Opinion
21-P-843
08-11-2022
PATRICIA C. AMARAL & others [1] v. CITY OF GLOUCESTER & others. [2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs brought this action for declaratory and injunctive relief, claiming that the transfer of certain public recreation land to the school department was unlawful. After summary judgment entered in the defendants' favor, the plaintiffs appealed. Upon review, we discern no error and affirm.
Background.
The city of Gloucester (city) plans to construct a new elementary school on property that includes an existing school and an existing softball field known as "Mattos Field." Pursuant to a petition submitted by the city, the Legislature passed two statutes authorizing the transfer of Mattos Field to the school department in exchange for (i) an equivalent-sized property to be transferred to the department of public works for permanent use as a municipal park, and (ii) the upgrade of softball facilities at another location in the city.
Mattos Field is a softball field containing 2.7 acres that abuts the existing school.
St. 2020, c. 152, and St. 2020, c. 284.
The plaintiffs, as a group of not less than ten citizens of the city, commenced this action seeking to invalidate the transfer of Mattos Field to the school department alleging a number of grounds including, in count one, that the special acts approving the transfer failed to meet the requirements for land protected by art. 97 of the Amendments to the Massachusetts Constitution (art. 97 land), and, in count two, that the city failed to timely request an environmental review from the Executive Office of Energy and Environmental Affairs (EEA) and did not accurately describe the property when it did submit an environmental notification form (ENF). The defendants moved for summary judgment, which was allowed by a superior court judge.
Section 53 of G. L. c. 40 "permits taxpayers to act 'as private attorneys general' to enforce laws designed to prevent abuse of public funds by local governments." Caplan v. Acton, 479 Mass. 69, 74 (2018), quoting LeClair v. Norwell, 430 Mass. 328, 332 (1999) .
The third count of the plaintiffs' complaint sought to invalidate the transfer on the basis that the actions of both the school committee and the department of public works were ineffective due to irregularities in the structure or make up of its members. The plaintiffs did not pursue this theory on summary judgment and, upon the judge's inquiry at oral argument, they agreed that count three was properly the subject of summary judgment.
We acknowledge the amicus brief submitted by the Massachusetts School Building Authority.
Discussion.
On appeal, the plaintiffs contend that the judge erred in entering judgment in favor of the defendants because (1) the language of the special acts passed to allow for the transfer of Mattos Field did not meet the level of specificity required for art. 97 land, (2) the transfer of Mattos Field violated a public trust, (3) the delay between the loss of use of Mattos Field and the readiness of the substitute land for public use undermines the purpose of the land swap, (4) the city's untimely submission of an inaccurate environmental notification form should void the environmental clearance obtained, and (5) triable issues of fact concerning the violation of various statutes and regulations preclude summary judgment. We address each claim in turn.
1. Special acts approving transfer.
"Article 97 of the Amendments to the Massachusetts Constitution, . . . 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." Smith v. Westfield, 478 Mass. 49, 50 (2017), quoting art. 97. "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." Smith, supra at 60.
Indeed, "[t]he 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." Smith, 478 Mass. at 61-62, quoting Robbins v. Department of Pub. Works, 355 Mass. 328, 330 (1969). The Supreme Judicial Court has concluded that where a city or town has sufficiently and permanently dedicated and used land as a public park, it is protected by art. 97 even if no restriction has been recorded. Smith, supra at 63.
Without conceding that Mattos Field was protected by art. 97, the city, "in an abundance of caution," nonetheless petitioned the Legislature for statutory approval for the change in use of Mattos Field as if the property were protected by art. 97. As that approval was obtained, we agree with the motion judge that the transfer was accomplished in a lawful manner.
Without deciding the issue, we treat Mattos Field as art. 97 land for purposes of this appeal.
Relying on Robbins, 355 Mass. 328, the plaintiffs contend, however, that the special acts allowing the transfer of Mattos Field to the school department are "fatally deficient" because they did not "frankly and adequately" acknowledge "that Mattos Field was [a]rt. 97 protected public recreation land, being given up at the altar of a new elementary school."
We recognize that three years before ratification of art. 97 the Supreme Judicial Court declared:
"We think it is essential to the expression of plain and explicit authority to divert parklands . . . 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."Smith, 478 Mass. at 61, quoting Robbins, 355 Mass. at 331 (meaning of art. 97 "must be understood in this common-law context"). Thus, to the extent the legislation, to satisfy art. 97, must express the Legislature's awareness of both the new use and the existing use, we agree with the judge that the statutes at issue did so.
Section one of St. 2020, c. 152, described the size and location of the land (2.7 acres); specified that it included Mattos Field; and provided that the land was to be transferred to the school committee for "school purposes." Section 2 required, in consideration for the transfer to the school committee, a transfer from the school committee of 2.8 acres to the department of public works "to be used for municipal park and open space purposes with the grant of a deed restriction placing the land under the protection of Article 97 of the Amendments to the Constitution of the [C]ommonwealth in perpetuity." In addition, section 3 required that the department of public works upgrade softball field facilities and accommodations at another city-owned open space on Green Street. The Legislature clearly was aware of the prior use of Mattos Field -- as demonstrated by the provision requiring renovations of another softball field in town. In addition, the proposed new use for "school purposes" was sufficiently clear for us to conclude that the Legislature was aware of the proposed use. Nothing more was required by art. 97.
