Court rules cities can't use parkland for other purposes - unless they get approval from the legislature

The Supreme Judicial Court ruled today that cities that want to tear down parks to put up schools or other buildings have to first get the approval of the state legislature.

A significant piece of the ruling consists of the justices considering how the situation in Westfield - where a school was proposed to replace a playground - differed from that of Boston's Long Wharf, where the BRA/BPDA wants to convert a large open-air shelter currently open to the public into a restaurant.

The state's highest court ruled that land that was originally meant as permanent parkland was subject to a 1972 constitutional amendment on protecting open space - which states that the legislature must approve any proposal to convert parkland to another use.

Westfield had argued that the measure only applied to land taken by eminent domain - and the park in question had been acquired because the previous owner didn't pay taxes on the land, not because the city forced him to sell. The justices, however, ruled the intent of the 1972 referendum was clear: Public open space is public open space, regardless of how acquired, as long as everybody's clear the land was meant for - and used - as a park.

In their ruling, the justices said this was the key difference from its 2012 decision on Long Wharf: While the kiosk - which covers a Blue Line emergency exit - had essentially become public open space, the BRA had never said it planned to set the kiosk aside as open space forever, but was, in fact, preserving it for some possible future use related to the redevelopment of what was once a decaying wharf area along Boston Harbor.

At the time it issued a ruling, the SJC had no evidence that the BRA had actually agreed to keep the part of the wharf including the kiosk as permanent open space - because, surprise, the BRA had lost a map that outlined the kiosk as part of that area in an agreement with the federal government for a grant to help repair the wharf.

A few years later, two retired National Parks Service workers read about the issue and dug up a copy of the map. Last year, a federal appeals court ruled the kiosk could not be turned into a private restaurant based in large part on that map.

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    Comments

    Adam,

    By on

    Adam,
    any thoughts on how this plays into the Brookline issue with the 9th elementary school. They are now looking into taking land from Pine Manor by eminent domain.

    I'm not a lawyer, but ...

    By on

    I don't think this decision says anything about that proposal, because it doesn't say anything about the ability of communities to use eminent domain, except very indirectly and very specifically in the case of land taken by eminent domain for a park, which the court said could not be repurposed (but the court seemed to consider that issue already settled; the ruling today was really about land obtained by means other than eminent domain).

    But again, I'm not a lawyer, so anybody who is, please feel free to correct me if I'm wrong.

    Any new rulings about open

    By on

    Any new rulings about open space will complicate all future development around open space... in the case of Brookline, is that green space actually open public space or is it space that is only used by the school? For it to be considered public open space I assume there would have to be a long running usage of it by the public and the institution would have to show that they did not make attempts to remove people from the space. Otherwise it is just a giant lawn.

    If I were the college I would begin digging through my photo files to find pictures of residents enjoying the space. On the other hand though, if they went to sell the land at a later date after establishing it as public open space would that then get them caught up in a web on the town side where the town rejects permits because they don't want to lose defacto open space.

    As I said, I am not a lawyer, but I follow this stuff enough to know that any attempt to capitalize on this in a fight could result in making it impossible to cash out on the land later.