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

by Foley Hoag LLP - Environmental Law

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.

© Foley Hoag LLP - Environmental Law | Attorney Advertising

Written by:

Foley Hoag LLP - Environmental Law

Foley Hoag LLP - Environmental Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.