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Public Lands Preservation Act Codifies EOEEA Policy and Article 97 “No Net Loss” Featured

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Squannacook River, Townsend, MA Squannacook River, Townsend, MA ©2023 - Kimo Lee/Azurelink

Article 97 of the Amendments to the Massachusetts Constitution, approved by the voters in 1972, established a right to a clean environment including its natural, scenic, historical, and aesthetic qualities for the citizens of the Commonwealth.   

Equally important, it declared the conservation of natural resources a public purpose and provided that any land, an easement, or interest in real property protected by Article 97 shall not be used for another purpose or disposed of without a two-thirds roll call vote of both houses of the Legislature.

Article 97 requires this for land held by a public entity of state, regional or county government, or several other types of governmental authorities and districts, originally taken or acquired (or subsequently dedicated) for natural resources purposes, if it is to be transferred and/or converted to a different use. There are some specific but limited exceptions. 

An Act Preserving Open Space in the Commonwealth, known as the Public Lands Preservation Act (PLPA), was enacted in November 2022 and is already effective, establishing formally the process and criteria for submitting these “Article 97 bills” to the Legislature to authorize a new use and/or disposition.

This article will acquaint affected public and private landowners, land managers, facility operators, boards and agencies, and legal counsel involved in transactions, permitting and legislation with the new obligations for this high-level state agency and legislative approval.

The obligations, in summary, include a written notification to the public and the Commonwealth, finding of necessity, alternatives analysis, replacement land, funding arrangements, any proposed funding-in-lieu of replacement, natural resource report, appraisal report, any waivers sought, approvals by public agencies, and submission of the authorizing legislation with some of that documentation to accompany it.

Origin

The PLPA was first proposed over 20 years ago to strengthen and codify the state-announced goal of No Net Loss, which had been set by administrative policy, generally providing that Article 97 land to be transferred or changed as to use must be replaced with land of equivalent financial and natural resource value. The Executive Office of Energy and Environmental Affairs (EEA) issued and oversaw implementation of that policy. 

Finally enacted after many years of trying, the PLPA’s core provisions provide clarity, consistency, transparency, and compliance measures to achieve No Net Loss by building on that existing administrative process. A provision added to the PLPA in the year it was finally passed allows cash payments or other financial arrangements in lieu of designating replacement land to be permanently conserved. This payment-in-lieu of replacement land was and is sure to be important and controversial in implementation. 

Effective Date

The PLPA took effect 90 days after enactment on November 17, 2022. As the Act did not have an emergency preamble, this means it took effect on February 15, 2023. Therefore, it seems that the basics of the PLPA apply today, in accord with a comprehensive Guidance which EEA issued in February 2023.  In our opinion, the procedures and standards in the PLPA apply to any transfers and new uses which had NOT been authorized already by Article 97 legislation enacted by February 15. 

This assumes, to us, that an already authorized transfer or new use did meet the existing EEA Land Acquisition Appraisals standards and EEA Article 97 Land Disposition Policy. There may or may not be some projects, therefore, caught in limbo. Regulations to further implement the PLPA are due from EEA within 18 months of enactment. These rules may deal with vesting of Article 97 Actions caught in the pipeline.

Requirements

The PLPA is remarkably short. It adds to G.L. Chapter 3 a new Section 5, excerpted here and in full as an appendix:

“Section 5A.  (a) In order to use for another purpose or otherwise dispose of land, an easement or other real property interest subject to Article XCVII of the Amendments to the Constitution of the Commonwealth, a public entity … shall: 

(i)(A) notify the public and the secretary of energy and environmental affairs and conduct an alternatives analysis demonstrating that all other options to avoid or minimize said Article XCVII disposition or change in use have been explored and no feasible or substantially equivalent alternative exists; and (B) submit the analysis to the secretary of energy and environmental affairs and make the analysis public; (ii) identify replacement land or an interest in land, which is not already subject to said Article XCVII in a comparable location and that is of equal or greater natural resource value, as determined by the secretary of energy and environmental affairs, and acreage and monetary value, as determined by an appraisal of the fair market value or value in use, whichever is greater; and (iii) take, acquire or dedicate the replacement land or interest in said land identified pursuant to clause (ii) in perpetuity for said Article XCVII purposes.”  

A public entity is defined as including “the commonwealth, any agency, authority, board, bureau, commission, committee, council, county, department, division, institution, municipality, officer, quasi-public agency, public instrumentality or any subdivision thereof.”

The EEA Secretary may waive or modify the replacement land requirement if “the disposition involves only the transfer of legal control between public entities as described in this subsection and does not involve any other change, including, but not limited to, a change allowing the land to be used for another purpose; or … the transfer is of a parcel that is of insignificant natural resource and recreation value and is less than 2,500 square feet in area and the transfer serves a significant public interest.”

