. Ensuring No Net Loss of Protected Open Space. In a decision of interest to municipalities, conservation groups, and land use experts, the Massachusetts Supreme Judicial Court (SJC) recently decided that a public playground in the City of Westfield is parkland protected by Article 97 of the Amendments of the Massachusetts Constitution. In the Westfield case, the SJC revisited its analyses in determining whether Article 97 state constitutional protections apply to restrict development of land held by state and municipal entities "for conservation and natural resource protection purposes." The Massachusetts Supreme Judicial Court significantly broadened the scope of Article 97 and, thus, the constraints on the development of property by governmental entities in Massachusetts, in the case of Smith v. City of Westfield, 478 Mass 49 (2017). G.L. Some page levels are currently hidden. The case concerned the Cross Street Playground in Westfield, a 5.3 acre parcel that is home to two baseball fields and a playground. 97. In this case, the determinative factor was Westfieldsacceptance of federal conservation funds to rehabilitate the playground, which had an accompanying restriction by which the city surrendered all ability to convert the playground to a use other than public outdoor recreation. Articles XLIX-LX, Amendments to the Massachusetts Constitution. In 1990, the Town of Shirley acquired 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 Towns Planning Board granted site plan approval and a special permit to a solar energy company for the construction and operation of a solar energy generating facility on a section of the property. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.Website by Azurelink. 97] and cannot be converted from intended use without permission from the National Park Service and the Massachusetts Executive Office of Energy and Environmental Affairs. 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 Land Court found that the deed language was insufficient to invoke Article 97 protections. (quoting Hayden v. Stone, 112 Mass. 0000001654 00000 n This reduces the need for costly state and municipal investments in man-made drinking and storm water filtration infrastructure. 97 protection.3 Land may be so designated by (1) taking by eminent domain for the purposes of conservation or recreation, (2) recordation of a deed restriction, or (3) the doctrine of prior public use.4, Under the "prior public use" doctrine, land may be deemed to be designated as a public park and protected by art. The Court considered the totality of the circumstances, but the most determinative factor was the Citys acceptance of federal funding, which required the City to maintain the land as a public park unless it first obtained federal approval to change its use. Land Court, Oct. 18, 2017). The document took John Adamsyes that John Adamsabout a month to write, and has lasted 236 years and counting. An agricultural preservation restriction (APR) is a special type of CR. All rights reserved. This page is located more than 3 levels deep within a topic. Const. We refer to the provision as art. The National Law Review - National Law Forum LLC 3 Grant Square #141 Hinsdale, IL 60521 Telephone (708) 357-3317 ortollfree(877)357-3317. FY_FUNDING : 4 : I : Fiscal year project was completed (EOEEA use only) BOND_ACCT : 10 : C : . The Court held that the property was subject to Article 97 because the city, through its actions, To advance understanding of the new law, including proper consideration of alternatives and whether proposed replacement land meets the standards of the Act, EEA is providing on this webpage a guidance document, answers to frequently asked questions, and other useful information. Article I. Abbreviated name of Constitution amend. See e.g. 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 publics rights in the property without a vote of two-thirds of both branches of the Massachusetts Legislature. This page is located more than 3 levels deep within a topic. 0000002748 00000 n An important long-term goal of this mission is, preserving natural infrastructure. 502, 508-509 (2005). The park was not taken by eminent domain, and no instrument was recorded that would limit its usage to conservation or public recreation. XLIX) or by a civil action brought by ten or more citizens of the Commonwealth (Citizens Right to Intervene, G.L. Amendment Article 97 created Article 49 of the constitution itself. Article 97 of the Articles of Amendment to the Massachusetts Constitution, approved by the Legislature and ratified by Massachusetts voters in 1972, provides that ' [l]ands and easements taken or acquired' for conservation purposes 'shall not be used for other purposes or disposed of' without the approval of two thirds roll call vote of each In 1979, Westfield received agrant from the federal government under the Land and Water Conservation Fund Act (LWCF), which mandated that [n]o property acquired or developed with assistance under this section shall be