Back in September the Friends of Mary Cummings Park had two hand carved wooden signs installed at two entrances to the park. Shortly thereafter the signs were stolen by what was then thought to be vandals. Soon it was known that it was not common thieves but more sophisticated law breakers who had "confiscated" the signs.
It turned out that it was the City of Boston that are the trustee of the park, thought it appropriate to remove the only thing that actually lets you know that there is a public pleasure ground on the site. The reason Boston had the signs removed is because they have been following a legal strategy to some day have the courts determine that despite the donors wishes (Mary Cummings) the property is actually not a park and can't be used as one.
At that time I had predicted in the following blog piece that this event might have broken the camel's back regarding legal action against Boston for its complete disregard for their fiduciary responsibility as the trustees of the will of the donor.
http://philgallagher.blogspot.com/2007/12/friends-of-mary-cummings-park.html
Yesterday that prediction came true as the Friends of Mary Cummings filed a complaint with Attorney General Martha Coakley's office regarding Boston's conduct. This should have been done long ago, not by a small non profit group of do gooders but by the leadership of the town of Burlington. For what ever reasons, the town has not been able to muster the gumption to do the right thing and take action. Many reasons have been put forth such as not wanting to anger Boston or spoil our chances for a land use deal or quite frankly just plain laziness.
If they were actually planning to do something, it is to late now as once a again citizens have upstaged the leadership. In much the same way as action was taken on the Wildwood School by bypassing the leadership so to has something finally been done on the Cummings Trust. As you will see in the following complaint the facts are pretty straight forward. At any time, the town could have taken the same action on this item which has been a town issue for over 50 years, but they simply couldn't do it. I wonder how many strategic planning sessions were had in which the Cummings property was talked about?
Now the matter is in the hands of competent representation and Attorney General Coakley will have to address the issue on the merits. Her actions will be speak volumes about her interest in maintaining the sanctity of trust law.
Please read the complaint for yourself. There should be no disputing the facts as presented. If you have a mind to, you might want to drop the AG a note expressing your feelings regarding Boston's attempted land swindle. Pat Reilly Steve Keleti and Cath Moore deserve a good deal of praise for the work they have done in finally bringing some heat on Boston on this issue.
FRANCOEUR LAW OFFICE
13 Freedom Road
Woburn, MA 01801
781-491-0000
781-240-7911 Facsimile
July 22nd, 2008
Attorney General Martha Coakley
Massachusetts Attorney’s General Office
One Ashburton Place
Boston, MA 02108
ATTN: Public Charities Division
RE: Breach of Charitable Trust by City of Boston
VIA HAND DELIVERY
Dear Attorney General Coakley:
Friends of Mary Cummings Park, Inc. is a non-profit corporation established by
Massachusetts citizens who are dedicated to keeping the land known as Mary Cummings
Park located in Woburn and Burlington, Massachusetts forever open as a public park and
playground.
We believe there is ample evidence which shows the City of Boston has
misapplied charitable funds and is in breach of trust and therefore requires attention by
your office.
Background
On November 13, 1925, Mary Cummings’ estate established a testamentary
charitable trust whose res was a portion of her farmland in Woburn and Burlington.
Fourth, To the City of Boston, Massachusetts, I give and devise all the land
together with the buildings thereon, in the City of Woburn and Town of
Burlington, Massachusetts which was conveyed to me by Charles Fairchilds
(by deed dated February 26, 1890, and recorded with Middlesex South District
Deeds, Book 1967, Page 131, excepting so much thereof as shall have been
conveyed by me in my lifetime or is herein otherwise specifically devised (the
same being known as Babylon Hill), but in trust nevertheless for the following
purposes and uses: To hold and keep the same forever open as a public
pleasure ground, and to maintain and care for the same in a suitable manner
in accordance with that purpose.
The clearly stated purpose is “to hold and keep the same forever open as a public
pleasure ground, and to maintain and care for the same in a suitable manner in
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accordance with that purpose.” This “same” land designated for the public pleasure ground is specifically referred to by deed in the previous clause.
