Smith v. Westfield

Mass. Supreme Judicial Court, SJC-12243, October 2, 2017: Recorded restriction not needed for MA park’s constitutional protection.

Massachusetts highest court (SJC) held that state Constitution Article 97 protects 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, even if there has been no eminent domain taking or a recorded instrument limiting use to conservation or recreational purposes. This decision overruled an Appeals Court and changed or clarified a line of Massachusetts decisions.

At issue was whether the City could convert a public playground to school use without the state legislative approval required by Article 97. Article 97 (ratified in 1972) says that when land or an easement was taken or acquired by government action (understood to mean state or local action) for conservation purposes (interpreted by courts to include parklands), before the real estate may be used for another purpose or otherwise dispose of, the action must be approved by a two thirds majority roll call vote by each branch of the state legislature. (Exact text available here, scroll down to Article XCVII.)

When this case came before the MA Appeals Court in Smith v. Westfield, 90 Mass. App. Ct. 80 (2016), that court held for the City (i.e., no Article 97 vote required). That court explained the law as it understood it from a line of Massachusetts cases, including the SJC’s decision in Mahajan v. Department of Envtl. Protection, 464 Mass. 604 (2013). The earlier cases seemed to hold that land would not be protected by Article 97 if use of the land had not been restricted to a use protected by Article 97, by an instrument recorded at the registry of deeds either in the original deed to the government entity, a restriction pursuant to the statute enabling perpetual conservation and historic preservation easements (M. G. L. c. 184, §§ 31-33), or a deed by the government entity to itself for conservation purposes. (A concurring opinion expressed the hope the SJC would revisit this interpretation.) The appeals court said the absence of a recorded use restriction for the Westfield playground meant there was no Article 97 protection.

The SJC said that Article 97 should be understood to mean that even if an Article 97 purpose was not designated by such recorded instrument, other actions, including actions subsequent to the taking or acquisition, could designate such a purpose so as to bring the land within Article 97 protections. Their opinion went on to explain how such other action(s) could amount to an Article 97 designation. To make this analysis, the court examined common law doctrines about the dedication of land for public use and “prior public use.”

The court noted that in a landmark case involving the Boston Common and Public Garden about dedication of land for public use, it had held that, “even though title to the Boston Common and the Public Garden ‘vested in fee simple in the town free from any trust,’ the city did not possess title to this parkland ‘free from any restriction, for it is plain that the town has dedicated the Common and the Public Garden to the use of the public as a public park.’” Accordingly, “the beneficial use [of the land] is in the public.”

The court also said that Article 97 had been ratified to expand on the doctrine of “prior public use.” That doctrine had required that dedicated parkland could not be sold or devoted to another public use without the approval of the Legislature. Article 97 increased this protection by requiring a two-thirds vote of each branch before use could be changed, rather than the simple majority required by the common law.

Under our these common law doctrines, the court explained, “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,” not merely “temporarily or until a better use has emerged or ripened” but “the intent must be to use the land permanently as a public park….” and “upon completion of the dedication it becomes irrevocable.” This intent should be determined “consider[ing] the totality of the circumstances.”

In Westfield, the court found most persuasive that in 1979 the City accepted Federal conservation funds to improve the playground. The funds were granted under the Land and Water Conservation Fund Act of 1965 (LWCFA) (P.L. 88-578, 78 Stat. 900 (1964), at the time codified as 16 U.S.C. § 460l-8 (1976), now at 54 U.S.C. § 200305 (2012 & Supp. II)). The grant was expressly conditioned on compliance with the LWCFA. The LWCFA required the approval of the U.S. Secretary of the Interior (Secretary) to convert property acquired or developed with assistance of that act to other than public outdoor recreation uses. The LWCFA further stated that to give such approval the Secretary had to find that the conversion would be “in accord with the then existing comprehensive statewide outdoor recreation plan…” (the “SCORP”).  (“Then existing” refers to the time when the Secretary makes the decision.) The record showed that the 2006 Massachusetts SCORP stated explicitly that “[l]and acquired or developed with [LWCFA] funds become[s] protected under the Massachusetts Constitution (Article 97).” By accepting the grant, “the city forfeited the ability to convert any part of the Cross Street Playground to a use other than public outdoor recreation unilaterally.”

The “totality of the circumstances” subsequent to the City’s taking of the land to foreclose a tax lien also included:

  • City Council vote to turn over “full charge and control” of the property to the City playground commission (1948);
  • Transfer of funds to the commission to cover costs of “work to be done on Cross [Street] Playground” (1949);
  • Passage of an ordinance declaring that the “parcel of land heretofore designated as a public playground” would be known as the John A. Sullivan Memorial Playground; and
  • The City’s mayor endorsed an open space plan which noted that, although not all public land is “permanently committed for conservation purposes,” this playground was public land with a “full” degree of protection and “active” recreation potential (2010).

Decision available at http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/12243.pdf.

Thanks to Buzz Constable for bringing this decision to my attention.

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