A public entity “may provide funding in lieu of replacement land, or a combination of funding and replacement land or an interest in land” if the EEA Secretary “has reported to the legislature an explicit finding” that: the proposed change in use or disposition serves a significant public interest; the proposed change in use or disposition will have no adverse impacts on an environmental justice population, as defined; the alternatives analysis “demonstrates that all other options to avoid or minimize the disposition or change in use have been explored and no feasible or substantially equivalent alternative exists for reasons specifically stated;” and “it is not feasible to contemporaneously designate replacement land that satisfies the requirements….”

If a public entity provides funding in lieu of or in combination with replacement land, there are several conditions that shall attach: the amount of funding provided shall be not less than 110 per cent of the fair market value or value in use whichever is greater, as determined by the EEA Secretary after an independent appraisal; the funding provided to change the use of or otherwise dispose of municipal land shall be held in the municipality’s Community Preservation Fund and dedicated solely for the acquisition of land for Article 97 purposes or another already established municipal account for land preservation purposes or, if the municipality lacks a CPA fund, in a segregated and dedicated Article 97 land preservation fund; state land shall be held in a fund for acquiring Article 97 land; and the funds mentioned shall be used within 3 years to acquire replacement land in a comparable location and dedicated in perpetuity for Article 97 purposes. 

There is a proviso that replacement lands acquired with in lieu funds shall be of equal or greater natural resource value, as determined by the EEA Secretary and acreage and monetary value, as determined by an independent appraisal of the fair market value or value in use, whichever is greater. The EEA Secretary is to file a detailed report with the Legislature each year regarding the in-lieu-of projects. 

Previous Process

Since 1972 when Article 97 was enacted, proponents filed their authorizing bills directly with the Legislature, usually sponsored by a local representative or senator, to describe the land, acknowledge the current use, state the intended new use, and clearly authorize the change. This process built on the earlier Public Use Doctrine, which still applies to many changes in use in all types of public lands. 

Studies and anecdotal evidence over the years showed that roughly 16 to 20 Article 97 bills passed each year. Typically, they dealt with municipal changes or exchanges involving parkland, forest, open space, or water supply land for some public project like a school or DPW use, private development, city or town building, residential project, and the like. Some bills were about state or occasionally county changes or exchanges involving parks, forests, reservations, monuments, historic sites, lakes, ponds, rivers or the ocean. 

In more recent years, the EEA issued a set of Appraisal standards and a Land Disposition Policy, which made the process more formal for those bills which came to the attention of EEA, or for those projects which proactively sought clearance by the agency. 

In some cases, this proponent is the public entity with care and control of the Article 97 land. However, many proposals to dispose or change the use of Article 97 land are made by public or private parties other than the public entity with care and control of the land. 

In such cases, the party seeking the disposition or change in use (the proponent) is expected to submit required information (including documentation of consultation with the public entity with care and control of the land) and undertake other actions necessary for the disposition or change in use to comply with the PLPA.  

PLPA Portal 

A “PLPA Portal” was created by EEA in February 2023 to streamline the newly codified PLPA submission process by providing an online tool for the agency to accept required documents including the alternative analyses, facilitating compliance with the PLPA’s public notice requirement.

The Portal presents the existing EEA “Land Acquisition Policy—Appraisals”, dated January 2015, and the EEA “Article 97 Land Disposition Policy”, dated February 1998, also known as the No Net Loss policy, noting that a new draft of the Policy is being prepared to be consistent with the new Act.

Proponents must use the PLPA Portal to notify EEA of proposed Article 97 Actions and to make submissions required under the Act.

New Procedure

Prior to making any submission, proponents must engage in discussions with the public entity with care and control of the involved Article 97 land. Submissions via the PLPA Portal also must include information needed for EEA, the public entity that has care and control of the Article 97 land, and the Legislature to review proposed Article 97 legislation, such as documentation of the location and ownership of the affected and replacement land. 

The information required will vary based on the type of project and the materials available to the proponent. The Portal guides users through a series of fields that gather required information. EEA will review submissions to determine consistency with the PLPA and with the Article 97 existing and eventual expected new Policy. 

Based on this review, the Secretary will make requested determinations and findings on waivers, modifications, and in lieu funding proposals. EEA will post on the PLPA website all waivers or modifications granted by the Secretary and all findings reported to the Legislature on proposals to provide funding in lieu of replacement land. 

These determinations or findings, the Guidance states, shall not be construed as support for the proposed disposition or change of use by EOEEA or the public entity with care and control of the Article 97 land, or such public entity’s agreement with the determinations or findings, or the proposed Article 97 Action.

