State High Court Ruling Protects Tiny Park Lands in Oak Bluffs Subdivision

By IAN FEIN

Affirming the value of open space, no matter how small, the Massachusetts Supreme Judicial Court this week blocked development on three wooded lots behind Crystal Lake in Oak Bluffs.

The seven-page decision, which unanimously reversed two lower court rulings, was issued on Tuesday.

The case has wider significance because it could help secure the fate of dozens of similar parks throughout the town and many more across the commonwealth.

"This is an important principal throughout Massachusetts - and especially in waterfront communities," said New Bedford attorney Daniel Perry, who represented a group of neighbors that filed the lawsuit to block the development. "It will certainly be good news to those who want to protect these types of parcels."

Oak Bluffs town officials embraced the court decision this week. Selectmen joined the neighbors in the case last fall, after making a concerted effort in recent years to preserve the network of more than 100 small parks across town, many of which are privately owned but used by the public. The community development council lists 20 of those parks as currently in danger.

"Every place where we can find security in a park - every one we button up - is another step in preserving the character of Oak Bluffs," said community development council member Priscilla Sylvia. "These parks, this open space, are a signature of our town."

In fact, the ruling this week is not the first Supreme Judicial Court decision about an Oak Bluffs park; a landmark 1891 decision saved Ocean and Waban Parks from development.

The town's rich history of small parks played a significant role in the decision this week as well. While the lower courts focused closely on the three disputed lots, the state's highest court relied more heavily on the role of the parks throughout Oak Bluffs.

"The court saw a pattern of development in Oak Bluffs where the parks were central to what was going on," said town counsel Ronald H. Rappaport.

Boston attorney Kenneth Luke Kimmell, who represented the owners of the lots and argued that they were buildable, did not return a call for comment this week.

On its surface the case is about whether the developer of an East Chop neighborhood, more than 130 years ago, intended for three small lots labeled as parks to remain open for other owners in the area.

The supreme court ruled that the developer, Tartleton Luce, included the open space in his plan for the Bellevue Heights subdivision because similar parks were such an important amenity of other neighborhoods created in Oak Bluffs around the same time.

"It is entirely reasonable, given the context of the development of these other subdivisions in proximity to the Bellevue Heights subdivision, to infer that the existence of the parks was an important feature in Luce's attempt to sell the lots," Justice John M. Greaney wrote in the decision. "Without the parks, it is likely that the lots in Luce's subdivision would not have been competitive with those in nearby subdivisions."

The 1872 subdivision plan for the Bellevue Heights neighborhood set off more than 900 numbered residential lots, all of which were rectangular with 50-by-100-foot dimensions. But the plan also included three named and unnumbered parcels that were larger, of irregular size and bounded by a road named Park street.

For the next 120 years the three lots were continuously designated as parks on recorded plans and town maps, and remained off the town tax rolls until 1994, when for unknown reasons town assessors sent out property tax bills. It appears that they may have been trying to clear title to the land, as the tax collector in 1996 began tax taking proceedings.

The current owners of the parks, who live in California and Nebraska and have never paid property taxes on the lots, did not know they had an interest in the property until they received a letter from the town's tax attorney in 2001 notifying them of foreclosure proceedings. They had unknowingly inherited the lots from an ancestor, who purchased the parks and roads in the Bellevue Heights subdivision for a nominal fee when the developer went bankrupt only a few years after designing the community.

Once they learned about the properties in 2001, the owners put them on the open market as residential lots and signed a purchase and sales agreement with a buyer who intended to build a home on one of the disputed parks. The original plaintiffs in the case, John and Lisa Reagan, who own a home abutting that park, filed a complaint in Massachusetts Land Court in December 2001 to stop the sale. The Reagans were later joined in their lawsuit by other landowners in the area - including Renee and Bruce Balter, Anne Gallagher, and the East Chop Association.

The question before the court was what evidence, aside from the original subdivision plan, the neighbors needed in order to prove that the developer intended for the lots to remain as parks.

The land court and the Massachusetts Court of Appeals both ruled in favor of the landowners - finding that the neighbors did not meet the burden of proof establishing rights to use the lots as park lands.

But after hearing arguments in early February, the supreme court ruled that the lower courts set the threshold too high. The state's highest court looked at the circumstances surrounding the subdivision - namely, the importance of parks throughout the town at the time.

Citing, among other sources, a book authored by the late Gazette editor Henry Beetle Hough, the decision this week retraced the history of the town and the integral role of its parks. Oak Bluffs featured the country's first religious camp meeting ground, the first planned residential community and the first neighborhood that included parks in its design. The town is largely made up of the nine subdivisions created between 1866 and 1880, all of which used similar designs that included parks as places for people to congregate.

The supreme court this week also cited evidence, presented by Mr. Rappaport, that bankruptcy trustees sold the Bellevue Heights parks and avenues for much less than the residential lots.

"The conveyance demonstrates not only that the parks and avenues were of little market worth as developable land, but also that Luce had intended to treat, and did so treat, the park lands as separate and distinct from the buildable lots," Justice Greaney wrote in the decision.

The supreme court noted in its decision that the town, by arguing on the side of the neighbors, was willing to forego hundreds of thousands of dollars in property taxes to preserve the lots as parks. Selectmen decided to do so even though the town is listed as a co-defendant because of the foreclosure proceedings. After the case is remanded back to the land court for a new judgment, the town is expected to assume full ownership of the parks through the foreclosure process, at which time they can be officially secured as town parks.

Mrs. Reagan, who, with her husband, carried the case and much of its financial burden from the earliest stages, this week thanked all of the people who supported them in their efforts.

"We always believed that we were in the right and doing the right thing," Mrs. Reagan said. "It is very gratifying for us to know that it all turned out so well. And we are very happy for our kids, and the other kids in the neighborhood, that the tradition of parks in Oak Bluffs will continue."