Mary Cummings also donated real estate at 53 North Market Street in Boston and the remainder of her assets to provide income for the care and maintenance of her former
farm as a public pleasure ground. These assets were of substantial value and should have reasonably provided enough income to maintain the land as a public pleasure ground:
And in case the said City of Boston accepts the foregoing gift I also give and
devise to it the land and buildings thereon owned by me and numbered 53
North Market Street in said Boston, and the stocks given in trust under the
provisions of items Second and Third of this Will, subject to said trusts
respectively. Said last named real estate and the stocks to be taken by the
City of Boston upon the trust to apply the net income there from to the care
and maintenance of said real estate in Woburn and Burlington as a public
pleasure ground as aforesaid. In case, however, said City of Boston shall
decline or fail to accept said real estate in Woburn and Burlington for the
purposes aforesaid, I give and devise the same, together with all the other
real and personal property herein given to said City of Boston for the
accomplishment of said purposes, to the Playground and Recreation
Association of America, in trust for the same purposes and upon the same
terms and conditions as are herein prescribed concerning the taking of the
same by the said City of Boston.
Mary Cummings’ will is on file with the Middlesex Probate Court in Cambridge, and a full transcript is attached hereto as exhibit 1.
The named trustee is the City of Boston, with the public being the beneficiaries.
In the event that the City of Boston declined or failed to accept the terms and conditions of her gift, the Playground and Recreation Association of America was named as alternate trustee. The successor to the Playground and Recreation Association of America is the National Recreation and Park Association (NRPA).
A Troubled Beginning
The City Council initially voted not to accept this charitable trust. However, after
the Boston Transit Department seized, by eminent domain, the main income-producing asset of the trust fund which was land and an office building located at 53 North Market Street in Boston, the City Council then reversed itself to accept the trust. The only thing that had changed was that the city now owed the trust fund $118,000, an amount that inflation adjusted would be worth just over $1.4 million in 2007 dollars. This building can be seen next to Faneuil Hall on a map of ward 3 from 1928 which is included as
exhibit 2.
According to item number 14 of the Cy Pres submitted to the Attorney General by
Boston in 1987 for review, payment of $118,000 was withheld from the principal account of trust fund (exhibit 3). Although the City argued in its complaint that no compensation was required under Massachusetts law, we have found no evidence that this argument was advanced at the time of the eminent domain taking. In fact, in a letter dated July 27,
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1931 it was stated:
April 28, 1931, His Honor the Mayor approved an order wherein $118,000 awarded
as damages for the taking by the Transit Department of the North Market Street
Property was accepted. The Transit Department of the City of Boston are prepared
to pay over this award at any time. (exhibit 4)
Such a large amount of money properly managed since 1930 should have
provided more than adequate income for the ongoing care and maintenance of this public pleasure ground. Any subsequent lack of funds in the care and maintenance trust fund is the City of Boston's own doing.
The City of Boston also did not adequately protect the Cummings home itself. It
was stripped by vandals and subsequently burned in 1937. Insurance with a yearly premium of $35 had been allowed to lapse so there was no compensation to the trust fund(exhibit 5).
When the U.S. military took 21 acres of the park land for a Nike missile base and
military housing in the mid-1950s, the trust fund received $9,145 in compensation. However in 1964 when the land was declared surplus and the trustee was given first right of refusal to buy back the land, the City of Boston refused to spend the necessary $1,430
to get the land back (exhibit 6).
