When is a Park not a Park? The SJC Declines to Give Broad Interpretation to Article 97

by Foley Hoag LLP - Environmental Law
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Earlier this month, the Supreme Judicial Court (SJC) issued its decision in Mahajan v. DEP, holding that the Boston Redevelopment Authority’s (BRA) proposed redevelopment of Long Wharf in Boston is not subject to Article 97 of the Amendments to the Massachusetts Constitution.   Among other things, Article 97 protects park lands from being disposed of or used for other purposes, absent a supermajority vote from both branches of the Legislature.

The public plaza at the end of Long Wharf. Image Source: Chris Wood

This was an important win for the BRA, because the SJC reviewed the BRA’s powers of eminent domain, and affirmed that those and other legal tools “enable the BRA to guide private sector development towards areas in need.”  The case ended up before the SJC after ten residents appealed the decision of the Massachusetts Department of Environmental Protection to issue a license under G.L. c. 91 to the BRA, authorizing the BRA to redevelop a portion of BRA-owned land on the seaward end of Long Wharf.  The SJC answered two questions:  First, was the project site, which the BRA took by eminent domain for urban renewal purposes, subject to Article 97?  (No.)   And second, even if Article 97 did apply, could MassDEP issue a Chapter 91 license to the BRA without triggering Article 97?  (Yes.)

Article 97 protects land and easements taken or acquired for certain purposes, including “the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources.”  The SJC examined both the BRA’s 1964 urban renewal plan and the BRA’s 1970 order of taking for Long Wharf.  The SJC concluded that, although the urban renewal plan included among its many objectives the provision of public ways, parks, and plazas, the overarching purpose of the plan was to eliminate urban blight through redevelopment.

The key lesson of the SJC’s decision is its emphasis on the importance of examining the original acquisition documents when a question arises about the applicability of Article 97 to a given parcel of land.  Just because it looks and feels like a park today does not mean it was originally acquired for such purposes.   While the current use of the site could provide supporting evidence of the purpose of the original taking, the SJC has now clarified that the original taking (plus any subsequent deeds or recorded restrictions) are the primary indicators of such purpose.

The Mahajan decision is also significant for MassDEP.  Although not necessary to its holding, the SJC affirmed that MassDEP’s issuance of a Chapter 91 license is not a “disposition” or a change in use of land that triggers Article 97’s protections.  The SJC held that the Chapter 91 license is merely a license, and does not convey a property interest the way an easement or other property transfer does.  This means that MassDEP has no independent obligation to ensure that the proponent has complied with Article 97 before issuing Chapter 91 licenses, a burden MassDEP would certainly not like to assume.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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