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SJC-12243
VIRGINIA B. SMITH & others1 vs. CITY OF WESTFIELD & others.2
Hampden. April 6, 2017. - October 2, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.3
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.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Thomas A. Kenefick, III (Mary Patryn also present) for the plaintiffs. Seth Schofield, Assistant Attorney General, for the Commonwealth, amicus curiae. Anthony I. Wilson (John T. Liebel also present) for city of Westfield.
1 Twenty four individuals residing in Westfield and Holyoke. 2 The city council of Westfield and the mayor of Westfield. 3 Justice Hines participated in the deliberation on this case prior to her retirement. 2
The following submitted briefs for amici curiae: Luke H. Legere & Gregor I. McGregor for Massachusetts Association of Conservation Commissions, Inc. Edward J. DeWitt for Association to Preserve Cape Cod, Inc. Sanjoy Mahajan, pro se. Phelps T. Turner for Conservation Law Foundation. Jeffrey R. Porter & Colin G. Van Dyke for Trustees of Reservations & others.
GANTS, C.J. Article 97 of the Amendments to the
Massachusetts Constitution, approved by the Legislature and
ratified by the voters in 1972, provides that "[l]ands and
easements taken or acquired" for conservation purposes "shall
not be used for other purposes or otherwise disposed of" without
the approval of a two-thirds roll call vote of each branch of
the Legislature. The issue on appeal is whether a proposed
change in use of municipal parkland may be governed by art. 97
where the land was not taken by eminent domain and where there
is no restriction recorded in the registry of deeds that limits
its use to conservation or recreational purposes. We conclude
that there are circumstances where municipal parkland may be
protected by art. 97 without any such recorded restriction,
provided the land has been dedicated as a public park. A city
or town dedicates land as a public park where there is a clear
and unequivocal intent to dedicate the land permanently as a
public park and where the public accepts such use by actually
using the land as a public park. Because the municipal land at 3
issue in this case has been dedicated as a public park, we
conclude that it is protected by art. 97.4
Background. The subject of this appeal is a parcel of
property owned by the city of Westfield (city), known as the
John A. Sullivan Memorial Playground or Cross Street Playground
(the parcel or Cross Street Playground), on which the city seeks
to build an elementary school. The parcel contains 5.3 acres of
land and includes two little league baseball fields and a
playground. Because the parcel's history is at the center of
the parties' dispute in this case, we recount it in some detail.
The parcel has served as a public playground for more than
sixty years. The city obtained title to the parcel in 1939
through an action to foreclose a tax lien for nonpayment of
taxes. In 1946, the city planning board recommended that the
land be used for a "new playground," and referred the matter to
the mayor. The city council voted in 1948 to turn over "full
charge and control" of the property to the playground
commission, and in 1949 to transfer funds to the commission to
cover costs of "work to be done on Cross [Street] Playground."
In November, 1957, the city council passed an ordinance formally
4 We acknowledge the amicus briefs submitted by the Attorney General on behalf of the Commonwealth; the Association to Preserve Cape Cod, Inc.; the Massachusetts Association of Conservation Commissions, Inc.; Sanjoy Mahajan; the Conservation Law Foundation; and the Trustees of the Reservation, Massachusetts Audubon Society and Massachusetts Land Trust Coalition. 4
naming the playground the "John A. Sullivan Memorial
Playground."5 The mayor approved the ordinance early in 1958.
Despite the name formally given, the parcel eventually came to
be commonly known as the "Cross Street Playground."
