The Massachusetts Supreme Judicial Court has reinterpreted the test for determining whether municipal parklands are protected by article 97 of the Amendments to the Massachusetts Constitution. This decision means that more properties will now be restricted from development under the state constitution. Article 97 has historically been interpreted to restrict development only where the property had been taken or acquired for conservation purposes, or specifically designated for article 97 purposes by deed or other recorded restriction. In Smith v. City of Westfield, SJC–12243, 2017 WL 4358679 (Mass. October 2, 2017), the Court expands article 97 protection beyond those circumstances to apply whenever 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.
The holding in this case determined the fate of a playground. The Cross Street Playground (the Playground) sits on a 5.3 acre parcel owned by the City of Westfield (the city). The city received the parcel through a foreclosure action in 1939. The planning board recommended the parcel become a new playground in 1946, and the property management was transferred to the city’s playground commission in 1949. From 1949 through 2010, it appears that the city treated the Playground as set aside for public recreational use. A few decades later, the city used federal funding to rehabilitate the Playground. The funding came from the federal Land and Water Conservation Fund Act of 1965 (LWCF Act), which required that the property be maintained for “public outdoor recreation uses” absent the approval of the United States Secretary of the Interior. The Court noted that the LWCF Act funding requirements remain in effect over the Playground). Further, a 2006 Massachusetts Statewide Comprehensive Outdoor Recreation Plan stated that properties developed with LWCF Act funding are protected under article 97, a 2009 state open space survey identified the playground as a “permanently protected space,” and a 2010 plan endorsed by the city’s mayor recognized the Playground to have a “full” degree of protection.
In 2011, the city proposed to build an elementary school at the location of the Playground. The plaintiffs, twenty-four citizens from Westfield and Holyoke, initiated an action against the city, the city council, and the mayor. The plaintiffs sought (i) a restraining order to prevent construction on the Playground and (ii) mandamus, asking the court to step in and force the city’s compliance with article 97 before moving forward with the project. The Superior Court granted the plaintiffs a preliminary injunction, temporarily preventing the city from beginning construction without complying with article 97, pending the conclusion of the case.
The parties proceed to trial before the Superior Court. They agreed that the only issue to resolve was whether the Playground was protected by article 97. Article 97 states in part that property “taken or acquired” for conservation purposes “shall not be used for other purposes” without approval by a two-thirds roll call vote of each branch of the legislature. The Superior Court found that the Playground was not protected by article 97 and vacated the injunction. The plaintiffs appealed but again lost. However, an Appeals Court concurrence from Justice Milkey invited the Supreme Judicial Court to revisit the precedent that he believed required this outcome, stating that these cases “rob art. 97 of its intended force” and defeat the law’s purpose. The Supreme Judicial Court agreed to appellate review.
The Court invoked its recent decision in Mahajan v. Department of Envtl. Protection, 464 Mass. 604, 615 (2013), in which the Court held that land neither taken by eminent domain nor acquired for any of the enumerated article 97 purposes could still receive protected status if the land “was designated for those purposes in a manner sufficient to invoke the protection of art. 97.” The Court then considered what would be required to so designate land, determining that there must be (i) a clear and unequivocal intent to dedicate the land permanently as a public park and (ii) the public must accept such use by actually using the land as a public park.
Using this standard, the Court held that the facts in this case demonstrated first that there was sufficient intent to permanently create a public park. The Court ruled that the determining factor was that the city accepted federal LWCF Act funding, where the LWCF Act contained a requirement that acquired land be used for public outdoor recreation unless otherwise approved by the Secretary of the Interior. The Court then found that the second part of the standard was met because the Playground was plainly used as a public park far into history. Having determined that the Playground was subject to article 97 protection, the Court remanded a decision on the permanent injunction to the Superior Court.
The Court’s decision in Smith likely expands the number of properties that are protected from development by article 97. This decision will be viewed as an important victory by the land conservation community and as a less welcome restriction by land developers and some municipalities wishing to preserve flexibility over potential uses of their land in the future.