Open Space Protection Under Article 97

Nahanton Park is protected, among other ways, by a provision of the Massachusetts State Constitution known as “Article 97.” This Article requires that land acquired by a municipality as open space be used only as open space. In 2004, the Massachusetts Audubon Society wrote that “Article 97 requires that any land or easements taken or acquired for natural resource purposes shall not be used for other purposes unless the Massachusetts legislature approves the change by a two thirds vote. Article 97 was intended to be a legislative ‘check’ to ensure that lands acquired for conservation purposes were not converted to other inconsistent uses.”

This meadow in Nahanton Park was used for snow dumping in 2011; photo by Duane Hillis

That would seem like strong protection. However, the 2004 Audubon report goes on to say, “In the absence of clear standards with the force of law, Article 97 votes have become routine legislative business, with nearly every land transfer proposal brought up for a vote approved unanimously. Most legislators feel compelled to vote in the affirmative out of reciprocity: they may need their colleagues’ support for their own district’s land transfer petition in the future. Roll call votes on land transfers have constituted over twenty percent of all roll call votes taken in the legislature in the past several years.”

Over the years, legislation has been introduced, including the most current bill, HB1124, sponsored by Newton’s Ruth Balser and co-sponsored by the other Newton Representatives, Rep. Kay Khan, and Sen. Cindy Creem, which declares that “there shall be no net loss of public lands or easements taken or acquired for natural resource purposes as a result of disposition or change in use of these lands.” The hearing for this bill was held in late March 2011 by both houses of the state legislature. Yet, according to Jack Clarke, Director of Public Policy & Government Relations for Mass. Audubon, the bill is unlikely to pass. Each legislator – even the ones who are most in favor of protecting our natural environment – is unwilling to pass a law that will create a barrier or hamper any “home-rule” decisions where the towns and cities of the Commonwealth seek alternative uses for land held for natural resource purposes.

On the other hand, Mass. Audubon, the Sierra Club, and the Appalachian Mountain Club are all in favor of an Executive Order that Governor Patrick has agreed to sign that accomplishes the same result. Currently this order is under review by the Division of Capital Asset Management to assure that it does not impede the use of current public buildings and land. Other groups, such as the Trustees of Reservations, have also sought over the years “enhanced procedural protections for Article 97 lands.”

Duane Hillis
Friends of Nahanton Park