In 1979, working in cooperation with the State government,
the city applied for and received a grant from the Federal
government (as well as matching funds from the State) to
rehabilitate several of its playgrounds, including the Cross
Street Playground. The Federal conservation funds that the city
received were made available by the Land and Water Conservation
Fund Act of 1965 (act). See P.L. 88-578, 78 Stat. 900 (1964),
codified as 16 U.S.C. § 460l-8 (1976).6 The purpose of the act
is to assure "outdoor recreation resources" for "all American
people of present and future generations" by enabling "all
levels of government and private interests to take prompt and
coordinated action to the extent practicable without diminishing
or affecting their respective powers and functions to conserve,
develop, and utilize such resources for the benefit and
5 The ordinance declared that the "parcel of land heretofore designated as a public playground, beginning at a point in the Westerly line of Cross Street," would be "hereafter known as the JOHN A. SULLIVAN MEMORIAL PLAYGROUND." 6 The relevant provision of the Land and Water Conservation Fund Act of 1965 is presently codified at 54 U.S.C. § 200305 (2012 & Supp. II). However, in this opinion we refer to the provision in effect at the time of the grant application in question, 16 U.S.C. § 460l-8 (1976). 5
enjoyment of the American people." 16 U.S.C. § 460l (1976).
Grant money distributed pursuant to the act is known as LWCF
funding.
The act imposed several key requirements on States seeking
LWCF funding in support of local park projects. First, it
required States to develop a "comprehensive statewide outdoor
recreation plan" (SCORP) setting forth, among other information,
the State's evaluation of its need for outdoor recreation
resources and designating the State agency that would represent
the State in the LWCF funding process. Id. at § 460l-8(d).7 The
act also mandated that "[n]o property acquired or developed with
assistance under this section shall . . . be converted to other
than public outdoor recreation uses" without the approval of the
United States Secretary of the Interior (Secretary). Id. at
§ 460l-8(f)(3). Further, the act stated that "the Secretary
shall approve such conversion only if he finds it to be in
accord with the then existing comprehensive statewide outdoor
recreation plan and only upon such conditions as he deems
necessary to assure the substitution of other recreation
properties of at least equal fair market value and of reasonably
7 In Massachusetts, the Land and Water Conservation Fund program is administered through the Executive Office of Energy and Environmental Affairs. See Massachusetts Statewide Comprehensive Outdoor Recreation Plan, Executive Office of Energy and Energy and Environmental Affairs 1 (2012), http://www.mass.gov/eea/docs/eea/dcs/scorp-2012-final.pdf [https://perma.cc/F4D6-W4MS] 6
equivalent usefulness and location." Id. The grant agreement
for rehabilitation of the Cross Street Playground indicates that
the grant was expressly conditioned on compliance with the act.
Therefore, by accepting the Federal monies under the act, the
city forfeited the ability to convert any part of the Cross
Street Playground to a use other than public outdoor recreation
unilaterally; such a conversion could only proceed with the
approval of the Secretary. The 2006 Massachusetts SCORP states
explicitly that "[l]and acquired or developed with [LWCF] funds
become[s] protected under the Massachusetts Constitution
(Article 97) and [F]ederal regulations -- and cannot be
converted from intended use without permission" from the
National Park Service and Executive Office of Energy and
Environmental Affairs. 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]. See also Massachusetts Statewide
Comprehensive Outdoor Recreation Plan, Executive Office of
Energy and Energy and Environmental Affairs 2 (2012),
http://www.mass.gov/eea/docs/eea/dcs/scorp-2012-final.pdf
[https://perma.cc/F4D6-W4MS] (describing land funded by LWCF as
protected under art. 97).8 The restrictions imposed by the act
8 The record does not reflect how the Massachusetts 7
on the management of land acquired or developed with LWCF
funding remain in full effect over the Cross Street Playground.
See 54 U.S.C. § 200305(f)(3) (2012 & Supp. II).
In 2009, a report on a survey of the city's parks and open
space conducted by the Department of Conservation and
Recreation, the Pioneer Valley planning commission, and the
Franklin Regional council of governments included a map that
identifies the Cross Street Playground as "permanently protected
open space." A year later, the city's mayor endorsed an open
space plan which noted that, although not all public land is
"permanently committed for conservation purposes," Cross Street
Playground was public land with a "full" degree of protection
and "active" recreation potential.
On August 18, 2011, the city council voted to transfer the
entire Cross Street Playground from the city's parks and
recreation department to its school department for the purpose
of constructing a new elementary school on the land. In 2012,
the city began a demolition process that included taking down
century-old trees and removing a portion of the playground.