Sometime in the last 20 years at least two rent-producing historic farm houses on
South Bedford Street were demolished. It is not clear where the revenue from these buildings went nor why the buildings were allowed to reach a condition where demolition was necessary. Enclosed is information from the City of Woburn’s assessor’s database
(exhibit 7)
Failed Cy Pres of 1987
It is evident from the Attorney General's own files on the Mary PC Cummings
Trust that a petition was prepared by the City of Boston and presented to the Attorney General in 1987. This Cy Pres clearly defines the objective of the City of Boston to sell the remaining land in order to create a trust fund which can be used for other purposes. The Friends feel that this was an attempt to sell and/or develop the land in order to profit
the trustee at the expense of the pub ic purpose of the trust, rather than a true failure of the trust (exhibit 3)
Written notes from the Attorney General's files analyzing the situation at the time
of the Cy Pres indicate a “breach of trust”. Also, in another memo analyzing the merits of the Cy Pres there is a conclusion that this park land “was in fact being used to provide summer outings and camping experience for inner city youth which was consistent with
the Cummings will” and that “This is contrary to information provided to us by the
Boston Trust Department” (exhibits 8 and 9)
Post-Cy Pres Breach of Trust
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Since the Cy Pres failed to garner the support of the Attorney General, for the past 20 years the City of Boston has discouraged use of the Park and continued to take active steps to frustrate the trust purpose by continuing to seek a sale or otherwise derive revenue from what is supposed to be a public park and playground. These include:
diversion of the Trust fund income, cancellation of the City of Boston’s organized
activities, public misinformation, purposeful neglect and refusals of any outside funding which would further the trust purpose.
As further evidence that the trustee's actions are not inadvertent in nature, but
rather intently working towards the goal of undermining the purpose of this trust, we submit the following:
· In October 1996, in a memo from Palmer & Dodge, from the same outside
counsel for the trust that is paid for with the care and maintenance trust fund,
the following advice was given: “If we are successful in showing that Mrs.
Cummings had a general charitable intent to benefit Boston, the probate
court should allow a modification of the specific purpose of the trust under
the doctrine of cy pres, but only if the original purpose has now become
impossible, impracticable, or illegal. Thus, we must also demonstrate that the
land is not suitable for a park because of its current condition and because of
its distance from Boston. Note that the difficulty of maintaining a park outside
of the City limits may not be sufficient justification for selling the land without
further evidence that the property has fallen into disrepair or is otherwise
inappropriate for use as a public park. The absence of sufficient assets to
support the park under the Cummings will or otherwise is also relevant.
Based on our conversations to date, I understand that in fact the land is not
suitable for park purposes and that we should be able to document that to the
court.” (exhibit 10)
· In 1999, in a memo from Palmer & Dodge LLP, the City of Boston's “options
under Article 97” were examined, with the conclusion that the land held by
the City of Boston under the trust was for park and playground purposes and
that Article 97 does apply, but that a golf course might be considered a
playground purpose as long as fees were not too high. However, the goal of
the analysis was to determine ways to generate revenue for the city to be used
for other purposes. (exhibit 11)
· 1999 Boston Business Journal article entitled "Route 128 properties coveted
by developers" wrote of the interest of "the former Boston city councilor and
developer who spent time in prison for his part in a 1980s real estate deal
gone bad" who "at one point looked closely at the Route 128 land owned by
Boston, hoping to build an upscale golf community featuring a green
surrounded by luxury homes." (see exhibit 12) This was the same plan being
contemplated by the trustee.
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· In 2001, in a scheme to derive revenue for the City out of this park land, the
“Cummings Estate Golf Course Action Plan” contained a proposed project
schedule for creating a “high end golf course” with high greens fees on land
which Mary Cummings left forever open as a public pleasure ground.(exhibit
13)
· According to a 2001 email correspondence between the City of Boston’s
treasurer and the trust’s outside legal counsel it was stated that the mayor had
directed the treasurer to “seek acquisition of the Cumming property by the
Commonwealth (or perhaps Burlington and Woburn) on a basis similar to the
State’s Open Space Bond Program” (exhibit 14). In other words the
direction was to sell land kept in trust as a public park back to the public so
the City could then use the money for other purposes.
