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15-P-773                                              Appeals Court

 VIRGINIA B. SMITH & others1      vs.   CITY OF WESTFIELD & others.2


                              No. 15-P-773.

           Hampden.       April 14, 2016. - August 25, 2016.

               Present:    Green, Trainor, & Milkey, JJ.


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.


     Thomas A. Kenefick, III (Mary Patryn with him) for the
plaintiffs.
     Anthony I. Wilson (John T. Liebel with him) for the
defendants.



    1
       Thomas Smith, Daniel Smith, Ernie Simmons, Elizabeth
Simmons, Brian Winters, Erin Winters, Dean Winters, Virginia
Winters, Patricia Bettinger, Benjamin Larsen, Fred Pugliano, Don
Wielgus, Sharon Wielgus, Marcus Jaiclin, Karen Jaiclin, Frank
Mochak, Helen Mochak, William Wigham, Gary Wolfe, William
Schneelock, Fred Wrobleski, Jose Santos, Francis Simmitt, and
Barbara Simmitt.
    2
        City council and mayor of Westfield.
                                                                     2


     TRAINOR, J.    The plaintiffs, Virginia B. Smith and other

Westfield residents (collectively, residents), appeal from a

judgment for the defendants, the city of Westfield and others

(collectively, Westfield), which vacated a preliminary

injunction that, in effect, prohibited a school construction

project at the John A. Sullivan Memorial Playground

(playground).3   The residents challenge the judgment for two

reasons.   First, they argue that the playground was sufficiently

dedicated to invoke the protection of art. 97 of the Amendments

to the Massachusetts Constitution, notwithstanding the fact that

no documents were ever recorded that dedicated the land for art.

97 purposes.4    Second, the residents contend that the judge erred

in concluding that a Statewide comprehensive outdoor recreation

plan (SCORP) contradicts Mahajan v. Department of Envtl.

Protection, 464 Mass. 604 (2013).    We affirm, as we conclude

that the playground has not been designated for an art. 97

purpose in a manner sufficient to invoke its protection.

     Background.    This matter came before a Superior Court judge

on cross motions for judgment based on an agreed statement of

facts.   We summarize those facts, reserving some facts for later

     3
       The playground is commonly referred to as the Cross Street
playground.
     4
       The residents therefore maintain that Westfield acted
beyond its authority when it approved and permitted construction
of a school building at the playground without obtaining a two-
thirds vote of the General Court as required by art. 97.
                                                                      3


discussion.     On November 13, 1939, Westfield took title to the

land in question for the purpose of satisfying a tax debt

pursuant to G. L. (Ter. Ed.) c. 60, §§ 53 and 54.     In 1957,

Westfield passed an ordinance recognizing the land as a

playground and naming it the John A. Sullivan Memorial

Playground.    In 1979, the Federal Land and Water Conservation

Fund (LWCF) awarded Westfield a grant that, in part, was used to

upgrade the playground.     A SCORP was required for Westfield to

be eligible for that grant.     See 16 U.S.C. § 460l-8(d) (1976).5

The SCORP, which the residents assert applies to this matter,

states:    "Land acquired or developed with [LWCF] funds become

protected under . . . [art. 97]."     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] (2006 SCORP).6    In 2010, Westfield

endorsed an open space and recreation plan that designated the

playground as "open space."     In August, 2011, the playground was

determined to be surplus property, and the city council voted to


     5
       We cite to the Federal statute in effect in 1979, the year
that Westfield applied for and was awarded the grant. See, now,
54 U.S.C. § 200305(d) (Supp. II 2014).
     6
       We question, as the judge did below, whether the 2006
SCORP is applicable when the grant was sought and awarded in
1979. Nevertheless, we assume for purposes of this opinion only
that the 2006 SCORP applies.
                                                                     4


have it transferred to the school department in order to

construct an elementary school.     In the hearing on the parties'

cross motions, the residents conceded that no document was ever

recorded in the registry of deeds designating the playground as

land devoted to the "conservation, development and utilization

of the agricultural, mineral, forest, water, air, and other

natural resources."     Art. 97 of the Amendments to the

Massachusetts Constitution.

     Discussion.   1.    Article 97 protection.   The residents

maintain that the playground is subject to art. 97 protection

and that Westfield acted beyond its authority when it approved

and permitted construction of a school building at the

playground without obtaining a two-thirds vote of the General

Court as required by art. 97.7    "The critical question to be


     7
       Article 97, which was approved and ratified on November 7,
1972, superseding art. 49, 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
                                                                    5


answered is not whether the use of the land incidentally serves

purposes consistent with art. 97, or whether the land displays

some attributes of art. 97 land, but whether the land was taken

for those purposes [emphasis in original], or subsequent to the

taking was designated for those purposes [emphasis supplied] in

a manner sufficient to invoke the protection of art. 97."

