■ COMMON^aWh of MASSACHUSETTS

NORFOLK,ss. SUPERIOR COURT DEPT.

OF THE TRIAL COURT
"■ ■■NObi-ulV lUONl ^ Case No. 18-1517

TAXPAYERS CONCERNED FOR BALDWIN

(Kate Chuprevich, Frances Gershwin, Lisa Goldin,
Sherry Leventhal, Dale Adler, Stacey McCarthy,
Donna Robinson, Jon Rotenberg, Elinor Ross,
Debra Teperman, and Jeffrey Wolk),

Plaintiffs,

V.

TOWN OF BROOKLINE, SELECT BOARD

OF BROOKLINE, SCHOOL COMMITTEE OF
BROOKLINE, JEANA A. FRANCONI, Finance
Director/Treasurer of Brooklinc, PATRICK
WARD, Town Clerk of Brookline, JONATHAN
LEVI ARCHITECTS LLC, KENNETH AND
ROBIN LEVINE, JONATHAN AND ADRIENE
WAKS, and FUMITO AND JORIKO
ICHINOSE,

Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFFS' EMERGENCY MOTION FOR

PRELIMINARY INJUNCTION

Stephen Wald (BBO #512350)

Robert F. Callahan, Jr. (BBO #685728)
Manleen Singh (BBO #686686)
800 Boylston Street, Suite 2500
Boston, Massachusetts 02199
Tel; (617) 267-2300
Fax:(617) 267-8288
 INTRODUCTION

Plaintiffs submit this memorandum in support of their Emergency Motion for Preliminary

Injunction. They seek an injunction that restrains the Town of Brookline, other town defendants,

and Defendant Jonathan Levi Architects LLC ("JLA") (collectively, "Defendants") from making

further expenditures on any new school premised on the unlawful use of— and blocking reasonable

public access to — a park protected by Article 97 of the Amendments to the Massachusetts

Constitution ("Article 97") and the federal Land and Water Conservation Fund program

("LWCF").

The Court has the power to restrain expenditures if a town is about to expend money or

incur obligations for any purpose other than that for which it has the legal and constitutional right

and power. M.G.L. c. 40, § 53. Here, Defendants are in the process of expending approximately

$4 million (most of which JLA will receive) on schematic design and construction drawings for a

new school premised on the use for educational purposes of "Baldwin Park" (aka Baldwin

Playground), which is protected under Article 97 and LWCF. The Legislature has the exclusive

power to change the use of Article 97 property, and the National Park Service ("NPS") controls

how and when property improved by a LWCF grant can be converted to another use. Defendants

have not sought authority to change Baldwin Park's use from either the Legislature or NPS. The

issue is not whether a school is needed, whether the Park can ultimately be used for school

purposes, or whether public access to this particular Park can ever be interfered with. Rather, the

simple issue is that certain processes must be followed before any of that can happen, and the

Town simply refuses to follow those processes. The Town has refused to learn that lesson that

Westfield learned in Westfield v. Smith, 478 Mass 49 (2017) — that ignoring the proper procedures
(i.e. getting Legislative approval to change the use of Article 97 land) will lead to an injunction

against further pursuit of even laudatory public objectives.

As discussed below, to obtain a preliminary injunction for citizen claims under M.G.L. c.

40, § 53, plaintiffs need only show a likelihood of success on the merits and that the request is in

the public interest. Here, Defendants cannot dispute that Baldwin Park is restricted under Article

97 and LWCF. Brookline's Town Counsel has written memos that confirm the restrictions. Also,

in October 2018, Defendants' outside counsel acknowledged to NPS that the park is restricted and

asked for an "expedited determination" on whether the park can be used for educational purposes

like recess and physical education. In a January 29, 2019 email, NPS's Executive Director

responded to Defendants' request and informed them that "the conversion you are planning at

Baldwin Park does require National Park Service review and approval under law and regulations."

There is thus a likelihood of success on the merits of Plaintiffs' claim that Baldwin Park cannot be

used for educational purposes like recess and physical education.

The requested injunction is also in the public interest. In the leading case on Article 97,

Smith v. Westfield, 478 Mass. 49 (2017), the SJC endorsed a preliminary injunction entered in

almost identical circumstances. The Superior Court's order stated this:

Mil determining whether the issuance of this injunction would adversely affect the
public interest, I fully agree that the failure to build a new public school would have
an adverse impact on the residents of the city, specifically the school children, who
are currently learning in outdated and decaying schools. However, this court is not
prohibiting the construction of a new school. It is merely ordering the city to comply
with the law before it proceeds. I find Westfield's insistence in ignoring its
environmental responsibilities to its citizens as well as the laws of the United States
and the Commonwealth particularly ironic, where it simultaneously seeks to build
an elementary school to educate our future leaders.

On January 30, 2019, NPS staff followed up the notice from their Executive Director with an email stating that NPS
had been waiting six weeks for information from Defendants and cannot issue a final determination until Defendants
supply the requested information.

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Memorandum Of Decision And Order On Plaintiffs' Motion For A Preliminary Injunction,

September 17, 2012, Affidavit of S. Wald ("Wald Aff."), Exhibit ("Exh.") at 1. The requested

injunction is thus also in the public interest.

