(dissenting). This case raises important issues concerning a city or town’s right of first refusal of property being removed from agricultural or horticultural protection pursuant to G. L. c. 61A, and the Supreme Judicial Court’s decision in Franklin v. Wyllie, 443 Mass. 187 (2005). Since I disagree with the majority in both respects, I respectfully dissent.
The Wyllie court agreed with a judge of the Land Court that a purchase and sale agreement made contingent upon conventional subdivision approval fit within the meaning of a “bona fide offer” for the purposes of G. L. c. 61 A. The Legislature immediately amended G. L. c. 61 A, § 14, to specifically state that no contingency will be considered a “bona fide offer” for the purposes of the statute.1
The same judge of the Land Court hearing this case and *96applying the version of G. L. c. 61A in effect prior to the legislative amendment determined that this case was clearly distinguishable from the facts of his original decision and its affirmance in Wyllie. Here, the judge stated that “[ejven before the passage of [St. 2006, c. 394 (the legislative amendment passed in reaction to the Wyllie decision),] the Wyllie court advised that § 14 ‘must be interpreted in a manner that will not frustrate or impair a town’s right of first refusal.’ Wyllie, 443 Mass, at 196. Here, the [c]ity [of Newburyport (city)] is put in the position of having to accept a highly speculative conditional offer or lose its right of first refusal. . . . [A] number of the conditions that must be satisfied are not within the control of the [c]ity’s employees or agents, and the time to complete the required due diligence is likely to extend well beyond the 120 days.” 2,3 The judge ruled that the contingencies involved here would constitute an unreasonable extension of the Wyllie decision and would successfully “frustrate or impair [the city’s] right of first refusal.” I agree with the Land Court judge that the contingencies contained in the purchase and sale agreement here do not represent a bona fide offer within the meaning of G. L. c. 61A.
The city makes an additional argument that was raised below but not reached by the Land Court judge and only summarily considered by the majority.4 Consideration of this separate *97argument is the basis for the dissent. The issue raised here, of a municipality’s right of first refusal of individual parcels that are covered by the horticultural protection statute, is separate and distinct from the issue considered in Wyllie. The conclusion I reach on this question, however, while separate and standing alone, also necessarily requires that I reconsider whether a “bona fide offer” had been made by Seaport. In this way, separate from the issue considered by the Wyllie court and the majority here, Seaport continued its effort to frustrate and impair the city’s right of first refusal by bundling the separate parcels of land in the purchase and sale agreement and by refusing to state a separate value for each parcel. The city was prevented from exercising its option on either parcel of land separately.
A municipality has a right of first refusal to purchase property that is being taken out of agricultural or horticultural use when the municipality has previously classified the property for such use pursuant to G. L. c. 61 A, § 14. This case presents the same question raised in Plante v. Grafton, 56 Mass. App. Ct. 213 (2002). In Plante, we determined “whether a city or town may be forced by owners who propose to take two or more parcels out of agricultural or horticultural use to buy all of those parcels or whether the municipality may choose to acquire fewer than all of the lots the owners propose to remove from agricultural or horticultural use.” Id. at 213-214.
The properties at issue here are two separate lots of land. The two lots were conveyed to Woodman by separate deeds, and those deeds were recorded separately. The lots were purchased at separate times, were enrolled in the program at separate times, and were taxed separately under G. L. c. 61 A, § 14.5
I can discern no substantive difference between the facts in Plante and the facts of this case that would prevent the holding in Plante from being applied here. We determined in Plante that *98“[i]n consideration of the tax benefit that such a classification bestows upon the landowner, § 14 confers upon the municipality the right to keep the land from being developed. As to each grant of an application for agricultural or horticultural status, there is a refusal option in favor of the municipality. Ordinarily, a seller may not defeat a right of first refusal by confronting the optionee with terms that include acquisition of land in addition to that covered by the right. . . . The rationale of those cases is that permitting a seller so to do allows the seller, as optionor — as here — a too easy means to defeat the rights of the holder of the option right.” (Emphasis added.) Id. at 217.
In addition, Plante held that “there inheres in art. 99 of the Massachusetts Constitution and the implementing statute, G. L. c. 61A, a public policy to encourage agriculture and horticulture in the Commonwealth and to keep land free of construction not related to agricultural or horticultural purposes. That policy may not be defeated through the contrivance of bundling landowners and lots so as to confront a municipality with the choice of surrendering all its rights to keep land free of construction development or imposing on it more expenditure for land than it can prudently tolerate.” Ibid.
Finally, we concluded “that a landowner who, in accordance with G. L. c. 61 A, applies for, and receives, classification of a particular parcel of land as agricultural or horticultural may not defeat the option of first refusal conferred in G. L. c. 61A, § 14, by inserting terms that require the municipality to acquire more than that particular parcel of land.” Id. at 218.
Here, the city, pursuant to G. L. c. 61 A, § 14, should have the option to purchase either or both of the subject parcels. The purchase and sale agreement improperly treats the two parcels as one plot of land. The agreement neither sets a separate price for each of the separate parcels nor allocates proposed development units to each of the parcels. By structuring the agreement in this way, Seaport seeks to do more than simply frustrate and impair the city’s right of first refusal; it seeks to outright prevent the city from purchasing one, but not both lots, if it should choose to do so. It is impossible for the city to determine a purchase price for one, if not both, of the parcels. We should not approve an agreement that so clearly attempts to undermine and *99subvert the remedial purpose of G. L. c. 61A. Since the agreement does not represent a bona fide offer and, in addition, prevents the city from exercising its right to purchase either, if not both, of the parcels, the Land Court judge’s entry of summary judgment should be affirmed.
Section 14 of G. L. c. 61A now reads in pertinent part:
“For the purposes of this chapter, a bona fide offer to purchase shall mean a good faith offer, not dependent upon potential changes to current zoning or conditions or contingencies relating to the potential for, or the potential extent of, subdivision of the property for residential use *96or the potential for, or the potential extent of development of the property for industrial or commercial use, made by a party unaffiliated with the landowner for a fixed consideration payable upon delivery of the deed.”
See St. 2006, c. 394, §§ 18, 31, 48.
Under G. L. c. 61A, § 14, if the change in use is to come about by a sale of the property, the land owner must give the city or town a 120-day option to purchase the property on such terms as are contained in a bona fide purchase offer made to the owner.
The first sentence of paragraph 11 of the purchase and sale agreement provides that “[i]f pursuant hereto, the BUYER does undertake efforts to obtain approval of the DEVELOPMENT, the BUYER shall have the right to terminate this agreement if it appears reasonably certain to the BUYER and BUYER’S legal counsel approval efforts will be unsuccessful.” Seaport was fully aware of the speculative nature of these contingencies, even without a 120-day time frame, and protected itself contractually.
The Land Court judge did not reach this question because his analysis of the purchase and sale agreement’s contingencies was dispositive on the question of a bona fide offer. Also, the Legislature, by definitively amending the *97statute, has prevented this kind of attack on a city or town’s right of first refusal in the future. However, the issue raised by Seaport’s attempt to extinguish any independent status of separate parcels of land pursuant to G. L. c. 61A has significant future importance to the operation of c. 61 A.
The majority distinguishes Plante from this case entirely on the basis that the two lots here are contiguously situated (in Plante they were not) and here the lots are owned by the same person (in Plante, Hennessey was the owner in fee of parcel I and the sole beneficiary of a trust that owned parcel II).