· In 2004, a negotiation for a lease agreement for the Town of Burlington to
create and operate a baseball field at no expense to the City of Boston. The
Collector-Treasurer of the City of Boston insisted on a five year agreement
including a 180 day notice to quit clause, not because the trustee might find a
different recreational use for that part of the land, rather the provision was
there “in the event the City has entered into an agreement for the sale of the
Cummings Estate. Without this provision, the City would not be in a
negotiable position to solicit nor entertain a sale of the property with a
temporary restricted use (the lease)”. Even with the Town of Burlington
willing to accept such a provision no lease agreement was made and
preliminary work was ordered halted. (exhibit 15)
Misapplication of Charitable Funds
In addition, through a series of Freedom of Information requests, it has been
uncovered that there is an alarming pattern of misapplication of the trust fund which was established for “care and maintenance” of this public pleasure ground. A significant portion of the trust fund has been applied toward the furtherance of Boston’s plan to sell the Park.
In total, in the last 5 fiscal years $198,514.41 has been spent on legal services,
surveying and appraisals aimed at commercial and/or residential development of the land specifically designated as a public pleasure ground in the will. This accounts for 89% of all expenditures from the maintenance and care trust fund. Of the remainder, only $5593was identified as being for “RepairMnt” on the trust fund balance sheets, an amount which also includes the installation of “No Trespassing” signs. Excluding these signs, by the trustees own accounting, this means that only 1.2% of the available income from trust fund has been spent on maintenance in the last 5 fiscal years (exhibit 16).
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· In 2002, $7500 from the trust fund was paid to Merideth & Grew Inc to
prepare an extensive, approximately 100 page, appraisal of the "combined
area of 216.547 acres", which focused on “three different scenarios” “A)
Single-family Residential Development” “B) Multi-family Development” and
“C) Office/R&D/Industrial Development” (exhibits 16 and 17)
· In FY 2004, $2,940 was spent from the trust fund in order to install No
Trespassing signs ("install signs Blanchard rd"). These signs read in large red
letters “No Trespassing”, and in smaller letters “Unauthorized Vehicles
Prohibited” and “Police Take Notice”. These were posted at numerous places
where vehicle entrance was not even possible, giving a clear indication that
public access was prohibited and unwelcome. (exhibits 16 and 18) example
sign 1, sign 2
Note: Prohibiting, obstructing and discouraging public access cannot be
justified because the simple purpose of the trust is to keep this land
“forever open as a public pleasure ground”. In addition, enjoyment of
our public parks is a right under Article 97 of the Massachusetts
constitution.
· In FY 2006, an astounding $77,073.07 and $63,796 were spent from the trust
fund on legal and surveying services related to the filing of residential
subdivision plans with the registry of deeds, on land specifically designated
under the will as a public pleasure ground. The “ANR” was filed to
grandfather for three years the original “Residential-1” zoning of the park land
in Woburn. This was done in response to the City of Woburn voting to
change the zoning designation of the park land to “Open Space” in January
2006. The zoning change to “Open Space” would not impact the lands’ legal
use as a public park, but will not allow a residential development. (exhibits 16
and 19)
Note: Revenue from trust principal for that year was just $22,829.63, so such
a large unjustifiable expenditure was only made possible by the lack of
spending on maintenance and care in previous years.
· In FY 2007 (ending June 30, 2007), $13,344.72 from the trust fund was spent
on unspecified “legal services” and $4,560 was paid to R.E. Cameron and
Associates which is a professional surveying company. (exhibit 16)
Cancellation of Children’s Programs
Most disturbingly, the organized activities enjoyed by hundreds of children each
Summer and over many decades, including the activities specifically cited in the Attorney
General's cy pres review, have been canceled. The cancellation of these programs in the years following rejection of the Cy Pres is nothing more than a cynical response to the Attorney General's findings and is meant to undermine the public purpose of this trust.
The aim of these actions are to insure that there are no more pictures of smiling children in the newspaper to be found in the next attorney general's Cy Pres review (exhibit 20).
