Protecting park lands: issues and conflicts

Proposals to use town-owned land in south Brookline for a new elementary school, near the intersection of Heath and Hammond Streets, have led to protests from neighbors and from Precinct 15 town meeting members. Between 1941 and 1960, the land hosted a private school: the Rivers School. Brookline bought parcels of land there for recreation and school uses in stages between 1871 and 1960–the last acquired when the Rivers School moved to Weston in 1960.

Brookline renamed the former Rivers School the Baldwin School and named adjacent land the Soule Playground. Baldwin and Soule have a total of 12.3 acres, larger than the site of any current Brookline elementary school. Baldwin space has been used for Brookline classrooms, most recently during Heath School renovation from 2011 to 2013. Buildings on the Soule portion have become the Soule Recreation Center, currently hosting early childhood education operated by the Recreation Department.

Park land controversy: Some Precinct 15 town meeting members have been trying to claim that Baldwin land, Soule land or both cannot be used for a new elementary school because they are restricted as park land under Article 97 of the Massachusetts constitution. Such claims are false; they run counter to standards well established in Massachusetts law.

In the current Assessor’s Atlas and Property Database, Baldwin land is shown as Block 432, Lots 20-24, property classification code 934. Soule land is shown as Block 432, Lot 08-00, property classification code 931. The classification codes mean town-owned land improved with buildings that is used for municipal or for school purposes.

The classification codes shown in the assessor’s data correctly reflect the purposes for which Brookline acquired the land and for which the land is actually used. Open space that might be eligible for Article 97 protections as park or conservation land would instead have classification code 930, 932 or 936.

Article 97: For many years, Brookline’s government officials seemed to assume that any town-owned land considered to be a park or a conservation reserve was protected against diversion to other uses under Article 97 of the Massachusetts constitution–adopted by voters in 1972. The “Article 97″ markers in Brookline’s online Web pages currently reflect such assumptions and are often unreliable. For example, according to its terms of acquisition, Dane Park is currently eligible for school uses.

Although Article 97 describes rigorous steps needed to remove protections, it does not specify how land enters into those protections. Brookline officials got a surprise when they encountered the issues while preparing for the November 17, 2015, town meeting. Article 6 for that town meeting proposed to extend Article 97 protections to most of Larz Anderson Park.

Once Advisory Committee members understood that much of Larz Anderson Park might not be protected and could be used for a school site, they became skeptical. By more than two to one, they opposed the town meeting article. It had been filed to support an application for state park-improvement funds. Just before the town meeting was to begin, the state turned down Brookline’s application, and the matter never came to a vote.

As other Massachusetts jurisdictions wrestled with Article 97 issues, lawsuits arose, with some going all the way to the Supreme Judicial Court. The decisions set standards for situations in which Article 97 is vague. There are two particularly notable cases: Board of Selectmen of Hanson v. Melody Lindsay, decided in 2005, and Mahajan v. Department of Environmental Protection, decided in 2013.

The two cases cited indicate basic steps needed for town-owned open space, in order to guarantee Article 97 protections. It must be designated as park or conservation land by an act of the town. Usually that means a town meeting vote, although a town meeting might delegate authority–for example, in a land taking. The land status must be recorded in a deed, typically as some form of deed restriction. Under Massachusetts standards, playgrounds are recreation uses, not open space. School uses and recreation uses do not qualify for Article 97 protections.

Social justice: In contrast to the current status of Baldwin and Soule land, Brookline has several town-owned parcels whose status is unclear and may need to be investigated and asserted. As those parcels are reviewed, the run-up to the November 17, 2015, town meeting has shown that local policies will need attention. Conflicts can arise. What may seem to some like environmental or neighborhood concerns can look antisocial and greedy to others who have different priorities, such as recreation or public schools.

Consider, for example, possible new protections for some of the Baldwin and Soule land in Precinct 15. The distribution of Brookline’s public open space is grossly unequal. Precinct 15 has 257 acres of usable, public open space–over half the total for the whole town. In the urban areas near Coolidge Corner and Washington Square, Precincts 2, 6, 7, 8, 9, 10, 11, 12 and 13 have less than 10 acres each. Surely Precinct 15–with its giant legacy of usable, public open space–can easily spare enough for a handsome school site.

– Craig Bolon, Brookline, MA, April 25, 2017


Property Database, Town of Brookline, MA, 2017

Soule Early Childhood Center, Recreation Department, Town of Brookline, MA, 2017

Property type classification codes, Massachusetts Department of Revenue, 2016

Joslin Murphy, Brookline Town Counsel, Potential ninth school sites, 2016

John M. Collins (Collins & Associates, Shrewsbury, MA), Applicability of Article 97′s legislative approval requirement to proposed solar array, Oak Bluffs Water District, Oak Bluffs (Martha’s Vineyard), MA, 2016

Baldwin and Soule land, Assessor’s Atlas, page 125, Town of Brookline, MA, 2015

Mission and history, Rivers School (Weston, MA), 2015

Curley v. Town of Billerica, Massachusetts Land Court, case no. 2012 Misc. 459001, 2013, see Tab F

Mahajan v. Department of Environmental Protection, Massachusetts Supreme Judicial Court, 464 Mass. 604, 2013

Precinct map, Town of Brookline, MA, 2012

Dane Park, Public facilities descriptions, Town of Brookline, MA, 2010

Board of Selectmen of Hanson v. Melody Lindsay, Massachusetts Supreme Judicial Court, 444 Mass. 502, 2005

Massachusetts Constitution, as amended through 1990, see Article XCVII (97, approved 1972) and Article XLIX (49, superseded)

Transfer of land procedure, Massachusetts General Laws, Chapter 40, Section 15A (enacted 1951)

Craig Bolon, Town meeting: parks and schools, Brookline Beacon, December 4, 2015

Advisory Committee: don’t lock up town land, Brookline Beacon, October 3, 2015

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