The Massachusetts Supreme Judicial Court (SJC) recently held that the redevelopment of land taken for urban renewal is not subject to legislative approval under Article 97 of the Massachusetts Constitution. This constitutional provision mandates that any disposition or change in use of lands held for certain public purposes must first be approved by a two-thirds vote from both houses of the Legislature.
Article 97 was added in 1972 and provides in part:
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.
Article 97 of the Amendments to the Massachusetts Constitution. Importantly, Article 97 also provides that any lands taken for Article 97 purposes shall not be used for any other purpose or conveyed unless first approved by a two-thirds vote of the Legislature (both houses). Over the years, there has been a fair amount of debate (and litigation) over when the disposition and/or conversion of use of public land triggers the need for Article 97 approval.
In Mahajan v. Department of Envt’l Protection (SJC-11134, March 15, 2013), the SJC narrowed the circumstances under which such legislative approval will be required. Specifically, the Court considered whether legislative approval was required for redevelopment of a waterfront parcel owned by the Boston Redevelopment Authority (BRA). The parcel in question is adjacent to the Boston Harbor, and is located on filled land previously subject to tidal action. In Massachusetts, such filled tidelands are deemed subject to the public trust, and private use of those lands requires approval from the Massachusetts Department of Environmental Protection (MassDEP) in the form of a license issued under M.G.L. c. 91.
After the BRA secured a c. 91 license, the plaintiffs appealed, alleging that issuance of the c. 91 license constituted a disposition triggering Article 97. The SJC rejected the appeal on two grounds, both of which provide potentially important limitations on the scope of Article 97. First, the Court ruled that, when the BRA took the parcel by eminent domain for urban renewal purposes, that acquisition did not fall automatically within the scope of Article 97. While the taking did effect the public purpose of urban renewal, the Court distinguished that public purpose from the public purposes established in Article 97. The Court did leave open the possibility that post-taking use of a parcel taken for urban renewal (e.g., use as a park) could subject the parcel to Article 97; however, those facts were not present in this case. So, while the Court did not completely foreclose the application of Article 97 in future cases to lands taken for urban renewal, the decision provides some important limitations on the circumstances under which that might occur.
The Court also ruled that granting a c. 91 License does not constitute an Article 97 disposition triggering the need for legislative approval. This conclusion is consistent with the statutory language in M.G.L. c. 91, section 15 that the grant of a license “does not convey a property right.” Nonetheless, the Court’s conclusion serves as a helpful confirmation that c. 91 license applications will not trigger Article 97 and the resulting need for legislative approval of the rights granted under the license. For developers of waterfront real estate in Massachusetts, this is welcome news.