I. FACTS SUPPORTING THE EMERGENCY MOTION

A. The Regulatory Background

By 2015, Brookline had decided that increases in its student population required it to

increase capacity in its schools. See Wald Aff., Exh. 2. Although Brookline and its School

Committee claim that a ninth school is needed immediately (and although later updated student

population projections undercut that initial decision), they wasted years and a near fortune

pursuing plans that were never feasible. Political pressure and irrational optimism led Defendants

to repeatedly ignore applicable laws and regulations, especially Article 97 and the LWCF.

In 1972, Massachusetts voters approved Article 97, which provides, "Nile people shall

have the right to clean air and water, freedom from excessive and unnecessary noise, and the

natural, scenic, historic, and esthetic qualities of their environment." Article 97 declares a "public

purpose" in "the protection of the people in their right to the conservation, development and

utilization of ... water, air and other natural resources," and authorizes state and local governments

to acquire land for such purposes. Article 97 land cannot be used for other purposes except by

laws enacted by a two-thirds vote of the Legislature. Art. 97, para. 4.

The executive branch of state government must also sign any law that allows changes in

use of Article 97 property. Approval by the executive branch requires that towns comply with the

Executive Office of Energy and Environmental Affairs's Article 97 Land Disposition Policy

("EOEEA Policy"). Wald Aff., Exh. 3. Under that Policy, towns may obtain approval of Article

97 conversions only in "exceptional circumstances," which require various conditions, including:

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 • "[AP other options to avoid the Article 97 disposition have been explored and
no feasible and substantially equivalent alternatives exist (monetary
considerations notwithstanding)"; and

• "[A]s part of the disposition, real estate of equal or greater fair market value or
value in use of proposed use, whichever is greater, and significantly greater
resource value as determined by [EOEEA] and its agencies, are granted to the
disposing agency or its designee ...."

The NPS also has programs that protect parks from encroachment for non-park purposes.

Under its LWCF grant program, any town that accepts an LWCF grant may not change the use of

the improved property to "other than public outdoor recreation use" without the approval of the

Secretary of Interior. 54 U.S.C. § 200305(f)(3)(emphasis added). NPS may approve a change in

use only if NPS determines that the town can "ensure the substitution of other recreation properties

of at least equal fair market value and of reasonably equivalent usefulness and location." Id.; see

also 36 C.F.R. § 59.3(a).

In 1975, Brookline received a LWCF grant to improve Baldwin Park. Wald Aft:, Exhs. 4

and 5. As consideration for the grant, Brookline agreed to comply with LWCF requirements that,

among other things, prohibited the Town from changing the use of Baldwin Park ("Project

Agreement"). That Agreement provides:

The [Town] agrees to execute the project described above in accordance with the
terms of the obligations contained in the Federal Project Agreement, Number 25-
00192.

Wald Aff. , Exh. 4 at p. 2. The "Federal Project Agreement" provides that grant recipients shall

not convert LWCF improved property "other than the public outdoor recreation uses specified in
-

the project proposal attached hereto without the prior approval of [NPS1." Wald Aft:, Exh. 5 at

Attachment 2, Sec. I(1)(emphasis added). Read together, these agreements restrict Baldwin Park

to the uses set forth in its LWCF Application, which nowhere mentions use dedicated to a school

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playground for recess or physical education programs. Indeed, such planned intensive use is

inconsistent with the identified uses in the Application:

The multi play area is used 12 months a year. In conjunction with the regular public
use of this facility, it is used by the Recreation Department's program for atypical
and handicapped citizens....

The subordinate objectives are to improve the physical environment, decrease

noise, [and] enhance the appearance of the area....

The reconstruction of the Baldwin Multi-Play area which is also located in the
established playground will most economically, by planting and screening off the
commercial area and traffic noises, provide an attractive, safe and useful facility for
both the handicapped and the general public use. Id. at 7, 10.

After Brookline started to consider possible sites for a new school, Brookline's Park and

Recreation Commission, the board with jurisdiction and responsibility to protect Brookline's

parks, delivered this directive objecting to sharing its parks for school functions:

The Park and Recreation Commission unanimously opposes the construction of any
school building on public parkland and has significant concerns over shared use of
these spaces for school playground use. We are concerned about sharing or
transferring parkland to school ground use because parks are public amenities
that are open daily from dawn until dusk to everyone. School grounds restrict
use, understandably, for most of the day and year. ... We oppose transferring
parkland to school building development or use because we require additional
parkland to accommodate the community's needs today, let alone future needs. As
the demand for school space increases so too does the need for parks and open
spaces for every age and ability. Wald Aff., Exh. 6 (emphasis added).

On January 21, 2016, Brookline's Town Counsel alerted Defendants that four proposed

sites, including Baldwin, were restricted by both Article 97 and the LWCF grant used to improve

the Park. Wald Exh. 7. The SJC's holding in Westfield— including that land restricted by an

LWCF grant is Article 97 land — confirms that Town Counsel's advice was correct.

