The land, together with 2.5 acres now used for the middle school, was sold by the Avery family to the city in 1959 at what was acknowledged to be a below-market price. The 1959 deed restricts use of the land to “general recreation and playground purposes.” The deed map shows the extent of the “Wooded Area” within the parcel. The city and the Avery family approved an agreement with similar restrictions.
The entire 8.6 acre (373,413 square foot) tract is listed on the city Assessor’s database as parcel 21022 0002. The database lists the Owner as “City of Newton” and the Co-Owner as “School Dept – F A Day Middle School.” The map in the database shows the extent of the parcel:
In 1967, a committee was created to find a new site for the Day Middle School, and recommended the use of a portion of the Avery land. An article in the Newton Villager reported the committee’s view that “it is obvious that existing legal restrictions as well as logic require that the so-called ‘wooded area’ of the Avery Estate be left inviolate.” Negotiations began with Avery heirs to relax deed restriction to allow some of the open portion of land to be used for school construction.
In 1968, the city and the Avery family signed a second agreement to permit the school to be built on a 2.5 acre (106,889 square foot) portion of the Avery park.
This aerial photo shows the relationship of the school building to the wooded portion of the site:
The entire 8.6-acre parcel acquired by the city in 1959 is outlined in yellow. The 1968 agreement includes a “metes and bounds” description of the outline of the school parcel, but no map apparently exists showing the boundaries of the 2.5 acres set aside for school use.
However, this aerial view shows the approximate outline of the land now being used by the city for the school and its driveways and parking areas:
Google Maps calculates that the school area totals 123,477 square feet. This is an area 16% larger than the 106,889 square feet permitted to be used for the school under the 1968 agreement.
The 1968 agreement set out a number of conditions, including this one:
4. 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.
The school parking areas adjacent to the north and west sides of the school are built on land subject to the 1968 agreement, and are in apparent violation of the agreement.
What should be done?
Motion approved by the Newton Conservators Board of Directors on April 28, 2021
Permanent preservation of the Avery Memorial Woods is required by the 1959 and 1968 agreements between the City of Newton and the Avery Family. The Board of Directors of the Newton Conservators urges the City of Newton to take the following actions to assure the permanent protection of the woods:
- The 2.5 acres (106,889 square feet) of land subject to the 1968 agreement, the boundaries of which are defined in that agreement, should be subdivided into a separate parcel, which would stay under the control of the School Department.
- The remaining 6 acres of land from the original Avery parcel should be transferred to the control of the Parks, Recreation, and Culture Department, and named “Avery Memorial Woods.”
- The city should grant to the Newton Conservators a conservation restriction on Avery Memorial Woods and grant money to the Conservators for enforcement.
The Board is not requesting either the School Department or the Parks, Recreation, and Culture Department to change the current use of any of this land.