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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.