B. Defendants' Plan for a New School that Will Unlawfully Use Baldwin Park

On October 13, 2016, Brookline's School Committee and Select Board voted to select three

adjoining sites for a ninth school: Baldwin Park; the "Baldwin school" property north of the park

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now used for staff daycare and a few limited, high school programs; and the Soule Recreation

Center, which Town Counsel's memorandum also identified as land restricted by Article 97 and

LWCF. Wald Aft:, Exh. 9. In approving that selection, Defendants ignored the warnings of Town

Counsel and pursued a school on the Baldwin/Soule sites anyway.

The Town's web site identifies the 1.25 acre Baldwin Park as Article 97 land and describes

the property "defined by its rolling topography, mature oaks over expansive lawn, and considerable

variation between highest and lowest elevation." 2 Baldwin Park is accessible only from Oak

Street, a short private way that begins on Heath Street and dead ends at Baldwin Park. Wald Atli,

Exh. 8(A and J). The entire park is natural grass, except for a tennis court 3 on the southwest border

of the park. Wald Aft:, Exh. 8(B through I). Baldwin Park has a fenced in "tot lot," which houses

a swing, climbing structure, and sandbox, as well as mature trees, the tennis court made with the

LWCF grant, and a few benches. Wald Aff., Exh. 8(B through I). The entire park is natural grass.

Id.

In an April 20, 2017 email, NPS staff stated that the LWCF restriction applies to all of

Baldwin Park, and not just the paved tennis court area, as Defendants had wrongly claimed. Wald

Aft:, Exh. 10. The Defendants continued to pursue a school on the Baldwin/Soule sites, with

School Committee Chairman Pollak repeatedly opining that the NPS was only that of staff and

that NPS would change its position. On June 16, 2017, Brookline's outside counsel, Luke Legere,

wrote to NPS and argued that its April 20, 2017 email was wrong and only the tennis court is

restricted by LWCF. Wald Aff., Exh. 11. In August 2017, NPS responded to Legere's letter, again

2 See: https://www.brooklinema.gov/facilities/facility/detailsibaldwinschoolplayground-11 . Photographs of the

pastoral nature of Baldwin Park are attached to the Wald Aff. as "Exhibit 8".
3 Much of the LWCG grant was used to improve the tennis court, which Defendants now plan to eliminate.

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rejected the Town's position, and reaffirmed that the entirety of Baldwin Park is subject to the

LWCF restriction. Wald Aff., Exh. 12.

On November 14, 2017, a special town meeting addressed Defendants' failure to identify

a feasible site by appropriating $300,000 to revisit possible sites for a new school or to expand an

existing school. Wald Aff., Exh. 14. With that appropriation, the Town retained HMFH Architects

as a new consultant. Among the plans being considered was "Baldwin North," which involves

building a new school only on the 1.5 acre Baldwin School site which is adjacent to the park. Wald

Aff., Exh. 15 at p. 2.

On April 30, 2018, Brookline's Town Counsel provided a "Legal Summary" on the "Ninth

School Siting," which gave the following legal advice on the use of Baldwin Park:

Land benefiting from an LWCF grant must remain accessible for "public outdoor
recreational use." This could conflict with any attempt to use the southern half
of the Baldwin parcel as dedicated playspace for a new school. Open access to
the playground could raise security concerns, limit the playgrounds' usefulness
during recess period, and could lead to additional maintenance or replacement
costs if it accelerated wear and tear on the facilities.

Wald Aft:, Exh. 16 (emphasis added). Town Counsel also advised Defendants about Article 97,

stating that Baldwin Park is protected under Article 97. Id.

On June 13, 2018, Brookline's School Committee and Select Board voted to proceed with

a feasibility study for a school on Baldwin North with two classes per grade, plus three town-wide

programs, enrolling 450+ students. Wald Aff., Exh. 17. The record makes clear that the School

Department intends that Baldwin Park serve school functions inconsistent with the Article 97 and

LWCF restriction. In an email to NPS discussed further below, Defendants' outside counsel stated,

"The Town is notifying EEA and the NPS of its proposal to use the Baldwin School Playground

for recess and physical education." Wald Aft:, Exh. 20. The School Department has also stated,

"[The use of outdoor spaces for physical education, athletics, recess, and curriculum-based

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learning will be an integral part of the learning at Brookline's new PK-8 elementary school." Wald

Aff., Exh. 18 at p. 29. Further, the Town viewed the ability to use Baldwin Park as an

"advantageous" factor in the selection process. See Wald Aff., Exh. 19 at line 4.3 (reference to

"rebuilding existing play space").

On February 14, 2019, Defendants disclosed $2.5-5 million in modifications to Baldwin

Park that will make it suitable for educational purposes like recess and physical education. 4 Wald

Aft:, Exh. 13. The proposed changes, which will destroy the bucolic nature of Baldwin Park,

include re-grading the land, eliminating the existing tennis court in favor of "sport court" for

students, removing 25,295 sq. feet of grass (about six-tenths of an acre and one-half of the entire

park), installing a "rubber playground" surface, and eliminating the now fenced-in "tot lot" for

young children. Id. at pp. 5-8; see also Wald Aff., Exh. 22 at p. 19 ("rubber playground surface"

over 25,295 square feet). Also, as discussed further below, current plans for a school at Baldwin

North will prevent citizens from accessing Baldwin Park.

