KeywordsMunicipal Corporations, Parks, Use of municipal property. Parks and Parkways. Constitutional Law, Taking of property. Due Process of Law, Taking of property.

Excerpt “Article 97 of the Amendments to the Massachusetts Constitution, approved by the Legislature and ratified by the voters in 1972, provides that ‘[l]ands and easements taken or acquired’ for conservation purposes “shall not be used for other purposes or otherwise disposed of” without the approval of a two-thirds roll call vote of each branch of the Legislature. The issue on appeal is whether a proposed change in use of municipal parkland may be governed by art. 97 where the land was not taken by eminent domain and where there is no restriction recorded in the registry of deeds that limits its use to conservation or recreational purposes.  We conclude that there are circumstances where municipal parkland may be protected by art. 97 without any such recorded restriction, provided the land has been dedicated as a public park.  A city or town dedicates land as a public park where there is 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.  Because the municipal land at issue in this case has been dedicated as a public park, we conclude that it is protected by art. 97.”  –  [For the text of the full decision, click on:  Virgina B. Smith vs. City of Westfield]

MMLA member Gregor McGregor, author of an amicus brief, described the SJC’s decision as follows:

In an unequivocal victory for environmentalists and proponents of open space and outdoor recreation, the MA Supreme Judicial Court ruled on October 2, 2017, that Article 97 protection may be triggered for municipal land without formally recording a deed, conservation restriction, or other instrument in the chain of title. Article 97 is the provision in the state Constitution protecting public open space and natural areas. Enacted by the voters in 1972, it is an important element of the state’s Public Trust Doctrine.

The Court’s precedent setting decision in Smith v. Westfield ruled that the Cross Street Playground in the City of Westfield is subject to Article 97 protection. This means the City must get a special super-majority vote of both the MA House and Senate in order to change the land from playground to school use.

The key was that the Court determined that Westfield clearly and unequivocally had dedicated the Cross Street Playground for permanent use as a public park over 60 years, and the public had used it that way. On these facts a two-thirds vote of the Legislature is needed per Article 97 of the Amendments to the MA Constitution before a change of use or disposition of protected property. In reaching this conclusion, the Court considered the totality of the circumstances, meaning all the relevant facts, but ultimately pointed to the City’s acceptance of federal Land and Water Conservation Fund grant money to rehabilitate the playground as the ‘determinative factor’.

The SJC also explicitly rejected the view, which some thought they saw in prior cases, that land not originally taken or otherwise acquired for Article 97 purposes would need some kind of a formal recording in the registry of deeds in order to trigger Article 97 protection afterward.  This put to rest a lot of uncertainty about what legal paperwork is needed to protect municipal, county and state owned  public natural resource lands and water areas in Massachusetts.

The many friend-of-the-court briefs by the Massachusetts Association of Conservation Commissions (MACC), Conservation Law Foundation of New England, Inc.(CLF), The Trustees of Reservations (TTOR), Association for the Preservation of Cape Cod (APCC), Massachusetts Audubon Society, Massachusetts Land Trust Coalition (MLTC), Massachusetts Attorney General, and Sanjoy Mahajan (lead plaintiff in the Long Wharf litigation) is a  measure of the stakes in this ruling. 

MMLA is studying the implications carefully, especially the playground-parkland distinction. The Legislature is in charge of parks and parkland conversions (so says the  Court). Yet it also enacted the very specific playground provisions, which give municipalities a great deal of flexibility in creating, changing, transferring and terminating what are playgrounds. These principles and procedures must be read consistent and harmonious. 

It appears that a playground is just a playground, remaining so unless and until the government (local, county or state) takes action(s) clearly and convincingly  intending to permanently dedicate it as parkland. 


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