MISC 12-459001

August 8, 2013

Middlesex, ss.

Foster, J.


Christopher J. Curley and Carol S. Curley filed their Verified Complaint on February 6, 2012, naming as defendants the Town of Billerica (Town), the members of the Board of Selectman of the Town of Billerica (Board or Selectmen), and Independent Towers Holdings, LLC (Independent). The Town and the Board filed the Defendants Town of Billerica and Town of Billerica Board of Selectmen’s Motion to Dismiss and/or for Summary Judgment, with an accompanying memorandum of law, on March 6, 2012; the same day, Independent filed Defendant Independent Holdings, LLC’s Motion to Dismiss and/or for Summary Judgment, joining in and relying on the Town’s and Board’s motion (collectively, the Motion to Dismiss). The Curleys filed the Plaintiff’s Opposition to Defendants’ Motion to Dismiss and/or for Summary Judgment, with accompanying memorandum of law, on April 6, 2012. The court heard argument on the Motion to Dismiss on April 27, 2012. By an Order Allowing Defendants’ Motion to Dismiss and Granting Leave to Amend (Order), issued September 27, 2012, I allowed the Motion to Dismiss and gave the Curleys leave to amend their complaint and allege a cause of action in the nature of mandamus for enforcement of the requirements set forth in Article 97 of the Amendments to the Massachusetts Constitution.

The Curleys filed their Amended Complaint on October 9, 2012. The defendants filed their respective answers to the Amended Complaint on October 15, 2012. A Case Management Conference was held on November 2, 2012. On December 21, 2012, the Town and the Board filed a Motion for Summary Judgment (Defendants’ Summary Judgment Motion), accompanied by a memorandum of law, and the parties filed a Joint Statement of Agreed Facts. The Curleys filed the Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment, accompanied by a memorandum of law, and Plaintiffs’ Cross-Motion for Summary Judgment (Plaintiffs’ Summary Judgment Motion), accompanied by a memorandum of law, on January 30, 2013. The parties filed an Amended Joint Statement of Agreed Facts on February 15, 2013. On that same day, the Town and the Board filed their Reply Memorandum to Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment. The Curleys filed the Plaintiffs’ Sur Reply Memorandum in Response to the Defendants’ Reply Memorandum on February 22, 2013. I heard argument on the Summary Judgment Motion on March 18, 2013, and took it under advisement. [Note 1] For the reasons set forth in this Decision, the Defendants’ Summary Judgment Motion is ALLOWED, and the Plaintiffs’ Summary Judgment Motion is DENIED.

Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, I am to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’” Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012) quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991).

I find that the following material facts are not in dispute:

1. The Curleys are individuals residing at 7 Shanpauly Drive, Billerica, MA 01821.

2. The defendant Town is a municipal corporation duly organized under the laws of the Commonwealth of Massachusetts with a principal place of business at 365 Boston Road, Billerica, MA 01821.

3. At all relevant times, the defendants Robert M. Correnti, Robert B. Accomando, Michael S. Rosa, Andrew Deslaurier and David A. Gagliardi were members of the Billerica Board of Selectmen.

4. The defendant Independent is a Georgia limited liability corporation with a principal place of business at 11 Herbert Drive, Latham, NY 12110.

5. The Town is the owner of an approximately 4.4 acre parcel of land with an address of 774 Boston Road, Billerica, MA 01821, and referenced as Lot 195-0 on the Billerica Assessor’s Map 90 (the Property).

6. The Town acquired title to the Property by a deed from John A. Akeson dated February 29, 1952, and recorded in the Middlesex North District Registry of Deeds (registry) at Book 1194, Page 430 (the Akeson Deed).

7. The Akeson Deed contains a description of the Property and refers to a plan. However, the plan referred to in the Akeson Deed is not recorded in the registry.

8. Another plan showing the Property, entitled “Plan of Land in Billerica, Mass., Surveyed for John A. Akeson, Trustees [sic], scale: 1 inch = 150 feet, June 1967, Emmons, Fleming & Bienvenu, Inc., Engineers & Surveyors, Billerica, Mass.,” was recorded in the registry on April 30, 1971, at Plan Book 112, Plan 49.