converted to other than public outdoor recreation uses without the approval of the U.S. Secretary of the Interior. at 615-16). GT's The Performance Review Episode 19: Is the Fight Over AB 51 5 Reasons Community Associations Need an Attorney That Specializes in New York Proposes Regulatory Review and Approval of Material Health CMS Issues Long-Awaiting Medicare Advantage RADV Final Rule, Preventing the Use of Cryptocurrencies to Evade Sanctions. See EEA Article 97 Land Disposition Policy, available at http://www. Oftenthere is a deed, conservation easement, or other written instrument that reflects the taking or acquisition of land protected by Art. It is not offered as or intended to constitute legal advice. The Court considered the totality of the circumstances, but the most determinative factor was the Citys acceptance of federal funding, which required the City to maintain the land as a public park unless it first obtained federal approval to change its use. It is not an attempt to provide legal advice. XLIX). Turning to the issue of whether the Cross Street Playground was dedicated by Westfield as a public park entitled to the protections of Art. XLIX). Article 97: Constitution of the Commonwealth of Massachusetts. The Massachusetts Supreme Judicial Court significantly broadened the scope of Article 97 and, thus, the constraints on the development of property by governmental entities in Massachusetts, in the case of Smith v. City of Westfield, 478 Mass 49 (2017). Holyoke, MA 01040 0000001303 00000 n Article XLIX of the Amendments to the Constitution is hereby annulled and the following is adopted in place thereof: - 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; and the Article 97 of the Massachusetts Constitution is one of many important layers of legal protection for public conservation land. mass.gov/eea/agencies/mepa/about-mepa/eea-policies/eea-article-97-land-disposition-policy.html (Feb. 19, 1998). permit for the use of land for the primary purpose of agriculture, Massachusetts General Laws Chapter 40A, Section 3, Paragraph 1 furthers . at 615-16). Thank you for your website feedback! Patricia DeAngelis is a member of the Business and Finance Department and the Commercial Real Estate Development and Construction Practice Groups. The consequences for municipalities are rather serious in that the Disposition Policy specifies that non-compliance leaves the city or town ineligible for grants offered by the EOEEA or its agencies until the municipality has complied. All land acquired by EEA agencies (either in fee simple or by CR) is protected under Article 97 of the Amendments to the Massachusetts Constitution. Importantly, Article 97 also provides that any lands taken for Article 97 purposes shall not be used for any other purpose or conveyed unless first approved by a two-thirds vote of the Legislature (both houses). 0000002487 00000 n Top-requested sites to log in to services provided by the state. 1. "2 In other words, the Court broadly interpreted art. Nonetheless, the decision is likely viewed as avictoryby land conservation groups and others seeking to protect public parkland. The Land Court reasoned that the phrase "other compatible purposes" needed to be read within the context of the Towns 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. If you would like to continue helping us improve Mass.gov, join our user panel to test new features for the site. 4CnaiEQbO1ZL!H\*2bIcg7a}U6*k.UuTlKY3,(6iV{UzO. In City of Westfield, the Court departed from that strict rule and held "that land may be protected by art. The closer you look, the worse it seems. United States Constitution (Count I) and Article 97 of the Massachusetts. An Act Preserving Open Space in the Commonwealth, also known as the Public Lands Preservation Act (PLPA), established in statute requirements and a process for submission to the legislature of petitions to authorize the use for another purpose or disposition of land subject to Article 97 of the Amendments to the Constitution of the Commonwealth (Art. Some page levels are currently hidden. One way to protect land is through "fee simple" acquisition by purchasing or accepting the donation of the entire interest in a piece of property. 1 Prior to City of Westfield, Article 97s application was limited to circumstances where an instrument, recorded in the title of property (including an instrument of taking), indicated an intent by the state entity or municipality to limit the use to conservation purposes. This legislation, also known as the PUBLIC LANDS PROTECTION ACT (PLPA), declares that it is the policy of the Commonwealth that there should be no net loss of lands or easements protected under Article 97. A group of residents objected and obtained a preliminary injunction suspending the project until the case was resolved. Find about more about our, The Limits of Exclusive Use Rights in Condominium Common Areas, Mass. Art. Please do not include personal or contact information. c. 30, 10A). 