The plaintiffs, a group of city residents, commenced this
action in April, 2012, naming the city and city council as
defendants, as well as the mayor and city councillors in their
comprehensive Statewide outdoor recreation plan (SCORP) in effect at the time of the 1979 grant application characterized the status of the Cross Street Playground. 8
official capacities. The plaintiffs sought a restraining order
to halt the construction project under G. L. c. 214, § 7A, and
G. L. c. 40, § 53.9 In addition, the plaintiffs sought relief
in the nature of mandamus under G. L. c. 249, § 5, requesting
that the court order the defendants to comply with art. 97 of
the Massachusetts Constitution prior to any construction or
operation of a new school on any part of the Cross Street
Playground.
A Superior Court judge issued a temporary restraining order
to halt construction of the school on the Cross Street
Playground in September, 2012, and later granted the plaintiffs'
motion for a preliminary injunction. In issuing the injunction,
the judge agreed with the defendants that "the failure to build
a new public school would have an adverse impact on the
residents of the city, specifically the children, who are
currently learning in outdated and decaying schools." But the
judge made clear that she was "not prohibiting the construction
of a new school"; she was "merely ordering the [c]ity to comply
with the law before it proceeds."
9 Under G. L. c. 214, § 7A, the Superior Court may determine whether damage to the environment is about to occur and restrain the person who is about to cause it, provided that the damage about to be caused constitutes a violation of a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment. "General Laws c. 40, § 53, provides a mechanism for taxpayers to enforce laws relating to the expenditure of tax money by a local government." See LeClair v. Norwell, 430 Mass. 328, 332 (1999). 9
The parties later submitted cross motions for the entry of
judgment based on an agreed statement of facts, essentially
asking the court to decide whether the preliminary injunction
should be made permanent or vacated. By this stage of the
litigation, the parties had stipulated that the only question
for decision was whether the Cross Street Playground was
protected by art. 97. Another Superior Court judge concluded
that the Supreme Judicial Court in Mahajan v. Department of
Envtl. Protection, 464 Mass. 604, 615 (2013), "decided that a
parcel of land acquires Article 97 protection only when the land
is specifically designated for Article 97 purposes by a recorded
instrument." Because there was no recorded instrument
designating that the Cross Street Playground was to be used as a
playground or for any other recreational purpose, the judge
concluded that the parcel was not protected by art. 97.
Consequently, he vacated the preliminary injunction and ordered
judgment to enter for the defendants.
The plaintiffs appealed, and the Appeals Court affirmed the
judgment. Smith v. Westfield, 90 Mass. App. Ct. 80, 81 (2016).
The Appeals Court agreed with the motion judge that land is
protected by art. 97 only where it was taken or acquired for
conservation or another purpose set forth in art. 97, or where
"the land is specifically designated for art. 97 purposes by
deed or other recorded restriction." Id. at 82. Justice 10
Milkey, in a concurrence, agreed that the Supreme Judicial Court
opinions in Selectmen of Hanson v. Lindsay, 444 Mass. 502, 506-
509 (2005), and Mahajan, 464 Mass. at 615-616, "appear to say"
that, where land was taken or acquired for non-art. 97 purposes,
it will only be subject to art. 97 "where the restricted use has
been recorded on the deed, e.g., through a conservation
restriction." Smith, 90 Mass. App. Ct. at 86. But Justice
Milkey invited this court to "revisit such precedent," id. at
84, declaring, "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." Id. at 87. He concluded, "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." Id. at 88. We allowed the plaintiff's
application for further appellate review.