9. On March 10, 1951, before the Property was conveyed to the Town, the Town voted at a Special Town Meeting to accept a report from its Playground Committee. A motion to recommend that the Selectmen be authorized to purchase or take by eminent domain a suitable site for a playground, preferably the Property, was voted upon and defeated.

10. At a second Special Town Meeting held on November 24, 1951, the Town, pursuant to Article 23, “voted unanimously that the Town accept in consideration of payment therefore of one dollar the conveyance from John A. Akeson to the Town of the [Property] for playground purposes on condition that any playground located thereon shall be called the ‘John A. Akeson Playground.’”

11. The Curleys’ property is located approximately 300 feet from the Property, and is listed, along with the other abutting properties, on the “Abutters List for [the Property] using a distance of 500 feet” as provided by the Town’s assessor.

12. Soccer fields were built on the Property and remain in use to this day.

13. On May 11, 2009, the Town of Billerica Recreation Commission, the body authorized by Billerica General Bylaw Article II, § 27.1 to issue use permits for all fields and recreational facilities owned by the Town, voted 10-0-0 to support the construction of a telecommunications tower on the Property.

14. On September 28, 2009, the Board, in its capacity as custodian of the Property, voted unanimously, 5-0, to place Article 19 on the Fall Annual Town Meeting Warrant, seeking Town Meeting’s authorization to allow the Board/Town Manager to negotiate a lease for the purpose of constructing telecommunications facilities on three specified parcels of Town owned land, one of which was “Boston Road (Akeson Field), Plate 90, Parcel 195,” i.e., the Property.

15. Upon recommendation by the Board, on October 6, 2009 Town Meeting voted by a 2/3 super-majority vote to approve Article 19, authorizing the lease of the Property for the purposes of constructing a telecommunications facility.

16. The Town entered into a lease with Independent on December 2, 2010 (the Lease). A Memorandum of Lease dated December 2, 2010 is recorded in the registry at Book 24613, Page 63.

17. The Lease allows the Applicant to place a telecommunications tower on a 40’ x 60’ portion of the 4.4 acre Property, and provides for “non-exclusive easements for reasonable access thereto.” The term of the Lease is for ten years commencing on December 2, 2010, with one additional automatic ten-year extension unless otherwise terminated by Independent by prior notice.

18. On January 31, 2011, the Billerica Planning Board denied Independent’s application for a special permit to constrict a 130-foot monopole telecommunications tower within a 40’ x 60’ compound on the Property (the Tower).

19. The Town’s Zoning Board of Appeals granted Independent’s request for all necessary variances from the setback, fall zone, and height restrictions of the Town’s Zoning Bylaw on February 16, 2011.

20. The Town’s Conservation Commission granted Independent an Order of Conditions on March 11, 2011.

21. Upon appeal by Independent of the Planning Board’s denial of the special permit, the United States District Court for the District of Massachusetts issued its Judgment and Order in Independent Towers Holdings, LLC v. Billerica Planning Board: civil action no. 1:11-cv-10442-LTS, entering judgment for Independent under the provisions of the Federal Telecommunications Act of 1996, and, inter alia, ordering the issuance of a building permit for the Tower at the Property.

22. The Building Inspector issued Building Permit #11-0712 for the Tower to Independent on September 13, 2011.

23. The Town did not seek to obtain two-thirds vote of the Legislature authorizing the Lease of the Property.


This is an action in the nature of mandamus pursuant to G.L. c. 249, § 5. The Curleys allege that the Property is used for a purpose that makes it subject to Article 97 of the Amendments to the Massachusetts Constitution (art. 97), and, therefore, the Property could not be leased to Independent without the Town’s first obtaining a two-thirds vote of the Legislature. It is undisputed that the Town did not obtain such a vote. Because the two-thirds vote requirement is not discretionary, the Curleys seek a judgment in the nature of mandamus invalidating the Lease and enjoining the Town from entering any lease or otherwise disposing of the Property without obtaining the necessary vote.

In the Defendants’ Summary Judgment Motion, the Town and the Board set forth five grounds on which, they argue, summary judgment should be entered in their favour and the Amended Complaint dismissed. Two of these grounds were previously addressed in the Order, and with respect to those grounds, I incorporate the Order by reference. Thus, as set forth in the Order in more detail, I find (a) that the Town complied with the requirements of G.L. c. 40, § 15A, in obtaining the Town Meeting vote authorizing the Lease, and (b) that the Curleys have standing to bring their action in the nature of mandamus as stated in the Amended Complaint.