C. NPS's Determination That Defendants' Plans for Baldwin Park Constitute A

"Conversion" that Requires NPS consent

In letters dated July 26 and September 11, 2018, Plaintiffs' counsel advised Defendants

that their plans to use Baldwin Park for educational purposes are unlawful under Article 97 and

the LWCF grant program. Wald Aft:, Exh. 24. In response to those letters, as well as Town

Counsel April 2018 "Legal Summary," the Defendants sought to justify their plans for the park.

First, they obtained an outside legal opinion from Legere, but unlike with previous legal due

diligence they refused to make that opinion public. Instead, in October 2018, the Co-Chairs of a

"building committee" issued what they called "Report Of The Co-Chairs Of The Baldwin Building

4At a February 28, 2019 public meeting, a JLA architect stated that the proposed changes to Baldwin Park will cost
$4-5 million. A JLA handout that day stated the "play area" would cost $2.5 million Wald Aff. , Exh. 23 at p. 17.

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Committee On The Use Of The Baldwin Playground By Public School Children." Wald Aft:,

Exh. 26. The one-page "Report" stated that the Co-Chairs were advised that the Town is prohibited

under NPS regulations from doing a "conversion" of Baldwin Park — a legal proposition

acknowledged by all. They then stated this on whether the plans were a "conversion":

Based on that advice [that a "conversion" is prohibited], the co-chairs of the

Baldwin Building Committee consulted with the design professionals associated
with the project and are satisfied that the current plans for the Baldwin School
would not result in a "conversion" of the Baldwin Playground.

Id. The "Report" then described how Defendants intended to use Baldwin Park for educational

purposes. Id. Based on that "Report", Defendants repeatedly told the public that they conducted

adequate due diligence and that there are no legal restrictions on the use of Baldwin Park by a

school. See Wald Aff. , Exh. 2 at p. 59 (Misstating the relevant issues altogether, they stated:

"There is no reasonable basis for thinking that public school children attending the new Baldwin

School can be prevented from using, on a non-exclusive basis, the adjacent Baldwin School

Playground ....")

However, unknown to the public, Defendants and their outside counsel fully understood

there is serious doubt about using Baldwin Park for school activities. To address those questions,

Legere contacted EOEEA in early October 2018 to ask for an expedited administrative

determination by the NPS on Defendants' ability to use Baldwin Park for recess, physical

education, and other educational purposes. In an email on October 3, 2018, Legere first

acknowledged that Brookline intended to use Baldwin Park for "recess and physical education,"

and then requested the following:

The Town of Brookline requests that NPS issue an expedited determination that no
formal review and approval process will be required for the proposed use of the
Baldwin School Playground outlined below, as provided for in the LWCF Federal
Financial Assistance Manual, Volume 69, Ch. 8-16 (October 1, 2008).
***

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 A Project Agreement conditioning the Town's acceptance and use of LWCF grant
money at the Baldwin School Playground was executed on or about June 26, 1976,
and prohibits the Town from converting the Baldwin School Playground site to
anything other than public outdoor recreational use without approval from the
Director of the NPS.
***
The Town is notifying EEA and the NPS of its proposal to use the Baldwin
School Playground for recess and physical education early in the planning
process, as part of its feasibility study for building a school at the Baldwin School
property, in the interest of transparency and consistent with NPS guidance
documents. LWCF Federal Financial Assistance Manual, Volume 69, Ch. 8-16
(October 1, 2008).

Wald Aff., Exh. 20 (email exchanges with Legere and EOEEA). In response, NPS first made clear

that it required additional information before making any determination. Id. at p. 4-5.

In a December 5, 2018 email, Legere responded to a NPS question by stating, " [W]ithout

a doubt, the Town can confirm that the Baldwin School Playground site will be open to the public

for outdoor recreation use outside of school hours." Wald Aff., Exh. 25. That email reflects

Defendants' expectation that Baldwin Park will be unavailable to the public during school hours. 5

On January 29, 2019, NPS's Executive Director rejected Defendants' position as follows:

This email will serve as notification to the Town of Brookline MA that the
conversion you are planning at Baldwin Park does require National Park
Service review and approval under law and regulations.

Wald Aff. , Exh. 21 (emphasis added). By email on January 30, NPS staff also informed

Defendants that the NPS determination was not yet final as they had been waiting six weeks for

information from Defendants. Wald Aff. , Exh. 27. The email identified various issues that had to

be addressed, including:

We discussed those on December 17, 2018. The outstanding pieces included the
following:

5 On December 13, 2018, a special town meeting approved an appropriation of $1 5 million for a "schematic design"
for a Baldwin North school. During that meeting, Legere stated publicly that this litigation was "not a terribly strong
complaint." Legere withheld from the public that he and Defendants were sufficiently concerned about restriction on
the use of Baldwin Park to have requested an "expedited" administrative ruling by NPS.

