In an unequivocal victory for environmentalists and proponents of open space and outdoor recreation, the MA Supreme Judicial Court has ruled that Article 97 protection may be triggered for municipal land without formally recording a deed, conservation restriction, or other instrument in the chain of title. Article 97, enacted by the voters in 1972, is an important element of the state’s Public Trust Doctrine protecting public land and water areas.
The Boston law firm McGregor & Legere, PC represented the Massachusetts Association of Conservation Commissions (MACC) pro bono in filing with the SJC a friend of the court brief that took the position which the Court adopted.
The Court’s precedent setting decision in Smith v. Westfield on October 2, 2017, ruled that the Cross Street Playground in the City of Westfield is subject to Article 97 protection. This means the City must get a special super-majority vote of both the MA House and Senate in order to change the land use from playground to school.
Luke Legere, Esq., who authored the brief with Gregor McGregor and input from MACC’s Legal Committee, commented, “The key was that the Court determined that Westfield clearly and unequivocally had dedicated the Cross Street Playground for permanent use as a public park over 60 years, and the public had used it that way. On these facts a two-thirds vote of the Legislature is needed per Article 97 of the Amendments to the MA Constitution before changing the use or otherwise disposing of the property.”
Mr. Legere continued, “In reaching this conclusion, the Court considered the totality of the circumstances, meaning all the relevant facts, but ultimately pointed to the City’s acceptance of federal Land and Water Conservation Fund grant money to rehabilitate the playground as the ‘determinative factor’.”
Gregor McGregor, Esq. added, “The SJC also explicitly rejected the view, which some had seen in prior cases, that land not originally taken or otherwise acquired for Article 97 purposes would need some kind of a formal recording in the registry of deeds in order to trigger Article 97 protection afterwards. This puts to rest uncertainty about what legal paperwork is needed to protect municipal, county and state owned public natural resource lands and water areas in Massachusetts.”
The many friend-of-the-court briefs by the Massachusetts Association of Conservation Commissions (MACC), Conservation Law Foundation of New England, Inc.(CLF), The Trustees of Reservations (TTOR), Association for the Preservation of Cape Cod (APCC), Massachusetts Audubon Society, Massachusetts Land Trust Coalition (MLTC), Massachusetts Attorney General, and Sanjoy Mahajan (lead plaintiff in the Long Wharf litigation) is a measure of the stakes in this ruling.
Gregor I. McGregor, Esq.
McGregor & Legere, P.C.
15 Court Square – Suite 500
Boston, MA 02108
617-338-6464, ext. 123
Fax: 617-338-0737
gimcg@mcgregorlaw.com