SJC Announces New Test to Determine When Public Land Falls within Protections of Article 97
In Smith v. City of Westfield, the Supreme Judicial Court broadened the application of article 97 of the Massachusetts Constitution, holding that its conservation protections apply to any land that a municipality has expressed a “clear and unequivocal intent” to preserve as a public park.
As chronicled in our earlier post, this case involves a parcel of land containing a playground and two little league fields in the city of Westfield. The city developed plans to build an elementary school on the 5.3-acre parcel, but a group of city residents sued to stop construction, claiming that the parcel is park land protected by article 97.
Article 97 provides that land taken or acquired for conservation purposes may not be sold or converted to other uses without an affirmative 2/3 roll call vote of the state legislature. This requirement can be a significant hurdle to changing the use of lands subject to such protection. The question before the Westfield Court was whether the land was protected by Article 97. The Appeals Court had held that article 97 does not apply without a formally recorded restriction limiting the use of the land to conservation or recreational purposes. A concurring opinion from Justice Milkey, voicing concerns that such a strict requirement robbed article 97 of its intended force, urged the SJC to revisit the precedents underlying that decision.
The SJC did just that. It vacated the Appeals Court’s decision, and held that the recording of a deed or conservation restriction is not required to bring public land within the protection of article 97. According to the SJC, land is protected under article 97 when a city or town evinces a “clear and unequivocal intent to dedicate the land permanently as a public park and where the public accepts such use by actually using the land as a public park.”
The court examined the “totality of the circumstances” to determine whether the clear and unequivocal intent standard was met. For the Westfield playground, the determinative factor was that the city had accepted federal conservation funds to rehabilitate the playground. Those funds were accompanied by a statutory proviso preventing the city from converting the land to a use other than for public outdoor recreation without approval of the Secretary of the Interior. Acceptance of those funds, the Court reasoned, established the city’s clear and unequivocal intention to permanently preserve the land as a public park, which triggered the protection of Article 97.
The SJC also identified several other facts relevant to the analysis: the land had been used as a public park for more than sixty years; control of the land was formally turned over to the playground commission; and the city had passed an ordinance naming the parcel the “John A. Sullivan Memorial Playground.”
The SJC’s ruling replaces an objective test for determining whether land is protected by article 97—a recorded restriction on the land—with a more subjective, multi-factor test focused on identifying the city or town’s “clear and unequivocal intent” from a variety of factors On it face, the decision seemingly affords greater protection for public park and conservation lands. But the decision may have unintended consequences. By creating a playground or a ball field, accepting grant funds to rehabilitate it, placing the land under the control of a parks and recreation commission, or giving a playground a memorial name, a city or town may loose the flexibility to repurpose the land for other important uses—such as an elementary school—in the future. As a result, the city or town may simply not create, rehabilitate, transfer, or name the playground in the first instance. At a minimum, the SJC’s decision threatens to create uncertainty and reduce a municipality’s ability to predict when article 97 will apply to public land.
The best time for a city or town to state its “clear and unequivocal intent” is when it takes or acquires the land in the first instance. Land taken or acquired for “general municipal use,” placed under the care, custody, and control of the board of selectmen or the city council, and used for non-article 97 purposes is likely to be viewed quite differently than land taken or acquired for “park or conservation use,” transferred to the care, custody, and control of a park and recreation or conservation commission, and devoted to an article 97 use.
The problem, of course, is that not all transactions are as clear, simple, and transparent. Much of the land that may now be eligible for article 97’s protections under the SJC’s decision will, as in Westfield, have “backed into” that protection over time. As a result, there are likely to be more fact-specific disputes about what is and is not a “clear and unequivocal intent” to subject public land to article 97’s protections. And more of these disputes are likely to end up in court as conservationists are emboldened by the SJC’s decision and fiscal conservatives seek to avoid its protections so they can develop new projects by repurposing public land rather than by incurring the cost of acquiring new land.
Posted In: Land Use