NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
15-P-773 Appeals Court
VIRGINIA B. SMITH & others1 vs. CITY OF WESTFIELD & others.2
No. 15-P-773.
Hampden. April 14, 2016. - August 25, 2016.
Present: Green, Trainor, & Milkey, JJ.
Municipal Corporations, Parks, Use of municipal property. Parks
and Parkways. Constitutional Law, Taking of property. Due
Process of Law, Taking of property.
Civil action commenced in the Superior Court Department on
April 27, 2012.
The case was heard by Daniel A. Ford, J.
Thomas A. Kenefick, III (Mary Patryn with him) for the
plaintiffs.
Anthony I. Wilson (John T. Liebel with him) for the
defendants.
1
Thomas Smith, Daniel Smith, Ernie Simmons, Elizabeth
Simmons, Brian Winters, Erin Winters, Dean Winters, Virginia
Winters, Patricia Bettinger, Benjamin Larsen, Fred Pugliano, Don
Wielgus, Sharon Wielgus, Marcus Jaiclin, Karen Jaiclin, Frank
Mochak, Helen Mochak, William Wigham, Gary Wolfe, William
Schneelock, Fred Wrobleski, Jose Santos, Francis Simmitt, and
Barbara Simmitt.
2
City council and mayor of Westfield.
2
TRAINOR, J. The plaintiffs, Virginia B. Smith and other
Westfield residents (collectively, residents), appeal from a
judgment for the defendants, the city of Westfield and others
(collectively, Westfield), which vacated a preliminary
injunction that, in effect, prohibited a school construction
project at the John A. Sullivan Memorial Playground
(playground).3 The residents challenge the judgment for two
reasons. First, they argue that the playground was sufficiently
dedicated to invoke the protection of art. 97 of the Amendments
to the Massachusetts Constitution, notwithstanding the fact that
no documents were ever recorded that dedicated the land for art.
97 purposes.4 Second, the residents contend that the judge erred
in concluding that a Statewide comprehensive outdoor recreation
plan (SCORP) contradicts Mahajan v. Department of Envtl.
Protection, 464 Mass. 604 (2013). We affirm, as we conclude
that the playground has not been designated for an art. 97
purpose in a manner sufficient to invoke its protection.
Background. This matter came before a Superior Court judge
on cross motions for judgment based on an agreed statement of
facts. We summarize those facts, reserving some facts for later
3
The playground is commonly referred to as the Cross Street
playground.
4
The residents therefore maintain that Westfield acted
beyond its authority when it approved and permitted construction
of a school building at the playground without obtaining a two-
thirds vote of the General Court as required by art. 97.
3
discussion. On November 13, 1939, Westfield took title to the
land in question for the purpose of satisfying a tax debt
pursuant to G. L. (Ter. Ed.) c. 60, §§ 53 and 54. In 1957,
Westfield passed an ordinance recognizing the land as a
playground and naming it the John A. Sullivan Memorial
Playground. In 1979, the Federal Land and Water Conservation
Fund (LWCF) awarded Westfield a grant that, in part, was used to
upgrade the playground. A SCORP was required for Westfield to
be eligible for that grant. See 16 U.S.C. § 460l-8(d) (1976).5
The SCORP, which the residents assert applies to this matter,
states: "Land acquired or developed with [LWCF] funds become
protected under . . . [art. 97]." See Massachusetts Outdoors
2006: Statewide Comprehensive Outdoor Recreation Plan,
Executive Office of Energy and Environmental Affairs 4,
http://www.mass.gov/eea/docs/eea/dcs/massoutdoor2006.pdf
[https://perma.cc/T3D7-4EKN] (2006 SCORP).6 In 2010, Westfield
endorsed an open space and recreation plan that designated the
playground as "open space." In August, 2011, the playground was
determined to be surplus property, and the city council voted to
5
We cite to the Federal statute in effect in 1979, the year
that Westfield applied for and was awarded the grant. See, now,
54 U.S.C. § 200305(d) (Supp. II 2014).
6
We question, as the judge did below, whether the 2006
SCORP is applicable when the grant was sought and awarded in
1979. Nevertheless, we assume for purposes of this opinion only
that the 2006 SCORP applies.