Discussion. Article 97 provides, among other things, that
"[t]he people shall have the right to clean air and water . . .
and the natural, scenic, historic, and esthetic qualities of
their environment." It declares a "public purpose" in "the
protection of the people in their right to the conservation,
development and utilization of the agricultural, mineral, 11
forest, water, air and other natural resources." Id. It grants
the Legislature the power "to provide for the taking, upon
payment of just compensation therefor, or for the acquisition by
purchase or otherwise, of lands and easements or such other
interests therein as may be deemed necessary to accomplish these
purposes." Id. And, most importantly for purposes of this
appeal, it provides: "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." Id.10
10 The full text of art. 97 of the Amendments to the Massachusetts Constitution annuls art. 49 of the Amendments to the Massachusetts Constitution and then 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 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, 12
The issue on appeal requires us to interpret the meaning of
art. 97 to determine whether the Cross Street Playground is
protected land under art. 97 that may be used for another
purpose -- here, the purpose of building a public school -- only
by obtaining the approval by a two-thirds vote of each branch of
the Legislature. We do not interpret art. 97 on a clean slate.
We have recognized that the language of art. 97 is "relatively
imprecise" and that its provisions must be interpreted "in light
of the practical consequences that would result from . . . an
expansive application, as well as the ability of a narrower
interpretation to serve adequately the stated goals of art. 97."
Mahajan, 464 Mass. at 614-615. We also have recognized that
land may be protected by art. 97 where it was neither taken by
eminent domain nor acquired for any of the purposes set forth in
art. 97 provided that, after the taking or acquisition, it "was
designated for those purposes in a manner sufficient to invoke
the protection of art. 97." See id. at 615. Therefore, to
resolve the issue in this case, we must first determine what it
means to "designate" land for an art. 97 purpose in a manner
taken by yeas and nays, of each branch of the general court." 13
sufficient to invoke art. 97 protection, and then determine
whether the Cross Street Playground was so designated.11
We do not agree with the motion judge and the Appeals Court
that we have already concluded in our opinions in Selectmen of
Hanson and Mahajan that the only way to designate land for art.
97 purposes is through a deed or recorded conservation
restriction, although we acknowledge that there is language in
those opinions that invites this inference.12
In Mahajan, 464 Mass. at 608, 612, 615 n.15, the issue on
appeal was whether a plaza area surrounding an open-air pavilion
at the eastern end of Long Wharf in Boston that was identified
as a park "was 'taken' for art. 97 purposes." The parcel was a
small part of the land taken by eminent domain in 1970 by the
Boston Redevelopment Authority (BRA) as part of the 1964
Downtown Waterfront-Faneuil Hall urban renewal plan. Id. at
11 The city did not challenge the plaintiffs' assertion below that the use of Cross Street Playground fell within the range of environmental purposes contemplated by art. 97. 12 We note that these prior decisions refer to two different procedures by which a city might designate a property as parkland. First, we said a city might record a conservation restriction pursuant to G. L. c. 184, § 31. See Selectmen of Hanson v. Lindsay, 444 Mass. 502, 506-507 (2005). Second, we suggested that a city might "deed the land to itself for conservation purposes." See Mahajan v. Department of Envtl. Protection, 464 Mass 604, 616 (2013). This distinction is not relevant to this case, where it is undisputed that there is no recorded restriction on the use of the Cross Street Playground. For the sake of simplicity, we shall characterize both procedures as "recorded deed restrictions" on the use of property when referring to these decisions. 14
606-607. We recognized that one of the fifteen "planning
objectives" under that plan was "[t]o provide public ways, parks
and plazas which encourage the pedestrian to enjoy the harbor
and its activities," id. at 608 n.7, but we determined that the
"overarching purpose" for which the land was taken was to
eliminate "decadent, substandard or blighted open conditions."
Id. at 612, quoting G. L. c. 121B, § 45. We declared that land
is not taken for art. 97 purposes simply because it
"incidentally" promotes conservation, or because it "simply
displays some attributes of art. 97 land generally," or because
"a comprehensive urban renewal plan may identify, among other
objectives, some objectives that are consistent with art. 97
purposes." Id. at 613-614, 618. We concluded that, "[g]iven
the overarching purpose of the 1964 urban renewal plan to
eliminate urban blight through the comprehensive redevelopment
of the waterfront area, including its revitalization through the
development of mixed uses and amenities, it cannot be said that
the retention of certain open spaces, like the project site, is
sufficiently indicative of an art. 97 purpose as to trigger a
two-thirds vote of the Legislature should the BRA wish to
slightly revise the use of certain spaces in a manner consistent
with the objectives of the original urban renewal plan." Id. at
618. 15
Nevertheless, we recognized that land taken by eminent
domain specifically for art. 97 purposes could fall under the
provision's protections "where an urban renewal plan
accompanying a taking clearly demonstrates a specific intent to
reserve particular, well-defined areas of that taking for art.
