Massachusetts Real Estate Lawyer Blog
Land used by many members of the community, such as parks and other recreational public property, is subject to zoning regulations and other laws that may apply. In an October 2, 2017 Massachusetts real estate case, the Supreme Judicial Court considered an action brought against a city by its residents, who sought a restraining order to prevent construction of a new school on land that was used as a playground.
The land at issue had served as a public park for more than 60 years since it was created and formally approved by the city in 1957. In 1979, the city received a grant from the federal government to rehabilitate the playground in the park. The law authorizing the grant imposed a requirement that any property developed with grant assistance could not be converted to any use other than public outdoor recreation without the approval of the U.S. Secretary of the Interior. In 2011, the city council voted to transfer the playground from the parks and recreation department to its school department to construct a new elementary school on the land. A group of city residents commenced an action to halt the construction project, arguing that the land and the playground could not be used for any other purpose.
Article 97 of the Amendments to the Massachusetts Constitution provides that land and easements taken by eminent domain for conservation purposes cannot be used for any other purpose or disposed of without approval from the Legislature. Massachusetts courts have held that land dedicated as a public park is protected by Article 97, even if it was not taken by eminent domain or subject to a recorded restriction limiting its use. A city dedicates land as a public park under Article 97 when there is a clear and unequivocal intent to dedicate the land permanently as a public park, and when the public accepts such use by actually using the land as a public park. Since the municipal land at issue was dedicated as a public park, the court concluded that the land was protected by Article 97.
The court went on to find that the playground was also dedicated as a public park by the city and protected by Article 97. The court explained that the determinative factor was the acceptance by the city of federal conservation funds to rehabilitate the playground. In accepting the grant, the city agreed to the statutory provision surrendering its ability to convert the playground to a use other than public outdoor recreation without the approval of the Secretary. Accordingly, the court found in favor of the residents and ordered a permanent injunction against the construction of the school.
If you have concerns about property development in your neighborhood or a residential land use matter, the Massachusetts real estate attorneys at Pulgini & Norton can help. We provide guidance to homeowners who are purchasing or selling property, refinancing their mortgage, undergoing construction, or handling any other residential real estate issue. To schedule an appointment with one of our knowledgeable property lawyers, call (781) 843-2200 or submit our online form.
More Blog Posts:
Massachusetts Landowners Successfully Challenge Permit Issued for Housing Development Next to Their Property, Massachusetts Real Estate Lawyer Blog, published September 19, 2016
Massachusetts Property Owners Object to Modification of Subdivision Plan By Developer, Massachusetts Real Estate Lawyer Blog, published November 7, 2016