Written by Gregor I. McGregor, Esq.
An important Supreme Judicial Court decision, Carroll v. Select Board of Norwell (SJC-13410, January 5, 2024) upheld the Town of Norwell’s designation of land for affordable housing purposes and rejected an attempt by residents to transfer the property to another purpose without the Select Board’s determination under G.L. c. 40, Section 15A that the land was no longer needed for affordable housing purposes.
This SJC decision, however, is much more. The Court framed the test governing control of a public property, prior jurisprudence on the subject, the facts determining dedication of land, the doctrine of Prior Public Use, and the origin, intent, and import of Article 97 of the Amendments to the Massachusetts Constitution which the Court sees as analogous and illustrative.
The result is a law review article reconciling the applicable statutes and previous public land cases of different vintages concerning conservation or purposes, including Harris v. Wayland, 392 Mass. 237 (1984), Selectmen of Hanson v. Lindsay, 444 Mass. 502 (2005), and Smith v. Westfield, 478 Mass. 49 (2017).
This decision is must reading for those hoping to master municipal land use law, understand land dedication mechanics, demystify protecting conservation and natural resource properties, and navigate the local politics in the ongoing “battle for land.”
The SJC affirmed a Land Court summary judgment granted to the Town of Norwell, on an appeal it took sua sponte. Most important is the holding that the “totality of the circumstances” test applies to determining the purpose for which municipal land is held:
“The issue on appeal is whether the totality of the circumstances test articulated in Smith v. Westfield, 478 Mass. 49, 63-64 (2017) applies to the determination whether land is ‘held by a city or town…for a specific purpose’ under G. L. c. 40, § 15A. We answer that question affirmatively and conclude that town-owned land is held for a specific municipal purpose under G. L. c. 40, § 15A, where the totality of the circumstances indicates a clear and unequivocal intent by the town to hold the land for such purpose.”
The Westfield case had enunciated a totality of the circumstances test under Article 97 in a highly fact-intensive inquiry whether a piece of property had been after-dedicated to a particular purpose, which there was conservation. Mahajan v. Department of Environmental Protection, 464 Mass. 604 (2013), applied in Westfield, had previously decided that land can become after-dedicated by actions evidencing that intent.
The Norwell decision lays out the operative procedure for land held for a specific purpose, who decides to allow a change in that use, and what they decide:
“Under G. L. c. 40, § 15A, if town-owned land is “held . . . for a specific purpose,” that land cannot be diverted to another, inconsistent use until it has been determined by the “board or officer having charge of [the] land” that the land is no longer needed for that purpose….A Land Court judge granted the board’s motion for summary judgment, concluding that the municipal land had been designated for a specific purpose — the development of affordable housing — and therefore, pursuant to G. L. c. 40, § 15A, the parcels could not be transferred without a determination by the board that the land was no longer needed for this purpose.”
This means that regardless a vote at Town Meeting, land is not transferred from a dedicated use to an inconsistent use without the vote of the board or approval of the officer having charge of the land. This check seems to make determinative the initial or any subsequent dedication to a purpose, the facts proving intent that it be used for that purpose, the board or officer in whose care and control the land has been given, and their judgment whether the land is not still so needed.
The operative phrases seem to be “held for a specific purpose,” “another, inconsistent use,” “board or officer in charge of the land,” and “no longer needed for that purpose.”
The subject of this case was a two-parcel property on Wildcat Lane in, and owned by, the Town of Norwell. In 2004 town meeting had unanimously voted to authorize the Select Board to make the Wildcat land “available . . . for affordable housing.” A housing trust and other town entities had taken steps over the years in that direction.
The plaintiffs opposing that use lived in a subdivision next door to the Wildcat land. They drafted a citizens’ petition seeking to authorize and direct the Select Board to transfer the Wildcat land to the conservation commission to be reserved for, among other things, conservation purposes. At the 2021 town meeting, their article received the required two-thirds majority vote.