4
have it transferred to the school department in order to
construct an elementary school. In the hearing on the parties'
cross motions, the residents conceded that no document was ever
recorded in the registry of deeds designating the playground as
land devoted to the "conservation, development and utilization
of the agricultural, mineral, forest, water, air, and other
natural resources." Art. 97 of the Amendments to the
Massachusetts Constitution.
Discussion. 1. Article 97 protection. The residents
maintain that the playground is subject to art. 97 protection
and that Westfield acted beyond its authority when it approved
and permitted construction of a school building at the
playground without obtaining a two-thirds vote of the General
Court as required by art. 97.7 "The critical question to be
7
Article 97, which was approved and ratified on November 7,
1972, superseding art. 49, provides:
"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 protection of the people in
their right to the conservation, development and
utilization of the agricultural, mineral, forest, water,
air and other natural resources is hereby declared to be a
public purpose.
"The general court shall have the power to enact
legislation necessary or expedient to protect such rights.
"In the furtherance of the foregoing powers, the
general court shall have the power to provide for the
taking, upon payment of just compensation therefor, or for
5
answered is not whether the use of the land incidentally serves
purposes consistent with art. 97, or whether the land displays
some attributes of art. 97 land, but whether the land was taken
for those purposes [emphasis in original], or subsequent to the
taking was designated for those purposes [emphasis supplied] in
a manner sufficient to invoke the protection of art. 97."
Mahajan v. Department of Envtl. Protection, 464 Mass. at 615.
Article 97 protection also may arise where, following the taking
for purposes other than art. 97, the land is specifically
designated for art. 97 purposes by deed or other recorded
restriction. See Selectmen of Hanson v. Lindsay, 444 Mass. 502,
508-509 (2005). See also Toro v. Mayor of Revere, 9 Mass. App.
Ct. 871, 872 (1980) (applicability of art. 97 depended on
whether the land had been conveyed "to the conservation
commission . . . to maintain and preserve it for the use of the
public for conservation purposes"). We agree with the motion
judge's finding that Westfield did not specifically designate,
in a manner sufficient to invoke the protection of art. 97,
the acquisition by purchase or otherwise, of lands and
easements or such other interests therein as may be deemed
necessary to accomplish these purposes.
"Lands and easements taken or acquired for such
purposes shall not be used for other purposes or otherwise
disposed of except by laws enacted by a two thirds vote,
taken by yeas and nays, of each branch of the general
court."
6
i.e., by deed or other recorded restriction on the land, the
playground for art. 97 purposes and that the playground was not
taken for those purposes. Westfield's subsequent actions of
passing an ordinance naming the playground and endorsing the
open space and recreation plan in 2010 are insufficient to
subject the playground to art. 97 protection. Compare Selectmen
of Hanson v. Lindsay, supra at 508-509; Mahajan v. Department of
Envtl. Protection, supra at 615-616.
2. 2006 SCORP. The residents contend that because the
2006 SCORP considers land rehabilitated with LWCF grants as
being under the protection of art. 97,8 the judge erred in
determining that the acceptance of the LWCF grant did not
subject the property to art. 97 protection. As the judge
correctly stated, "[a] federal or state agency is not free to
promulgate regulations which conflict with statutes passed by
the state legislature or with the common law enunciated by the
Supreme Judicial Court. See Purity Supreme, Inc. v. Attorney
Gen[.], 380 Mass. 762, 774-775 (1980)." Moreover, the Supreme
Judicial Court, as final arbiter of the Massachusetts
Constitution, has interpreted art. 97 and defined its
8
See Massachusetts Outdoors 2006: Statewide Comprehensive
Outdoor Recreation Plan, Executive Office of Energy and
Environmental Affairs 4,
http://www.mass.gov/eea/docs/eea/dcs/massoutdoor2006.pdf ("Land
acquired or developed with [LWCF] funds become protected under
the Massachusetts Constitution [Article 97]").
