Open Space

The acquisition, creation, and preservation of open space.

The rehabilitation or restoration of open space; provided the open space was acquired or created with community preservation funds.

Open Space “Open space” for CP purposes is defined in G.L. c. 44B, § 2 as “includ[ing], but not be limited to, land to protect existing and future well fields, aquifers and recharge areas, watershed land, agricultural land, grasslands, fields, forest land, fresh and salt water marshes and other wetlands, ocean, river, stream, lake and pond frontage, beaches, dunes and other coastal lands, lands to protect scenic vistas, land for wildlife or nature preserve and land for recreational use.”

• Acquisition – Acquisition of real property or an interest in real property is allowable for open space purposes, including the acquisition of agricultural land, grasslands, fields, forest land, watershed land, fresh and salt water marshes and other wetlands, ocean, river, stream, lake and pond frontage, beaches, dunes and other coastal lands, land to protect scenic vistas, land for wildlife or a nature preserve, land for recreational use and land to protect existing and future well fields, aquifers and recharge areas. The price of the acquisition must not exceed the value of the property as determined through “procedures customarily accepted by the appraising profession as valid.” G.L. c. 44B, § 5(f). The city or town must own any real property interest acquired with community preservation monies. Management of the properties may be delegated by the legislative body to the conservation commission, historical commission, park commission or housing authority, as appropriate, or to a nonprofit corporation created under G.L. c. 180 or nonprofit trust created under G.L. c. 203. G.L. c. 44B, § 12(b). Real property interests financed in whole or in part with CP Fund monies must be bound by a permanent restriction which conforms to the requirements of G.L. c. 184, §§ 31-34. G.L. c. 44B, § 12. The restriction must be enforceable by the city or town or the Commonwealth. It may also run to the benefit of and be enforced by a nonprofit, charitable corporation or foundation selected by the city or town. Funding may be appropriated from the CP Fund to pay a nonprofit organization created under G.L. c. 180 to hold, monitor and enforce the restriction on the property. G.L. c. 44B, § 12.

• Acquisition - Appropriation of CP funds to a conservation fund established by G.L. c. 40 § 8C is allowable; however, any expenditure of such funds remains subject to the restrictions imposed by the CPA, including the requirement that any land acquired must be bound by a restriction described in G.L. c. 44B, § 12. Therefore, the conservation commission may spend CPA funds only for those purposes that are authorized by both G.L. c. 40 § 8C and the CPA, for example, acquisition of land for open space purposes. To ensure that these requirements are carried out, the CPC recommendation and any legislative body appropriation vote should expressly include these conditions. 53

• Rehabilitation – Expenditures for rehabilitation and restoration of open space (not including lands for recreational use) are not allowable unless the open space was acquired or created pursuant to G.L. c. 44B, § 5(b)(2). For example, funding is allowable for rehabilitation of municipal forest land, provided the forest land was acquired with community preservation funds. CP funds cannot be used, however, to fund any expenditure that would fall within the CPA definition of “maintenance,” even if the expenditure is required by a forest management plan. G.L. c. 44B, §§ 2 and 5(b)(2).