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 • confirming the size of the LWCF site - The 2015 Atlas map presents the
school and playground as one parcel. The Town was going to provide parcel
data to show the 1.5 acres at the bottom of Oak Street was a stand alone
parcel when this grant was awarded in 1976.
• access to the LWCF site - The 1.5 acres is at the end of Oak Street, which
today is considered a private street. The town believes it has always been a
private street and were going to verify that for NPS. It may be helpful to
know if that was the case at the time of the grant award. If it has always
been private - what limitations were/are associated with that designation?
• future site access - We understand the Town is in the early planning stages
but NPS will not be able to make a definitive determination until plans are
less fluid. A way for the public to access the site is important to the viability
of the site under LWCF. Id.

Defendants have not answered NPS's questions, because the answers will show that their plans for

a school at Baldwin North will encroach on and change Baldwin Park forever.

MA's plans for Baldwin Park were released on February 14, 2019. Those plans show

expansive changes to the existing pastoral park, with extensive plans to regrade the land, change

natural grass to artificial turf, and eliminate the existing tennis court — all to accommodate school

uses like recess and physical education. Wald Aff., Exh. 13. There will be substantial regrading

of the landscape and removal of the fenced in "tot lot" area in order to convert the public park to

school use. Grass will be replaced by terraced steps, and 25,000 square of grass — one-half of the

total park — will be removed and replaced with a rubberized playground surface. Wald Aff., Exhs.

13, 23. The tennis court that was resurfaced with the LWCF grant will be removed and a basketball

court and hardscape play area will be where the courts or grass are currently. None of these changes

is consistent with the current bucolic, pastoral setting of Baldwin Park, as the changes are intended

to convert Baldwin Park for school use.

In addition, Defendants' plans will severely limit public access to Baldwin Park, as they

plan to preempt for school use essentially all the otherwise available public parking now used by

visitors to the Park. Currently, the only public access is from Heath Street via Oak Street, a private
way which has served for decades — since the LWCF grant - as the public access to the Park. NPS

has emphasized the importance of preserving access to the public. Wald Aff., Exh. 27. However,

Defendants plan to eliminate public parking on Oak Street to use adjacent streets for staff and

teacher parking. In addition, the Defendants cannot address NPS's articulated concern about Oak

Street, the private way that provides park access by dead ends right at the park. Defendants also

plan to extend Oak Street around a new school building so they can queue and park hundreds of

cars during the morning and afternoon rushes. 6 Id. JLA's recent design shows the conversion of

Oak Street to a school driveway handling hundreds of cars and a large structure over Oak Street

that creates a tunnel as the only real public facing of the park. See Wald Aff., Exh. 23, p. 1. The

plan cuts off the decades-long public access to the park, resulting in a clear message that anything

behind those buildings is school property and no longer a park to which the public is welcome. Id.

JLA is now working under a contract that will pay JLA $1,179,280.00 for schematic design

services related to a Baldwin North school. Wald Aff. , Exh. 28. They are in the process of

spending those funds even though NPS has questioned the use of Baldwin Park for a school and

has not made any determination of the issues that Defendants, themselves, have put before NPS.

The Defendants have decided to ignore NPS and the Legislature even though the proposed new

uses, including limiting access to the park, trigger the need for Legislative and NPS approval.

Defendants are so hell-bent on building a school at Baldwin North that they are also now

considering, apparently for the first time in Town history, to bundle a debt override vote for the

illegal Baldwin North project with debt overrides for less controversial renovation/expansion of

other elementary schools. Wald Aff., Exh. 26. They are attempting to coerce voters to ignore the

6 As an abutter to the Oak Street private way, Baldwin Park has an easement and right to assert that the private way

not be overburdened by a new use, which is exactly what Defendants plan to do. Maslow v. 0 'Connor, 93 Mass. App.
Ct. 112 (2018); Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 (2004).

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legal restrictions on Baldwin North or be at risk of delaying funding of other projects. This amounts

to nothing less than voter disenfranchisement.

II. ARGUMENT

A. The Applicable Legal Standard

A private party seeking injunctive relief generally must show a likelihood of success on

the merits and that the party will suffer irreparable harm absent the injunction. Packaging Indus.

Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). Where, however, a party acting as a private

attorney general brings suit to enforce the law, as is the case here, the movant is not required to

show irreparable harm. LeClair v. Town of Norwell, 430 Mass 328, 331-32 (1999). In such matters,

once the movant shows a likelihood of success on the merits of their claims, the Court must "then

determine whether the requested order promotes the public interest, or, alternatively, that the

equitable relief will not adversely affect the public." Id. (citing Commonwealth v. Mass. CRINC,

392 Mass. 79, 89 (1984)) (internal quotations omitted). The Supreme Judicial Court has made

clear that citizens are acting as private attorneys general when bringing claims under M.G.L. c. 40,

§ 53. Edwards v. Boston, 408 Mass. 643, 646-47 (1990). The Court should thus consider the public

interest and "not the requirements of private litigation."