The Town’s and the Board’s third ground for their Summary Judgment Motion is that the Land Court lacks subject matter jurisdiction over an art. 97 mandamus claim that does not involve “any right, title, or interest in land.” G.L. c. 249, § 5. The Land Court has concurrent jurisdiction over any action in the nature of mandamus that involves “any right, title, or interest in land is involved or arises under or involves the subdivision control law, the zoning act, or municipal zoning, or subdivision ordinances, by-laws or regulations.” Id; see G.L. c. 185, § 1(r). The Curleys contend that this case involves an interest in land because the Town entered into the Lease of the Property. I agree. The Lease is a disposition of municipal real estate that triggers the requirements of G.L. c. 40, § 15A, and could potentially trigger the two-thirds vote requirement of art. 97. See Wright v. Walcott, 238 Mass. 432 438 (1921) (conveyance of lesser estate than full sale can be made by municipality). A lease, at least one entered into by a municipality, is an encumbrance on title that involves a right, title or interest in land sufficient to invoke the Land Court’s subject matter jurisdiction. Lepore v. City of Lynn, 13 LCR 237 , 239 (2005). The question of whether the Town was required to comply with the dictates of art. 97 before it could validly enter into the Lease is one over which this court has subject matter jurisdiction.

The Town’s and the Board’s final two grounds for their Summary Judgment Motion, as well as the Plaintiffs’ Summary Judgment Motion, join the issue raised by the Curleys in the Amended Complaint: whether the Property is subject to the requirements of art. 97, so that the Town was obligated to obtain a two-thirds vote of the legislature before it could enter the Lease.

Article 97 of the Amendments to the Constitution was approved and ratified on November 7, 1972. Mahajan v. Department of Envtl. Protection, 464 Mass. 604 , 611 (2013). It replaced Article 49 of the Amendments to the Constitution, see id. at 605 n.3 & 611, and provides as follows:

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.

The general court shall have the power to enact legislation necessary or expedient to protect such rights.

In the furtherance of the foregoing powers, the general court shall have the power to provide for the taking, upon payment of just compensation therefor, or for the acquisition by purchase or otherwise, of lands and easements or such other interests therein as may be deemed necessary to accomplish these purposes.

Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court.

Art. 97. Under art. 97, the people are deemed to have the right to clean air and water, and the protection of these rights is a public purpose. Land may be taken or purchased by the government to protect this public purpose in the environment, and such land cannot be disposed of except by a two-thirds vote of both branches of the Legislature. Id.; see Opinion of the Justices, 383 Mass. 895 , 917-918 (1981). Article 97 is retroactive, applying “to the disposition of all lands and easements taken or acquired for the stated purposes, regardless of when they were taken or acquired.” Id. at 918.

There is no dispute that the Property is held by the Town, a political subdivision of the Commonwealth, and that the Town did not obtain a two-thirds vote of the Legislature before entering the Lease. I held in the Order, and the parties do not challenge here, that the Lease was a disposal of the Property as defined in art. 97. The Curleys allege that the acceptance of the Property for playground purposes is a use or purpose that falls within the categories of environmental interests protected in art. 97. If this allegation is correct, then they are entitled to summary judgment and an order of mandamus invalidating the Lease and ordering the Town not to dispose of the Property without approval of the Legislature by a two-thirds vote. If it is not, then summary judgment should enter for the Town and Board dismissing the Amended Complaint.

The Town’s and the Board’s fourth ground for their Summary Judgment Motion is that the Property is not dedicated or restricted to playground uses in a way that makes it subject to art. 97. Specifically, they argue that art. 97 does not apply to the Property because neither the Akeson Deed nor any other recorded instrument related to the Property contains a restriction on the use of the Property under G.L. c. 184, §§ 26-30. Such a restriction, they argue, is required to subject any parcel to the requirements of art. 97. This is not correct. Whether the Property is subject to a restriction under G.L. c. 184, §§ 26-30, or whether the acquisition of the Property for playground purposes created such a restriction on the property is irrelevant to the question of whether art. 97 applies to the Property. Article 97 applies to any municipal land that was taken or acquired for a purpose articulated within art. 97, or subsequently designated for such a purpose in a manner sufficient to invoke the protections of art. 97. Mahajan, 464 Mass. at 615-616; Board of Selectmen of Hanson v. Lindsay, 444 Mass. 502 , 508-509 (2005); Toro v. Mayor of Revere, 9 Mass. App. Ct. 871 , 872 (1980). The Town accepted the Property in 1951 for “playground purposes.” If “playground purposes” is a purpose articulated within 97, then the vote of Town Meeting accepting the Property for such purposes was sufficient to subject it to the protections of art. 97.

