended for the approved CP purpose. (For more information on grant agreements, see IGR Section V-B-2-e above.)

• Funding for construction (creation) of a new indoor community recreational facility or to rehabilitate an existing indoor community recreational facility is not allowable because an indoor community recreational facility is not within the CPA definition of “recreational use” as it houses indoor recreational uses and is similar to a gymnasium. G.L. c. 44B, § 2.

• Funding for a feasibility study or engineering or other studies for a new indoor community recreational facility or to rehabilitate an existing indoor community recreational facility is not allowable because the project itself is not eligible for CPA funding. Nor would funding for such studies be allowable under the CPC’s administrative and operating budget to enable the CPC to determine whether to recommend funding for the project because the project itself is not eligible for funding under the CPA. If the project itself is not eligible for CP funding, then funding to study or plan the project is also not allowable.

• Funding for the installation of a paved “pathwalk” is not allowable when the “pathwalk” is in the nature of a functional sidewalk and not a “trail” 55 within the CPA definition of “recreational use.” Mauch v. Town of Norwell, Plymouth Superior Court No. PLCV2015-00517, Order on Motion for Summary Judgment, December 18, 2015.