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Mayor to Pursue Acquisition of Crystal Lake Property by Eminent Domain

“Today is a unique time in our City history, where we have the ability to acquire the property adjacent to the City’s land (at Crystal Lake),” wrote Mayor David Cohen to the Board of Aldermen and the Community Preservation Committee (CPC) on February 23rd.  “This is an opportunity that comes once in a generation, and it is one that I do not intend to pass up.”

With his memorandum and subsequent application for community preservation funding, Mayor Cohen set into motion the eminent domain process by which the City pays the owner of the property at 20 Rogers Street full market value for the property title.

“A taking by eminent domain is a very serious matter,” said Mayor Cohen at a February 26th press conference, “and it is not being done lightly.  However, it is my feeling that this is a virtual once-in-a-lifetime opportunity for the City of Newton.  Should we miss this opportunity, who knows when or if it will come around again.”

The City of Newton has operated the Crystal Lake facility since gaining authority over it from the state in 1924.  Last summer, more than 16,500 people visited the Lake, and the City issued 1,874 seasonal permits.  In addition, Crystal Lake hosted more than 450 kids in nine summer schools and camps.

The property at 20 Rogers Street (http://www.ci.newton.ma.us/assessors2003/Interactivemap.asp?id=62001+0002) directly abuts the City’s facility to the east.  The current owner, Pat Hannon, purchased the property in 2002 for $3 million.  Since then the home on the property was gutted by two separate fires and has been inhabitable for several years.  Mr. Hannon placed the house on the market this year.

“The fact that there is no one living there, and that the owner has showed a willingness to sell makes this acquisition by eminent domain palatable to me,” said Mayor Cohen.  “We would not take someone’s home against their will.”

Eminent Domain Process

Mayor Cohen submitted an application to the CPC for the acquisition of the property in the amount of $2.3 million.  When acquiring land, Massachusetts law requires municipalities to first appraise the property.  The Community Preservation Act requires municipalities to offer the appraised value of the property – no more, and no less.

Last month, Mr. Hannon requested and was granted by the City an abatement on the property.  Previously assessed at $2.7 million, the abatement lowered the assessment to $2.316 million.

“We are fully prepared to offer the owner the full and fair market value for this property,” said Mayor Cohen.  “We believe our appraisal, and the subsequent assessment, represents that.”
 
Should the CPC recommend this project favorably, it would then go before the Board of Aldermen.  The Board would rule on the validity of the use of eminent domain for this property, and then on bonding authorization to purchase the land.  Eminent domain takings are valid if the land is being acquired for public use.

According to Parks and Recreation Commissioner Fran Towle, whose department currently operates Crystal Lake and would be responsible for overseeing the acquired property, the land would clearly be for public use.  “We envision this land to be solely used for open space and for active and passive recreation,” said Commissioner Towle.  “We’re not considering this property for any other purpose than that.”

Carol Stapleton, who is entering her 24th year of directly supervising the operations at Crystal Lake, said, “I have dreamt for many years of the day when I could tell my crew to rake the beach at Crystal Lake, and then to mow the lawn.”

Following a vote of 2/3 of the Board, the City would go to the Registry of Deeds for the deed and title and officially own the land.  The three Aldermen from Ward 6, which encompasses Crystal Lake, issued a statement of support on February 27th:

“We strongly support all efforts that will help to achieve the acquisition of the property by the City.  It is our hope that the CPC will recommend an amount agreeable to Mr. Hannon as representing the fair market value of his property. However, should the appropriation not be deemed by Mr. Hannon to represent fair market value for the property, we intend to support the Mayor’s request to take the property using the City’s eminent domain powers and will urge our colleagues on the Board of Aldermen to do so, as well.”  Aldermen Vicky Danberg, George Mansfield, and Ken Parker.

Robert Fizek, who has organized a grassroots community organization, Citizens for a Better Lake, concurs with the Aldermen’s sentiment.  “We’ve all understood we wanted to do this by more conventional means,” he said.  “The mayor’s action only comes after a process that could not lend itself to that.  This course still provides the owner with a fair price and allows the community to benefit from the acquisition quickly.”

“We would hope that the rest of City government would gather around this proposal and support it for the benefit of the entire community,” Fizek added.

Mayor Cohen’s CPC Application

Submitted to the Committee on March 2nd, the mayor’s application lays out the goal for the CPA funds:

“The primary goal of this project is for the City to acquire the 20 Rogers Street property, adjacent to our current Crystal Lake facility.  This unique piece of land would afford residents with an exemplary setting for passive recreation and open space.”

The mayor goes on to cite two immediate improvements the City would make should the land be acquired.  First, reads the application, “The City would be unimpeded in our efforts to fix the retaining (stone) wall on the 20 Rogers Street property that is in disrepair and represents a public safety hazard.”  An independent geotechnical engineering and environmental consulting firm examined the wall and determined “there is a significant threat of overturning instability,” and that “eventual failure is likely.” 

“We tried for two years to get Mr. Hannon to fix the wall, but he refused to do it,” explained Mayor Cohen.  “It is time to eliminate this public safety hazard once and for all.”

