Real estate counsel and their clients contemplating the sale, change in use, or other
disposition of open space or land in public outdoor recreational use must heed Article 97 of the Amendments to the State Constitution.
First, remind yourselves of the decision in the case of Mahajan v. DEP, (2013). There the SJC reversed a Superior Court
decision that Article 97 protected Long Wharf in Boston.
Then take note of advancement of that jurisprudence in the next
SJC’s precedent-setting ruling in the case of Smith v. City of Westfield, (2017). Article 97 protection can
attach long after original parkland acquisition.
The SJC in the Mahajan case ruled the end of Long
Wharf (part of Boston’s historic Walk to the Sea) was not dedicated to Article
97 purposes, but acknowledged that properties acquired pre-Article 97 or
without explicit Article 97 dedication in their chain of title could become
Article 97-protected by dedication thereafter.
According to the SJC in Mahajan, the test is “whether the land
was taken for [Article 97] purposes, or subsequent to the taking was designated
for those purposes in a manner sufficient to invoke the protection of art. 97.”
In that case, the SJC ruled that
although the BRA’s waterfront urban renewal plan identified some objectives
consistent with Article 97 purposes, it included other inconsistent purposes,
and was therefore insufficient to invoke Article 97 protection.
Importantly, the SJC did recognize
that when considering whether Article 97 applies to land, “the ultimate use to
which the land is put may provide the best evidence of the purposes of the
taking” or intent for land acquired by a city or town.
Incidentally, a related suit in
federal court successfully sought to compel compliance by the BRA with the
federal Land & Water Conservation Fund (LWCF) grant restrictions to the
National Park Service and the Commonwealth. These came to light after the
SJC’s Mahajan decision by
virtue of efforts under the Federal Freedom of Information Act and alarms being
sounded by astute former federal employees.
These federal grant conditions for
restoration and modernization of historic Long Wharf ultimately prohibited
commercial use of the end of the Wharf, stopping a restaurant proposal
redeveloping the shelter there, next to the popular ‘Compass Rose” in the pavement,
looking out at Boston Harbor.
The scope of Article 97 was examined
by the SJC several years later in the case of Smith v. City of Westfield, (2017). That case involved
a parcel of land in Westfield which had a long history of designation as a
playground following city council votes, acceptance and use of LWCF grant funds
to improve the playground, and a state program requiring that land developed
with such funds be subject to Article 97 protections.
Notwithstanding these designations, were
they dedications? The chain of title in the registry of deeds lacked any
document formally limiting the land’s use to conservation or recreational use.
The Westfield City Council sought to transfer the playground property to the
school department for the purpose of constructing a new elementary school, and
a group of residents sued to stop construction of the school to preserve the
playground.
The SJC in Smith picked up on the loose
thread in Mahajan and
decided that “land is dedicated to the public as a public park when the
landowner’s intent to do so is clear and unequivocal, and when the public
accepts such use by actually using the land as a public park.”
The Court made clear that one must
consider “the totality of the circumstances” in weighing whether land has been
clearly and unequivocally dedicated to Article 97 purposes. In other words,
Article 97 protection, as a matter of law, may be triggered for municipal land
without formally recording a deed, conservation restriction, or other
instrument at the registry of deeds.
In Smith, the “determinative factor”
in that calculation was the City’s acceptance of LWCF grant money to
rehabilitate the playground – the controlling statute prohibited the City from
converting the playground to any use other than public outdoor recreation
without federal approval, so it was clearly and unequivocally dedicated as a
public park by virtue of the City accepting those funds.
Upon reflection, the Mahajan and Westfield cases offer several
lessons for counsel
and clients to keep in mind when contemplating whether to sell, buy, lease, change the use,
or otherwise dispose of open space or land dedicated to public outdoor
recreational use.
First, the chain of title remains
the most important place to look. Certain words or actions, including language
in the deed or order of taking, conservation restriction, historic preservation
restriction or agricultural preservation restriction, will categorically
designate land for Article 97 purposes.
Secondly, acceptance of federal or
state grant money or funds, including LWCF grants or the state Parkland
Acquisitions and Renovations for Communities Program (formerly the Urban
Self-Help Program) will restrict future use of the land. This can be the deal
killer.
Thirdly, Town Meeting actions or
other formal dedication of land following acquisition, which may include
transferring the care, custody and control of the land to a conservation
commission, park department, water supply department or forest division, may
also trigger Article 97.
Finally, look at the big picture to
consider whether “the totality of the circumstances” may establish that a
municipality has clearly and unequivocally dedicated land to Article 97
purposes – while an individual action may carry relatively little weight, it
might tip the scales if viewed together with other actions taken over time. If
so, you need an Article 97 bill in the Legislature to acknowledge and authorize
to change the use or dispose of the property. Before that, you need the
contemplated action to be vetted by the Executive Office of Energy and
Environmental Affairs (EOEEA) under its long-standing Land Disposition Policy.
A member of REBA’s environmental law
section, Luke is a partner at the Boston firm McGregor Legere & Stevens,
PC. He helps clients with a broad range of environmental, land use, and real
estate issues including coastal and inland wetlands and waterways, zoning,
subdivision, development agreements, conservation restrictions, state and local
enforcement actions, stormwater, solid waste, hazardous waste, air pollution,
site remediation, regulatory takings, affordable housing, and energy facility
siting. His email address is llegere@mcgregorlaw.com