2. Public trust.
Next the plaintiffs contend that they are beneficiaries of a trust under which Mattos Field was held by the city and that, therefore, the land can never be transferred. We note that this theory was not briefed on summary judgment and therefore understandably was not addressed by the judge. Rather, the theory appears to have surfaced through a post-opposition supporting affidavit. Although it is doubtful that this claim was properly preserved, we address it and conclude that it has no merit.
The plaintiffs' claim is premised on a number of cases that preceded the adoption of art. 97 and/or are otherwise distinguishable by the existence of specific restrictions associated with the land. See Smith, 478 Mass. at 64 (acceptance of Federal conservation funds to rehabilitate playground was conditioned on 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" of the Interior); Gould v. Greylock Reservation Comm'n, 350 Mass. 410, 426-427 (1966) (proposed use exceeded authority of commission controlling property); Salem v. Attorney Gen., 344 Mass. 626, 631 (1962) (land bequeathed to town with restrictions). No similar provisions restrict Mattos Field.
Alternatively, the plaintiffs argue that the expenditure of significant funds from the Community Preservation Act (CPA) to improve it constrains the city to preserve Mattos Field in its current condition. Pursuant to G. L. c. 44B, § 12, property interests acquired with monies from the Community Preservation Fund are to be bound by "a permanent [deed] restriction," enforceable by the city, town or Commonwealth. It is undisputed that the property at issue here was not acquired with CPA funds; rather, CPA funds were used to improve it. As the plaintiffs recognize, "there is no precedent establishing that the acceptance of significant CPA funds to maintain public outdoor recreation land constitutes a dedication." We decline the plaintiffs' urging to expand upon the plain language of the statute.
3. Delayed improvement of fields.
Next the plaintiffs argue that the delay between the loss of use of Mattos Field and the time the land transferred from the school department will be ready for public use is significant and essentially violates the spirit of art. 97. The first special act passed made the transfer of Mattos Field to the school department and the transfer of school department land to the department of public works contingent on one another, such that the land swap may be considered simultaneous. See St. 2020, c. 152, § 4. The second special act amended this language so as to allow one to follow the other. St. 2020, c. 284, § 2. According to the defendants, this was done for practical purposes, to allow for an orderly and more feasible sequence of events. As the judge pointed out, "[t]he fact that the transfer of the two properties at issue will not be simultaneous is not inconsistent with [art.] 97." Nor is a simultaneous exchange otherwise required.
4. Environmental Impact.
The plaintiffs' original complaint asserted that the city did not submit an ENF to the EEA. However, the city did file an ENF with the EEA after the complaint was filed. Ultimately, the Secretary of the EEA issued a Certificate concluding that the project does not require the preparation of an environmental impact report or further review. On appeal, the plaintiffs do not identify any potential environmental issues that might be caused by the project. Instead, they focus on what they contend are procedural flaws in the proceedings before the EEA. However, the judge conducted an exhaustive review of the applicable statutes and regulations and concluded that the city's submission complied with its obligations. The plaintiffs have not explained how the judge's conclusion constitutes an error of law.
Similarly unavailing are the plaintiffs' contentions that the city's ENF failed to inform the Secretary that Mattos Field land is art. 97 land and, therefore, the Secretary did not require compliance with the EEA's Article 97 Land Disposition Policy of February 19, 1998. The Secretary noted that the city believed the land was not protected by art. 97 because there was no deed restriction, but also noted that, "in an abundance of caution," it had petitioned the Legislature for approval of the change in use of art. 97 land. Moreover, the Secretary undertook an analysis of the project to ascertain its compliance with the art. 97 policy and concluded that the city demonstrated compliance with the policy's goal of "no net loss."
Moreover, "policy statements do not have the legal force of a statute or regulation." Northbridge v. Natick, 394 Mass. 70, 76 (1985). The plaintiffs cite no support for the suggestion that deviation from the policy statement eviscerates the review undertaken by the EEA. The Secretary also noted that the ENF indicated that "the compensatory conservation land provided by the City will have equal or greater conservation value." The plaintiffs' insistence that the Secretary did not consider the Article 97 Land Disposition Policy is unavailing.
5. Triable issues of fact.
Finally, the plaintiffs argue that there are triable issues of fact, precluding summary judgment, concerning the city's potential violation of various statutes. The plaintiffs' allegation that the city violated various statutes -- including G. L. c. 40, § 15A; G. L. c. 43, § 34; and G. L. c. 45, § 2 -- was contained in count three of the complaint. In their opposition to summary judgment, the plaintiffs appear to have raised new theories under which these and other statutes were violated. The judge understandably did not address any of these claims, given the dismissal of count three with the plaintiffs' assent. Under the circumstances, we deem these issues waived.
Judgment affirmed.
Green, C.J., Singh & Hershfang, JJ.
The panelists are listed in order of seniority.