Fall River Open Space Plan
APPENDIX
ARTICLE 97 - PUBLIC LAND PROTECTION
MASSACHUSETTS CONSTITUTION
Opinion of the Attorney General 1973
The House of Representatives, by H. 6085, has addressed to me several questions regarding Article 97 of the Articles of Amendment to the Constitution of Masachusetts. Establishing the right to a clean environment for the citizens of Massachusetts, Article 97 was submitted to the voters on the November 1972 ballot and was approved. The questions of the House go to the provision in the Article requiring that acts concerning the disposition of, or certain changes in, the use of certain public lands be approved by a two-third roll-call vote of each branch of the General Court.
Specifically, your questions are as follows:
1. Do the provisions of the last paragraph of Article XCVII of the Articles of the Amendments to the Constitution requiring a two thirds vote by each branch of the general court, before a change can be made in the use or disposition of land and easements acquired for a purpose described in said Article, apply to all land and easements held for such a purpose, regardless of the date of acquisition, or in the alternative, do they apply only to land and easements acquired for such purposes after the effective date of said Article of Amendments?
2. Does the disposition or change of use of land held for park purposes require a two thirds vote, to be taken by the yeas and nays of each branch of the general court, as provided in Article XCVII of the Articles of the Amendments of the Constitution, or would a majority vote of each branch be sufficient for approval?
3. Do the words "natural resources" as used in the first paragraph of Article XCVII of the Articles of the Amendments to the Constitution include ocean, shellfish and inland fisheries; wild birds, including song and insectivorous birds; wild mammals and game; sea and fresh water fish of every description; forests and all uncultivated flora, together with public shade and ornamental trees and shrubs; land, soil and soil resources, lakes, ponds, streams, coastal underground and surface waters; minerals and natural deposits, as formerly set out in the definition of the words "natural resources" in paragraph two of section one of chapter twenty-one of the General Laws?
4. Do the provisions of the fourth paragraph of Article XCVII of the Articles of the Amendments to the Constitution apply to any or all of the following means of disposition or change in use of land held for a public purpose: conveyance of land; long-term lease for inconsistant use; short-term lease, two years or less, for an inconsistant use; the granting or giving of an easement for an inconsistant use; or any agency action with regard to land under its control if an inconsistant use?
The proposed amendment to the Constitution as agreed to by the majority of the members of the Senate and the House of Representatives, in joint session, on August 5, 1969, and again on May 12, 1971, and became part of the Constitution by approval by the voters at the state election next following, on November 7, 1972. The full text of Article 97 is as follows:
Art. XCVII. Article XLIX of the Amendments to the Constitution is hereby annulled and the following is adopted in place thereof: 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.
Land 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. (emphasis inserted)
1. The first question of the House of Representatives asks, in effect, whether the two-thirds roll-call vote requirement is retroactive, to be applied to lands and easements acquired prior to the effective date of Article 97, November 7, 1972. For the reasons below, I answer in the affirmative.
The General Court did not purpose this Amendment nor was it approved by the voting public without a sense of history nor void of a purpose worthy of a constitutional amendment. Examination of our constitutional history firmly establishes that the two-thirds roll-call vote requirement applies to public lands wherever taken or required.
Specifically, Article 97 annuls Article 49, in effect since November 5, 1918. Under that Article the General Court was empowered to provide for the taking or acquisition of lands, easements and interests therein "for the purpose of securing and promoting the proper conservation, development, utilization and control" (of) "agricultural mineral, forest, water and other natural resources of the commonwealth". Although inclusion of the word "air" in this catalog as it appears in Article 97 may take this new article slightly broader than the supplanted Article 49 as to purposes for which the General Court may provide for the taking or acquisition of land, it is clear that land taken or acquired under the earlier Article over nearly fifty years is now to be subjected to the two-thirds vote requirement for changes in use or other dispositions. Indeed all land whenever taken or acquired is now subject to the new voting requirement. The original draftsmen of our Constitution prudently included in Article 10 of the Declaration of Rights a broad constitutional basis for the taking of private land to be applied to public uses, without limitation on what are "public uses". By way of acts of the Legislature as well as through generous gifts of many of our citizens, the Commonwealth and our cities and towns have acquired parkland and reservations of which we can be justly proud. To claim that Article 97 does not give the same care and protection to, 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.
