The Supreme Judicial Court (SJC) last March ruled that the record facts failed to establish that Long Wharf in Boston qualified for Article 97 protection. Some read the SJC as bolstering urban renewal and the eminent domain tool.
Actually, the SJC has given us remarkable clarity and guidance on the fact-specific inquiry involved in assessing if a given property is protected as parkland or open space under Article 97.
The case is Mahajan et al v. DEP and BRA, SJC Docket 11134, decided March 15, 2013. 464 Mass 604 (2013). This decision is the most important recent judicial gloss on Article 97, an area of law addressed infrequently by courts.
Most important, as a result of this case, the list of ways that land can come under Article 97 has grown. BRA land or water taken by eminent domain for urban renewal, or for that matter all public land no matter how or when acquired, could be or become Article 97-protected by a specific enough eminent domain taking, recorded deed restriction, condition on a gift, subsequent dedication, or even property uses over time demonstrating the original purpose was an Article 97 purpose.
Against the specific ruling on Long Wharf, the silver lining for conservationists, open space advocates, and land use planners is that the SJC saved Article 97 from a wholesale urban renewal exemption which had been urged by the BRA.
Specifically, the SJC rejected the BRA’s argument that the original wording of an eminent domain taking order would determine if Article 97 protects the land. Instead, the SJC said the history of actual land uses is mostly relevant to provie original intent. And the SJC explicated how Article 97 works in practice.
Article 97 was enacted by the voters in 1972 to establish explicit authority for state environmental legislation, commonly called a Right to a Clean Environment, and to put in place procedural protection for public lands taken or acquired for natural resource purposes, notably a super-majority vote of the Legislature to transfer open space or parkland or use it for other purposes.
The SJC concluded that Article 97 does not apply to the Long Wharf project site, so a two-thirds vote of the Legislature is not required.
This ruling on Long Wharf is quite narrow. On the facts it does not qualify for Article 97 protection from BRA transfer and land use decisions. Yet the SJC declared that urban renewal eminent domain takings are not exempt from Article 97, and that when assessing whether a parcel is protected by Article 97, the wording of the original order of taking (the operative eminent domain document) is not dispositive. Rather, the uses to which the parcel is thereafter put could be the most important evidence of what the original purpose was.
The SJC discounted the well-known Quinn Opinion (rendered in 1972 in response to questions from the Legislature) “due to the generalized nature of the inquiry and the hypothetical nature of the response.” The court’s contemporary view of Article 97 is narrower that that expressed in the Quinn Opinion, and the court disagreed with it “to the extent it suggests that the vast majority of land taken for any public purpose may become subject to Article 97 if the taking or use even incidentally promotes the ‘conservation, development and utilization of the … forest water and air,’ or that the land simply displays some attributes of Art. 97 land generally.”
The SJC also rejected the notion “that the relatively imprecise language of art. 97 warrants an interpretation as broad as the Quinn Opinion would afford it, particularly in light of the practical consequences that would result from such an expansive application, as well as the ability of a narrower interpretation to serve adequately the stated goals of Art. 97.”
The take-away point is what the SJC identified as the “critical question … 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.”
This seems to us to be the important lesson for lawyers and others dealing with what are or may qualify as open spaces and parklands. We already knew that Article 97 application to a piece of property is highly fact-specific. Now we will attend most closely to the original taking purposes or any subsequent designation for those purposes in a way sufficient to trigger Article 97 protection.
In its Long Wharf decision, the Supreme Judicial Court has advanced black-letter law pertaining to parkland protection in Massachusetts, even while ruling that historic Long Wharf on Boston Harbor does not fall under the protection of Article 97.
Gregory McGregor is a member of the REBA board of directors and chair of REBA’s environmental committee. This article was published in REBA News, the newspaper of the Real Estate Bar Association.
