BURLINGTON — Ignoring a stern warning from town counsel Kopelman and Paige, Town Meeting recently voted to adopt Phillip Gallagher's resolution which supports the complaint filed by the Friends of Mary Cummings Park against the city of Boston.

The complaint, filed three months ago, seeks to replace Boston as the trustee of the property.

The complaint also requests an investigation of the city's use of trust funds and the potential breach of trust, with regard to the 218-acre Mary Cummings property near the Northeastern University campus and at South Bedford Street and Blanchard Road.

The Friends of Mary Cummings Park, a non-profit corporation, is seeking the return of up to $15 million from Boston, the trustee for the controversial property.

Mary Cummings left the property to Boston in 1927, specifying in her will that the land be used for recreational purposes.

Just before the resolution was taken up, Town Meeting voted 77-3 to rezone the Mary Cummings property to the Open Space District.

One night after that, the Planning Board took no action on an application from Boston for an approval-not-required (ANR) plan for the property, which would freeze the zoning on the site for the next three years.

(When no action is taken on an ANR plan, unless appeals are filed to it within 21 days, it goes into effect.)

Town Meeting action

When the resolution was taken up at Town Meeting, Gallagher, who is moderator, stepped down during the proceedings and Precinct 4 Rep. Frank Monaco assumed the moderator's role.

Some parts of Gallagher's resolution read: "The City of Boston has spent trust assets for the purposes of protecting commercial development rights ... outside of the specific instructions of the trust.

"The City of Boston has received specific legal advice ... to position the trust property as unable to meet the wishes of the donor.

"The City of Boston has taken specific action to prevent access to the park."

"I have a hard attitude on this based on 30 years of frustration," Gallagher told the body.

"We ought to have another (recreational) park here ... it is an issue of duty and principle," Gallagher continued. "The performance of the city of Boston and its trust department has been despicable for 70 years ... Boston has since then abused those assets."

Then, Gallagher stated, "You are not exposing the community to any liability if you sign on to this complaint."

But, John Giorgio of Kopelman and Paige said the complaint from the Friends of Mary Cummings Park contains "some very significant allegations."

"These are allegations of abuse and neglect and misallocation of funds," Giorgio stated. "This is a proceeding in which the rights of the parties are potentially affected.

"There could be legal consequences from that type of a finding," Giorgio continued. "There are potential legal consequences to supporting this type of complaint."

"The complaint is indisputable," Gallagher said. "I have reached this point of anger and frustration ... These people have no intention of meeting the terms of what was a fantastic philanthropic gesture. It is a matter of duty and principle."

"In my view, you are adopting those allegations (if the body votes to pass the resolution)," Giorgio said. "Do you want to be embroiled in those disputes?"

"I am not mincing any words," Gallagher said. "I am telling you right now there is no litigation liability here ... The fact is the board (of selectmen) does not want to take this issue by the horns."

"You ask if they are likely (city of Boston) to succeed, and the answer is definitely no if there is litigation," said Precinct 3 Rep. Jack Kelly.