Article 97
of the
Massachusetts Constitution
Letter Writing Campaign
Be personal and specific: write about your own reasons, the facts and values of a specific place
Then connect your story to the bigger picture
A to-the-point, single-page letter to a legislator will get more attention than a four page letter
Insert photos
Acknowledge that other layers of protection also apply to emphasize the important public benefits that will
be lost if legislators do not vote to uphold Article 97 against the threat of the Natural Gas Act and federal
Eminent Domain
--In Massachusetts, 1 million acres of land are protected by Article 97. In a single decade, $1Billion was spent
by the Commonwealth to acquire land or easements for Article 97 purposes.
Article 97 of the Massachusetts Constitution is one of many important layers of legal protection for public
conservation land. Private, nonprofit, conservation land is protected by a different and sometimes
overlapping set of federal, state, and local laws. The history of each parcel of protected land must be
examined to ensure that each layer of protection is documented and respected.
Conservation status can be determined by the ownership of the land (aka fee simple interest) or by a
permanent restriction (aka easement), or both. In many instances, one entity may own a conservation area
that is also protected by a conservation restriction held by another. The 500-acre Arthur Iversen
Conservation Area (AICA) in Warwick, MA for example is owned by Mount Grace Land Conservation
Trust and is subject to two conservation restrictions, one held by the MA Dept. of Conservation and
Recreation and one held by MassAudubon. Article 97 applies to the AICA because of the state CR.
Variations of double protection (in this case, triple) are increasingly common and encouraged by the
programs of the Commonwealth of Massachusetts, and others.
Unique to Article 97 is the requirement that a supermajority (2/3) roll call vote of both houses of the
Massachusetts legislature is required before any parcel of conservation land or easement is “disposed of” or
its use changed. The entire legislature votes whenever a bill is filed to release a parcel of public conservation
land located in any town. Article 97 votes for single parcels are a routine matter. This vote is different!
Article 97 describes: the people’s rights; conservation as a public purpose; authority to enact legislation;
power to purchase or take by eminent domain for conservation; and the 2/3 requirement for release.
Background
Massachusetts’ first Constitution, passed in 1780, included provisions for the taking of private land at Article
10. In 1918, an Amendment to the Massachusetts Constitution was passed specifically referring to
conservation as a public purpose. The current Article 97 Amendment to the Massachusetts Constitution, filed
by Senator Robert D. Wetmore, originally of Gardner, MA, was passed by voter referendum in November
1972.
Purposes
"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…
of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a
public purpose.”
Applies To:
State land
State CRs, APRs, HPRs, and WPRs pursuant to MGL Ch 184, sec 32
(Permanent Conservation, Agricultural, Historic, and Watershed Restrictions)
County Land
Land with a Public Property Interest (What about a nonprofit CR paid for with CPA Funds?)
(Land where public conservation funds used to purchase, improve, or maintain?)
Does Not Apply To:
Land Trust Land
Land Trust CRs
Making of Revocable Leases on State or Municipal Land for a Use Consistent with Article 97
Process to Release Article 97
A Bill is Filed by Any Legislator or the Governor
A Hearing is held by the Joint Committee on Local Affairs
The Committee reports out its findings and recommendation
Role Call Votes are taken in the House and Senate
2/3 Vote Required for:
Change of Use
For Water Supply Purposes to Recreation
For Conservation to Utility use
Disposition
Transfer to a new, but inconsistent (non-Article 97), use
Transfer to a different authority or Agency – even if use remains the same
Transfer from Public to Private Ownership or Control
--Article 97 Summary for a Town Conservation Commission - From Irene Del-Bono, MA DCS, 12/05/12
Any property interest taken, acquired for, or dedicated to any of the purposes listed in
Article 97, regardless of whether the acquisition was 100 years ago (pre-Article 97) or last week, is Article
97 land.
Land taken or acquired for other purposes that is dedicated to any of the Article 97 purposes, or
that is put under an entity whose purposes are, or who will use the property interest for, Article 97 purposes,
is Article 97.