97 disposition unless its "no net loss" policy is satisfied. In Smith v. City of Westfield, the SJC expanded the reach of Art. "5 No specific amount of time is required for such dedication to take effectas long as the intent to permanently render the land a public park is clearly and unequivocally manifested, and the public accepts such dedication, the land becomes subject to art. Review your content's performance and reach. In addition to these procedural requisites protecting public lands, specific types of real estate and resources are governed by individual statues. We will use this information to improve this page. Visas for F and M Students Can Now Be Issued 365 Days Ahead of Program Start Date. Articles XXXI-XLVII, Amendments to the Massachusetts Constitution. Amendment number in Roman numerals, Section number. Buyers of such property should go beyond a standard title search in conducting due diligence when responding to RFPs by a municipality or state entity. In City of Westfield, the Court applied these rules to a proposed change, by Westfield, of a public park into a new elementary school. Buyers of such property should go beyond a standard title search in conducting due diligence when responding to RFPs by a municipality or state entity. EPA Releases Proposed Approach for Considering Cumulative Risks under Revised Colorado Privacy Act Rules Adopted for Review by Colorado AG. Article 97 of the Articles of Amendment to the Massachusetts Constitution, approved by the Legislature and ratified by Massachusetts voters in 1972, provides that ' [l]ands and easements. The financing of the regions. Dirty Steel-Toe Boots, Episode 16: Investigations and the OSH Acts DOE Issues FOA for Carbon Capture Large-Scale Pilots and Carbon A Forward Look at IRAs Sweeping Impact on the EV Sector [PODCAST]. Saint-Pierre-et-Miquelon [3] est un archipel franais d'Amrique du Nord situ dans l'ocan Atlantique, au sud-est du golfe du Saint-Laurent, au sud de l'le canadienne de Terre-Neuve (province de Terre-Neuve-et-Labrador).. L'le Saint-Pierre se trouve 19 km au sud-ouest de l'extrmit occidentale de la pninsule de Burin, dans la partie mridionale de Terre-Neuve, Miquelon tant . 97 also declares the conservation of natural resources a public purpose and provides that land or easements subject to Art. Const. Art. Article 97 of the Amendments to the Massachusetts Constitution . In essence, the test requires an examination of how and why the land came to be used as park land. In 1972 Massachusetts voters approved Article 97, granting people the right to a clean environment and authorizing the Commonwealth to acquire conservation easements. The park was not taken by eminent domain, and no instrument was recorded that would limit its usage to conservation or public recreation. Land protection is a core function of EEA in its mandating legislation, Chapter 21A. In Smith v. Westfield, the court concluded that parkland protected by Art. 0000002259 00000 n A state law requires the approval by the Secretary of EEA on CR's if they are to be permanent. The feedback will only be used for improving the website. 97") Common Law Doctrine: The firmly settled and frequently declared policy of the Legislature heretofore has been to preserve public parks free from intrusion of every kind which would interfere in any degree with their complete use for this public end. The Massachusetts Constitution of 1780written, in large part, by John Adamsserved as a key model. Use this button to show and access all levels. Waters of the United States and Winston Churchill. tune squad jersey; uva1 amazon; trailers for rent kent county delaware; best missing child movies; webtoon personality database;. The Court reasoned that, it is likely that even without the federal funding, the park would have been considered to be dedicated and accepted as a public park because it "served as a public playground for more than sixty years." Article 97 of the Massachusetts Constitution ensures "the protection of the people in their right to the conservation, development and utilization of the agriculturaland other natural resources." . Art. Expanding Regulatory Reach over Intermediaries That May Constitute How to Value Digital Assets for Donation to Charity. Amendment Article 97 created Article 49 of the constitution itself. ) or https:// means youve safely connected to the official website. Share sensitive information only on official, secure websites. amend. In the first judicial decision to apply this Article 97 guidance, the Massachusetts Land Court held that property conveyed to a town "for the purposes of protection of water resources and other compatible purposes including conservation and recreation" is not protected land under Article 97, and therefore could be leased to install a solar facility. Murtha Cullina var today = new Date(); var yyyy = today.getFullYear();document.write(yyyy + " "); | Attorney Advertising, Copyright var today = new Date(); var yyyy = today.getFullYear();document.write(yyyy + " "); JD Supra, LLC. Until the new Constitution was