Town Counsel advised the Select Board, it turns out correctly, that the right procedure had not been followed. The Board was required to determine whether the land was no longer needed for affordable housing purposes. The Board held a vote on a motion to declare that the Wildcat land was no longer needed for affordable housing purposes. The vote did not pass. The neighbors then sued to require transfer of the Wildcat land to the conservation commission.
In applying Section 15A, says the SJC, “we draw upon the common-law doctrine of prior public use. The prior public use doctrine protects all public land, resolving potential disputes over intergovernmental transfers. Under that doctrine, land devoted to one public use cannot be diverted to another, inconsistent public use without plain and explicit legislation authorizing the diversion.”
In this the SJC relied on its recent prior public use decision in Sudbury v. Massachusetts Bay Transp. Auth., 485 Mass. 774, 783 (2020). The doctrine was developed in the 1800’s as a means to resolve potential conflicts over the use of public lands between various governmental entities. Thus, this doctrine applies only to intergovernmental transfers, which was central to the Sudbury case.
On their common law foundation, the Court regards both Section 15A and Article 97 as codifications of the prior public use doctrine.
The SJC sees Article 97, placed in our Constitution by the voters in 1972, as “a constitutional codification of the common-law prior public use doctrine that affords protections to public lands held for conservation.” (Article 97 requires a supermajority vote of both houses of the Legislature to divest or otherwise transfer or use for another purpose land or other interests taken or acquired for a broad range of natural resource purposes).
The SJC likewise sees that G. L. c. 40, § 15A, first enacted in 1951, “embodies the same legal principle — land designated for one use may not be diverted for an inconsistent use absent explicit determination that the land is no longer needed for such use by the relevant municipal board in charge of the land and a two-thirds vote by the town authorizing the diversion.”
The Court then analogizes to Article 97 at length, making this decision a most significant contribution to conservation jurisprudence. After noting the case law establishing the standard for assessing specific-use designations under Section 15A is scarce, the SJC says it regards Article 97 as imposing a “corresponding standard” and so prior Article 97 cases “provide a useful framework for determining specific municipal use designations under § 15A.”
The Court in passing resolves a prior point of some contention on the mechanics of dedication, arising from interpretation of Hanson: “To be clear, the court in Selectmen of Hanson did not adopt… a bright-line rule requiring towns to file deed restrictions or transfer control of property to specific entities in order to hold it for a specific purpose under G. L. c. 40, § 15A.” This language eliminates a common misperception stemming from the Hanson case, leading some to think a deed transfer between town entities is needed to dedicate a piece of property. Not so.
Apropos dedication of land to the purpose of conservation, under Article 97, the SJC explains how this happens in helpful detail:
“Under our common law, 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. There are various ways to manifest a clear and unequivocal intent. The recording of a deed or a conservation restriction is one way of manifesting such intent but it is not the only way….The clear and unequivocal intent to dedicate public land as a public park must be more than simply an intent to use public land as a park temporarily or until a better use has emerged or ripened. Rather, the intent must be to use the land permanently as a public park, because the consequence of a dedication is that the general public for whose benefit a use in the land was established . . . obtains an interest in the land in the nature of easement, and upon completion of the dedication it becomes irrevocable….”
Finally, the SJC turned to the determinative facts in the Norwell record:
“Taken together, this evidence shows that following the 2004 town meeting vote, the board, acting primarily through the trust, took several steps to explore the use of the Wildcat land for affordable housing. This evidence also indicates that, since the 2004 town meeting vote, the board considered the Wildcat land to be set aside for a specific municipal use, affordable housing, to the exclusion of all other uses. Because the board produced undisputed evidence showing that the town intended to designate the Wildcat land for affordable housing, the crucial question is whether the plaintiffs have produced any evidence to create a material dispute of fact regarding the town’s intent.”
The SJC concluded, based on facts undisputed at summary judgment, that the Wildcat land was held exclusively for a specific municipal purpose — the development of affordable housing — within the meaning of G. L. c. 40, § 15A.
We compliment the Select Board of Norwell and their Town Counsel for standing up and standing firm for the purpose for which the Wildcat land was acquired and came to be dedicated.