7
requirements. A Federal or State agency's regulations cannot
conflict with the Supreme Judicial Court's interpretation of the
Massachusetts Constitution. See Planned Parenthood League of
Mass., Inc. v. Attorney Gen., 424 Mass. 586, 589-590 (1997).
Accordingly, the 2006 SCORP cannot infringe upon the formalities
for constitutional protection, as construed by the Supreme
Judicial Court, by deeming the acceptance of an LWCF grant as
creating art. 97 protection.
3. Prior public use doctrine. The residents argue that
the prior public use doctrine requires the playground to be
subject to art. 97 protection. We are not persuaded. "The
prior public use doctrine holds that public lands devoted to one
public use cannot be diverted to another inconsistent public use
without plain and explicit legislation authorizing the
diversion." Mahajan v. Department of Envtl. Protection, 464
Mass. at 616 (quotation omitted). This doctrine is only
applicable to land that is in fact devoted to public use. Id.
at 617. Thus, as noted by Mahajan, in Muir v. Leominster, 2
Mass. App. Ct. 587, 588-589, 591 (1974), we "held the prior
public use doctrine inapplicable to the sale for commercial
purposes of a parcel of land, where that parcel had been
conveyed to a city as a gift with no limitation on its use but
was in fact used for thirty years as a playground and for other
recreational purposes . . . [and] there had been neither prior
8
legislative authorization of a taking for a particular purpose
nor a prior public or private grant restricted to a particular
purpose." Ibid. (citation and quotation omitted). Accordingly,
the prior public use doctrine, insomuch as it was adopted in the
art. 97 context by the Supreme Judicial Court in Mahajan, does
not subject the playground to art. 97 protection because that
land had been conveyed to the city with no limitation on its
use, and there was neither a taking for an art. 97 purpose nor a
prior public or private grant restricting the land to an art. 97
purpose. See id. at 616-617.
Judgment affirmed.
MILKEY, J. (concurring). I agree with the majority that we
are constrained to affirm the judgment here based on Selectmen
of Hanson v. Lindsay, 444 Mass. 502 (2005), and Mahajan v.
Department of Envtl. Protection, 464 Mass. 604 (2013). I write
separately in the hope that the Supreme Judicial Court someday
will revisit such precedent.
As this and legions of other cases illustrate, public
officials charged with building schools, roads, and other
important public facilities often seek to locate such facilities
in existing parkland or similar land.1 See, e.g., Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 404 (1971)
(interpreting the Federal statutes limiting the construction of
highways through parkland). In 1972, the people approved art.
97 of the Amendments to the Massachusetts Constitution as a
means of protecting such lands from these development pressures.
See Mahajan, supra at 611-612. The key language in art. 97
prohibits the sale or change in use of public parkland absent
special legislative approval granted by a two-thirds roll call
vote. Id. at 612, quoting from art. 97 of the Amendments to the
Massachusetts Constitution. This prohibition applies to all
1
For many reasons, parkland presents an attractive
development site to those whose mission is to build such
facilities. These include that the land is available at no
apparent cost and without the need to displace any existing
homes or businesses.
2
public land "taken or acquired" for the purposes that art. 97
was designed to protect. Ibid. Thus, where the land at issue
originally was acquired by the public entity for such purposes,
then art. 97 applies by its express terms (regardless of whether
the reason for the acquisition happens to be noted on the deed).
What has been less clear until recently is the extent to
which art. 97's protections also apply to land that originally
was not expressly acquired for such specific purposes, but that
subsequently was dedicated to them. As illustrated by the
current case, as well as by Hanson and Mahajan, this is an
extremely common scenario. Indeed, some of the Commonwealth's
most venerable public parkland, such as Boston Common, was
originally acquired for other purposes. See Lowell v. Boston,
322 Mass. 709, 716, 729-730 (1948) (land comprising "nearly all"
of Boston Common was originally acquired by the town of Boston
in 1633 for general purposes, but over time "it is plain that
the town has dedicated the Common and the Public Garden to the
use of the public as a public park").
