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October 5, 2017

Legal Update
Dylan Sanders

SJC takes broad view of constitutional protection of public parklands

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The Massachusetts Supreme Judicial Court this week significantly expanded state constitutional protection for parks and other open public spaces. In doing so, the court came down on the side of conservationists in a common dispute with public officials over potential use of municipal land for public improvements, including roads and schools, but also including other newer uses of municipal open space, such as for wind turbines and solar arrays.

The SJC ruled, in Smith v. City of Westfield, that the defendant city could not, without a super-majority vote of the state legislature, build an elementary school on city land that had long been used as a public park, even though no written restriction was ever recorded designating the land for protection under Article 97 of the Massachusetts constitution, the state’s “Environmental Bill of Rights.” Reversing a decision of the Appeals Court, the SJC held that no such recording in the chain of title was necessary for Article 97 to apply.

Approved by voters in 1972, Article 97 provides that “the people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment.” The Article declares as a “public purpose” “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.” Land that is “taken or acquired” for any such purpose may not later be used conveyed or used for another purpose unless authorized by a two-thirds vote of each branch of the legislature.

The SJC has, in earlier cases, also held that Article 97 protects land that, while not originally acquired as park land or open space, is subsequently “dedicated” to these purposes. Smith v. Westfield marks an important evolution in the law governing the “repurposing” of lands not originally acquired for conservation purposes.

The land at issue in the case had been taken by the city of Westfield in 1939 to satisfy a tax debt. In 1957, the city formally recognized the land as a public park, including a playground and sports fields, and it had been used as such ever since. In 1979, the city had accepted a federal grant for improvement of the playground; eligibility for the grant required a Statewide Comprehensive Outdoor Recreation Plan, which provided that the land developed with the federal funds would be protected by Article 97. But there was no recorded deed restriction, nor had the city ever taken the step of recording a written instrument with the registry of deeds that specifically designated that the parcel was to be used as a playground or for other recreational purposes.

When the city in 2011 announced plans to build an elementary school on a portion of the playground land, a group of residents filed suit and sought an injunction, arguing among other things that Article 97 required the legislature’s approval of the change in use.

A Superior Court judge and the Appeals Court each rejected the residents’ claim. The Appeals Court read the governing case law to require recording of a use or deed restriction to make land not originally taken or acquired for Article 97 purposes eligible for constitutional protection. In a concurring opinion, Appeals Court Justice James Milkey agreed with the court’s interpretation of the existing law, but suggested there were good reasons not to limit Article 97’s protections to properties as to which restrictions had been recorded, and expressed hope that the SJC would revisit the issue. With specific reference to Justice Milkey’s concurrence, the SJC agreed to do so.

On further appellate review, the SJC held that municipal parkland may be protected by Article 97 even without a deed or recorded conservation restriction, “provided the land has been dedicated as a public park.” A city or town “dedicates” land as a public park, the SJC made clear, when it demonstrates a clear and unequivocal intent that the land be permanently committed to such use, and where the public accepts the commitment by actually using the land as a public park.  That intent could be manifested by a recorded instrument, but that is not the only way, the court ruled.

In its analysis, the SJC relied in part on two related common law doctrines that predated Article 97: that of “dedication of land for public use” and “prior public use.” Under the doctrine of dedication of land for public use, either private or public land can become subject to what is, in essence, an easement for the benefit of the public. Lands become so “dedicated” to a public use through unequivocal acts of the owner and acceptance by the public, even without a recorded written instrument restricting such land to a public use.  (The Boston Common and Boston Garden are examples of such land.) And pursuant to the doctrine of prior public use, the government may not change the use of any public land (not only parkland) without legislative approval. In Smith, the SJC said that the consequence of Article 97’s enactment was merely to require a two-thirds vote of the Legislature for a change in use of parklands, when before a simple majority was enough.  The court said that Article 97 was not intended to narrow the categories of parklands subject to constitutional protection to those properties protected by a recorded written restriction.

In expanding the meaning of “dedication” beyond the formalities of recording, the SJC adopted a flexible view urged by such conservation groups as The Trustees of Reservation, the Association to Preserve Cape Cod, the Association of Conservation Commissions, and the Conservation Law Foundation, as well as by the Massachusetts Attorney General—each of which filed an amicus brief.

Interestingly, in applying a flexible standard to the Westfield case, the SJC found the city’s acceptance of the federal grant money and its accompanying restrictions to be the most compelling evidence of dedication. “Regardless of whether the parcel had been dedicated earlier as a public park,” the court held, “it became so dedicated once the city accepted federal funds pursuant to this condition.”

Smith v. City of Westfield raises potential complexities for state and local authorities. Public entities may be forced to scrutinize in greater detail conditions that accompany proposed grants or other funding from government or private sources, because acceptance of funding with certain strings attached may limit future flexibility to change the use of public property. Further, it is foreseeable that Article 97 protection may forestall potential uses of public land for purposes that are arguably even more critical to environmental concerns—such as use for solar arrays, for example, or other alternative-energy projects. These areas of potential conflict will warrant close watching.

An important threshold issue that the court did not feel obliged to address (perhaps because the parties had either stipulated or presumed that the land at issue qualified as a park or other open space eligible for Article 97 protection) is the test for determining whether and when playground uses of public land qualify for the protections afforded by Article 97. Lower courts have divided on this question. A 2013 decision by a Land Court judge in Curley v. Town of Billerica held that a playground was not eligible for Article 97 protection, because it is “recreational space that is improved with buildings and play structures or apparatus,” and thus is critically different, for Article 97 purposes, from a “park,” which “is a public open space that, for the most part, remains open and unimproved.” But in a 2014 case, Nickolas v. City of Marlborough, a Superior Court judge reached the opposite conclusion, albeit in dicta, as the Article 97 claim was dismissed on other grounds. The Curley judge read the “plain language” of Article 97 to protect “not only the ‘conservation’ of natural resources in an unimproved, natural state, but also the ‘development and utilization’ of natural resources so that they may be enjoyed in other ways”—including as a playground.  It will be left to future cases to clarify exactly when and on what basis a playground constitutes parkland for Article 97 purposes.