Public Parks in Massachusetts – Here Today, Gone Tomorrow?

Posted on March 10, 2017 by Mary Ryan

The Massachusetts Supreme Judicial Court (SJC) will soon decide how hard or easy it is to sell or change the use of public parks. Article 97 of the Massachusetts Constitution provides that the “people shall have the right to clean air and water . . . and the natural, scenic, historic, and esthetic qualities of the environment” and protects “the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources  . . . .” Under Article 97, any change in use or disposal of lands taken or acquired to protect such rights requires a two-thirds vote of the state legislature.

In its most recent pronouncement on Article 97, the SJC held that it did not apply to block the Boston Redevelopment Authority (BRA) from building a waterview restaurant and bar at the end of Long Wharf in Boston Harbor. Project opponents argued that the land was subject to Article 97 and that issuance of a key development permit was a use or disposition requiring a two-thirds legislative vote.

The BRA took the land by eminent domain in 1970 pursuant to an urban renewal plan which had, as one of fifteen goals, providing “public ways, parks and plaza which encourage the pedestrian to enjoy the harbor and its activities.” While this goal is consistent with Article 97, it is also incidental to the overall goal of urban renewal; thus, the land was not taken for Article 97 purposes. Nor did the SJC find any subsequent evidence that the land was later designated for those purposes, with the SJC strongly suggesting that only a recorded restriction would be sufficient to do so. That would have put everyone on notice that Article 97 applied and legislative action was necessary for a change of use. The SJC did note in dicta that in some cases, “the ultimate use to which the land is put may provide the best evidence of the purposes of the taking. . . .”

Fast-forwarding to 2016, the City of Westfield so far has prevailed in its efforts to use a playground as the site for a new school building, without a legislative vote approving the change in use. This is a fairly typical example of how the issue often arises in cities and towns strapped for cash or available land. The City acquired the land by tax forfeiture in 1939 and dedicated it for use as a playground through a City ordinance in 1957. And in 2010, the City endorsed an open space and recreation plan that included the playground as open space. But no formal Article 97 designation or restriction was ever recorded. The Massachusetts Appeals Court ruled in favor of the City, but there was a concurring opinion from one of the members of the three judge panel (coincidentally the former head of the Environmental Protection Division of the Office of the Massachusetts Attorney General). While constrained to follow SJC precedent, Justice Milkey noted that often there is a murky past on how public land came to be used for parks or other recreational use and that requiring an instrument of record “threatens to reduce art. 97 to near irrelevancy. . . .”

The SJC granted further appellate review and will hear the case in April. Amicus briefs were requested and many are expected. There is considerable interest in the outcome of the case, including from the Attorney General’s Office, municipalities and conservation groups. 

PS:  As it happens, there won’t be a restaurant and bar at the end of Long Wharf anytime soon, at least according to the latest word from the courts. As part of the urban renewal development in the 1960s and 1970s, the BRA used federal funding from the Land and Water Conservation Fund (LWCF) to acquire a certain portion of Long Wharf. Land acquired or developed with LWCF money may not be converted from public outdoor recreational use without National Park Service (NPS) permission. After the SJC decision, with the help of a tip from two former employees, NPS found a map showing the restaurant would be on the parcel acquired with LWCF money. The First Circuit Court of Appeals recently ruled against the BRA, hoping to end the “long war for Long Wharf.”

Coincidentally, LWCF money, channeled through a state program which provided that use of LWCF money triggers Article 97, was used to improve the Westfield playground in 1979. But the Massachusetts Appeals Court held that the state agency restriction was trumped by the SJC interpretation of the Massachusetts constitution. This is yet another issue in the pending appeal.

PFCs - Still An Emerging Contaminant?

Posted on April 13, 2011 by Mary Ryan

I ran across perfluorinated chemicals (PFCs) as a site contaminant of concern for the first time last year when EPA required further assessment for PFCs at a site that was about to be closed out with no further action. I wanted to learn more about them and thought you might too, if this was a new acronym for you as well. PFCs have been used in a wide range of products, including consumer goods like Teflon, Scotchgard and Gore-Tex. PFCs consist of only carbon and fluoride. They are often referred to as “emerging contaminants” by EPA officials (from the National Exposure Research Laboratory and Office of Superfund Remediation and Technology Innovation) and others. Two of the most common PFCs are PFOS (perfluorooctane sulfonate) and PFOA (perfluorooctanoic acid, also known as C8). PFOS is no longer manufactured in the United States and PFOA is the subject of EPA’s 2010/2015 PFOA Environmental Stewardship Program, under which the phase-out of PFOA manufacturing by eight major companies is targeted for 2015.


PFCs have garnered world-wide attention over the last few years because of their prevalence and persistence. According to an expert I consulted, in the last two years there have been more than twenty papers on PFCs published in Environmental Toxicology and Chemistry, the journal of the Society of Environmental Toxicology and Chemistry. One environmental watchdog group suggests PFCs are “destined to supplant DDT, PCBs, dioxin and other chemicals as the most notorious, global chemical contaminants ever produced.” 

While not on the Hazardous Substance List, EPA has been actively dealing with PFCs since 2000, as described in the December 30, 2009 TSCA Action Plan for PFCs. There, EPA reported that while PFCs are found world-wide in the environment, wildlife and humans, significant adverse human health effects have yet to be found, though there is evidence of adverse effects in wildlife and laboratory animals. EPA is concerned about possible future human health effects. Further regulatory action under TSCA is expected in 2012. 

Earlier in 2009, the EPA Office of Water issued Provisional Health Advisories for PFOA and PFOS. EPA’s Office of Solid Waste and Emergency Response then developed toxicity values, which can be used as the basis for cleanup levels and risk-based screening levels in water and other media. As a result, sites where no hazardous substances had been found, or where known hazardous substances were remediated, may now need to be re-evaluated for PFOA and PFOS. Pending or completed property transfers may also be affected. Three states (New Jersey, Minnesota and North Carolina) have addressed levels of PFOS/PFOA in drinking water. 

Given the high level of interest in PFCs in the scientific community and the evolving regulation of PFCs, is it time to say PFCs have arrived as an environmental contaminant, though they may still be an emerging issue for environmental lawyers? More importantly, it remains to be seen how wide an impact the growing knowledge and increasing regulation of PFCs will have, at what cost, and where this should rank among priorities for federal and state regulation.