New Guidance

In the PLPA Portal is a document entitled “Guidance on Public Lands Preservation Act Implementation.” This document is intended to aid the public in understanding and complying with the new law. It states, however, that this Guidance is not to be construed as encouraging the use for another purpose or disposition of land protected by Article 97, it is not to be relied on, does not create any enforceable right, and cannot construed to create a right to judicial review, but nonetheless the EEA and its agencies will not authorize, approve or support a change in use or disposition unless in accordance with the Article 97 Policy. 

Changes in use or disposition of land, easements, or interests in land subject to Article 97 are termed Article 97 Actions, and the PLPA applies to these: transfer or conveyance of ownership or another property interest, whether by deed, easement, lease or any other instrument effectuating such transfer or conveyance; change in physical or legal control; or change in use of the land. 

EEA does not consider the issuance of a revocable permit or license of limited duration a disposition of land subject to Article 97 or the PLPA, provided that: no interest in land is transferred to the permittee or licensee, and the permit or license does not authorize a change in use of the land. 

EEA Consultation

EEA offers a consultation method for those who wonder. EEA policy, legal, and legislative staff will collaboratively answer questions regarding Article 97 Actions. A dedicated email address, This email address is being protected from spambots. You need JavaScript enabled to view it., has been established to accept requests for assistance. All PLPA related inquiries are properly directed to this address including: questions on the use of the PLPA Portal, the application itself, the status of a submission, or the availability of information on PLPA submissions; policy oriented or substantive questions about Article 97; and technical questions around the proper drafting of PLPA legislation.

Appendix

AN ACT PRESERVING OPEN SPACE IN THE COMMONWEALTH

SECTION 1.  Chapter 3 of the General Laws is hereby amended by inserting after section 5 the following section:-

Section 5A.  (a) In order to use for another purpose or otherwise dispose of land, an easement or other real property interest subject to Article XCVII of the Amendments to the Constitution of the Commonwealth, a public entity, which for the purposes of this section shall include the commonwealth, any agency, authority, board, bureau, commission, committee, council, county, department, division, institution, municipality, officer, quasi-public agency, public instrumentality or any subdivision thereof shall: (i)(A) notify the public and the secretary of energy and environmental affairs and conduct an alternatives analysis demonstrating that all other options to avoid or minimize said Article XCVII disposition or change in use have been explored and no feasible or substantially equivalent alternative exists; and (B) submit the analysis to the secretary of energy and environmental affairs and make the analysis public; (ii) identify replacement land or an interest in land, which is not already subject to said Article XCVII, in a comparable location and that is of equal or greater natural resource value, as determined by the secretary of energy and environmental affairs, and acreage and monetary value, as determined by an appraisal of the fair market value or value in use, whichever is greater; and (iii) take, acquire or dedicate the replacement land or interest in said land identified pursuant to clause (ii) in perpetuity for said Article XCVII purposes. Upon request of a public entity seeking to use for another purpose or otherwise dispose of land, an easement or another real property interest subject to said Article XCVII, the secretary of energy and environmental affairs may waive or modify the replacement land requirement pursuant to clauses (ii) and (iii) of the first sentence if: (A) the disposition involves only the transfer of legal control between public entities as described in this subsection and does not involve any other change, including, but not limited to, a change allowing the land to be used for another purpose; or (B) the transfer is of a parcel that is of insignificant natural resource and recreation value and is less than 2,500 square feet in area and the transfer serves a significant public interest.

(b)(1)  Notwithstanding clause (iii) of subsection (a), a public entity seeking to change the use of or otherwise dispose of land subject to Article XCVII of the Amendments to the Constitution of the Commonwealth may provide funding in lieu of replacement land, or a combination of funding and replacement land or an interest in land, if the secretary of energy and environmental affairs has reported to the legislature an explicit finding that: (i) the proposed change in use or disposition serves a significant public interest; (ii) the proposed change in use or disposition will have no adverse impacts on an environmental justice population, as defined in section 62 of chapter 30 of the General Laws; (iii) the alternatives analysis required by said subsection (a) has been submitted to the secretary of energy and environmental affairs and subjected to public notice and comment and said analysis demonstrates that all other options to avoid or minimize the disposition or change in use have been explored and no feasible or substantially equivalent alternative exists for reasons specifically stated; and (iv) it is not feasible to contemporaneously designate replacement land that satisfies the requirements of said subsection (a).

(2)  If a public entity provides funding in lieu of or in combination with replacement land, the following conditions shall be met: (i) the amount of funding provided shall be not less than 110 per cent of the fair market value or value in use of the Article XCVII land, whichever is greater, as determined by the secretary of energy and environmental affairs after an independent appraisal; (ii) the funding provided to change the use of or otherwise dispose of: (A) municipal land shall be held in the municipality’s Community Preservation Fund and dedicated solely for the acquisition of land for Article XCVII purposes or another already established municipal account for land preservation purposes or, if the municipality lacks such a fund, in a segregated account and dedicated solely for the acquisition of land for Article XCVII purposes; and (B) commonwealth land shall be held in a fund for acquiring Article XCVII land; and (iii) the funds shall be used within 3 years to acquire replacement land in a comparable location and dedicated in perpetuity for Article XCVII purposes; provided, however, that replacement lands acquired with in lieu funds shall be of equal or greater natural resource value, as determined by the secretary of energy and environmental affairs, and acreage and monetary value, as determined by an independent appraisal of the fair market value or value in use, whichever is greater.

