History
In the early 20th century, Charles F. Avery owned approximately 15 acres on land on both sides of Crafts Street in Newtonville. The 1917 city atlas shows his holdings:
1959 taking and agreement
Charles Avery died in 1922, and the land passed to his son Elisha. After the death of Elisha Avery in the late 1950’s, the family negotiated a below-market-value sale of 347,794 square feet (8 acres) of land on the south side of Crafts Street to the City of Newton. The sale was carried out through a “friendly” eminent domain taking. The Newton Graphic later reported that the land “was sold to the city at a small cost in 1959 with the understanding that it would be used only for park and recreational purposes.”
Three documents establish the understanding between the Avery family and the city:
1. The order of taking adopted by the Board of Aldermen on March 2, 1959 is recorded at the Middlesex South Registry of Deeds at Book 9342, Page 392:
The full taking document can be found here. The taking specifies that the land is to be used for “playground and recreational purposes.”
2. The document was accompanied by this plan (recorded as Plan #321):
The order of taking also says that the city and the family are to enter into an agreement with the following restriction on the use of the “Wooded Area” shown on the plan:
3. The Avery family and the city approved an agreement implementing this restriction. The text of the agreement can be found here.
1968 agreement
In the late 1960’s the city was planning to build a new middle school, and settled on a portion of the Avery land as the best possible site. The city and the Avery family reached a second agreement permitting 106,889 square feet (2.45 acres) of the property to be used to build the school. The text of the agreement can be found here.
The agreement included the following provisions:
- the city is permitted to build “a service roadway” on the west side of the originally deeded property, “provided that the said service roadway shall pass westerly of and shall not impinge upon the wooded area of approximately 2.5 acres referred to in the aforesaid [1959] agreement.”
- “None of the land taken by the city as aforesaid shall be used for parking purposes except as incidental to use of the service roadway for deliveries to and from said school.”
Ownership and use of the land
The land comprising Avery Woods and Day Middle School appears on the Newton Assessor’s Database as a single parcel, number 21022 0002. The size of the parcel is 374,413 square feet, which is slightly larger than the 347,794 square feet included in the 1959 taking. Presumably, the additional 26,619 square feet was subsequently acquired by the city.
The ownership and use of the parcel is shown as follows:
This treatment of the property in the Assessor’s Database fails to document the following elements of the 1959 and 1968 agreements:
- the fact that only the 2.45 acres designated in the 1968 agreement may be used for school purposes, with the remaining 5.53 acres being limited to “playground and recreational purposes.”
- the city’s legal obligation to preserve the “Wooded Area” of 2.5 acres shown on the 1959 plan
The Newton Parks map correctly shows the Avery Woods parkland shaded in green:
However, it does not give any indication of the boundaries of the “Wooded Area” that the city is required to preserve.
Recommendations
Immediately
- In the Assessor’s Database, divide parcel 21022 0002 into two parcels, as follows:
- A parcel showing the School Department as “co-owner.” This parcel would include the 106,889 square feet within the boundaries set out in the 1968 agreement, as well as the additional 26,619 square feet of land that was acquired after 1968.
- A parcel showing the Parks, Recreation, and Culture Department as “co-owner.” This parcel would consist of the remaining 240,905 square feet of land acquired from the Avery family in 1959, and would show the land use as parkland.
- On the Newton Parks Map, indicate the outline of the “Wooded Area” and label it appropriately.
When possible
Create a conservation restriction on the park parcel. The restriction would include these elements:
- The obligation of the city to maintain the “Wooded Area” in its current state in perpetuity.
- The restriction that the entire park parcel may be used only for “playground and recreational purposes.”
