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Smith v. City of Westfield

Supreme Judicial Court of Massachusetts, Hampden

October 2, 2017

VIRGINIA B. SMITH & others [1]
CITY OF WESTFIELD & others. [2]

          Heard: April 6, 2017.

         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.

          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.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. [3]

          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 issue in this case has been dedicated as a public park, we conclude that it is protected by art. 97.[4]


         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 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. § 4601-8 (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 enjoyment of the American people." 16 U.S.C. § 4601 (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 § 4601-8 (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 § 4601-8(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 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, 00 6.pdf []. See also Massachusetts Statewide Comprehensive Outdoor Recreation Plan, Executive Office of Energy and Energy and Environmental Affairs 2 (2012), [] (describing land funded by LWCF as protected under art. 97).[8] The restrictions imposed by the act 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 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 ...

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