Mahajan v. Department of Envtl. Protection, 464 Mass. at 615.

Article 97 protection also may arise where, following the taking

for purposes other than art. 97, the land is specifically

designated for art. 97 purposes by deed or other recorded

restriction.   See Selectmen of Hanson v. Lindsay, 444 Mass. 502,

508-509 (2005).   See also Toro v. Mayor of Revere, 9 Mass. App.

Ct. 871, 872 (1980) (applicability of art. 97 depended on

whether the land had been conveyed "to the conservation

commission . . . to maintain and preserve it for the use of the

public for conservation purposes").   We agree with the motion

judge's finding that Westfield did not specifically designate,

in a manner sufficient to invoke the protection of art. 97,



    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,
    taken by yeas and nays, of each branch of the general
    court."
                                                                   6


i.e., by deed or other recorded restriction on the land, the

playground for art. 97 purposes and that the playground was not

taken for those purposes.   Westfield's subsequent actions of

passing an ordinance naming the playground and endorsing the

open space and recreation plan in 2010 are insufficient to

subject the playground to art. 97 protection.    Compare Selectmen

of Hanson v. Lindsay, supra at 508-509; Mahajan v. Department of

Envtl. Protection, supra at 615-616.

     2.   2006 SCORP.   The residents contend that because the

2006 SCORP considers land rehabilitated with LWCF grants as

being under the protection of art. 97,8 the judge erred in

determining that the acceptance of the LWCF grant did not

subject the property to art. 97 protection.    As the judge

correctly stated, "[a] federal or state agency is not free to

promulgate regulations which conflict with statutes passed by

the state legislature or with the common law enunciated by the

Supreme Judicial Court.   See Purity Supreme, Inc. v. Attorney

Gen[.], 380 Mass. 762, 774-775 (1980)."    Moreover, the Supreme

Judicial Court, as final arbiter of the Massachusetts

Constitution, has interpreted art. 97 and defined its


     8
       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 ("Land
acquired or developed with [LWCF] funds become protected under
the Massachusetts Constitution [Article 97]").
                                                                    7


requirements.   A Federal or State agency's regulations cannot

conflict with the Supreme Judicial Court's interpretation of the

Massachusetts Constitution.    See Planned Parenthood League of

Mass., Inc. v. Attorney Gen., 424 Mass. 586, 589-590 (1997).

Accordingly, the 2006 SCORP cannot infringe upon the formalities

for constitutional protection, as construed by the Supreme

Judicial Court, by deeming the acceptance of an LWCF grant as

creating art. 97 protection.

    3.    Prior public use doctrine.   The residents argue that

the prior public use doctrine requires the playground to be

subject to art. 97 protection.   We are not persuaded.   "The

prior public use doctrine holds that public lands devoted to one

public use cannot be diverted to another inconsistent public use

without plain and explicit legislation authorizing the

diversion."   Mahajan v. Department of Envtl. Protection, 464

Mass. at 616 (quotation omitted).   This doctrine is only

applicable to land that is in fact devoted to public use.     Id.

at 617.   Thus, as noted by Mahajan, in Muir v. Leominster, 2

Mass. App. Ct. 587, 588-589, 591 (1974), we "held the prior

public use doctrine inapplicable to the sale for commercial

purposes of a parcel of land, where that parcel had been

conveyed to a city as a gift with no limitation on its use but

was in fact used for thirty years as a playground and for other

recreational purposes . . . [and] there had been neither prior
                                                                     8


legislative authorization of a taking for a particular purpose

nor a prior public or private grant restricted to a particular

purpose."   Ibid. (citation and quotation omitted).   Accordingly,

the prior public use doctrine, insomuch as it was adopted in the

art. 97 context by the Supreme Judicial Court in Mahajan, does

not subject the playground to art. 97 protection because that

land had been conveyed to the city with no limitation on its

use, and there was neither a taking for an art. 97 purpose nor a

prior public or private grant restricting the land to an art. 97

purpose.    See id. at 616-617.

                                   Judgment affirmed.
     MILKEY, J. (concurring).    I agree with the majority that we

are constrained to affirm the judgment here based on Selectmen

of Hanson v. Lindsay, 444 Mass. 502 (2005), and Mahajan v.

