Town seeks to dismiss neighbors' lawsuit against construction of recreation complex

AMANDA SABGA/Staff file photoOn March 29, North Andover neighbors Steve and Margaret Legal, Jeannine McEvoy and Tina Silverio talk in the Legal's backyard about how they will be affected by a new planned recreation complex.

NORTH ANDOVER — Town Counsel Suzanne Egan has filed motions to dismiss two lawsuits filed by neighbors against the construction of a recreation complex next to North Andover Middle School.

The town initially planned to start work on the complex in the spring, but the litigation has delayed the project, according to Richard Vaillancourt, chairman of the Board of Selectmen.

The complex would include playing fields, a multipurpose court for street hockey, volleyball, tennis, pickle ball and other activities, a basketball half court, an exercise section, a half mile walking trail with rest stations, a picnic area and a court for bocce and shuffleboard.

Many residents of Hemlock and Parker streets, whose properties abut or are very close to the 16-acre site, have opposed the proposal, citing concerns about bright lights in the evening and the dangers of artificial turf.

One of the suits, filed in Superior Court, claims that the project is not an appropriate use of Community Preservation money. The bulk of the financing for the project, $6 million, will be provided by the town's Community Preservation Fund.

The other suit, pending before the Land Court, seeks to overturn the Planning Board's 4-1 vote to issue a special permit for the recreation complex April 2.

A hearing on Egan's motion to dismiss the suit, challenging the use of Community Preservation money, has been scheduled for Tuesday at 2 p.m. in Superior Court at Newburyport.

Michael Silverio, of 34 Hemlock St., and 16 other neighbors filed the suits. Egan said she does not dispute their contention that Community Preservation money cannot be used for artificial turf.

The language of the act specifically prohibits that.

The Community Preservation Act, enacted in 2000, allows towns and cities to impose a surcharge on real estate taxes and use the proceeds for acquiring open space, saving historic sites, providing affordable housing and developing outdoor recreational facilities.

Egan said the town's Community Preservation Fund will not pay for any artificial turf installed at the complex. The recreation complex is expected to have a total cost of $8.75 million, with $1.5 million provided by the town and another $1.25 million coming from private donations.

The artificial turf will likely be financed by the town, she said.

Silverio referred all questions, regarding the lawsuit, to attorney Guive Mirfendereski of Newton, who is representing Silverio and the other plaintiffs. Mirfendereski advised the Eagle-Tribune to read the complaint he filed in Superior Court.

In the complaint, he contends the town has provided "no indication or disclosure as to what aspect of the project would be funded by CPA money."

Furthermore, the amphitheater and playgrounds that are planned for the complex would be for entertainment, amusement or education – not uses specified by the Community Preservation Act, Mirfendereski asserts.

"The attempt by North Andover to spend $6 million of its CPA money on the project is yet another brazen attempt on the part of a municipality to raid the (Community Preservation) Fund for a project or aspects of it that are not supported by the letter and spirit of the act," Mirfendereski wrote in the complaint.

Egan noted in her motion to dismiss that "three consecutive annual Town Meetings ... unanimously voted to appropriate funds from the Community Preservation Fund to pay for the improvements and rehabilitation of the rec/plex as allowed under the statute."

It was the town's decision, she said, to hold off on starting construction of the recreation complex until the litigation has been resolved. A judge did not order the delay, she said.

"There's an uncertainty," she noted, when a project is challenged by a lawsuit.

"Absolutely," she said when asked if she expects the town to prevail in court.

The Land Court has yet to schedule a hearing on her motion to dismiss the other suit.

North Andover homeowners pay a 3 percent surcharge on their real estate tax bills to the local Community Preservation Fund. The state Community Preservation Trust also contributes to this fund.

North Andover voted to adopt the Community Preservation Act in 2001.

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