Moreover, if this amendment were only prospective in effect, it would be virtually meaningless. In our Commonwealth, with a life commencing in the early 1600's and already cramped for land, it is most unlikely that the General Court and the voters would choose to protect only those acres hereafter added to the many thousands already held for public purposes. The comment of our Supreme Judicial Court concerning the earlier Article 49 is here applicable. It must be presumed that the convention proposed and the people approved and ratified the Forty-ninth Amendment with reference to the practical affairs of mankind and not as a mere theoretical announcement."Opinion of the Justices, 237 Mass. 598,608.
2. In its second question the House asks, in effect, whether the two-thirds roll-call vote requirement applies to land held for park purposes, as the term "park" is generally understood. My answer is in the affirmative, for the reasons below.
One major purpose of Article 97 is to secure that 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." The fulfillment of these rights is uniquely carried out by parkland acquisition. As the Supreme Judicial Court has declared.
"The healthful and civilizing influence of parks in or 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 the public health in its narrow sense, but to broader considerations of exercise, refreshment and enjoyment "Higginson v. Treasurer and School House Commissioners of Boston, 212 Mass. 583, 590; see also Higginson v. Inhabitants of Nahant, 11 Allen 530, 536.
A second major purpose of Article 97 is "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". Parkland protection can afford not only the conservation of forests, water and air but also a means of utilizing these resources in harmony with their conservation. Parkland can undeniably be said to be acquired for the purposes in Article 97 and is thus subject to the two-thirds roll-call requirement.
This question as to parks raises a further practical matter in regard to implementing Article 97 which warrants further discussion. The reasons the Legislature employs to explain its actions can be of countless levels of specificity or generality and land might conceivably be acquired for general recreation purposes or for explicit uses such as the playing of baseball, the flying of kites, for evening strolls or for Sunday afternoon concerts. Undoubtedly to the average man, such land would serve as a park but at an even more legalistic level it clearly can also be observed that such land was acquired, in the language of Article 97, because it was a "resource" which could best be "utilized" and "developed" by being "conserved" within a park. But it is not surprising that most land taken or acquired for public use is acquired under the specific terms of statutes which may not match verbatim the more general terms found in Article 10 of the Declaration of Rights of the Constitution or in Articles 39, 43, 49, 51 and 97 of the Amendments. Land originally acquired for limited or specified public purposes is thus not to be excluded from the operation of the two-thirds roll-call vote requirement for lack of express invocation of the more general purposes of Article 97. Rather the scope of the Amendment is to be very broadly construed, not only because of the greater broadness in "public purpose", changed from "public uses" appearing in Article 49, but also because Article 97 establishes that the protection to be afforded by the Amendment is not only of uses but of certain express rights of the people.
3. The third question of the House asks, in effect, how the words "natural resources", as appearing in Article 97, are to be defined.
Several statutes offer assistance to the General Court, all without limiting what are "natural resources". General Laws Ch. 21, defines "natural resources", for the purposes of Department of Natural Resources jurisdiction, as including "ocean, shellfish and inland fisheries; wild birds, including song and insectivorous birds; wild mammals and game; sea and fresh water fish or every description; forests and all uncultivated flora, together with public shade and ornamental trees and shrubs; land, soil and soil resources, lakes, ponds, streams, coastal, underground and surface waters; minerals and natural deposits".
In addition, G.L. Ch. 12, 11D, establishing a Division of Environmental Protection in my Department, uses the words "natural resources" in such a way as to include air, water, rivers, streams, flood plains, lakes, ponds, or other surface or subsurface water resources and "seashores, dunes, marine resources, wetlands, open spaces, natural areas, parks or historic districts or sites". General Laws Ch. 214, 10A, the so-called citizen-suit statute, contains a recitation substantially identical. To these lists Article 97 would add only "agricultural" resources.
