A recent case discussed what factors may determine when land has been designated for a specific municipal purpose. The determination is important because two votes are required to transfer such land to a different municipal purpose pursuant to G.L. c. 40, § 15A, a vote of the board that holds the land and a 2/3rds vote of Town Meeting. If land is held for a general municipal purpose, it may be transferred to a specific municipal purpose and no vote of a board is necessary. G.L. c. 40, § 3.
In Carroll v. Select Board of Norwell, residents in the town sought to compel the select board to transfer municipal land under its control to the conservation commission. The residents, by citizens’ petition, caused the matter to be voted on by Town Meeting, and the motion to transfer passed on a 2/3rds vote. However, the Select Board never voted that the land was no longer needed for affordable housing purposes, so the question was whether the land had been designated for the specific purpose of affordable housing such that a vote of the board was required. A Land Court judge granted summary judgment to the select board after determining that the land had been designated for affordable housing and could not be transferred to the conservation commission for a different purpose absent a determination by the select board that it was no longer needed for affordable housing, in accordance with G.L. c. 40, § 15A.
The SJC transferred the case from the Appeals Court sua sponte and concluded that “town-owned land is held for a specific municipal purpose under G.L. c. 40, § 15A, where the totality of the circumstances indicates a clear and unequivocal intent by the town to hold the land for such purpose.” In arriving at this conclusion, the SJC examined case law under Article 97 and G.L. c. 40, § 15A, both of which derive from the common law public use doctrine. The SJC determined that the totality of the circumstances test set forth in Smith v. Westfield, 478 Mass. 49, 63-64 (2017), a case involving art. 97 land, should be applied to specific-use designations under G.L. c. 40, § 15A. The relevant inquiry is “whether the totality of the circumstances indicate a clear and unequivocal intent to dedicate the land to that purpose.”
In Carroll, the circumstances supported the town’s intent to hold the land for affordable housing. The summary judgment record included evidence of a town meeting vote to make the land available for affordable housing, the town’s adoption of an affordable housing trust bylaw and creation of an affordable housing trust, and preparation of concept plans and feasibility studies for siting affordable housing on the property. Additionally, the town administrator provided an affidavit stating that significant public funds had been spent on evaluating the site for affordable housing. The plaintiffs produced no evidence to dispute the extensive history of consideration of the land for affordable housing purposes. As there was no issue of material fact and the evidence showed that the land was held exclusively for affordable housing purposes, judgment entered in favor of the Select Board.
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