Confirming Open Space Protections
By Eugene B. Benson
MACC Executive Director
July 2016
How protected from development in Massachusetts are municipal conservation lands and parks? Recent state trial court decisions, relying on two Massachusetts Supreme Judicial Court (SJC) decisions interpretingArticle 97 of the Massachusetts Constitution, have raised the specter that much-loved municipal open space, long-considered set aside for conservation, passive recreation, or as parkland, might not have protected status and could be developed or converted to other uses easily. What do the two SJC decisions really mean and what can be done to protect conservation lands accordingly?
Article 97
A good starting point is Article 97, which Massachusetts voters approved in 1972 as an amendment to our state constitution during a full-flowering of the environmental movement. Article 97 is quite remarkable for its breadth and its brevity. It gives people “the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment.” It authorizes the government to acquire conservation lands and easements. And it mandates that lands and easements acquired for conservation purposes “shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court.” That protection of conservation land applies whether the land was acquired before or after Article 97 was added to the Constitution. Article 97 land protection is the subject of SJC decisions, lower court decisions, and a 1974“Opinion of the Attorney General Regarding the Disposition of Public Lands Under the “Clean Environment” Amendment to the Constitution of Massachusetts.”It is also the subject of the Massachusetts Executive Office of Energy and Environmental Affairs (EEA)“Article 97 Land Disposition Policy”of February 1998, which sets forth many procedural and substantive requirements that must be met before changing the use or disposing of Article 97 land, including in most instances providing equivalent replacement land.
Conservation Commissions
Another good starting point is the vital role of conservation commissions as custodians and managers of municipal conservation lands. The 1957Conservation Commission Actauthorized each municipality in Massachusetts to establish a local conservation commission to plan for natural resource protection, acquire important land and water areas, and manage those properties for conservation and passive recreation. Lands acquired and managed by conservation commissions have traditionally been considered conservation lands and, since 1972, considered subject to Article 97 protections. In recognition, EEA’s Article 97 Land Disposition Policy includes the requirement of a unanimous vote of the conservation commission that an Article 97 land is surplus to municipal, conservation and open space needs before the property may be disposed of or used for another purpose.
Other Protections
It is important to remember that Article 97 is not the only protection of conservation and park lands. Town Meeting or City Council must vote to take land out of public use, as must the legislature (this is the public trust / prior public use doctrine). The sale, transfer, or change in use may not violate a term or condition of the title to such land, conservation restriction or trust document, or any requirement of funds used to purchase or enhance the land. For example, property purchased with Community Preservation Act (CPA) funds must have a permanent restriction recorded, limiting use of the property to the purpose for which it was acquired. The CPA requires the municipality to convey a perpetual conservation restriction on all parcels acquired with CPA funds to a qualified organization, such as a land trust or EEA agency, allowing the restriction to be enforced by a third-party. Other funding sources used to purchase or later improve the property, such as grants through the federal Land and Water Conservation Fund (LWCF), also impose limitations on other use or disposal of the property. (There have been more than 450 LWCF grants in Massachusetts for projects totaling more than 25,000 acres.)
Court Decisions
What about those two SJC decisions interpreting Article 97? They stand for the proposition that just because property looks like municipal conservation land or municipal public open space does not mean the property is protected by Article 97.
InBoard of Selectmen of Hanson v. Lindsay, 444 Mass. 502 (2005), the town of Hanson had acquired property in a tax foreclosure. At the time of the foreclosure, Town Meeting voted that the property be held for conservation purposes, but the property deed did not reflect that. The SJC held that Article 97 protections did not apply because the town took the property for tax purposes, not for conservation purposes, did not deed the property to itself for conservation purposes, did not record an equivalent restriction on the deed, or did not transfer the land to the custody and control of the conservation commission.
InMahajan v. Department of Environmental Protection, 464 Mass. 604 (2013), residents challenged a decision of the Boston Redevelopment Authority to redevelop land on Long Wharf, claiming the land had Article 97 protections. The BRA had acquired the land for urban renewal purposes. The SJC found that even though the land included open space and the urban renewal plan provided for open space and pedestrian access to the water’s edge, those were not enough to invoke Article 97 protections.
In bothSelectmen of Hanson and Mahajan, the critical Article 97 issues for the SJC seemed to be whether the land was acquired for Article 97 purposes or later designated for those purposes in a manner to invoke Article 97 protections. The purpose of the acquisition (if for conservation purposes) should be in the wording of the property deed. A later designation, for example a transfer of the property to the custody of the conservation commission, can be reflected in anaffidavit of the city or town clerk and lawyer’s certificaterecorded in the Registry of Deeds.
(There is adeus ex machinaending for the residents who sued inMahajan. After the SJC decision in favor of the BRA, the National Park Service determined the land was protected public space under federal law and could not be developed because the BRA had received a federal LWCF grant that required the property be for public outdoor recreation space.The BRA then sued the National Park Service in federal court and lost.It has appealed that decision.)
Confirming and Establishing the Protections
Some cities and towns are responding accordingly. For example, Town of Dartmouth staff reviewed the deeds of more than 170 conservation land parcels owned by the town and discovered deeds for town conservation lands that did not include clear wording indicating the parcels were intended to be set aside for conservation purposes. Some of those parcels had been acquired at tax sale or before the town conservation commission was established. After identifying each of those parcels, and with approval of the town Select Board and a Town Meeting vote, the town recorded corrective deeds for the parcels, making clear the parcels would be subject to Article 97 protection. The corrective deeds now include standard wording for deeds of conservation land, which the town has used for all subsequent deed transfers to the conservation commission: “under the care, custody and control of its Conservation Commission for conservation purposes, for the promotion and development of natural resources, and for the protection of the watershed resources of the Town of Dartmouth, under the provisions of M.G.L. c. 40, §8C, as it may hereafter be amended and of Amended Article 97 of the Massachusetts Constitution…” (Kudos to Michael O’Reilly, Environmental Affairs Coordinator for the Town of Dartmouth and recipient of MACC’s 2016 Environmental Service Award as Conservation Administrator of the Year, for all his wonderful work making that happen. I appreciate his providing information for this essay.)
Conclusion
Researching, confirming, and establishing the protected status of park and conservation land is work well worth undertaking. Parks and conservation lands help make a neighborhood, town, city, metropolitan area, and state, livable and desirable. They contribute to a community’s economic, social, physical, and mental well-being. Taking a parcel out of conservation might shake the confidence of potential property donors and sellers and current abutters about the permanence of conservation land, making future acquisitions more difficult to achieve. And open space, once developed, is gone forever -- or at least for generations. Acquiring and protecting conservation land is in the original mandate of Massachusetts conservation commissions and remains a vital component of commission work.