B. Plaintiffs Have A Likelihood Of Success On The Merits.

Plaintiffs need not prove with certainty their likelihood of success on the merits. Rather,

they must show only a reasonable likelihood, which the SJC has held requires only a showing of

"some merit." LeClair, 430 Mass. at 337. In civil cases, the words "reasonable likelihood of

success" mean the applicant presents a "meritorious issue" or "meritorious claim" that "is worthy

of judicial inquiry [by] raising a question of law deserving some investigation and discussion."

Lovell v. Lovell, 276 Mass. 10, 11-12 (1931); Russell v. Foley, 278 Mass. 145, 148 (1932). The

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claim must only be "worthy of presentation to a court, not one which is sure of success." General

Motors Corp., 344 Mass. 481, 482 (1962). In that context, Plaintiffs have shown they have a

reasonable likelihood of success.

1. Baldwin Park Is Restricted Under Article 97.

Article 97 is designed to promote the creation of parks and open space, and then protect

them from development. To accomplish that, Article 97 provides that land acquired for those

purposes "shall not be used for other purposes or otherwise disposed of except by laws enacted by

a two thirds vote...." Art. 97, para 4. Even before Article 97, Massachusetts recognized that "[a]

city or town that owns land ... and uses the land for a park may also dedicate the parkland to the

use of the public. A municipality may dedicate land owned by it to a particular public purpose ...

and upon completion of the dedication it becomes irrevocable." Westfield, 478 Mass. at 59 (citing

Lowell v. Boston, 322 Mass. 709, 730 (1948)). The "general public" thus has an "interest in the

land in the nature of an easement." Id.

Article 97 is part of Massachusetts's long history in protecting public parkland. Westfield,

478 Mass. at 61. Under the prior public use doctrine, "[t]he rule that public lands devoted to one

public use cannot be diverted to another inconsistent public use without plain and explicit

legislation authorizing the diversion is now firmly established in our law." Id. at 60. Reaffirming

that parklands are inviolate, the Westfield Court stated that the public use doctrine "is applied more

stringently where a public agency or municipality seeks to encroach upon a park." Id. at 61 (citing

Robbins v. Dep 't of Public Works, 355 Mass. 328, 330 (1969), and Gould v. Greylock Reservation

Comm 'n, 350 Mass. 410, 419 (1966)).

Based on the historic protection of parks and the statewide public interest in parkland

owned by municipalities, the Supreme Judicial Court has expressly determined that "the ultimate

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authority over a public park rests with the Legislature, not with the municipality." Westfield, 478

Mass. at 55. Article 97 reaffirmed that view and made it a part of the Massachusetts Constitution.

None of which is to say that parks are forever immune from change or productive use.

Article 97 permits changes in use of Article 97 land, but grants jurisdiction over those changes

solely to the Legislature. As a matter of practice, there are many examples of the Legislature

enacting laws under Article 97• 7 The Article 97 process is exemplified by an analogous case

involving Brighton's Daly Field. Simmons College sought to use the Field for its athletic

programs. See 2012 Mass. Ch. 223, § 3. Using the Article 97 process, Simmons College

negotiated an arrangement with the Legislature by which the parties agreed, among other things,

that the Legislature would pass a law under the Article 97 and Simmons College would provide

$5 million to improve the park in exchange for access to be shared by the public. Id. at §§ 4-7.

There is no dispute that Article 97 protects Baldwin Park. Town Counsel has opined that

the park is subject to Article 97, and the Town's website identifies it as Article 97 land. Brookline

permanently restricted the use of Baldwin Park when it accepted the LWCF grant. In identical

circumstances, the Supreme Judicial Court has held that municipal parkland dedicated in

perpetuity to "open outdoor recreational use" because of an LWCF grant is restricted by Article

97. Westfield, 478 Mass. at 49.

7See, e.g., An Act Relative to Property in the Town of Foxborough, 2005 Mass. Ch. 132; An Act Authorizing the Lease
of the Daly Field Complex Located in the Brighton Section of the City of Boston, 2012 Mass. Ch. 223; An Act
Authorizing the Town of Wellesley to Convey a Certain Parcel of Land for Parking Purposes, 2013 Mass. Ch. 73; An
Act Authorizing the Town of Millis to Transfer a Certain Parcel of Park Land, 2017 Mass. Ch. 12; An Act Authorizing
the City of Cambridge to Use Certain Land Acquired for Park, Playground or Recreation Purposes for Other
Municipal Purposes, 2017 Mass. Ch. 89; and An Act Authorizing the City of Lowell to Transfer Certain Parcels of
Park Landfor the Construction of a High School, 2017 Mass. Ch. 46; see also 2017 Mass. Ch. 12, §§ 2-3 (replacement
property transferred to Conservation Commission for recreational purposes); 2017 Mass. Ch. 89, § 1 (restoration of
recreational amenities once construction of public school building complete); 2017 Mass. Ch. 46, § 3 (city must
complete three recreational development projects, including new softball and athletic field and renovation of a field
hockey field).

