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."