ratified, the country was governed by the Articles of Confederation. Click here to sign up for city emergency alerts - including community event alerts, Fire Department notifications, law enforcement alerts, general information alerts, and public works notifications. Recent CFPB Actions Focus on Protecting Military Families, New and Updated Guidance on the Scope of the UK Plastic Packaging Tax. Article 97 permits changes in use of Article 97 land, but grants jurisdiction over those changes. the purposes set forth in Article 97 of the Amendments to the Massachusetts Constitution, a CONSERVATION RESTRICTION (hereinafter "CR"), in accordance with Massachusetts General Laws, (hereinafter "G.L.") Chapter 184, Sections 31 and 32 and G.L. On October 2, 2017, the Massachusetts Supreme Judicial Court ruled in Smith v. City of Westfield that Article 97 protection may be triggered for municipal land without formally recording at the Registry of Deeds a deed, conservation restriction, or other instrument. Copyright 2023 Pierce Atwood LLP. It has been a public playground for more than 60 years. Its Here The New National Cybersecurity Strategy. 346, 349 (1873)). Litigation Setback for Employers Under Illinois Biometric Information Senate Committee Holds Hearing on Future of Low Carbon Transportation North Carolina Senate Passes Compassionate Care Act at Exactly 4:20 States and Feds Signal Big Changes to Telehealth Prescribing. An Act relative to Article 97 of the Amendments to the Constitution of the Commonwealth to be preserved for municipal park and open space purposes lo. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. Article. 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 publics rights in the property without a vote of two-thirds of both branches of the Massachusetts Legislature. The . Executive Office of Energy and Environmental Affairs, contact the Executive Office of Energy and Environmental Affairs. Basic form. 97s language of land "taken or acquired" for conversation purposes. 346, 349 (1873)). This website is maintained by Pierce Atwood LLP. "5 No specific amount of time is required for such dedication to take effectas long as the intent to permanently render the land a public park is clearly and unequivocally manifested, and the public accepts such dedication, the land becomes subject to art. 97 may be enforced by the Department of Environmental Protection (Mass. XLIX) or by a civil action brought by ten or more citizens of the Commonwealth (Citizens Right to Intervene, G.L. Questions on the use of the PLPA Portal, the application itself, the status of a submission, or the availability of information on PLPA submissions; Policy oriented or substantive questions about Art. If you would ike to contact us via email please click here. Since then we have advised and represented public and private clients about it. A PLPA Portal has also been created to streamline the submission process by providing an online tool for EEA to accept required documents and easily post alternative analyses, facilitating compliance with the PLPAs public notice requirement. Law Firms: Be Strategic In Your COVID-19 Guidance [GUIDANCE] On COVID-19 and Business Continuity Plans. Statement in compliance with Texas Rules of Professional Conduct. We have been working for all manner of clients since the 1970s on the many ways that Article 97 and public trust obligations come up in business and residential transactions, policy and strategy considerations, and of course court cases where these restrictions are litigated, interpreted and enforced. Article 97 -Massachusetts Constitution MA EOEEA -Article 97 Land Disposition Policy MA 301 CMR 5.07 -Self Help Post-Completion Requirements Code of Federal Regulations -Title 36, Chapter 1, Part 59 * All the text shown is direct language from the laws or regulations, except the last slide which is mine. Massachusetts Constitution - Article 97: Land Use Policy - City of Holyoke Click here to sign up for city emergency alerts - including community event alerts, Fire Department notifications, law enforcement alerts, general information alerts, and public works notifications Documents and forms Massachusetts Constitution - Article 97: Land Use Policy Can Nonprecedential Decisions Be Relied Upon? EXPOSED: Does a New NCLC Ex Parte Filing Expose Their True Agenda to Little Weight Given to Conclusory Expert Declaration That Repeats IPR Department of Homeland Security Provides Information Related to EB-5 PTAB: Vidal Refocuses Guidance On Fintiv Factors And Discretionary Aluminum Is Now A Hot Topic In Supply Chain And Trade. 97 should be sent to plpa@mass.govincluding: EEA policy, legal, and legislative staff will collaboratively review & respond to submitted questions. 