Mass. SJC adopts “totality of the circumstances” test to determine whether municipal land is held for a specific purpose

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In its recent decision in Carroll v. Select Board of Norwell (pdf), the Massachusetts Supreme Judicial Court (SJC) reaffirmed that where town-owned land is held for a specific purpose, M.G.L. c. 40, § 15A dictates that it cannot be diverted to another inconsistent use until the “board or officer having charge” of the land determines it is no longer needed for that specific purpose. In so ruling the SJC added a test to determine whether such land is being held for a specific purpose. While past cases indicated that, in addition to a legislative act, a recorded instrument restricting the parcel’s use was required, Carroll clarifies that courts must examine the “totality of the circumstances” to determine if land has been held for a specific purpose.

In Carroll, residents of Norwell (the Town) – lobbied by neighbors of the Town land at issue – voted at the 2021 Town Meeting to transfer a Town-owned parcel to the Town’s conservation commission. However, back in 2004, Town Meeting had voted unanimously to make the land “available…for affordable housing.” The Select Board, after deciding by vote that the land was still needed for affordable housing purposes, refused to comply with the 2021 Town Meeting directive to transfer the land. Several residents brought a mandamus action to compel the Select Board to comply with the Town Meeting vote.

Before the SJC, a question remained as to what level of proof is required to demonstrate that land is held for a specific purpose. The court drew upon the common-law “prior public use doctrine,” which holds that public lands devoted to one public use cannot be diverted to another inconsistent use without “plain and explicit” legislation. Just as the prior public use doctrine underlies Article 97 of the Amendments to the Massachusetts Constitution, the court found that it also underlies c. 40, § 15A. Applying its reasoning in Smith v. City of Westfield (pdf) (see our coverage of that important 2017 decision here), the court found that the “totality of the circumstances” test applicable under Article 97 should also be applied to determine if land has been held for a specific purpose under c. 40, § 15A.

Applying the totality of the circumstances test, the SJC found that there was no material dispute of fact regarding the Town’s intent to dedicate the land to affordable housing, since it was undisputed that Town Meeting in 2004 voted unanimously to authorize the Select Board to make the land “available…for affordable housing.” The court reached this conclusion despite the fact that no restriction was recorded on the land’s title, in contravention of the court’s 2005 decision in Selectmen of Hanson v. Lindsay. In that case, the court held that a town meeting vote authorizing transfer to the conservation commission was not sufficient for the land to be held for a specific purpose without the filing of a deed restriction. The SJC in Carroll clarified that the Hanson decision “did not adopt… a bright-line rule requiring towns to file deed restrictions or transfer control of property to specific entities” to hold it for a specific purpose. Instead, finding the policy and reasoning underlying Article 97 and c. 40, § 15A to be identical, the SJC relied on its decision in Smith for the proper standard.

In applying the totality of the circumstances test, the court noted that the 2004 Town Meeting vote making the land “available for affordable housing” is not, on its own, sufficient to establish a “clear and unequivocal intent to set aside the land for affordable housing.” It was the Town’s additional steps of voting to establish an affordable housing trust to manage the land, hiring outside engineering consultants to advise on wetlands and stormwater, and hiring a firm to develop a conceptual project design—and the considerable public funds spent in those efforts—that supported the court’s finding that the Town intended to hold the land exclusively for affordable housing. The plaintiffs could not produce any evidence sufficient to dispute this fact.

In light of Carroll, when purchasing property from municipalities, buyers will need to look beyond title to ensure that the property they’re purchasing hasn’t been set aside for a specific purpose. In some cases, buyers may need to review Select Board and Town Meeting minutes to ensure that there was no intent to set the land aside for a particular purpose. If a town’s intent isn’t apparent in public records, additional steps must be taken to confirm that the land isn’t restricted under M.G.L. c. 40, § 15A and the prior public use doctrine, and that the municipality is free to sell it.

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