Category: Areas of Practice

A variety of state statutes and real estate tools deal directly or indirectly with preservation or enhancement of open space. We are working for many clients on open space issues and transactions at any given time.

Municipalities, many federal and state agencies and regional authorities may take by eminent domain, purchase or receive gifts of open space. They also may acquire less than fee interests, such as easements, covenants and other restrictions. One type of lesser interest, but very important in land conservation nationwide, is the conservation easement or conservation restriction.

The Conservation Restriction Act in Massachusetts was the first of its kind in the United States. It encourages and facilitates recordable, enforceable promises not to develop real property, commonly known as CRs, which is to be left substantially in its natural condition.  These CRs can be bought and sold, donated, or bequeathed.  The Act, G.L. c.184, §§31-33, governs the creation, legality and enforcement of CRs as well as Agricultural Preservation Restrictions (APRs) and Historic Preservation Restrictions (HPRs). By virtue of the Act, the municipal assessors are required to take account of the restrictions imposed when assessing a property.

Cities and towns can be party to conservation restrictions. These voluntary agreements are between the landowner and either a government body or qualified charitable organization, by with the owner covenants to keep land primarily in its undeveloped condition. The CR is in a recorded instrument following a form approved by EOEEA. It may run in perpetuity or a period of years. To be effective, a CR given to a city or town, or to a charity within the community, must be approved by the selectmen or city council.

Many individual statutes protect public properties.  These include parklands, playgrounds, city or town forests, cemeteries, and shore reservations. G.L. c.45, §§3, 14, 19, 21, and 23A.  Farmland, whether public or private, enjoys several protections.  Likewise, forests and trees are governed by specific laws (including the Public Shade Tree Act, G.L. c.87, §1; G.L. c.40, §40 and 15C).

The Scenic Mountains Act is applicable within Berkshire County only, allowing municipalities at local option to adopt the statute to regulate activities on land at higher elevations. G.L.c. 131, §39A.

In addition to the statutes governing such public properties or their open space characteristics, be sure to consult the provisions in the Massachusetts Constitution protecting public lands from ill-considered disposition or change in use.  This is Article 97 of the Constitutional Amendments. In effect, anyone seeking to alter the use of or grant, sell, or lease public land originally taken or acquired for natural resource purposes likely would need a bill drafted and passed by the legislature and signed by the governor.  Article 97 essentially codifies the public trust doctrine in Massachusetts.

In addition to these procedural requisites protecting public land at the constitutional level of the law, specific types of real estate and resources are governed by individual statues.  Many public lands are managed under these laws. These include:  

  • G.L. c. 45, §§ 1-13 (city and town parks);
  • G.L. c. 45, § 3 (parklands);
  • G.L. c. 45, § 14 (playgrounds);
  • G.L. c. 45, § 19 (public domain);
  • G.L. c. 45, § 21 (city and town forests);
  • G.L. c. 45, § 23A-23C (shore reservations):
  • G.L. c. 92, §§ 33-59 (urban parks and recreation lands);
  • G.L. c. 132 (state forests); and
  • G.L. c. 132A, §§ 1-18 (state parks).

The Community Preservation Act is G.L. c. 44B.  Any city or town may establish a special Community Preservation Act fund that may be appropriated and spent for certain open space, historic resources, and affordable housing purposes.  To establish a find, a community must accept the statute.  This requires a majority vote of town meeting or city council and voters at the next regular municipal of state election.

The primary source of revenue is a property tax surcharge of up to 3 percent that would be assessed on each parcel of taxable real estate within the community.  These amounts are not subject to the levy limitations of Propositions 2 ½.  The second source of revenue is matching distributions or the state’s Massachusetts Preservation Trust Fund, also created by the act.  For each fiscal year, the city or town must spend or reserve at least 10 percent of the annual revenues in the local funds for each of the statute’s community preservation purposes – open space, historic resources, and affordable housing.  Many cities and towns adopted the Community Preservation Act, imposing surcharges ranging from 1 percent to 3 percent.  Guidelines are available from the state Department of Revenue (DOR).

In addition to the Community Preservation Act, cities and towns may apply for a number of open space grants through the Division of Conservation Services (DCS) in the EOEEA.  Funds provided by these grants are intended for use in the acquisition, reacquisition, and renovation of open space DCS programs include the Massachusetts Parkland Acquisitions and Renovations for Communities Program (PARC), Massachusetts Land and Water Conservation Fund, and the Conservation Partnership Grant.

Please consider our firm as a candidate to assist with your needs relative to open space acquisition, transfer or protection.