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 In addition, the Massachusetts's Statewide Comprehensive Outdoor Recreation Plan

("SCORP") specifically provides that "[hand acquired or developed with [LWCF] funds

become[s] protected under the Massachusetts Constitution (Article 97) and [F]ederal regulations -

and cannot be converted from intended use without permission from the National Park Service and

Executive Office of Energy and Environmental Affairs." See Westfield, 478 Mass. at 63. The

EEEA Policy on Article 97 states, "An Article 97 land disposition is defined as a) any transfer or

conveyance of ownership or other interests; b) any change in physical or legal control; and c) any

change in use, in and to Article 97 land or interests in Article 97 land." Wald Aff. , Exh. 3

(emphasis added).

Here, Defendants intend to unilaterally transform the 1.2 acre bucolic park so it can be used

by 450 Baldwin North students for recess, physical education, and other educational purposes

throughout the day (including before and after school). The School Department has said that it

will spend $2.5-5 million to modify the park, including regrading, the destruction of the fenced in

play area for young children, and the replacement of grass covering half of Baldwin Park's 1.2

acres with artificial turf. Practical control of the park will move from the Parks and Recreation

Commission to the School Department. There can be no question that these proposed changes

alone constitute a "change in physical or legal control," which under the EOEEA Policy

constitutes a land disposition triggering Article 97.

Defendants plans for 450 students using the park for recess and physical education

"encroaches" on the Park, and Westfield made clear that encroachment constitutes a change in use

that requires a town to utilize the Article 97 process. Plaintiffs thus have a reasonable likelihood

of success on their claim that Baldwin Park cannot be "diverted" from its current use as a bucolic

park to a school facility unless and until Defendants enlist the Legislature in the Article 97 process.

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 2. Baldwin Park Is Also Restricted Under the LWCF Program.

The LWCF program provides grants and other financial assistance "for development of

basic outdoor recreational facilities...", but acceptance of LWCF assistance requires that no

property "developed with the assistance" of the LWCF "shall, without the approval of the

Secretary, be converted to other than public outdoor recreation use." See 54 U.S.C. § 200305(0(3).

As discussed above, by accepting its LWCF grant, Brookline became legally prohibited from

changing Baldwin Park's use to other than the public outdoor recreation uses specified in the

project proposal unless and until it obtains consent of the NPS. 54 U.S.C. § 200305(0(3).

Brookline's LWCF proposal specified that Baldwin Park would be used "by the Recreation

Department's program for atypical and handicapped citizens"; "to prevent the closing of the

playground which would seriously affect the residents in the surrounding neighborhoods and

curtail the program for the atypical classes and handicapped ... "; and "provide an attractive, safe

and useful facility for both the handicapped and the general public use." See Wald Aff., Exhs. 2,

3. The "project proposal" also stated, "[In conjunction with the regular public use of this facility,

[the park] is used by the Recreation Department's program for atypical and handicapped

citizens..." Id.

Defendants' current plans for a school at Baldwin North will prevent the use of Baldwin

Park described in the Project Agreement and Baldwin Federal Agreement. First, Baldwin Park is

a typical public park — open and inviting, bucolic and peaceful. It has never been used as the recess

or physical education area for the 450-student school now being contemplated. Under Defendants'

plan, 450 students will for be using the park 180 days per year before school, for recess throughout

the day, for physical education, and for other educational programs. As discussed above,

Defendants intend to spend millions modifying the Park specifically so it can be used daily for

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school functions like recess and physical education. Legere's December 5, 2018, email essentially

admits the park will not be available to the public during school hours.

Also, a Baldwin North school will effectively cut off public access to Baldwin Park.

Currently, Baldwin Park is accessible by Oak Street, a private way that goes from Heath Street

and dead ends at the park. NPS is much concerned the existing will be eliminate by Defendants'

plans. See Wald Aff., Exh. 27. Defendants plan to extend Oak Street around the planned school

and use it for student drop off and pick up, deliveries, and parking. For much of the school day,

access to the park will effectively be cut off. Wald Aff., Exh. 23. Although Defendants have paid

lip service to preserving access for the public, school funds are being used to modify the park for

the school's needs, and recently Defendants have obtained approval of an off-site parking plan that

will effectively prevent access to Baldwin Park during school hours. 8

At a public meeting on February 14, 2019, JLA and members of the "Baldwin Building

Committee" stated that their landscape consultant's three options for modification of the park

include enormous changes to the Baldwin Park, the addition of large paved surfaces and/or an

"amphitheater" style playground. That committee also described an "Option D" that has recess,

physical education, and other outdoor needs of the school solely on Baldwin School property. The

Committee thus recognizes that there is a likelihood that Plaintiffs will succeed in proving that

using Baldwin Park for school purposes violates Article 97 and the LWCF restrictions.

Last, the Park and Recreation Commission has objected to sharing park facilities with

school functions because "parks are public amenities that are open daily from dawn until dusk to

everyone.... [and school] grounds restrict use, understandably, for most of the day and year."

Brookline's Transportation Board had no authority under its Permit Parking Regulations to prove Defendants'
proposed parking plan, and Plaintiffs have a pending action that challenges the Board's action. See Neighbors Of
Baldwin, et al. v. town of Brookline, etal., Norfolk Superior court, Case No. 1982CV00252.