97 provided that, after the taking or acquisition, it was designated for those purposes in a manner sufficient to invoke the protection of art. according to Article 19, 59-32. Article 97 of the Articles of Amendment to the Massachusetts Constitution, approved by the Legislature and ratified by Massachusetts voters in 1972, provides that [l]ands and easements taken or acquired for conservation purposes shall not be used for other purposes or disposed of without the approval of two thirds roll call vote of each branch of the legislature. Article 97 is intended to be a legislative check to ensure that lands acquired by state entities and municipalities for conservation purposes are not converted to other inconsistent uses. But the U.S. Natural Gas Act grants pipeline companies the power. Abbreviated name of Constitution art. 97.6. 97), approved and ratified November 7, 1972, declares that we have certain rights to clean air and water, freedom from excessive noise, and to the natural, scenic, historic and esthetic qualities of our environment, and declares 0000002709 00000 n Article Summary: This policy, issued by the Massachusetts Executive Office of Environmental Affairs in 1998, describes the process and requirements for disposing of, and replacing, conserved land covered by Article 97 of the Articles of Amendment to the Constitution of the Commonwealth of Massachusetts. Employers Beware: Non-Disparagement and Confidentiality Covenants in Consultation Paper On Review of Corporate Governance Norms For A High Californias War On The Fast-Food Industry Continues. Several such bills are filed each year, mostly not controversial, enabling land swaps with state forests or state parks, limited commercial or private activities in municipal parks and forests, transactions with local businesses and local landowners to lease town properties, legalization of encroachments, or releases of conservation restrictions. 97) establishes a right to a clean environment including its natural, scenic, historical, and aesthetic qualities for the citizens of the Commonwealth. 49 of the Amendments, but preserved the right of the people to enjoy the natural resources of the Commonwealth. Suggestions are presented as an open option list only when they are available. Michigan PFAS Challenge Arguments Briefed For The Court. G.L. c. 45, 23A-23C (shore reservations): G.L. amend. Please contact [emailprotected]. solely to the Legislature. Keep a step ahead of your key competitors and benchmark against them. (citing Mahajan v. Dept. at 49 (citing Mass. 97 if (1) "the intent to dedicate [the land permanently is] made manifest by the unequivocal declarations or acts of the owner" and (2) "where the dedication is accepted by the public. BREAKING DOWN THE PRIVACY ACT REVIEW REPORT #3: Removal of The Small White House Releases National Cybersecurity Strategy, Illinois High Court Rules Per-Scan Damages Can Be Awarded Under BIPA, Grassley-Wyden Bill Aims to Fix Broken Tax Whistleblower Law, Lessons Learned From 2022s Trade Secret Verdicts, Mass. Finally, Richard . Section 24 of the Constitution of the State of Nevada says that "no lottery may be authorized nor may lottery tickets be sold" by state and political subdivisions in the Battle Born State. Questions? No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. See e.g. There have been several important AGO and court opinions since. 97.6. An earlier common law doctrine is still in effect, the prior use doctrine. 97). 97 provided that, after the taking or acquisition, it was designated for those purposes in a manner sufficient to invoke the protection of art. This became the model for the adoption of the U.S. Constitution. 97 may be enforced by the Department of Environmental Protection (Mass. The Supreme Court Grants Petition to Decide Constitutionality of CFPB Understanding Your Law Firms Value Proposition, Spike in Migrants Crossing U.S.-Canada Border Raising Concerns, Bill to Amend the Gramm-Leach-Bliley Act Introduced to Congress, Energy & Sustainability Washington Update March 2023. It is the seventh smallest of the U.S. states in terms of total area. art. "2 In other words, the Court broadly interpreted art. (quoting Hayden v. Stone, 112 Mass. Pierce Atwood uses cookies to improve your website experience. An official website of the Commonwealth of Massachusetts. 97. Article 97 of the Amendments to the Massachusetts Constitution ("Art. mass.gov/eea/agencies/mepa/about-mepa/eea-policies/eea-article-97-land-disposition-policy.html (Feb. 19, 1998). Federally Recognized Holidays, Employer Considerations for DOLs New AEWR Rule. Mobile Arbeit und regionale Feiertage was gilt? As a member of the Massachusetts Constitutional Convention of 1779, John Adams was the document's principal author. We have been familiar with Article 97 since it was formulated for presentation and adoption by the voters. The end of the institution, maintenance, and administration of government is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their . This content is for decoration only skip decoration. In the Westfield case, the SJC revisited its analyses in determining whether Article 97 state constitutional protections apply to restrict development of land held by state and municipal entities "for conservation and natural resource protection purposes."