97 purposes." Id. at 619. And we recognized that, "[u]nder
certain circumstances not present here, the ultimate use to
which the land is put may provide the best evidence of the
purposes of the taking, notwithstanding the language of the
original order of taking or accompanying urban renewal plan."
Id. at 620.
In Selectmen of Hanson, 444 Mass. at 504-505, the issue was
not whether a parcel of land had been taken for art. 97 purposes
(it was not), but whether a town meeting vote was sufficient by
itself to transform a town's general corporate property into
conservation land protected by art. 97. The town had acquired
the property through a tax taking in 1957 and held it as general
corporate property that could be disposed of in any manner
authorized by law. Id. at 504. In 1971, the town at its annual
meeting voted "to accept for conservation purposes, a deed, or
deeds to" the parcel, but the property was never actually placed
under the custody and control of the conservation commission.
Id. at 504, 506. Rather, the property remained under the
control of the board of selectmen, which was authorized to 16
execute a deed imposing a conservation restriction on the
property but never did.13 Id. at 506, 508. In 1998, the town
sold the property at a public auction to the defendant, but in
2002 commenced an action seeking a declaration that the sale was
invalid and void because the land was subject to art. 97 and the
sale had not been approved by a two-thirds vote of each branch
of the Legislature. Id. at 503. We rejected the town's claim,
reasoning that the 1971 vote "merely expressed the town's
interest in dedicating the locus to conservation purposes," and
that subsequently the town took "no further action" to achieve
that goal. Id. at 508. In these circumstances we declared that
"an instrument creating such a property restriction had to be
filed with the registry of deeds in order for the town's
interest to prevail over that of any subsequent bona fide
purchaser for value." Id. at 505.
In the circumstances presented in Selectmen of Hanson,
where the town intended to designate land for conservation
purposes by executing a deed with a conservation restriction but
13 "'A conservation restriction means a right, either in perpetuity or for a specified number of years, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land or in any order of taking, appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, farming or forest use . . .' (emphasis added)." Selectmen of Hanson v. Lindsay, 444 Mass. 502, 507 (2005), quoting G. L. c. 184, § 31. 17
never did, it is true, as we said in Mahajan, 464 Mass. at 616,
that "the town had to deed the land to itself for conservation
purposes -- or record an equivalent restriction on the deed --
in order for art. 97 to apply to subsequent dispositions or use
for other purposes." But this should not be understood to mean
that, in all circumstances, the only way that land not taken or
acquired for an art. 97 purpose may become protected by art. 97
is through a recorded deed restriction. To understand the other
ways that land may be "designated" for conservation purposes "in
a manner sufficient to invoke the protection of art. 97," see
Mahajan, 464 Mass. at 615, we need to examine two related common
law doctrines: the dedication of land for public use and prior
public use. See id. at 616 ("the spirit of art. 97 is derived
from the related doctrine of 'prior public use'").
Under our common law, where developers on private land
built roads that were dedicated to the use of the public, the
land on which those roads were built became "subject to the
easement of a public way" where "the intent to dedicate [is]
made manifest by the unequivocal declarations or acts of the
owner" and where the dedication is accepted by the public.
Hayden v. Stone, 112 Mass. 346, 349 (1873). "No specific length
of time is necessary; the acts of the parties to the dedication
when once established complete it." Id. See Longley v.