As a matter of both logic and common sense, the bare fact
that land has been put to an art. 97 use, without more, does not
mean that the land was "taken or acquired" for such use.
However, a different situation is presented once such land
formally has been dedicated to an art. 97 use, especially where
-- as is often the case -- management of the land has been
3
assigned to the State or municipal agency that has oversight of
parkland or similar land.2 Under that scenario, the land readily
can be said to have become "acquired" for art. 97 purposes, and
therefore subject to art. 97 protections.3
Notably, the Supreme Judicial Court has rejected the narrow
view that land can be subject to art. 97 only if it was
originally acquired for that purpose. Mahajan, supra at 615,
citing Hanson, supra at 508-509 (art. 97 applies not only to
2
In the case before us, Westfield accepted in 1946 the
planning board's recommendation that the land at issue be used
as a playground and transferred "full charge and control" of the
land to the playground commission two years later. In 1979,
Westfield received State funding to improve this and other
playgrounds. Half of that funding was paid out of the Land and
Water Conservation Fund (LWCF), a Federal program under which
grant recipients are prohibited from changing the use of
properties being funded (except in narrow circumstances not here
applicable). See 16 U.S.C. § 4601-8(f)(3) (1976). Because this
land received a LWCF grant, it long has been designated as
"article 97 land" on the Massachusetts Statewide comprehensive
outdoor recreation plan. See, e.g., Massachusetts Outdoors
2006: Statewide Comprehensive Outdoor Recreation Plan,
Executive Office of Energy and Environmental Affairs 4,
http://www.mass.gov/eea/docs/eea/dcs/massoutdoor2006.pdf
[https://perma.cc/T3D7-4EKN] ("Land acquired or developed with
[LWCF] funds become protected under . . . [art. 97]").
3
This is consistent with the so-called "prior public use"
doctrine from which art. 97 was derived. See generally Mahajan,
supra at 616 ("Because the spirit of art. 97 is derived from the
related doctrine of 'prior public use,' cases applying that
doctrine inform our analysis"). Under that doctrine, "public
lands devoted to one public use cannot be diverted to another
inconsistent public use without plain and explicit legislation
authorizing the diversion." Robbins v. Department of Pub.
Works, 355 Mass. 328, 330 (1969). "In furtherance of the policy
of the Commonwealth to keep parklands inviolate the rule has
been stringently applied to legislation which would result in
encroachment on them." Ibid.
4
land originally taken or acquired for art. 97 purposes, but also
to land that "subsequent to the taking [or acquisition] was
designated for those purposes in a manner sufficient to invoke
the protection of art. 97"). Nevertheless, the court severely
has limited the circumstances under which land originally
acquired for non-art. 97 purposes can become subject to art.
97's protections. Specifically, Hanson and Mahajan, taken
together, appear to say that the only circumstance under which
such land will be considered subject to art. 97 is where the
restricted use has been recorded on the deed, e.g., through a
conservation restriction. See Hanson, 444 Mass. at 506-509;
Mahajan, 464 Mass. at 615-616. In my view, the particular line
the Supreme Judicial Court has drawn with respect to art. 97's
applicability is untenable as a matter of both theory and
practice.
A close reading of Hanson reveals that the reason the court
stated that record notice is a prerequisite to art. 97's
application in this context is the perceived need to protect
people who might innocently purchase the land without knowing
that it was subject to art. 97.4 As the court reasoned, "[t]o
4
In Hanson, the land had been sold to a third party. The
town alleged that the buyer -- whose agent was on the local
conservation commission -- was aware of the town meeting vote
designating the parcel as conservation land and therefore was
not in fact a bona fide purchaser. However, the Supreme
Judicial Court concluded that the town had waived the issue by
5
conclude that this [the dedication of the land for conservation
purposes] could be accomplished solely by [a town meeting] vote,
without recordation of any instrument, would eviscerate the
purposes of our recording acts." Hanson, supra at 509.
