WESTFIELD – Hampden Superior Court Judge Daniel A. Ford struck down an injunction which prevented the start of construction of the Ashley Street elementary school project.
Superior Court Judge Tina Page issued the temporary restraining order Sept. 17, 2012 after a motion filed by several residents of Ashley and Cross streets who contended that the city is violating state and federal law by using part of the Cross Street playground for the $26 million school project. The residents filed the suit earlier this year, charging that the city is violating Article 97 of the Massachusetts General Law which sets preservation protection for land.
Those residents requested Ford to issue a permanent injunction until the city competes the Article 97 conversion process while the city argued that there is no grounds to prove that the Cross Street playground was subject to Article 97.
Ford agreed with the city’s argument in his six-page decision. Ford said the city took the land for non-payment of taxes on Nov. 13, 1939, but never recorded a document designating the land for Article 97 use with the Hampden County Registry of Deeds “as land devoted to the conservation, development and utilization of the agricultural, mineral, forest, water, air or other natural resources.”
The City Council voted to approve an ordinance “providing that the land is ‘hereby named and shall hereafter be known as the John A. Sullivan memorial playground’.”
Ford wrote that “It is abundantly clear that when the City took the property for non-payment of taxes in 1939, it did so for the purpose of satisfying a debt and not for purposes of conservation or recreation. G.L. c. 60, Section 77 provides:
‘After foreclosure by a town of the rights of redemption under a tax title or taking, as herein before provided, the land shall thereafter be held and disposed of like any land belonging to it and held for municipal purposes … ‘
“‘Municipal purposes’ would certainly seem to include the construction of a new school. The Supreme Judicial Court has held that, in cases of this type, ‘[t]he critical question to be answered is not whether the use of the land incidentally serves purposes consistent with art. 97,or whether the land displays some attributes of art. 97 land, but whether the land was taken for those purposes, or subsequent to the taking was designated for those purposes in a manner sufficient to invoke the protection of art. 97.’ [Mahajan v. Department of Environmental Protection, 464 Mass. 604, 615 (2013)]”
“As previously set forth the land was not taken for Article 97 purposes,” Ford said in his judgment. “Similarly, it was not subsequently designated for such purposes, because for such a designation to be effective it must be done by a document recorded in the Registry of Deeds. {See Board of Selectmen of Hanson v. Lindsay, 444 Mass. 502, 508-509 (2005) “To conclude that this could be accomplished solely by vote, without recordation of any instrument, would eviscerate the purposes of our recording acts.”)}.
“It is undisputed that no instrument designating the land as Article 97 land was ever recorded in this case. As was pointed out by the Court in Mahajan, ‘where the property had indisputably been acquired as tax forfeiture and held as general corporate property, the town had to deed the land to itself for conservation purposes—-or record an equivalent restriction on the deed—-in order for Article 97 to apply to subsequent dispositions or use for other purposes.’
“The plaintiffs argue that the use to which the land has been put subsequent to the taking maybe considered in determining whether it has acquired Article 97 protection. They contend that its use as a playground for many years is entirely consistent with the purposes of Article 97. But see Curley v. Billerica, 2013 Mass. LCR LEXIS 128 (August 8, 2013) (holding that a playground is not protected by Article 97 because a playground, unlike a park, is an improved space with structures, ball fields, etc. on it).”
”I agree that if the original order of taking were ambiguous,” Ford said, “the subsequent use of the land could be considered in ascertaining the intent of the taking authority. There is nothing ambiguous about the tax taking which occurred in this case.
“The language of the taking does not refer to Article 97 and does not indicate that the land was to be used as a playground or for any other recreational purposes,” Ford said. “There is nothing ambiguous about the tax taking which occurred in this case. The language of the taking does not refer to Article 97 and does not indicate that the land was to be used as a playground or for any other recreational purposes.
“Here, the land was not taken for any specific purpose other than to satisfy a tax debt and thus there is no reasonable doubt about its actual status; it has remained part of the City’s general corporate inventory of land since 1939.”d said. “Moreover, the fact that the use of the land as a playground may incidentally serve purposes consistent with Article 97 is of no consequence in the absence of a recorded designation for such purposes.
“Finally, the plaintiffs argue that acceptance by the City of the LWCF grant somehow transformed the premises into land protected by Article 97.” Ford said. “I cannot agree.
“A federal or state agency is not free to promulgate regulations which conflict with statutes passed by the state legislature or with the common law enunciated by the Supreme Judicial Court.
“The highest court of this Commonwealth has decided that a parcel of land acquires Article 97 protection only when the land is specifically designated for Article 97 purposes by a recorded instrument,” Ford said. “That has not been done in this case, and the fine print contained within the SCORP cannot be deemed to overrule established law.
The plaintiffs also contend that the language in the SCORP operates as an admission by the City that the land is protected by Article 97, because it accepted the grant funds subject to the conditions set forth in the SCORP.
“I reject that contention,” Ford said. “The grant was accepted in 1979, whereas the SCORP in evidence before me is dated 2006 and recites that it is an update of a 2000 SCORP. There is no evidence that a SCORP was in existence in 1979, or if it was that it contained similar language referring to Article 97. Even if it did, that would not be sufficient to convince me that the land became protected by Article 97 simply because the City accepted grant funds.
“The City acknowledges its obligation to find suitable substitute property to replace the land on which the school is to be built and to obtain the approvals required by the terms of the grant. Of course, if it fails to live up to those obligations, there could be serious consequences.
“For the foregoing reasons, the preliminary injunction dated September 17, 2012, is here by vacated, and JUDGMENT shall enter for the defendants. Dated: October 10, 2014 Justice of the Superior Court.”
