On February 10, 2023, the Public Land Preservation Act (PLPA), Chapter 274 of the Acts of 2022, (M.G.L. Ch. 3 §5A), went into effect. It both codifies existing practices and creates new obligations that public entities in the Commonwealth must follow to dispose or change the use of interests in land protected by Article 97 of the Massachusetts Constitution.
Article 97 provides:
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, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose. … Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court. (Emphasis added.)
Since Article 97 was approved in 1972, its interpretation has been shaped by Opinions of the Attorney General, judicial decisions, and policies of the Executive Office of Energy and Environmental Affairs (“EEA”). PLPA now codifies the steps that a public entity must take before disposing of or changing the use of Article 97 protected property.
The PLPA draws heavily on EEA’s 1998 Land Disposition Policy, which includes the following requirements for a disposition or change of use:
- There exists no feasible or substantially equivalent option.
- The disposition does not destroy or threaten a unique or significant resource.
- Real estate of greater or equal value is granted to the disposing public entity.
- The disposition involves the minimum acreage necessary for the proposed use, and the land’s resources continue to be protected to the maximum extent possible.
- The disposition serves a public purpose.
- The disposition is not contrary to the express wishes of the party who donated or sold the land to the state.
The PLPA turns much of the EEA’s draft policy into law and adds more procedure and substance. PLPA requires that a public entity:
- Notify the public and the EEA and conduct an alternatives analysis demonstrating the absence of a feasible or substantially equivalent alternative.
- Submit the analysis to EEA and make the analysis public.
- Identify replacement land or an interest in land in comparable location that is of equal or greater natural resource value and acreage and monetary value, as determined by an independent appraisal.
- Take or dedicate the replacement land in perpetuity for Article 97 purposes.
The PLPA allows a public entity to “provide funding in lieu of or in combination with replacement land,” so long as the following conditions are met:
- The proposed disposition serves a significant public interest.
- Disposition will have no adverse impacts on an environmental justice population.
- The alternatives analysis has been submitted to the EEA and subject to public notice and comment.
- EEA has prepared a report to the legislature that verifies the foregoing.
- It is not feasible to contemporaneously designate replacement land.
- The amount of funding provided is not less than 110% of the fair market value or value in use of the Article 97 land.
- The funding is held in a segregated account and is held in a fund specifically for acquiring Article 97 land.
- The funds are used within three years to acquire replacement land in a comparable location and is dedicated in perpetuity for Article 97 purposes.
A public entity’s petition to the legislature to dispose or change the use of Article 97 property must be accompanied by the alternatives analysis, identification of replacement land (if applicable), the appraisal, and the report from EEA (if applicable).
More specific requirements may be forthcoming. PLPA also requires that regulations be enacted under the PLPA no later than August 17, 2024. In the meantime, EEA is continuing to develop guidance and procedures to be used under PLPA and has indicated its intention to update the 1998 Land Disposition Policy.