The remaining issue, then, is whether “playground purposes” qualify as an art. 97 use. The Curleys contend a playground is an art. 97 use, and, therefore, the Town was required to obtain a two-thirds vote from the Legislature authorizing a change or disposition in that use before it could enter the Lease The Town and the Board contend that a playground, as opposed to a park, is not a use articulated within art. 97. The Curleys counter that the legal definition of “playground” does not differ from “park” in any meaningful way, and that land acquired for either purpose is subject to art. 97.

In support of their contention that a playground is an art. 97 use, the Curleys rely heavily on the expansive reading of art. 97 set forth in the June 6, 1973 opinion of Attorney General Robert H. Quinn. Rep. A.G., Pub. Doc. No. 12 (1973) (Quinn Opinion). The Quinn Opinion is a response to “a general inquiry from the Speaker of the House of Representatives” regarding art. 97, “and was rendered without reference to any particular set of facts.” Mahajan, 464 Mass. at 613; Quinn Opinion at 139. In the Opinion, Attorney General Quinn discussed the scope of uses of publicly held land that might fall under art. 97. He concluded that the purposes of art. 97—to secure that the people shall have the right to clean air and water and the natural, scenic, historic, and esthetic qualities of the environment, and the protection of the people in their right to the conservation, development and utilization of natural resources—was to be broadly construed. Id. at 141-142. Thus, the Attorney General concluded, lands acquired for use as “parks, monuments, reservations, athletic fields, concert areas and playgrounds clearly qualify” as acquired for the purposes of protecting the interests of the public in the environment and are therefore subject to the requirements of art. 97. Id. at 142-143. Under the Quinn Opinion’s interpretation, the Property, acquired for use as a playground and used as athletic fields, is quite plausibly subject to Art. 97.

In a decision issued after the briefing of and hearing on these motions, the Supreme Judicial Court has made clear that the Quinn Opinion’s interpretation of art. 97, while possibly persuasive, “is not binding in its particulars,” and that courts should be “hesitant to afford it too much weight due to the generalized nature of the inquiry and the hypothetical nature of the response.” Mahajan, 464 Mass. at 613. The court disagreed with the Quinn Opinion to the extent it suggested that the vast majority of land taken for any public purpose may be subject to art. 97 if the taking or use even incidentally promotes “conservation, development and utilization of the…forest, water and air.” Id., quoting Quinn Opinion at 142. The “relatively imprecise language of art. 97” did not warrant “an interpretation as broad as the Quinn Opinion would afford it, particularly in light of the practical consequences that would result from such an expansive application, as well as the ability of a narrower interpretation to serve adequately the stated goals of art. 97.” Id. at 614-615. Applying the court’s reasoning in Mahajan, the issue of whether a playground is an art. 97 use is not resolved by the Quinn Opinion. Rather, the analysis should focus more narrowly on whether the particular use the land was taken or acquired for—here, playground uses—falls directly within an art. 97 purpose. Id. at 615.