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Wald Aft:, Exh. 4. JLA's renditions show that a Baldwin North school will physically overwhelm

the park and limit public access. Compare Wald Aff. , Exh. 27 with Wald Aff., Exh. 6 at p. 1.

Defendants' planned use of Baldwin Park will, therefore, constitute a conversion of use

that is prohibited absent NPS consent.

C. The Requested Injunction Is In the Public Interest.

Plaintiffs seek to enjoin Defendants from expending additional funds to develop the

Baldwin North site unless and until the NPS and the Legislature approve the changes to the use of

Baldwin Park, as required by Article 97 and the LWCF program. This requested injunctive relief

undoubtedly promotes the public interest.

As an initial matter, the Supreme Judicial Court — in no uncertain terms — confirmed that

as a matter of constitutional law in the Commonwealth the "general public" has an "interest in

[Article 97] land in the nature of an easement." See Westfield, 478 Mass. at 60. "[B]ecause the

general public has an interest in parkland owned by a city or town, ultimate authority over a public

park rests with the Legislature, not with the municipality." Id. The Supreme Judicial Court also

unequivocally reaffirmed that the prior public use doctrine be "stringently" applied "where a public

agency or municipality seeks to encroach on a park." Id. at 61. In this context, the SJC has also

made clear that everyone in the Commonwealth, and not just Brookline residents, constitute the

"public," so the effort to justify school use as consistent with "public" use is simply wrong.

Westfield, 478 Mass. at 60. The relief requested herein unquestionably promotes this public interest

as it seeks to prevent Defendants from spending more money or incurring more obligations for a

school that would encroach on an Article 97-protected Baldwin Park.

In Westfield, the lower court issued a preliminary injunction while construction of a new

school was actually underway. That court stated this about the public interest:

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 The city argues that the possibility that the project would be delayed, and that the
city may be at risk of losing the 23.1 million dollars in state funding, supports its
claim of irreparable harm. However, a claim of irreparable harm must be specific
and not what the party might "conceivably suffer." Packaging Indus. Group, Inc.
v. Cheney, 380 Mass. 609, 617 (1980). The city has failed to demonstrate that it
will be irreparably harmed if it is allowed to ignore compliance with the requisites
of article 97. On the other hand, the plaintiffs have demonstrated irreparable harm
in that the loss of an open air space without a replacement is a "loss of rights that
cannot be vindicated" by a final judgment. See Packaging Indus. Group, Inc., 380
Mass. at 616.

Finally, in determining whether the issuance of this injunction would adversely

affect the public interest, I fully agree that the failure to build a new public school
would have an adverse impact on the residents of the city, specifically the school
children, who are currently learning in outdated and decaying schools. However,
this court is not prohibiting the construction of a new school. It is merely ordering
the city to comply with the law before it proceeds. I find Westfield's insistence in
ignoring its environmental responsibilities to its citizens as well as the laws of the
United States and the Commonwealth particularly ironic, where it simultaneously
seeks to build an elementary school to educate our future leaders.

Wald Aff. , Exh. 1. The Supreme Judicial Court cited that language with approval. Westfield, 478

Mass. at 53-54.

Further, Defendants understand the futility of developing a site for the ninth school for

which there are significant legal impediments. They have rejected sites with use restrictions

similar to the ones restricting Baldwin Park and have asked NPS to determine whether their

proposed use of Baldwin Park is lawful. Wald Aff., Exhs. 5, 19, 20. A final determination by

NPS is unlikely to come soon, as Defendants seemingly do not want to supply the information

requested by NPS that will reveal the true intentions about their proposed use of Baldwin Park and

the proposed changes around the park that will curtail if not eliminate public access.

Moreover, on October 3, 2018, Special Counsel to the Town, Mr. Legere, requested an

"expedited determination" by NPS, presumably because it was essential to complete due diligence

before spending millions of dollars to design a school that cannot be build. Wald Aft:, Exhs. 19-

22. NPS's Deputy Director wrote that what Defendants contemplate is a "conversion" that will

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require consent of the Secretary and acquiring replacement land, among other things. Wald Aft:,

Exh. 22. There is no immediate need to spend money on a school dependent on the use of a park

restricted by the LWCF program and for which any change in use comes within the exclusive

jurisdictions of Massachusetts Legislature and the NPS. The public interest is promoted by

ensuring that Defendants get all necessary approvals before spending more Town resources.

III. CONCLUSION.

For all the foregoing reasons, the Court should allow Plaintiffs' Emergency Motion For

Preliminary Injunction and enter the preliminary injunction described in the Motion.

March 12, 2019 ROBINS KAPLAN LLP

By:
Stephen Wald (BBO #512350)
Robert F. Callahan, Jr. (BBO #685728)
Manleen Singh (BBO #686686)
800 Boylston Street, Suite 2500
Boston, Massachusetts 02199
Tel: (617) 267-2300
Fax: (617) 267-8288

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was mailed, postage prepaid, and emailed on
this 12th day of March, 2019 to the attorneys of record of each other party.

Stephen Wald
36953082.1 exh

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