It is safe to say, as a consequence, that the term "natural resources" should be taken to signify at least these catalogued items as a minimum. Public lands taken or acquired to conserve, develop or utilize any of these resources are thus subject to Article 97.
It is aparent that the General Court has never sought to apply any limitation to the term "natural resources" but instead has viewed the term as an evolving one which should be expanded according to the needs of the time and the term was originally inserted in our Constitution for just that reason. See Debate of the Constitutional Convention 1917-1918, p. 595. The resources enumerated above should, therefore, be regarded as examples of and not delimiting what are "natural resources".
4. The fourth question of the House requires a determination of the scope of activities which is intended by the words: "shall not be used for other purposes or otherwise disposed of".
The term "disposed" has never developed a precise legal meaning. As the Supreme Court has noted, "The word is nomen generalissimum, and standing by itself, without qualification, has no technical signification." Phelps vs. Harris, 101 U.S. 370, 381 (1880). The Supreme Court has indicated, however, that "disposition" may include a lease. U.S. v. Gratiot, 39 U.S. 526 (1840). Other cases on unrelated subjects suggest that in Massachusetts the word "dispose" can include all forms of transfer no matter how compete or incomplete. Rogers v. Goodwin, 2 Mass. 475s; Woodbridge v. Jones, 183 Mass. 549; Lord v. Smith, 293 Mass. 555.
In this absence of precise legal meaning, Webster's Third New International Dictionary is helpful. "Dispose of" is defined as "to transfer into new hands or to the control of someone else". A change in physical or legal control would thus prove to be controlling.
I, therfore, conclude that the "dispositions" for which a two-thirds roll-call vote of each branch of the General Court is required to include: transfers of legal or physical control between agencies of government, between political subdivisions, and between levels of government, of lands easements, and interests therein originally taken or acquired for the purposes stated in Article 97, and transfers from public ownership to private. Outright conveyance, takings by eminent domain, long-term and short-term leases of whatever length, the granting or taking of easements and all means of transfer or change of legal or physical control are therby covered, without limitation and without regard to whether the transfer be for the same or different uses or consistant or inconsistant purposes.
This interpretation affords a more objective test, and is more easily applied, than "used for other purposes". Under Article 97 that standard must be applied by the Legislature, however, in circumstances which cannot be characterized as a disposition - that is, when a transfer or change in physical or legal control does not occur. Within any agency or political subdivision any land, easement or interest therein, if originally taken or acquired for the purposes stated in Article 97, may not be "used for other purposes" without the requisite two-thirds roll-call vote of each branch of the General Court.
It may be helpful to note how Article 97 is to be read with the so-called doctrine of "prior public use", application of which also turns on changes in use. That doctrine holds that "public lands devoted to one public use cannot be diverted to another inconsistant public use without plain and explicit legislation authorizing the diversion". Robbins v. Department of Public Works, 355 Mass. 328, 330 and cases there cited.
The doctrine of "prior public use" is derived from many early cases which establish its applicability to transfers between corporations granted limited powers of the Commonwealth, such as eminent domain, and authority over water and railroad easement; e.g., Old Colony Railroad Company v. Framingham Water Company, 154 Mass. 561; Boston Water Power Company v. Boston and Worcester Railroad Corporation, 23 Pick. 360; Boston and Main Railroad v. Lowell and Lawrence Railroad Company, 124 Mass. 368; Eastern Railroad Company v. Boston and Main Railroad , 111 Mass. 125, and Housatonic Railroad Company v. Lee and Hudson Railroad Company, 118 Mass. 391. The doctrine was also applied at an early date to transfers between such corporations and municipalities and counties; e.g., Boston and Albany Railroad Company v. City Council of Cambridge, 166 Mass 224 (eminent domain taking of railroad land), Eldridge v. County Commissioners of Norfolk, 185 Mass. 186 (eminent domain taking of railroad easement), West Boston Bridge v. County Commissioners of Middlesex, 10 Pick. 270 (eminent domain taking of turnpike land), and Inhabitants of Springfield v. Connecticut River Railroad Co., Cush. 63 (eminent domain taking of a public way).
