We recently reported on a new analytical framework created by the Massachusetts Supreme Judicial Court in the case of Smith v. City of Westfield for conducting analyses to determine whether Article 97 state constitutional protections will apply to restrict development of land held for conservation and natural resource protection purposes. See Playground Permanently Dedicated and Used As a Public Park Earns Massachusetts Constitutional Protections of Article 97. In the first judicial decision to apply this Article 97 guidance, the Massachusetts Land Court has held that a property conveyed to a town “for the purposes of protection of water resources and other compatible purposes including conservation a recreation” was not protected land under Article 97, and therefore could be leased to install a solar facility. Mirkovic v. Guercio, 2017 WL 4681972 (Mass. Land Court, Oct. 18, 2017).

In 1988, a Special Town Meeting in the Town of Shirley, Massachusetts voted to authorize the acquisition of land “which parcel shall be used by the Town for protection of water resources and other compatable (sic) purposes, including conservation and recreation.” In 1990, the Town of Shirley acquired the parcel (the Property) under a deed that provided the land was being conveyed to the Town “for purposes of protection of water resources and other compatible purposes including conservation and recreation as approved and authorized by the voters of the Town of Shirley… .”

In 2015, the Town’s Planning Board granted site plan approval and a special permit to SolarCity for the construction and operation of a solar energy generating facility on a section of the Property. SolarCity thereafter entered into an agreement with the Town to lease the project site on the Property, and the Drinking Water Program of the Massachusetts Department of Environmental Protection issued an approval for the project. A group of residents of the Town appealed the Planning Board’s site plan approval to the Zoning Board of Appeals (ZBA), which denied the residents’ petition to reverse the Planning Board’s decision. The plaintiffs then appealed to the Land Court, arguing that the Town had acquired the property for purposes protected under Article 97 and that the ZBA had exceeded its authority by authorizing the disposition of the public’s rights in the Property without a vote of two-thirds of both branches of the Massachusetts Legislature, which is required if property is subject to Article 97 protections.

Article 97 protects the public’s rights to “the conservation, development and utilization of the agricultural, mineral, forest, water, air, and other natural resources” of the state. The plaintiffs argued that the deed language describing the use of the Property “for purposes of protection of water resources and other compatible purposes including conservation and recreation” demonstrated that the Property was acquired by the Town for Article 97 purposes. The defendants countered that the phrase “other compatible purposes” did not restrict the Town’s use of the property to Article 97 purposes.

The Land Court determined that, while protection of water resources was “unquestionably” an Article 97 protected purpose, the allowance in the deed for “other compatible purposes” was not within the scope of Article 97 and that the Town’s Property was therefore not subject to Article 97 protection. Citing Supreme Judicial Court precedent, the Land Court reasoned that the phrase “other compatible purposes” needed to be read within the context of the Town’s Water Protection District zoning bylaw, which allowed, among other things, commercial, industrial, and institutional uses, and even the handling and storage of toxic or hazardous materials, in the Water Protection District. As the bylaw allowed a broad array of uses that were compatible with the water protection purposes for which the Property was acquired, and those uses did not meet the purposes of Article 97, the Court found that the deed language was insufficient to invoke Article 97 protections.

The Smith v. Westfield decision reshaped the landscape for determining when Article 97 protections will apply. This decision of the Land Court shows that the courts will look to external factors in conducting this evaluation, and where extrinsic evidence indicates that a property was acquired with an intent to allow for a broad suite of uses beyond those protected by Article 97, they will be reluctant to attach constitutional use restrictions.