Worcester, 304 Mass. 580, 588 (1939) ("The owner's acts and 18
declarations should be deliberate, unequivocal and decisive,
manifesting a clear intention permanently to abandon his
property to the specific public use"). Similarly, where a
developer in Wareham bought a large tract of land to sell
building lots for residences, and private businesses, and
reserved open space for "parks, squares, groves and shore
fronts," the open space was subject to an easement for public
use upon proof that the owner "had dedicated the use of these
lands to the public" and that the public had accepted the
dedication through use of the open space. Attorney Gen. v.
Onset Bay Grove Ass'n, 221 Mass. 342, 347-348 (1915) (Onset Bay
Grove Ass'n). See Attorney Gen. v. Abbott, 154 Mass. 323, 326-
329 (1891). The dedication "may spring from oral declarations
or statements by the dedicator, or by those authorized to act in
his behalf, made to persons with whom he deals and who rely upon
them; or it may consist of declarations addressed directly to
the public." Onset Bay Grove Ass'n, 221 Mass. at 348. "It also
may be manifested by the owner's acts from which such an
intention can be inferred." Id.
A city or town that owns land in its proprietary capacity
and uses the land for a park may also dedicate the parkland to
the use of the public. "A municipality may dedicate land owned
by it to a particular public purpose provided there is nothing
in the terms and conditions by which it was acquired or the 19
purposes for which it is held preventing it from doing so, . . .
and upon completion of the dedication it becomes irrevocable"
(citation omitted). Lowell v. Boston, 322 Mass. 709, 730
(1948). "The general public for whose benefit a use in the land
was established by an owner obtains an interest in the land in
the nature of an easement." Id. This court applied the public
dedication doctrine in holding that, even though title to the
Boston Common and the Public Garden "vested in fee simple in the
town free from any trust," the city did not possess title to
this parkland "free from any restriction, for it is plain that
the town has dedicated the Common and the Public Garden to the
use of the public as a public park." Id. at 729-730. "The
title to the Common and the Public Garden is in the city; the
beneficial use is in the public." Id. at 735.
The "general public" that has obtained an "interest in the
land in the nature of an easement," id. at 730, is not simply
the residents of the particular city or town that owns the
parkland. See Higginson v. Treasurer and Sch. House Comm'rs of
Boston, 212 Mass. 583, 589 (1912). This court in Higginson
declared:
"[T]he dominant aim in the establishment of public parks appears to be the common good of mankind rather than the special gain or private benefit of a particular city or town. The healthful and civilizing influence of parks in and near congested areas of population is of more than local interest and becomes a concern of the State under modern conditions. It relates not only to public health in 20
its narrow sense, but to broader considerations of exercise, refreshment and enjoyment." Id. at 590. Because the general public has an interest in parkland
owned by a city or town, ultimate authority over a public park
rests with the Legislature, not with the municipality. See
Lowell, 322 Mass. at 730. "The rights of the public in such an
easement are subject to the paramount authority of the General
Court which may limit, suspend or terminate the easement." Id.
As stated in Lowell, 322 Mass. at 730, quoting Wright v.
Walcott, 238 Mass. 432, 435 (1921):
"Land acquired by a city or town by eminent domain or through expenditure of public funds, held strictly for public uses as a park and not subject to the terms of any gift, devise, grant, bequest or other trust or condition, is under the control of the General Court . . . The power of the General Court in this regard is supreme over that of the city or town."
Because the Legislature has "paramount authority" over
public parks, dedicated parkland cannot be sold or devoted to
another public use without the approval of the Legislature.
"The rule that public lands devoted to one public use cannot be
diverted to another inconsistent public use without plain and
explicit legislation authorizing the diversion is now firmly
established in our law." Robbins v. Department of Pub. Works,
355 Mass. 328, 330 (1969). See Higginson, 212 Mass. at 591
("Land appropriated to one public use cannot be diverted to
another inconsistent public use without plain and explicit 21
legislation to that end"). This "rule," known as the doctrine
of "prior public use," Mahajan, 464 Mass. at 616, is not limited
to parkland. See, e.g., Boston & Albany R.R. v. City Council of
Cambridge, 166 Mass. 224, 225 (1896); Old Colony R.R. v.