Department of Envtl. Protection, 464 Mass. 604 (2013).    I write

separately in the hope that the Supreme Judicial Court someday

will revisit such precedent.

     As this and legions of other cases illustrate, public

officials charged with building schools, roads, and other

important public facilities often seek to locate such facilities

in existing parkland or similar land.1   See, e.g., Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 404 (1971)

(interpreting the Federal statutes limiting the construction of

highways through parkland).    In 1972, the people approved art.

97 of the Amendments to the Massachusetts Constitution as a

means of protecting such lands from these development pressures.

See Mahajan, supra at 611-612.    The key language in art. 97

prohibits the sale or change in use of public parkland absent

special legislative approval granted by a two-thirds roll call

vote.    Id. at 612, quoting from art. 97 of the Amendments to the

Massachusetts Constitution.    This prohibition applies to all


     1
       For many reasons, parkland presents an attractive
development site to those whose mission is to build such
facilities. These include that the land is available at no
apparent cost and without the need to displace any existing
homes or businesses.
                                                                     2


public land "taken or acquired" for the purposes that art. 97

was designed to protect.     Ibid.   Thus, where the land at issue

originally was acquired by the public entity for such purposes,

then art. 97 applies by its express terms (regardless of whether

the reason for the acquisition happens to be noted on the deed).

    What has been less clear until recently is the extent to

which art. 97's protections also apply to land that originally

was not expressly acquired for such specific purposes, but that

subsequently was dedicated to them.     As illustrated by the

current case, as well as by Hanson and Mahajan, this is an

extremely common scenario.    Indeed, some of the Commonwealth's

most venerable public parkland, such as Boston Common, was

originally acquired for other purposes.     See Lowell v. Boston,

322 Mass. 709, 716, 729-730 (1948) (land comprising "nearly all"

of Boston Common was originally acquired by the town of Boston

in 1633 for general purposes, but over time "it is plain that

the town has dedicated the Common and the Public Garden to the

use of the public as a public park").

    As a matter of both logic and common sense, the bare fact

that land has been put to an art. 97 use, without more, does not

mean that the land was "taken or acquired" for such use.

However, a different situation is presented once such land

formally has been dedicated to an art. 97 use, especially where

-- as is often the case -- management of the land has been
                                                                   3


assigned to the State or municipal agency that has oversight of

parkland or similar land.2   Under that scenario, the land readily

can be said to have become "acquired" for art. 97 purposes, and

therefore subject to art. 97 protections.3

     Notably, the Supreme Judicial Court has rejected the narrow

view that land can be subject to art. 97 only if it was

originally acquired for that purpose.   Mahajan, supra at 615,

citing Hanson, supra at 508-509 (art. 97 applies not only to

     2
       In the case before us, Westfield accepted in 1946 the
planning board's recommendation that the land at issue be used
as a playground and transferred "full charge and control" of the
land to the playground commission two years later. In 1979,
Westfield received State funding to improve this and other
playgrounds. Half of that funding was paid out of the Land and
Water Conservation Fund (LWCF), a Federal program under which
grant recipients are prohibited from changing the use of
properties being funded (except in narrow circumstances not here
applicable). See 16 U.S.C. § 4601-8(f)(3) (1976). Because this
land received a LWCF grant, it long has been designated as
"article 97 land" on the Massachusetts Statewide comprehensive
outdoor recreation plan. See, e.g., 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] ("Land acquired or developed with
[LWCF] funds become protected under . . . [art. 97]").
     3
       This is consistent with the so-called "prior public use"
doctrine from which art. 97 was derived. See generally Mahajan,
supra at 616 ("Because the spirit of art. 97 is derived from the
related doctrine of 'prior public use,' cases applying that
doctrine inform our analysis"). Under that doctrine, "public
lands devoted to one public use cannot be diverted to another
inconsistent public use without plain and explicit legislation
authorizing the diversion." Robbins v. Department of Pub.
Works, 355 Mass. 328, 330 (1969). "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." Ibid.
                                                                     4


land originally taken or acquired for art. 97 purposes, but also

to land that "subsequent to the taking [or acquisition] was

designated for those purposes in a manner sufficient to invoke

the protection of art. 97").   Nevertheless, the court severely

has limited the circumstances under which land originally

acquired for non-art. 97 purposes can become subject to art.