Nothing in the language or purpose of art. 97 suggests that
its application should turn on whether the underlying deed
provides record notice that the land has been committed to an
art. 97 use.5 Recording statutes obviously serve laudable goals,
but they cannot trump a constitutional provision.6 If art. 97
can apply to public land that formally has been dedicated to an
art. 97 purpose even though that land originally was not
acquired for such a purpose, it makes little sense to prevent
its application based on the theoretical concern that a future
not adequately raising in its complaint a claim challenging the
buyer's status as a bona fide purchaser. Hanson, supra at 509-
510.
5
It bears noting that in subjecting land it already owns to
a conservation restriction (the form of record notice on which
the court focused in Hanson), a public entity would not be
"acquiring" land at all, but instead would be granting a
statutorily-recognized property interest to another. See
generally Parkinson v. Assessors of Medfield, 398 Mass. 112,
113-115 (1986) (explaining how conservation restrictions work).
6
In other contexts, the court has not hesitated to rule
that the rights of actual bona fide purchasers can be outweighed
by other important interests. See, e.g., Bevilacqua v.
Rodriguez, 460 Mass. 762, 776-779 (2011) (discussing void
transactions, from which a bona fide purchaser may not take good
title).
6
purchaser might not be aware that it applies.7 In fact, for the
large subset of dedicated parkland that originally was acquired
for non-art. 97 purposes, the rule established by Hanson and
Mahajan threatens to reduce art. 97 to near irrelevancy: its
protections would apply only where the public entity had already
taken steps to ensure that those protections were not needed.8
It may be tempting to say that the rule established by
Hanson and Mahajan is not problematic, because the public actors
charged with protecting parkland have the power to initiate the
additional recordation steps necessary to make such land subject
to art. 97, e.g., by subjecting the land to a conservation
restriction. In fact, the Supreme Judicial Court itself
indicated that it was rejecting a broader reading of art. 97's
application in part because of "the ability of a narrower
interpretation to serve adequately the stated goals of art. 97."
7
This is particularly true given that it is difficult to
imagine that someone seeking to purchase or develop dedicated
public parkland would not be aware of that use.
8
Article 97's protections are procedural only; the land can
be sold or put to a different use if the requisite legislative
votes are obtained. In contrast, a conservation restriction
provides permanent substantive protection for the land (unless
the restriction were released by the Secretary of Energy and
Environmental Affairs pursuant to the strict test enumerated in
G. L. c. 184, § 32). I recognize that there is a suggestion in
Mahajan that a conservation restriction as such may not be
needed to trigger art. 97's application and that it may suffice
for the public owner to go through the odd formality of deeding
the land back to itself for art. 97 purposes. Mahajan, supra at
616.
7
Mahajan, supra at 615.9 But practical realities stand in the way
of such optimistic thinking. Where, from all appearances,
public land has been dedicated permanently to parkland or other
art. 97 uses, the relevant public officials charged with
protecting such land face little galvanizing pressure to go
through the effort and expense of taking the additional steps
suggested by Hanson or Mahajan. Indeed, because it often takes
extensive research even to uncover the purpose for which
existing parkland originally was "taken or acquired," the
relevant actors may have no idea that the additional steps are
necessary for art. 97 to apply. Once the need to take such
steps surfaces -- that is, after the perceived need to use the
land for a pressing competing use has arisen -- it likely has
become too late to implement such measures.
The overriding point of art. 97 is to insulate dedicated
parkland from short-term political pressures. I fear that the
effect of Hanson and Mahajan is to rob art. 97 of its intended
force with regard to a great deal of dedicated parkland across
the Commonwealth.
9
The court also alluded to "the practical consequences that
would result from . . . an expansive application," without
spelling out what specific problems it had in mind. Mahajan,
supra at 615.