A grant doesn’t make the land Article 97 – it is the requirement to dedicate the land to conservation or open
space or water supply protection or town forest or any of the other Article
97 purposes that creates the protection.
Conservation Commission land by definition is Article 97, as they can only hold property interests for
conservation and passive recreation purposes. No other language is necessary in the deed or vote.
Property interests held by non-Article 97 entities, such as the Selectmen, are more involved.
Did the vote to acquire the land state it was for a particular purpose? If so, and it was for conservation
or another Article 97 purpose, it is Article 97…most times (provided the terms of the vote were complied
with, at least substantially).
If town meeting said the land would be devoted to conservation upon the granting and recording of a
deed to the ConCom, and no grant or deed was ever recorded, then it is not Article 97 until the occurrence of
those requirements.
But, if the town meeting vote says the land is to be put under the ConCom, the town never directly
puts it under the ConCom, but the ConCom shows it on its maps, lists it as one of its properties, maintains it,
holds events on it, or uses its Conservation fund for acquisition or any of the maintenance or other activities,
the courts have held that “substantially complies” with the town meeting vote and the land is therefore
Article 97.
Was it a gift to the town with specific language saying it was for conservation? Most likely Article 97
(depending on what the language is and if it included other purposes).
Any GOVERNMENTALLY OWNED property protected by a CR is Article 97 because the government has
dedicated the land to conservation by placing a CR on it.
Any GOVERNMENTALLY HELD CRs are Article 97, even if over private lands.
Notice I capitalized GOVERNMENTALLY? Privately owned land with a CR held by a private land trust
(not the government) is generally not considered Article 97, which applies only to government property
interests.
This is a very brief outline, which of course cannot cover every situation or varying details, but it will give
you a brief overview (and hopefully, save you from reading all those deeds and town meeting votes and
anything else if, for instance, the land is under the ConCom, you need go no further).
I am sure many people will jump in with all kinds of caveats (I have a few dozen I can think of right off the
top of my head) but that only underscores the complexity of Article 97, which even as many years as I have
been immersed in it, I still have to go back and check the Constitutional provision, the common law
interpreting it, the language of the votes and documents, the uses immediate prior to or thereafter the votes
and acquisitions (for instance, there is a law that if used for certain purposes for 20 years, it becomes Article
97…if the land was not previously devoted to another use).
--Resources
L. Youngblood, Land Matters Regarding the Pipeline powerpoint slides, November 13, 2014
Atty. Michael Pill legal memo on behalf of Mount Grace, May 21, 2014
Atty. Jonathan Bockian, Amending MA conservation and Preservation Restrictions, ©2013
MassAudubon Testimony to Natural Resources Committee, March 22, 2011
Ellen Anderson, This Land was Your Land, circa 2005
EOEEA Article 97 Land Disposition Policy, February 19, 1998
Full text, Article 97 of the Massachusetts Constitution, 1972
Partial List of Conserved Land in Pipeline Route in Mount Grace Service Area *Article 97
*Montague Plains Wildlife Management Area
*Jaworski, Forest Legacy CR, Northfield
*Northfield State Forest
*Warwick State Forest
*Tully Mountain Wildlife Management Area
*Lawton State Forest
*Millers River Wildlife Management Area
*Royalston State Forest
*Winchendon State Forest
MassAudubon’s Cheshire Pond Sanctuary, Ashburnham
Mount Grace’s Ladner- Bruso CR
Mt. Hunger Conservation Area, Ashburnham
The Bottom Line
We must educate All Legislators across the state about these requirements – in person, preferably!
We Need:
14 of 40 MA Senators and
54 of 160 MA Representatives
To pledge to vote NOT to compromise Article 97 land
To override Art 97 MA Senate: 27 of 40 = 2/3 needed
To override Art 97 MA House: 107 of 160 = 2/3 needed
(or 2/3 of those present for the vote)
Prepared by Leigh Youngblood, Mount Grace Lland Conservation Trust for a presentation to North Quabbin Energy, November 13, 2014