Article 97 of the Amendments to the Massachusetts Constitution (“Article 97”), approved by Massachusetts voters in 1972, recognizes the right to “clean air and water … and the natural, scenic, historic, and esthetic qualities of [the] environment.”
Consistent with that right, Article 97 grants the Massachusetts legislature the authority to take land by eminent domain in furtherance of those purposes. More importantly, land taken for, or devoted to, such purposes may not be used for an inconsistent purpose or disposed of without a special act enacted by a two-thirds vote of the state legislature.
In other words, Article 97 both protects the public’s right to environmental resources and empowers the legislature to preserve land devoted to purposes concerning “the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources.” This protection applies to land designated for those purposes both before and after Article 97’s ratification.
The following sections briefly explain how land may become subject to Article 97 protection, and the process by which such protection may be removed.
How Land Becomes Subject to Article 97 Protection
In order for land to be subject to protection under Article 97, the land must be taken or acquired for one of the Article 97 purposes listed above. This rule, however, raises additional questions concerning the degree of intent required and the manner in which land must be designated to fall within Article 97’s protections.
In Mahajan v. Department of Environmental Protection, the Supreme Judicial Court considered whether property taken by eminent domain pursuant to an urban renewal plan, and for urban renewal purposes, was subject to Article 97 protection. The Court recognized that urban renewal purposes, such as eliminating blighted conditions, may overlap with and advance goals similar to those protected by Article 97.
However, the Court rejected a broad interpretation that would extend Article 97 protection to land merely because it incidentally serves an Article 97 purpose or possesses characteristics associated with Article 97 land. Instead, Article 97 applies only where land has been specifically and permanently designated for an Article 97 purpose.
Although an express invocation of Article 97 is not required, the purpose for which the land was taken or later designated must fall within Article 97 and must be established in a manner sufficient to invoke its protections.
Because land designated for an Article 97 purpose is subject to Article 97 protection, the question becomes what manner of designation is sufficient to invoke that protection.
In Smith v. City of Westfield, the Supreme Judicial Court considered whether a city-owned parcel used as a public playground was protected by Article 97. The Court adopted a totality-of-the-circumstances approach to determine whether there was a “clear and unequivocal” intent to devote the land to Article 97 purposes.
The Court also identified several types of evidence that may be sufficient to demonstrate such intent. A qualifying designation may be shown through, among other things, a recorded deed or conservation restriction, the acceptance of state or federal conservation funds, a public declaration concerning the intended use of the—such as use as a playground, public park or other property managed for conservation purposes or public use—or the placement of the property under the control of a local conservation commission.
The Court also discussed Mahajan, explaining that although the taking of land as part of an urban renewal plan did not, in that case, trigger Article 97 protection, the land would have been protected if the urban renewal plan had indicated an intent to reserve it for Article 97 purposes.
Private Land and Article 97 Protection
In most, if not all, cases, Article 97 applies only to publicly owned property. However, privately owned land may receive protection where it is shown, under the same standard articulated above, that the owner intended to dedicate the land to the public for a purpose consistent with Article 97. In such cases, the public obtains an interest in the land akin to an easement.
In Nahant Preservation Trust, Inc. v. Northeastern University, the Appeals Court considered whether Northeastern, a private university, had unequivocally intended to devote its land to ecological preservation and recreational purposes such that the property became subject to Article 97.
The Appeals Court explained that privately held land is not subject to Article 97 unless the owner has actually dedicated the property to public use. To establish such a dedication, the landowner’s actions must be “deliberate, unequivocal and decisive, manifesting a clear intention permanently to abandon his property to the specific public use,” and the public must accept that dedication by actually using the land for the dedicated purpose.
As discussed above, Smith identifies several actions that may be sufficient to demonstrate such a dedication. However, in Nahant Preservation Trust, the Appeals Court emphasized that this rule is not intended to catch a landowner by surprise. The court distinguished cases in which dedication was found based on express promises to the public or clear public dedications of parkland. Accordingly, where a landowner has not made an explicit promise to open the land to public use, evidence that proposed uses of the land are consistent with Article 97 purposes—or even that the public has in fact used the land—is unlikely, standing alone, to invoke Article 97 protection.
Removing Land from Article 97 Protection
In 2022, An Act Preserving Open Space in the Commonwealth (the “Open Space Act”), codified at Massachusetts General Laws Chapter 3, Section 5A, was enacted to establish a procedure that must be followed before land protected by Article 97 may be disposed of or converted to another use.
As described above, removing land from Article 97 protection requires a two-thirds vote of each house of the Massachusetts legislature. The Open Space Act works in conjunction with that constitutional requirement by setting forth the process for undertaking the disposition or conversion of Article 97 land. In addition to the statutory text, the Massachusetts Executive Office of Energy and Environmental Affairs (EEA) has published guidance on the Open Space Act and is in the process of promulgating regulations for its implementation and administration.
The Open Space Act applies to public entities seeking to change the use of, or otherwise dispose of, land subject to Article 97. Its requirements may also apply to private parties seeking to remove land from Article 97 protection, even though the land remains under the care or control of a public entity.
In general, the Open Space Act requires the proponent to: (i) notify the public and EEA of the proposed change in use or disposition; (ii) conduct and submit to EEA an alternatives analysis demonstrating that all feasible alternatives to the disposition have been explored; and (iii) identify replacement land of comparable size, value, and location, as determined by appraisal, and take, acquire, or designate such land for Article 97 purposes. All required documentation may be submitted to EEA through its online portal.
EEA may waive the replacement-land requirement where the land is merely being transferred between public entities, or where the land is of “insignificant natural resource and recreation” value, is less than 2,500 square feet in area, and the disposition serves a “significant” public interest.
Alternatively, the proponent may provide “funding in lieu of replacement land” if EEA determines that certain conditions are satisfied, including that: (i) the disposition serves a “significant” public interest; (ii) the disposition will not adversely affect an Environmental Justice Population; (iii) the alternatives analysis demonstrates that there is no feasible alternative to the disposition; and (iv) it is not feasible to designate replacement land. In that event, the proponent must pay not less than 110% of the fair market value of the land, and the public entity must use those funds within three years to acquire comparable land for Article 97 purposes.
Regardless of the route taken, a petition must be submitted to the Massachusetts legislature authorizing the change in use or disposition. The petition must include: (i) the alternatives analysis; (ii) a description and appraisal of any replacement land; (iii) any waivers granted by EEA; and (iv) where funding is provided in lieu of replacement land, EEA’s findings as to whether the required statutory conditions have been satisfied.
If the land is held by a municipality, municipal approval is also required. Similar to the Article 97 legislative requirement, approval must be by a two-thirds vote of the city council in the case of a city, or town meeting in the case of a town.
As the foregoing demonstrates, the disposition or conversion of Article 97 land can be an onerous and complex process. Moreover, as recognized by EEA, the proponent may be a private entity obligated to comply with the statutory requirements. If you need assistance with the disposition, conversion, or protection of Article 97 land, contact one of our attorneys today.