The City of Boston has stopped maintaining the Field House which was built to
provide bathroom facilities and rainy-day shelter so that Summer camp programs could operate. In 1998, Subsequent to the YMCA's discussions with Ed Collins, CFO of the City of Boston, the YMCA submitted a proposal to the City of Boston to renovate this field house and construct swimming pools, open-air pavilions and a high and low ropes
course. The proposal included wording that recognized “the city needs flexibility in the use/disposition of the property” and lease terms which would allow for a future “sale ofthe property” were discussed. (exhibit 21)
Bathroom facilities and a rainy-day shelter are necessary for any day camp
program, so by not providing them or allowing others to maintain them the City of
Boston is preventing programs for which the Mary Cummings Park was intended.
Just two organized activities have been allowed to continue: the Burlington
Community Life Center's National Youth Project Using Minibikes (NYPUM) and the Burlington RC Flyers Club. It seems these organized activities are the minimum theCity of Boston feels it needs in order to keep its role as trustee. Both activities are restricted to a relatively small portion of the park and have been downplayed or ignored in the press.
Misleading the Public
“It’s not a Park”
- Facilities Manager Trust, City of Boston, December 11, 2007
Today there are still no signs identifying the land as being a public park and
playground. The only signs the City of Boston has put up within recent memory are “No
Trespassing” signs paid for by the Trust’s maintenance funds.
In December 2007, the Friends of Mary Cummings Park purchased two engraved
wooden signs and posted them at the park. City Hall not only confiscated the signs but
also made threats of trespass against the group. The signs were eventually returned to the
Friends under stipulation that they not be posted again. (exhibit 22) picture of sign
There is no mention of Mary Cummings Park anywhere on the City of Boston’s
website, including the list of parks and the list of natural areas. The City of Boston has
not made any attempts to make anyone aware that the park even exists.
The choice of public statements by City of Boston officials is a documented part
of their overall political and legal strategy aimed at undermining the trust purpose:
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· A memo written by Mark Sweeney while he was a member of the City of
Boston's legal staff, urges that they stop referring to the land as "park" land:
“Because of the obvious political benefits, I would prefer to explore and
develop an argument that this property is not "park" land at all, but rather is
"trust" land not subject to the requirements of Art. 97, etc.” (exhibit 23)
Misleading public statements by Boston City officials and threats of trespass have
led to a climate of fear, uncertainty and doubt in the public's mind about their right to enjoy this public park.
Action Requested
Given the recalcitrance of the current trustee to maintain a park outside the City’s
limits, it is reasonable to conclude that the City of Boston will never be willing to fulfill its fiduciary duty as long as the borders of the City of Boston are not extended toencompass Woburn and Burlington.
It is now only through the ongoing efforts of volunteers to keep the land
accessible that people are able to continue to enjoy this public park land. However, these volunteer efforts are continuously discouraged by the City of Boston. It is an impossible situation which requires urgent action.
Only through the Attorney General's attention to this breach of trust can future
donors be assured that their gifts to the public will be used as intended and that the public's right to continue to enjoy their park land be protected.
In summary, we are hoping your office can accomplish, through the authority
granted to you under G.L. c. 12, §8H, the following:
1. Obtain a court order placing a freeze on the trust’s financial assets until these matters
can be fully investigated;
2. Maintain an action against the City of Boston for the breach of their fiduciary duty to
the trust;
3. Require a return of $118,000, withheld from the trust fund in 1930, plus appreciation
and interest in total of approximately $15 million dollars (see exhibit 24 for
calculation);
4. Require a full accounting by the City of Boston for all trust assets and income and return of any misapplied funds; and
5. Move for the court to appoint an alternate trustee to replace the City of Boston.
We suggest a board of trustees consisting of: an appointee of the Secretary of the Commonwealth of Massachusetts’s Department of Conservation and Recreation; a
member selected by the Town of Burlington; a member selected by the City of Woburn; an appointee of the President of the Trustees of Reservations; and an appointee of the
Board of Trustees of the National Recreation and Park Association
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We will gladly offer whatever support we can to help with your efforts. Thank you for your prompt attention to this matter, and please do not hesitate to contact me.
Sincerely,
Laurel J. Francoeur, Esq.
Encl. – as stated
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