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New Rules to Change the Use or Dispose of Article 97 Land

On November 17, 2022, Governor Baker signed Chapter 274 of the Acts of 2022, An Act Preserving Open Space in the Commonwealth. The Act amends G.L. c.3, by adding a new section, 5A, governing the change of use or disposition of Article 97 land in the Commonwealth. Article 97 of the Massachusetts constitution applies to land taken or acquired for conservation and other natural resource purposes. A two-thirds vote of the Legislature is required before the Commonwealth or its political subdivisions can change the use or dispose of Art. 97 land. The Executive Office of Energy and Environmental Affairs has had a “no net loss” approach for the disposition of Art. 97 land, detailed in a February 19, 1998 policy, meaning that with limited exceptions, if land is removed from Article 97 protection, there must be protected new land of similar fair market or resource value. With the enactment of the Act, this policy to dispose of Art. 97 land is specifically detailed and enshrined in law in G.L. c.3, § 5A, and is applicable to all public entities as defined in Section 5A(a).

Pursuant to G.L. c.3, §5A(a), if a public entity seeks to dispose of Art. 97 land it must first notify both the public and the Secretary of Energy and Environmental Affairs and conduct an alternatives analysis to demonstrate that all other options to avoid or minimize disposing or changing the use of the land has been explored and is either not feasible or no substantially equivalent alternative exists. This analysis must be made public and submitted to the Secretary. Additionally, the municipality must identify replacement land or an interest in land that is not already subject to Art. 97. The land must be in a comparable location to the Art. 97 land and must be of equal or greater natural resource value, as determined by the Secretary. The acreage and monetary value of the replacement land must also be equal to or greater than the value of the disposal land. This is to be determined by an appraisal of the fair market value or value in use of the land, whichever is greater. The replacement land or interest in land must be taken, acquired, or dedicated in perpetuity for Art. 97 purposes. The Secretary can waive or modify the requirement to provide replacement land under the following circumstances: 1) the disposition is strictly a transfer of legal control over the Art. 97 land between public entities and no other changes to the land are proposed, including changes that would allow the land to be used for another purpose, or 2) the land to be transferred between public entities is less than 2,500 square feet in area, is of insignificant natural resource and recreation value, and the transfer serves a significant public interest.

The statute allows public entities to provide funding instead of replacement land or provide a combination of funding and replacement land, subject to the Secretary finding this to be a viable option. The Secretary must find that the proposed change in use or disposition of Art. 97 land serves a significant public interest and will have no adverse impacts on an environmental justice population. The Secretary must also find that the alternatives analysis has been submitted and subjected to public notice and comment, and that it demonstrates that there are no feasible or substantially equivalent alternative options available to avoid or minimize the disposition or change in use. Finally, the Secretary must find that it is not feasible for the public entity to contemporaneously designate replacement land that will satisfy the requirements G.L. c.3, §5A(a).

If a public entity opts for and justifies funding in lieu of replacement, it must provide funds that are at least 110% of the fair market value or value in use of the Art. 97 land, whichever is greater. This determination is made by the Secretary after an independent appraisal. If the Art. 97 land to be changed in use or disposed of is municipal land, the funds must be held in the municipality’s Community Preservation Fund or other similarly segregated account to be used solely for acquiring land for Art. 97 purposes within 3 years. As is the case with replacement land, the replacement land acquired with these funds must be of equal or greater natural resource value, as determined by the Secretary, and equal or greater acreage and monetary value, determined by an independent appraisal of the fair market value or value in use, whichever is greater.

Any petition submitted to the Legislature to dispose of Art. 97 land must be accompanied by the requisite alternatives analysis, a description of the replacement land or interest in land (if this requirement hasn’t been waived), a copy of the requisite appraisal, a copy of any waiver or modification granted by the Secretary, and, if applicable, a copy of the Secretary’s report of findings required by §5A(b)(1), relative to funding in lieu of replacement or the combination of funding and replacement land.

The Secretary must promulgate regulations to implement G.L. c.3, §5A(a) and (b) within 18 months after the effective date of the Act. We will inform you when those regulations are issued.


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