Generally, municipal land acquired for open space or conservation purposes is subject to art. 97. See Board of Selectmen of Hanson v. Lindsay, 444 Mass. at 509; Toro, 9 Mass. App. Ct. at 872; see also Mahajan, 464 Mass. at 619 n.19 (public open space at Boston City Hall plaza subject to art. 97). A park falls within this category of public open space, as a park is generally accepted to mean “a tract of land, great or small, dedicated and maintained for the purposes of pleasure, exercise, amusement, or ornament.” Commonwealth v. Davie, 46 Mass. App. Ct. 25 , 28 (1998), quoting Salem v. Attorney Gen., 344 Mass. 626 , 630 (1962). Massachusetts law does not explicitly define what constitutes a playground, but it does draw distinctions between parks and playgrounds that indicate that a playground is not a park. For example, a criminal statute bars the sale of controlled substances “within one hundred feet of a public park or playground.” G.L. c. 94C § 32J (emphasis supplied). In chapter 45 of the General Laws, entitled “Public Parks, Playgrounds and the Public Domain,” §§ 2-11 are directed to public parks, while §§ 14-18 are directed to playgrounds. Section 14 of that chapter, addressing the use, acquisition and management of playgrounds, states that its provisions apply to land and buildings acquired for playground purposes, or for park and playground purposes, but not to land and buildings acquired solely for park purposes. G.L. 45 § 14. While lacking explicit definitions, chapter 45 treats parks and playgrounds differently in ways that suggest that a park is open space while a playground is an improved space with structures. Section 7 provides that “[l]and taken for or held as a park . . . shall be forever kept open and maintained as a public park, and no building which exceeds six hundred square feet in area . . . shall be erected . . . without leave of the general court.” G.L. c. 45, § 7. On the other hand, a city or town “may construct buildings on land owned or leased by it” as a playground and “may provide equipment” for the playground. G.L. c. 45, § 14. Other statutes concerning playgrounds include references to play equipment that suggest that the presence of such equipment is what defines a playground. See, e.g., G.L. c. 45, § 15 (requiring cities and towns to “maintain at least one public playground conveniently located and of suitable size and equipment) (emphasis supplied); G.L. c. 266, § 98A (making it a crime to destroy, deface, mar, or injure any “playground apparatus or equipment”).

Definitions of “playground” found in other jurisdictions and in dictionaries are consistent with chapter 45’s implication that a playground is a space for active recreation and is improved with equipment or structures, including playing fields. Federal law defines a playground as “any outdoor facility (including any parking lot appurtenant thereto) intended for recreation, open to the public, and with any portion thereof containing three or more apparatus intended for the recreation of children including, but not limited to, sliding boards, swingsets, and teeterboards.” 21 U.S.C. § 860(e)(1); United States v. Parker, 30 F. 3d 542, 552 (4th Cir. 1994). The California Penal Code defines a playground as “any park or recreational area specifically designed to be used by children that has play equipment installed, including public grounds designed for athletic activities…or any similar facility.” Cal. Penal Code § 626.95(c)(1). Dictionary definitions of “playground” provide that it is “an outdoor area for recreation and play, esp. one having items such as swings,” American Heritage College Dictionary 1068 (4th ed. 2002), or that it is “a piece of land used for and usually equipped with facilities for recreation especially by children.” Free Merriam-Webster Dictionary, at http://www.merriam-webster.com/dictionary/playground, visited August 6, 2013.

Based on the foregoing, I conclude that a playground is a public recreational space that is improved with buildings and play structures or apparatus. A park, on the other hand, is a public open space that, for the most part, remains open and unimproved. This distinction between a playground and a park falls along the very fault line of an art. 97 use. Article 97 is intended to protect “the people in their right to the conservation, development and utilization of the . . . natural resources” of the environment. Art. 97. Parks protect that interest. Improved property, including playgrounds, does not. Because of the development required to construct a playground, land taken or acquired for playground use does not fall within the scope of art. 97 purposes. [Note 2]

By virtue of its acceptance for playground purposes, the Property is not subject to art. 97. The Town was not required to follow the requirements of art. 97 and obtain approval of the Legislature by a two-thirds vote before it entered the Lease. No action for mandamus lies to invalidate the Lease and compel the Town to follow art. 97, and the Amended Complaint must be dismissed.


The Plaintiff’s Motion for Summary Judgment is hereby DENIED and the Defendant Bank’s Cross-Motion for Summary Judgment is hereby ALLOWED. The Amended Complaint is DISMISSED WITH PREJUDICE.

Judgment accordingly.


[Note 1] At the hearing, counsel for Independent stated that Independent relies on the Defendants’ Summary Judgment Motion.

[Note 2] That playing fields were built on the Property does not change this conclusion. The use which determines whether a property is subject to art. 97 is the use for which the property was originally taken or acquired—here, playground purposes. Mahajan, 464 Mass. at 615-616. Moreover, playing fields are not open space. They are constructed, maintained and used on property in such a way that the property is no longer open and serving the purposes protected by art. 97. In that way, playing fields are, in effect, large playgrounds.