(3)  The secretary of energy and environmental affairs shall annually issue a report of all of the instances in which funding was provided in lieu of replacement land in exchange for a change in the use of or disposition of an interest in land taken, acquired or designated for purposes pursuant to Article XCVII of the Amendments to the Constitution of the Commonwealth including the amount of funds provided, the account into which the funds were deposited, whether the funds were expended to acquire replacement land and, if so, a description of the land that was acquired.  Said report shall be submitted annually not later than December 15th to the clerks of the senate and house of representatives and made available on the executive office of energy and environmental affairs’ website.

(c)  A petition to the general court to authorize the use for another purpose or other disposition of land, an easement or another real property interest subject to Article XCVII of the Amendments to the Constitution of the Commonwealth shall be accompanied by: (i) an alternatives analysis conducted pursuant to subsection (a); (ii) a description of the replacement land or interest in land to be dedicated pursuant to said subsection (a), if not waived pursuant to said subsection (a); (iii) a copy of the appraisal required by said subsection (a); (iv) a copy of any waiver or modification granted pursuant to said subsection (a); and (v) if applicable, a copy of the report of the findings of the secretary of energy and environmental affairs required by paragraph (1) of subsection (b). 

SECTION 2.  The secretary of energy and environmental affairs shall promulgate regulations to implement subsections (a) and (b) of section 5A of chapter 3 of the General Laws within 18 months after effective date of this act.

Approved, November 17, 2022

Effective, February 15, 2023.

Read 1786 times Last modified onSunday, 04 June 2023 11:14
Gregor I. McGregor, Esq.

GREGOR I. McGREGOR, Esq. is the founder of New England’s oldest environmental law firm McGregor & Associates, PC in Boston, formed in 1975 and now McGregor Legere & Stevens,PC (formerly McGregor & Legere PC). The firm handles all aspects of environmental law, land use, real estate, and related litigation. The firm is a founding member of the Environmental Law Network (ELN), an alliance of specialty law firms, in the United States and abroad, sharing their legal expertise and practical experience for the benefit of their clients. Mr. McGregor enjoys Martindale-Hubbell’s highest rating for attorneys (AV).

In 45 years of environmental practice, Mr. McGregor's cases in court broke new ground in the law of Environmental Impact Statements under the National Environmental Policy Act (NEPA) and Massachusetts Environmental Policy Act (MEPA), wetland and floodplain protection under the Massachusetts Wetlands Protection Act, hazardous waste cleanup liability and cost-recovery under the Massachusetts Superfund, reduced taxes and tax exemptions for qualified land conservation transactions, constitutional protections for open space and parkland, Home Rule environmental ordinances and bylaws of cities and towns, law enforcement and contempt remedies, and the constitutional doctrine of Regulatory Takings.

Before 1975, Mr. McGregor was an Assistant Attorney General of Massachusetts and the first chief of the Attorney General’s Division of Environmental Protection. In that capacity he advised and represented the Commonwealth during the formative years of Massachusetts environmental statutes, agencies, regulations, enforcement and cases in court.

Mr. McGregor is editor of the two-volume treatise on Massachusetts Environmental Law, published by Massachusetts Continuing Legal Education, Inc.(MCLE). He is co-chair of MCLE’s annual Environmental, Land Use, and Energy Law Conference and MCLE’s Real Estate and Environmental Law Curriculum Advisory Committee. He received from MCLE in 2013 its Scholar-Mentor Award recognizing his dedication to legal scholarship and leadership.

Mr. McGregor chairs the Environmental Committee of the Real Estate Bar Association for Massachusetts (REBA) and serves as a member of the REBA Board of Directors. He is an active member of the Massachusetts Municipal Lawyers Association (MMLA), which honored him for his career contributions to legal education and effective advocacy on the Home Rule Doctrine. At the National CLE Conference in Vail, CO, Mr. McGregor co-chairs an annual seminar on Environmental Law, Land Use, Energy & Litigation for attorneys from across the United States.

Mr. McGregor is a long time member of the board of directors of the Massachusetts Association of Conservation Commissions (MACC) having served as Board President twice. He has handled several cases for MACC as amicus and is a regular presenter at their annual meeting.

Mr. McGregor is a graduate of Dartmouth College and Harvard Law School.

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