Revisiting the Leading Massachusetts Cases on Article 97 Park and Open Space Protection: Mahajan and Westfield – Update from McGregor, Legere & Stevens, P.C.

Written by Luke H. Legere, Esq.

Revisiting the Leading Massachusetts Cases on Article 97 Park and Open Space Protection: Mahajan and Westfield

We remind ourselves of the seminal decision in Mahajan v. DEP, 464 Mass. 604 (2013) – in which the Supreme Judicial Court (SJC) reversed and remanded a Superior Court decision that Article 97 applied to Long Wharf in Boston – in light of the SJC’s more recent ruling in Smith v. City of Westfield, 478 Mass. 49 (2017).

The SJC in Mahajan ruled the end of Long Wharf (part of Boston’s historic Walk to the Sea) was not dedicated to Article 97 purposes, but acknowledged that properties acquired pre-Article 97 or without explicit Article 97 dedication in their chain of title could become Article 97-protected by dedication thereafter.

According to the SJC in Mahajan, the test is “whether the land was taken for [Article 97] purposes, or subsequent to the taking was designated for those purposes in a manner sufficient to invoke the protection of art. 97.”

In that case, the SJC ruled that although the BRA’s waterfront urban renewal plan identified some objectives consistent with Article 97 purposes, it included other inconsistent purposes, and was therefore insufficient to invoke Article 97 protection.

Importantly, the SJC did recognize that when considering whether Article 97 applies to land, “the ultimate use to which the land is put may provide the best evidence of the purposes of the taking” or intent for land acquired by a city or town.

Incidentally, a related suit in federal court successfully sought to compel compliance by the BRA with LWCF grant restrictions to the National Park Service and the Commonwealth. These came to light after the SJC’s Mahajan decision by virtue of efforts under the Federal Freedom of Information Act and alarms being sounded by astute former federal employees.

These federal grant conditions for restoration and modernization of historic Long Wharf ultimately prohibited commercial use of the end of the Wharf, stopping a restaurant proposal redeveloping the shelter there, next to the popular ‘Compass Rose” in the pavement, looking out at Boston Harbor.

The scope of Article 97 was examined by the SJC several years later in Smith v. City of Westfield, 478 Mass. 49 (2017). That case involved a parcel of land in Westfield had a long history of designation as a playground following city council votes, acceptance and use of LWCF grant funds to improve the playground, and a state program requiring that land developed with such funds be subject to Article 97 protections.

Notwithstanding these designations, the chain of title in the Registry of Deeds lacked any document formally limiting the land’s use to conservation or recreational use. The Westfield City Council sought to transfer the playground property to the school department for the purpose of constructing a new elementary school, and a group of residents sued to stop construction of the school to preserve the playground.

The SJC in Smith picked up on the thread left hanging in Mahajan and decided that “land is dedicated to the public as a public park when the landowner’s intent to do so is clear and unequivocal, and when the public accepts such use by actually using the land as a public park.”

The Court made clear that one must consider “the totality of the circumstances” in weighing whether land has been clearly and unequivocally dedicated to Article 97 purposes. In other words, Article 97 protection, as a matter of law, therefore may be triggered for municipal land without formally recording a deed, conservation restriction, or other instrument at the Registry of Deeds.

In Smith, the “determinative factor” in that calculation was the City’s acceptance of LWCF grant money to rehabilitate the playground – the controlling statute prohibited the City from converting the playground to any use other than public outdoor recreation without federal approval, so it was clearly and unequivocally dedicated as a public park by virtue of the City accepting those funds.

Upon reflection, the Mahajan and Westfield cases offer several lessons for determining whether open space or land has been dedicated to public outdoor recreational use or it otherwise protected by Article 97.

The chain of title remains the most important place to look. Certain words or actions, including language in the deed or order of taking, conservation restriction, historic preservation restriction or agricultural preservation restriction, will categorically designate land for Article 97 purposes.

Acceptance of federal or state grant money or funds, including LWCF grants or the state Parkland Acquisitions and Renovations for Communities Program (formerly the Urban Self-Help Program) will restrict future use of the land.

Town Meeting actions or other formal dedication of land following acquisition, which may include transferring the care, custody and control of the land to a conservation commission, park department, water supply department or forest division, may also trigger Article 97.

Finally, look at the big picture to consider whether “the totality of the circumstances” may establish that a municipality has clearly and unequivocally dedicated land to Article 97 purposes – while an individual action may carry relatively little weight, it might tip the scales if viewed together with other actions taken over time.