Adopted by the voters in November 1972, Article 97 of Amendments to the Massachusetts Constitution requires special, high-level consideration of any proposed disposition of or change in use of parklands. Specifically, Article 97 requires a two-thirds roll call vote of each house of the state legislature in order to dispose of or change the use of certain state, county or local public lands taken or acquired for natural resources purposes, broadly defined. Amendment Article 97 created Article 49 of the constitution itself.

We have been familiar with Article 97 since it was formulated for presentation and adoption by the voters. Since then we have advised and represented public and private clients about it. They value our experience and track record.

Article 97 is more famous as containing a Right to a Clean Environment in Massachusetts. This amounts to an authorization for the state and local governments to utilize their traditional Police Powers (public health, safety, welfare and morals) to protect and promote the environment in general. The so-called “super-majority” vote requirement is a very significant protection of parklands and open space in particular.

In effect, anyone seeking to alter the use of or grant, sell, or lease public land originally taken or acquired for natural resource purposes likely would need a bill drafted and passed by the legislature and signed by the governor. Article 97 essentially codifies the public trust doctrine in Massachusetts.

An Opinion of the Attorney General on June 6, 1973, answered questions on the meaning and implementation of Article 97, reinforcing its broad applicability. 45 Op. Att’y Gen. 139 (1973). There have been several important AGO and court opinions since.

The bottom line is that many municipal transactions amount to dispositions of public natural resource lands (and easements and interests in real estate). In addition, many municipal actions amount to changes in use about such protected properties. Both need a piece of Article 97 legislation. Several such bills are filed each year, mostly not controversial, enabling land swaps with state forests or state parks, limited commercial or private activities in municipal parks and forests, transactions with local businesses and local landowners to lease town properties, legalization of encroachments, or releases of conservation restrictions.

An earlier common law doctrine is still in effect, the prior use doctrine. This requires a majority vote of the legislature on a bill filed to authorize any changes of use of public land to inconsistent uses.

In 1998, the EOEEA promulgated its Article 97 Land Disposition Policy. The purpose is to “ensure no net loss of Article 97 lands under the ownership and control of the Commonwealth and its political subdivisions.” EOEEA Article 97 Land Disposition Policy (February 19, 1998). Thereby the EOEEA will not support an Article 97 land disposition unless the sponsoring agency determines that “exceptional circumstances exist” for the disposal and certain conditions must be met. The policy provides an extensive internal review process for potential dispositions.

The consequences for municipalities are rather serious in that the Disposition Policy specifies that non-compliance leaves the city or town ineligible for grants offered by the EOEEA or its agencies until the municipality has complied.

In addition to these procedural requisites protecting public lands, specific types of real estate and resources are governed by individual statues. Many public lands within municipalities are managed under these laws. These include:

• G.L. c. 45, §§ 1-13 (city and town parks);
• G.L. c. 45, § 3 (parklands);
• G.L. c. 45, § 14 (playgrounds);
• G.L. c. 45, § 19 (public domain);
• G.L. c. 45, § 21 (city and town forests);
• G.L. c. 45, § 23A-23C (shore reservations):
• G.L. c. 92, §§ 33-59 (urban parks and recreation lands);
• G.L. c. 132 (state forests); and
• G.L. c. 132A, §§ 1-18 (state parks).

A near perfect protection for public land comes in the form of a “deed in trust.” This is the name for an instrument, which is usually a gift, drafted and recorded so as to impress a charitable trust requiring that the property be used forever for a specified stated purpose. This type of deed (to government on conditions in perpetuity) inpresses a kind of trust that the government cannot lightly undo.

In addition, there is a statutory basis for ten taxpayers to commence an action with leave of court (or the attorney general) to enforce the terms of conveyance or gift to a municipality, county, or state agency. G.L. c.214, §3(10). This public charitable trust statutory enforcement has been used effectively against many cities and towns.

We have been working for all manner of clients since the 1970s on the many ways that Article 97 and public trust obligations come up in business and residential transactions, policy and strategy considerations, and of course court cases where these restrictions are litigated, interpreted and enforced.