Framingham Water Co., 153 Mass. 561, 563 (1891); Boston Water
Power Co. v. Boston & W.R. Corp., 23 Pick. 360, 398 (1839). But
it is applied more "stringently" where a public agency or
municipality seeks to encroach upon a park. Robbins, supra at
330 ("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"); Gould
v. Greylock Reservation Comm'n, 350 Mass. 410, 419 (1966),
quoting Higginson, 212 Mass. at 591-592 ("The policy of the
Commonwealth has been to add to the common law inviolability of
parks express prohibition against encroachment"). Three years
before the ratification of art. 97, this court declared in
Robbins, supra at 331:
"We think it is essential to the expression of plain and explicit authority to divert parklands, Great Ponds, reservations and kindred areas to a new and inconsistent public use that the Legislature identify the land and that there appear in the legislation not only a statement of the new use but a statement or recital showing in some way legislative awareness of the existing public use. In short, the legislation should express not merely the public will for the new use but its willingness to surrender or forgo the existing use." 22
The meaning of the provision in art. 97 at issue in this
case -- "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" -- must be understood
in this common-law context. Cf. Industrial Fin. Corp. v. State
Tax Comm'n, 367 Mass. 360, 364 (1975), quoting Hanlon v.
Rollins, 286 Mass. 444, 447 (1934) (where meaning of statute is
not plain from its language, we look to intent of Legislature
"ascertained from all its words construed by the ordinary and
approved usage of the language, considered in connection with
the cause of its enactment, the mischief or imperfection to be
remedied and the main object to be accomplished, to the end that
the purpose of its framers may be effectuated"). The
consequence of art. 97's ratification was that "plain and
explicit legislation authorizing the diversion" of public
parkland under the prior public use doctrine, which previously
could be enacted by a bare majority of the Legislature, now
required a two-thirds vote of each branch. See Robbins, supra
at 330. See also Legislative Research Council, Report Relative
to the Preservation of the Natural Environment, 1971 House Doc.
No. 5301. In Opinion of the Justices, 383 Mass. 895, 918
(1981), we made clear that art. 97 applied to all property that
was taken or acquired for art. 97 purposes, including property 23
taken or acquired before its ratification in 1972. "To claim
that new Article 97 does not give the same care and protection
for all these existing public lands as for lands acquired by the
foresight of future legislators or the generosity of future
citizens would ignore public purposes deemed important in our
laws since the beginning of our Commonwealth." Id., quoting
Rep. A.G., Pub. Doc. No. 12, at 139, 141 (1973).
There is no reason to believe that art. 97 was intended by
the Legislature or the voters to diminish the scope of parkland
that had been protected under the common law by the prior public
use doctrine or the doctrine of public dedication. Such an
interpretation would suggest that voters were hoodwinked into
thinking they were expanding the protection of such lands by
replacing art. 49 of the Amendments to the Massachusetts
Constitution with art. 97 when, in fact, they were actually
reducing the protection already afforded these lands under the
common law.14 See Bates v. Director of Office of Campaign &
14 Article 49, which was annulled by art. 97, see note 10, supra, provided:
"The conservation, development and utilization of the agricultural, mineral, forest, water and other natural resources of the commonwealth are public uses, and the general court shall have power to provide for the taking, upon payment of just compensation therefor, of lands and easements or interests therein, including water and mineral rights, for the purpose of securing and promoting the proper conservation, development, utilization and control 24
Fin., 436 Mass. 144, 173-174 (2002), quoting Boston Elevated Ry.
v. Commonwealth, 310 Mass. 528, 548 (1942) ("We will not impute
to the voters who enacted the clean elections law an 'intention
to pass an ineffective statute'"). Therefore, we conclude that
parkland protected by art. 97 includes land dedicated by
municipalities as public parks that, under the prior public use
doctrine, cannot be sold or devoted to another public use
without plain and explicit legislative authority. See Mahajan,
464 Mass. at 615 (art. 97 protects land "designated" for art. 97
purposes "in a manner sufficient to invoke the protection of
art. 97").