The doctrine of "prior public use" has in more modern times been applied to the following transfers between governmental agencies or political subdivisions; a) a transfer between state agencies, Robbins v. Department of Public Works, 355 Mass. 328 (eminent domain taking of Metropolitan District Commission wetlands), b) transfers between a state agency and a special state authority, Commonwealth v. Massaachusetts Turnpike Authority, 346 Mass. 250 (eminent domain taking of M DC land) and see Loschi v. Massachusetts Port Authority, 354 Mass. 53 (eminent domain taking of parkland), c) a transfer between a special state commission and special state authority, Gould v. Greylock Reservation Commission, 350 Mass. 410 (lease of portions of Mount Greylock), d) transfers between municipalities, City of Boston v. Inhabitants of Brookline, 156 Mass. 172 (eminent domain taking of a water easement) and Inhabitants of Quincy v. City of Boston, 148 Mass. 389 (eminent domain taking of a public way), e) transfers between state agencies and municipalities, Town of Brookline v. Metropolitan District Commission, 357 Mass. 435 (eminent domain taking of parkland) and City of Boston v. Massachusetts Port Authority, 356 Mass. 741 (eminent domain taking of a park), f) a transfer between a special state authority and a minicipality, Appleton v. Massachusetts Parking Authority, 340 Mass. 303 (1960) (eminent domain, Boston Common), g) a transfer between a state agency and a county, Abbot v. Commissioners of the County of Dukes County, 357 Mass. 784 (Department of Natural Resources grant of navigation easement), and h) transfers between counties and municipalities, Town of Neddham v. County Commissioners of Norfolk, 324 Mass. 293 (eminent domain taking of common and park lands) and Inhabitants of Easthampton v. County Commissioners of Hampshire, 154 Mass. 424 (eminent domain taking of school lot).
The doctrine has also been applied to the following changes of use of public lands within governmental agencies or within political subdivisions: a) intra agency uses, Sacco v. Department of Public Works, 352 Mass. 670 (filling a portion of Great Pond), b) intra municipality uses, Higginson v. Treasurer and School House Commissioners of Boston, 212 Mass. 583 (erecting a building on a public park), and see Kean v. Stetson, 5 Pick. 492 (road built adjoining river), and c) intra country uses, Bauer v. Mitchell, 247 Mass. 522 (discharging sewage upon school land). The doctrine may also possibly reach de facto changes in use : e.g., Pilgrim Real Estate Inc. v. Superintendent of Police of Boston, 330 Mass. 250 (parking of cars on park area) and may be available to protect reservation land held by charitable corporations; e.g., Trustees of Reservations v. Town of Stockbridge, 348 Mass. 511 (eminent domain).
In addition to these extensions of the doctrine, special statutory protections, codifying the doctrine of "prior public use", are afforded local parkland and commons by G.L. c. 45 and public cemeteries by G.L. c. 114 / 1,7, 41. As to changes in use of public lands held by municipalities or counties, generally, see G.L. c. 40,/15A and G.L. c. 214/ 3(11).
This is the background against which Article 97 was approved. The doctrine of "prior public use" requires legislative action, by majority vote, to divert land from one public use to another inconsistant public use. As the cases discussed above indicate, the doctrine requires an act of Legislature regardless whether the land in question is held by the Commonwealth, its agencies, special authorities and commissions, political subdivisions or certain corporations granted powers of the sovereign. And the doctrine applies regardless whether the public use for which the land in question is held in a conservation purpose.
As to all such changes in use previously covered by the doctrine of "prior public use" the new Article 97 will only change the requisite vote of the Legislature from majority to two thirds. Article 97 is designed to supplement, not supplant, the doctrine of "prior public use".
