This past winter, Mass Audubon joined onto an amicus brief filed with the Massachusetts Supreme Judicial Court (SJC) in the case of Smith v. Westfield in support of open space protection under Article 97 of the Massachusetts Constitution. After hearing the case, the SJC has ruled in our favor that such lands are protected under Article 97.
The case involved proposed conversion of parkland (the John A. Sullivan Memorial Playground in Westfield) for a school construction project, and had broad implications for clarifying whether or not parcels of land that communities have dedicated to conservation or recreation purposes, but may not be explicitly limited to such uses in the registry of deeds, are actually protected under Article 97. Local citizens challenged the project and Mass Audubon joined The Trustees, who filed the amicus, and the Mass Land Trust Coalition in taking this action.
The Boston Common is a compelling example of public parkland not explicitly deeded as such. Photo credit: Abhi Suryawanshi
This week, the SJC ruled that such lands are protected under Article 97. In its opinion, the Court ruled that (emphasis in bold is our own):
Article 97 … 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.
This decision re-emphasizes the importance of Article 97 and the public value of open space, and it complements the New England Forestry Foundation vs. Town of Hawley case in which Mass Audubon and The Nature Conservancy also filed an amicus (Dec. 2013) with the SJC. These decisions help establish a strong precedent for the protection of open space from both taxation and change of use without a legislative vote.
Last month, the state Senate approved an amendment to the FY18 state budget that would increase the state match for Community Preservation Act (CPA) communities. Without immediate action to adjust the recording fees at the state’s Registries of Deeds, the CPA Trust Fund distribution for the 172 participating communities will plunge to an all-time low of approximately 11% of locally-raised revenues in 2018.
When CPA was signed into law by Governor Cellucci in 2000, it was heralded as a true partnership between the Commonwealth and local communities. Today however, a large gap has developed between the approximately $150 million invested annually by the 172 CPA cities and towns and the $26 million contributed by the state. A nominal $25 adjustment in recording fees would increase the base CPA state match to approximately 32%, which is the historic average distribution over the last eight years.
A conference committee is now reconciling the House and Senate versions of the budget. Because the CPA amendment was only included in the Senate’s version of the budget, the House side of the conference committee must agree to keep it in the final version. We need to make sure this happens, and you can help!
Please call your state Representative and ask him/her to contact the offices of Speaker Robert DeLeo, Ways & Means Chairman Brian Dempsey, and the rest of the budget conference committee and encourage them to include the CPA Trust Fund increase in the final FY18 budget. You can let them know that increasing the Trust Fund will help advance land protection and sustainable development for communities across the Commonwealth.
Learn more about CPA and our Community Preservation Coalition.
This week, President Trump signed an executive order requiring that for every new federal regulation implemented, two must be rescinded. According to President Trump, “This will be the biggest such act that our country has ever seen.” Mass Audubon will be on the lookout for the repeal of environmental standards necessary for protecting the air we breathe, the water we drink, and the land we live, work, and play on.
Bald eagles are a species that have benefited greatly from environmental regulations. They are no longer an endangered species in the US thanks to the banning of the pesticide DDT and habitat protection afforded by the Endangered Species Act. Photo credit: USFWS
In more federal news, the US Senate Environment and Public Works Committee is expected to vote on Scott Pruitt’s nomination to lead the Environmental Protection Agency on Wednesday, amid complaints from many senators that his answers to their questions were inadequate. Please keep up with your phone calls to Senators Warren and Markey opposing the nomination, and encourage your friends in other states to do the same with their senators!
We are also paying attention to Congress’ damaging decision with regard to federal land management. Earlier this month, Congress revised its House budget rules to more easily allow federal lands to essentially be given away. By adding language to devalue these lands, US Representatives have made it easier to transfer control of more than 640 million acres, including national parks and wildlife refuges to states.
Monomoy National Wildlife Refuge. Photo credit: US Fish and Wildlife Service
We’ve written about issues like this before, most recently in regard to control of Monomoy National Wildlife Refuge in Chatham. When management of federal land changes hands to state control, problematic changes can ensue, from limited public access to natural resource exploitation and energy drilling. There is also the added challenge of state agencies and governments being able to pay for all the maintenance required for the land. Mass Audubon is concerned about these legislative changes, and will continue to closely follow the issue and let you know when the time to act will be.
Christina Wiseman is Advocacy Associate.
Please see our updated post on this issue here.
Monomoy National Wildlife Refuge. Photo credit: US Fish and Wildlife Service
Mass Audubon’s Advocacy department got to experience one of Massachusetts’ most beautiful – and threatened – natural places earlier this spring when Bob Wilber, Mass Audubon’s Director of Land Conservation, led a tour of Otis State Forest in Sandisfield.
In just one afternoon, we hiked through (400-year-old!) old growth forest, historic mill sites, and rare plant and animal habitat, ate our lunch on the shores of one of the most pristine and intact lakes in the state, and summited nearby Mount Baldy, recently conserved by Mass Audubon. Mass Audubon assisted the Department of Conservation and Recreation in acquiring much of the land within the Otis State Forest, which provided the link to connect more than 8,500 acres of open space.
Kinder Morgan has proposed to run their Connecticut Expansion natural gas pipeline through the area. Mass Audubon submitted a friend of the court brief supporting the Massachusetts Attorney General (AG) in protecting the forest but the court denied her actions. We have encouraged the AG to appeal the decision. Seeing this special place in person renewed our sense of purpose and deepened our commitment to fighting proposed new pipeline projects in Massachusetts. Learn more about that work and the details on the major proposed projects.
Update: As of December 2016, AG Healey successfully negotiated for compensation to the state for conservation land taken by eminent domain during the construction of the Connecticut Expansion Project. The company will pay $640,000 to the state, and identify and acquire additional conservation land “that provides ecological functions equivalent to the land impacted by the pipeline” such as the nearly two miles of pipeline through pristine Otis State Forest.