The second improvement detailed in the application is the reopening of the “Left Beach.”  Due to the instability of the stone wall, for the past two summers the City has blocked public access to the 190 linear feet of sandy beach at the base of the wall.  The public was forced to squeeze on to the remaining 100 linear feet of sandy beach not endangered by the unstable wall.

The closure of Left Beach also denied Crystal Lake patrons the use of the only on site benches.  Commissioner Towle believes the limited beach area and the lack of seating contributed to the steep decline in permits issued from 2,396 in 2005 to 1,874 in 2006 – a 21% decline.

“The two years of limited access and the ongoing uncertainty about the Crystal Lake facility has led to a dramatic dip in our permit sales,” said Commissioner Towle.  “That’s revenue we can easily recoup if we acquire the adjacent property.  The mayor’s right – this is a once in a generation opportunity for the City.”

Unique Situation

According to www.wikipedia.com, “Eminent domain has driven the development of railroads and defense infrastructure, permitting the construction of many otherwise impossible connections. In the 20th century, it was used to construct World War II and Cold War defense installations. From the early 1950s on, more than 42,000 miles of rights of way were acquired by eminent domain to build the Interstate Highway System. Ports, airports, and government buildings have also been constructed on land appropriated through eminent domain.”

Here in Newton, eminant domain takings have been fairly common in small scopes, such as granting easements to repair utility pipes.  The mid 1980s was the last occurance of a substantive taking, where the City acquired open space for Nahanton Park.

According to the Mayor’s Office, the situation at 20 Rogers Street is unique.  First, the property is inhabitable.  Second, the owner has already shown a willingness to sell.  Third, the property is encumbered with $12 million in liens.   Fourth, the City has had conversations and/or negotiations with this owner for over two years now to no avail.  Fifth and finally, the retaining wall on the property needs to be fixed in order to provide unrestricted access to the public beach area.

“We are by no means swooping in and seizing someone’s home against their will,” said Mayor Cohen.  “Mr. Hannon has already said publicly he supports an eminent domain acquisition.  In fact, this is the only method available to us to obtain clear title to this property.  We’ve done our diligence, and I am convinced that now is the time to act.”

Of the $12 million in liens, $6 million are owed to the state and federal government.  The City has been assured by the IRS and the Massachusetts Department of Revenue that the City would not be responsible for their $6 million.  The other $6 million are liens held by private creditors.  The City would not inherit this debt either, however, the funds paid by the City would go to pay down these obligations.  Mr. Hannon will still be held liable for the balance on these liens.

“Given the liens on this property, even if the City were to negotiate a price that is agreeable to Mr. Hannon, unless he is able to pay off the liens, a closing could not go forward whereby the City could obtain clear title,” explained City Solicitor Dan Funk.  “The acquisition of the property by eminent domain is the City’s only realistic option to acquire the land with clear title, and we will get it only after paying full and fair market value.”

Community Support

Robert Fizek, a community activist and Crystal Lake enthusiast maintains a website, www.betterlake.com, and organized a petition drive urging the City to “apply all possible means to acquire the adjacent (uninhabited) property at 20 Rogers Street.”  The petition was signed by more than 400 citizens.

“We were gratified by the enthusiastic support our petition generated,” said Fizek.  “In fact, people can still sign if they want by clicking on the website.  But what was most encouraging was the support we got citywide.  Crystal Lake is much more than a neighborhood facility, and our petition reflects that.”
 
Along with the application, the mayor submitted letters of support from the Newton Parks and Recreation Commission, the Newton Highlands Area Council, and the Newton Conservators.  The letter from the Parks and Recreation Commission reads: “At the June 19, 2006 Commission meeting the members voted unanimously 7-0 to apply for CPC funds or to take whatever action is necessary to purchase the (20) Rogers Street property.”

Many other public officials have also come out in favor of the acquisition.
 
“This is exactly the kind of project the Community Preservation Act was designed to fund,” proclaimed the City’s Planning and Development Director Mike Kruse.  “It expands the City’s recreational facility on the only Great Pond that’s under our control.  It will also provide much needed passive recreational opportunities that don’t exist today.  This would be a great thing for the City.”

“This is like the perfect storm,” said Inspectional Services Commissioner John Lojek.  “It’s when action meets opportunity.  With a facility as squeezed as Crystal Lake is, this property is uniquely positioned to solve several problems at once.  Not only will we be able to operate at full strength there, but we can get in there, fix the wall, and provide more recreational space.  This opportunity will never show itself again.  I think the City will be well-served by acting on it.”

“We know how much people already love Crystal Lake,” said Department of Public Works Commissioner Bob Rooney.  “Imagine how people would react to a nice park there or if there were more beachfront.  We are a blessed in this City for having this unique resource, and to have an opportunity like this to make it better is fortunate.  I couldn’t agree more with Mayor Cohen when he says we need to act now.”

The Community Preservation Committee will consider Mayor Cohen’s application for CPA funds at their meeting on Wednesday March 7th, 6:30 pm in the Cafeteria of City Hall.  Crystal Lake opens to the public on June 11th.