Article 97 will be of special significance, though, where the doctrine of "prior public use" has not yet been applied. For instance, legislation and two thirds roll-call vote of the Legislature will now for the first time be required even when a transfer of land or easement between government agencies, between political subdivisions, or between levels of government is made with no change in the use of the land, and even where a transfer is from public control to private.
Whether legislation pending before the General Court is subject to Article 97, or the doctrine of "prior public use", or both, it is recommended that the legislation meet the high standard of specificity set by the Supreme Judicial Court in a case involving the doctrine of "prior public use".
"We think it is essential to the expression of plain and explicit authority to divert (public lands) to a new and inconsistant 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 forego the existing use". (Footnote omitted). Robbins v. Department of Public Works, 355 Mass. 328,331.
Each piece of legislation which may be subject to Article 97 should, in addition, be drawn so as to identify the parties to any planned disposition of the land.
Conclusions
Article 97 of the Amendments to the Massachusetts Constitution establishes the right of the people to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic and esthetic qualities of their environment. 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 declared to be a public purpose. Lands, easements and interests therein taken or acquired for such public purposes are not to be disposed of or used for other purposes except by two-thirds roll-call vote of both the Massachusetts Senate and House of Representatives.
Answering the questions of the House of Representatives I advise that the two-thirds roll-call vote requirement of Article 97 applies to all lands, easements and interests therein whenever taken or acquired for Article 97 conservation, development or utilization purposes, even prior to the effective date of Article 97, November 7, 1972. The Amendment applies to land, easements and interests therein held by the Commonwealth, or any of its agencies or political subdivisions, such as cities, towns and counties.
I advise that "natural resources" given protection under Article 97 would include at the very least, without limitation: air, water, wetlands, rivers, streams, lakes, ponds, coastal, underground and surface waters, flood plains, seashores, dunes, marine resources, ocean, shellfish and inland fisheries, wild birds including song and insectivorous birds, wild mammals and game, sea and fresh water fish of every description, forests and all uncultivated flora, together with public shade and ornamental trees and shrubs, land, soil and soil resources, minerals and natural deposits, agricultural resources, open spaces, natural areas and parks and historic districts or sites.
I advise that Article 97 requires two-thirds roll-call vote of the Massachusetts Senate and House of Representatives for all transfers between agencies of government and between political subdivisions of lands, easements or interests therein originally taken or acquired for Article 97 purposes, and transfers of such land, easements or interests therein from one level of government to another, or from public ownership to private. This is so without regard to whether the transfer be for the same or different uses or consistant or inconsistant purposes. I so advise because such transfers are "dispositions" under the terms of the new Amendment, and because "disposition" includes any change of legal or physical control, including but not limited to outright conveyance, eminent domain takings, long and short-term leases of whatever length and the granting or taking of easements.
I also advise that intra-agency changes in uses of land from Article 97 purposes, although they are not "dispositions", are similarly subject to the two-thirds roll-call vote requirement.
Read against the background of the existing doctrine of "prior public use", Article 97 will thus for the first time require legislation and a special vote of the legislature even where a transfer of land between governmental agencies, between political subdivisions or between levels of government results in no change in the use of land, and even where a transfer is made from public control to private. I suggest that whether legislation pending before the General Court is subject to Article 97, or the doctrine of "prior public use", or both, the very highest standard of specificity should be required of the draftsman to assure that legislation clearly identiifies the locus, the present public uses of the land, the new uses contemplated, if any, and the parties to any contemplated "disposition" of the land.
In short, Article 97 seeks to prevent government from ill-considered misuse or other disposition of public lands and interests held for conservation, development or utilization of natural resources. If land is misused , a portion of the public's natural resources may be forever lost, and no less than by outright transfer. Article 97 thus provides a new range of protection for public lands far beyond existing law and much to the benefit of our natural resources and to the credit of our citizens.