A communication transmitted from Louis A. DePasquale, City Manager, relative to Awaiting Report Item Number 18-57, regarding a report on launching a program during the summer months to activate the front lawn of City Hall in the afternoons with games

Telephone [phone removed] Facsimile [phone removed] TTY/TTD [phone removed] Nancy E. Glowa Assistant City Solicitors City Solicitor Paul S. Kawai Samuel A. Aylesworth Arthur J. Goldberg Keplin K. U. Allwaters Deputy City Solicitor Sean M. McKendry Megan B. Bayer Vali Buland Brian A. Schwartz First Assistant City Solicitor Public Records Access Officer Jennifer Simpson CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 July 30, 2018 Louis A. DePasquale City Manager Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Re: Response to Awaiting Report No. 18-57, Council Order O-4 of 5/21/18 Re: Report on launching a program during the summer months to activate the Front Lawn of City Hall in the afternoon with games (such as cornhole boards), food trucks, and other forms of entertainment to engage a diverse age range of residents in recreation Dear Mr. DePasquale: We have prepared this legal opinion in response to Awaiting Report No. 18-57, Council Order O-4 of 5/21/18, which requests a report on launching a program during the summer months to activate the Front Lawn of City Hall in the afternoon with games (such as cornhole boards), food trucks, and other forms of entertainment to engage a diverse age range of residents in recreation. We evaluated whether City Hall Lawn can be used for recreational purposes, whether there are any procurement issues with this proposal, and whether this proposal exposes the City to additional liability. In my opinion, City Hall Lawn can be used for the type of recreational activities proposed. In my further opinion, depending on how this program is implemented there may be procurement issues, and as long as the City is not charging a fee for these activities, the City is protected from liability. In regard to the first issue, City Hall Lawn can be used for active recreational activities, such as games, unless the land on which City Hall Lawn is located was conveyed to the City subject to a condition that the land be used for a different public use. Board of Selectmen of Braintree v. County Cm’rs of Norfolk, 399 Mass. 507, 512 (1987) (“Land which has been devoted to one public use cannot be diverted to another, inconsistent public use without plain and explicit legislative authority.”). If property is conveyed to the government for a specific public purpose the property may be “subject to an enforceable general public obligation or trust to use the property for those purposes.” Nickols v. Commissioners of Middlesex County, 341 Mass. 13, 18 (1960).

2 City Hall was a gift from Frederick Hastings Rindge in 1887, and the only conditions of the gift were that the City acquire a suitable spot for the building, and that the building bear the inscription on the balcony over the front door. The City acquired the site for City Hall in 1888, and the site originally consisted of nine parcels, one of which the City acquired by eminent domain “for the purpose of erecting and maintaining thereon a city hall.” The other parcels were purchased by the City, and the deeds do not contain any conditions on use. The City Hall building was signed over to the City after construction in 1890, for purposes of being the City Hall. As the notice of taking and deeds do not contain any condition on the land, aside from its use to erect and maintain a city hall which is not inconsistent with this proposal, there is no prohibition on using City Hall lawn for active recreational activities, such as games. Additionally, City Hall is designated as a landmark pursuant to Chapter 2.78 of the Municipal Code, and is protected by a Preservation Restriction held by the Massachusetts Historical Commission. The City Hall Landmark Designation Report prepared by the Historical Commission includes “maintain[ing] original landscape elements, including the lawn and granite curbing at the perimeter of the lot” as a standard for design review. However, the placement of temporary recreational activities and possibly other temporary equipment, such as musician’s equipment, that is temporary in nature and will not alter the lawn does not constitute the alteration of exterior architectural features that would be subject to the Historical Commission or Massachusetts Historical Commission’s review. If the City wishes to contract with any organization to provide the games or entertainment, or to contract with the food trucks, G.L. c.30B would apply. If the City is not entering into a contract with any organizations, but is instead inviting entertainers or food trucks to perform or vend at City Hall, the City may want to adopt a policy concerning inviting all entertainers or vendors to have the ability to participate in this program. Lastly, as long at these games, access to food trucks, and entertainment are provided without charging a fee, the City is protected from liability by the Recreational Use Statute, which shields the City from liability for damages to members of the public while on City land in the absence of willful, wanton or reckless conduct by the City or City employees. Very truly yours, Nancy E. Glowa City Solicitor