Massachusetts Appeals Court, No. 15-P-773, August 25, 2016: Concurring opinion calls for change of test whether government designation gives land Mass. constitutional protection.
At issue here was the whether the City of Westfield had taken steps sufficient to make a playground subject to the protections of Massachusetts’ Constitution Article 97, which protects various conservation and historic preservation interests as rights of the public.
Article 97 (ratified in 1972) proclaims “The people shall have the right to … the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.” As a brake on any effort to dispossess the people of this right, Article 97 goes on to require a two thirds majority roll call vote by each branch of the state legislature for “Lands and easements taken or acquired for such purposes … [to] be used for other purposes or otherwise disposed of …” (emphasis added).
In 1939 Westfield took title to certain land to satisfy a tax debt. In 1957, the city passed an ordinance recognizing the land as a playground. In 1979, a Federal grant was awarded the city that, in part, was used to upgrade the playground. A Statewide Comprehensive Outdoor Recreation Plan (SCORP) required for that grant was adopted by the Commonwealth and stated: “Land acquired or developed with [the grant] funds become protected under” Article 97. In 2010, Westfield endorsed an open space and recreation plan of its own that designated the playground as “open space.” In August, 2011, however, the playground was determined to be surplus property, and the Westfield city council transferred control to the school department to construct an elementary school.
A group of residents took the city to court arguing among other things that, assuming a playground is within the environmental purposes protected by Article 97, the playground use was sufficiently dedicated to invoke the protection of Article 97 and the requisite vote of the legislature should be required to convert the property to non-playground use. The trial court found that no documents were ever recorded that dedicated the land for Article 97 purposes and therefore there was no designation in a manner sufficient to invoke the protection of Article 97. The residents appealed but the Appeals Court agreed with the lower court.
The court cited the 2013 Massachusetts Supreme Judicial Court decision in Mahajan vs. Department of Environmental Protection stating that Article 97 jurisdiction is not determined by “whether the use of the land incidentally serves purposes consistent with Article 97, or whether the land displays some attributes of Article 97 land, but whether the land was taken for those purposes, or subsequent to the taking was designated for those purposes in a manner sufficient to invoke the protection of Article 97.” The court also said the city’s action did not meet the test as set out in another Massachusetts decision that Article 97 protection also may arise where, following the taking for purposes other than Article 97, the land is specifically designated for Article 97 purposes by deed or other recorded restriction.
A concurring opinion called for a change to these tests when it comes to land used for an Article 97 purpose and somehow so designated but for which the restricted use has not been recorded at the registry of deeds either in the original deed to the government entity or through other means such as a conservation or historic preservation easement. “Nothing in the language or purpose of Article 97,” the Judge wrote, “suggests that its application should turn on whether the underlying deed provides record notice that the land has been committed to an Article 97 use.”
Decision available by search at https://www.lexisnexis.com/clients/macourts/.