97's protections.   Specifically, Hanson and Mahajan, taken

together, appear to say that the only circumstance under which

such land will be considered subject to art. 97 is where the

restricted use has been recorded on the deed, e.g., through a

conservation restriction.   See Hanson, 444 Mass. at 506-509;

Mahajan, 464 Mass. at 615-616.     In my view, the particular line

the Supreme Judicial Court has drawn with respect to art. 97's

applicability is untenable as a matter of both theory and

practice.

     A close reading of Hanson reveals that the reason the court

stated that record notice is a prerequisite to art. 97's

application in this context is the perceived need to protect

people who might innocently purchase the land without knowing

that it was subject to art. 97.4    As the court reasoned, "[t]o


     4
       In Hanson, the land had been sold to a third party. The
town alleged that the buyer -- whose agent was on the local
conservation commission -- was aware of the town meeting vote
designating the parcel as conservation land and therefore was
not in fact a bona fide purchaser. However, the Supreme
Judicial Court concluded that the town had waived the issue by
                                                                   5


conclude that this [the dedication of the land for conservation

purposes] could be accomplished solely by [a town meeting] vote,

without recordation of any instrument, would eviscerate the

purposes of our recording acts."   Hanson, supra at 509.

     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.5   Recording statutes obviously serve laudable goals,

but they cannot trump a constitutional provision.6   If art. 97

can apply to public land that formally has been dedicated to an

art. 97 purpose even though that land originally was not

acquired for such a purpose, it makes little sense to prevent

its application based on the theoretical concern that a future




not adequately raising in its complaint a claim challenging the
buyer's status as a bona fide purchaser. Hanson, supra at 509-
510.
     5
       It bears noting that in subjecting land it already owns to
a conservation restriction (the form of record notice on which
the court focused in Hanson), a public entity would not be
"acquiring" land at all, but instead would be granting a
statutorily-recognized property interest to another. See
generally Parkinson v. Assessors of Medfield, 398 Mass. 112,
113-115 (1986) (explaining how conservation restrictions work).
     6
       In other contexts, the court has not hesitated to rule
that the rights of actual bona fide purchasers can be outweighed
by other important interests. See, e.g., Bevilacqua v.
Rodriguez, 460 Mass. 762, 776-779 (2011) (discussing void
transactions, from which a bona fide purchaser may not take good
title).
                                                                    6


purchaser might not be aware that it applies.7   In fact, for the

large subset of dedicated parkland that originally was acquired

for non-art. 97 purposes, the rule established by Hanson and

Mahajan threatens to reduce art. 97 to near irrelevancy:    its

protections would apply only where the public entity had already

taken steps to ensure that those protections were not needed.8

     It may be tempting to say that the rule established by

Hanson and Mahajan is not problematic, because the public actors

charged with protecting parkland have the power to initiate the

additional recordation steps necessary to make such land subject

to art. 97, e.g., by subjecting the land to a conservation

restriction.   In fact, the Supreme Judicial Court itself

indicated that it was rejecting a broader reading of art. 97's

application in part because of "the ability of a narrower

interpretation to serve adequately the stated goals of art. 97."


     7
       This is particularly true given that it is difficult to
imagine that someone seeking to purchase or develop dedicated
public parkland would not be aware of that use.
     8
       Article 97's protections are procedural only; the land can
be sold or put to a different use if the requisite legislative
votes are obtained. In contrast, a conservation restriction
provides permanent substantive protection for the land (unless
the restriction were released by the Secretary of Energy and
Environmental Affairs pursuant to the strict test enumerated in
G. L. c. 184, § 32). I recognize that there is a suggestion in
Mahajan that a conservation restriction as such may not be
needed to trigger art. 97's application and that it may suffice
for the public owner to go through the odd formality of deeding
the land back to itself for art. 97 purposes. Mahajan, supra at
616.
                                                                   7


Mahajan, supra at 615.9   But practical realities stand in the way

of such optimistic thinking.   Where, from all appearances,

public land has been dedicated permanently to parkland or other

art. 97 uses, the relevant public officials charged with

protecting such land face little galvanizing pressure to go

through the effort and expense of taking the additional steps

suggested by Hanson or Mahajan.   Indeed, because it often takes

extensive research even to uncover the purpose for which

existing parkland originally was "taken or acquired," the

relevant actors may have no idea that the additional steps are

necessary for art. 97 to apply.   Once the need to take such

steps surfaces -- that is, after the perceived need to use the

land for a pressing competing use has arisen -- it likely has

become too late to implement such measures.

     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.




     9
       The court also alluded to "the practical consequences that
would result from . . . an expansive application," without
spelling out what specific problems it had in mind. Mahajan,
supra at 615.