Given this conclusion, we turn to the question whether the
Cross Street Playground was dedicated by the city as a public
park such that the transfer of its use from a park to a school
would require legislative approval under the prior public use
doctrine and, thus, under art. 97. Under our common law, land
is dedicated to the public as a public park when the landowner's
intent to do so is clear and unequivocal, and when the public
accepts such use by actually using the land as a public park.
See Longley, 304 Mass. at 587-588; Onset Bay Grove Ass'n, 221
Mass. at 347-348; Hayden, 112 Mass. at 349. There are various
ways to manifest a clear and unequivocal intent. See e.g.,
thereof and to enact legislation necessary or expedient therefor." 25
Onset Bay Grove Ass'n, 221 Mass. at 348-349 (dedication found
based on Association’s plan, sales statements, and repeated
declarations that its open spaces "should never be encroached
upon"). The recording of a deed or a conservation restriction
is one way of manifesting such intent but it is not the only
way. For instance, it was "plain" to this court that the Boston
Common and Public Garden had been dedicated as a public park
without there being any deed or conservation restriction
declaring the land to be a public park. See Lowell, 322 Mass.
at 729-730.
The clear and unequivocal intent to dedicate public land as
a public park must be more than simply an intent to use public
land as a park temporarily or until a better use has emerged or
ripened. See Longley, 304 Mass. at 588 (requiring "a clear
intention permanently to abandon his property to the specific
public use"). Rather, the intent must be to use the land
permanently as a public park, because the consequence of a
dedication is that "[t]he general public for whose benefit a use
in the land was established . . . obtains an interest in the
land in the nature of an easement," Lowell, 322 Mass. at 730,
and "upon completion of the dedication it becomes irrevocable."
Id.
The plaza area on Long Wharf in Mahajan, although
identified as a park, failed to meet this standard because there 26
was not proof of a clear and unequivocal intent by the BRA to
make the plaza permanently a public park. The urban renewal
plan accompanying the taking did not reflect a specific intent
to reserve that land forever as a public park but instead left
open the possibility of revising the use of such open space if
doing so would better accomplish the objectives of the urban
renewal plan. Mahajan, 464 Mass. at 618-619. The parcel in
Selectmen of Hanson, although accepted for conservation purposes
by town meeting, failed to meet this standard both because there
was no clear and unequivocal intent to dedicate the land
permanently as conservation land where the town never actually
transferred control of the land to the conservation commission
and never acted to impose any restriction on the land, and where
the land was never actually used by the public as conservation
land. Selectmen of Hanson, 444 Mass. at 506-508.
The Cross Street Playground, however, was dedicated as a
public park by the city under this standard, and therefore is
protected under the prior public use doctrine and art. 97. We
need not determine whether it would have been enough to meet the
clear and unequivocal intent standard that the land had been
used as a public park for more than sixty years, or that control
of the land had been turned over to the playground commission,
or that an ordinance was passed naming the parcel. Although we
consider the totality of the circumstances, the determinative 27
factor here was the acceptance by the city of Federal
conservation funds under the act to rehabilitate the playground
with the statutory proviso that, by doing so, the city
surrendered all ability to convert the playground to a use other
than public outdoor recreation without the approval of the
Secretary. See 16 U.S.C. § 460l-8(f)(3). Regardless of whether
the parcel had been dedicated earlier as a public park, it
became so dedicated once the city accepted Federal funds
pursuant to this condition. It is significant that this
understanding was shared by the Executive Office of Energy and
Environmental Affairs, whose 2006 SCORP stated that land
developed with LWCF funds became protected under art. 97.
Conclusion. Because we conclude that the Cross Street
Playground is protected by art. 97 of the Amendments to the
Massachusetts Constitution, the judgment in favor of the
defendants is vacated. Where the parties have agreed that, if
the land is so protected, judgment should enter for the
plaintiffs converting the preliminary injunction into a
permanent injunction, we remand the case to the Superior Court
for the issuance of such a judgment consistent with this
opinion.
So ordered.