"Not eating chard. That's what all those weirdos eat at their stupid picnics on the Hungry Ghost lawn." -Nina

October 12, 2007

Pulaski Park and Article 97 of The Constitution of The State of MA

"Article XCVII. Article XLIX of the Amendments to the Constitution is hereby annulled and the following is adopted in place thereof: - 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. 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." [emphasis mine]

After the last meeting of the Pulaski Park Redesign Committee, I left feeling alternately hopeful for the process, and with reservations about it. Never content to let a small group of well meaning city officials and business concerns lead the way, especially on policy regarding public space, I continued pursuing my own issues of concerns as it relates to public space, and the role Pulaski Park can and does play in that.

On the following day, I called a national land conservation group. Speaking with someone there, we had a casual discussion with about the events taking place here in town with regard to Pulaski Park. Looking for guidance and help on how community members might most effectively influence the outcome, we talked about the current plans for the park, and how the plans for the newly proposed hotel on Pulaski Park's east side calls for the back stairs of Pulaski Park to be moved. Being abruptly cut off, he asked "Are those stairs on park land?" According to what was said at the meeting, the back slope of Pulaski Park, which the stairs sit on, is park land. "Why would that matter?" I asked. "They can't do that" was the reply, "They can't move those stairs without approval from the State Legislature. That would constitute a 'change of use' and any improvements or design changes to a park that constitutes a 'change of use' requires 2/3rd approval of that MA State Legislature."

The conversation ended after more discussion, and a phone call was placed to the Executive Office of Energy and Environmental Affairs, as suggested. After speaking with Jen Baker, Legislative Director of the EOEA, who noted Article 97 and how it is applied, she sent a link via email to Article 97 of the State Constitution. Now more confused, and not willing to believe that the City of Northampton could have over looked this, I attempted to get a definitive answer as to whether that law applies here, but I was unable to do so that evening. More calls were made in the following days ands weeks. Follow-up phone calls, calls to our State Rep's, different state park offices, environmental offices, land trusts, random lawyers, not so random lawyers, etc...

After hearing different opinions about Article 97 from different people over the last three weeks, an opinion has finally arrived from Jen Baker, Legislative Director in the Executive Office of Energy and Environmental Affairs. Last night, she confirmed for me definitively that any park land, whether owned by a municipality or the state, falls under Article 97. Any change of use of said park would require 2/3rd approval from the State Legislature. Moving the stairs in the back of Pulaski Park, if they are indeed park land, is a change of use. It was debatable whether or not other issues, such as the planned infill of Pulaski Park, would trigger Article 97. But without question, if those stairs are on park land, Article 97 of the Constitution of the State of MA states,

...municipalities that seek to dispose of any Article 97 land must: obtain a unanimous vote of the municipal Conservation Commission that the Article 97 land is surplus to municipal, conservation, and open space needs; obtain a unanimous vote of the municipal Park Commission if the land proposed for disposition is park land; obtain a two-thirds Town Meeting or City Council vote in support of the disposition; obtain two-thirds vote of the legislature in support of the disposition, as required under the state constitution; comply with all requirements of the Self-Help, Urban Self-Help, Land and Water Conservation Fund, and any other applicable funding sources; and comply with the EOEA Article 97 Land Disposition Policy. After the effective date of this policy, any municipality that proposes, advocates, supports or completes a disposition of Article 97 land without also following the terms of this policy, regardless of whether or not state funds were used in the acquisition of the Article 97 land, shall not be eligible for grants offered by EOEA or its agencies until the municipality has complied with this policy. Compliance with this policy by municipalities shall be determined by the EOEA Secretary, based on recommendations by the EOEA Interagency Lands Committee.
As Article 97 states above, that would mean that the City of Northampton must...
"obtain a unanimous vote of the municipal Park Commission if the land proposed for disposition is park land; obtain a two-thirds Town Meeting or City Council vote in support of the disposition; obtain two-thirds vote of the legislature in support of the disposition,"
If you go on to read article 97, it ends with,
"After the effective date of this policy, any municipality that proposes, advocates, supports or completes a disposition of Article 97 land without also following the terms of this policy, regardless of whether or not state funds were used in the acquisition of the Article 97 land, shall not be eligible for grants offered by EOEA or its agencies until the municipality has complied with this policy. Compliance with this policy by municipalities shall be determined by the EOEA Secretary, based on recommendations by the EOEA Interagency Lands Committee.
That last bit confuses me. It is unclear to me what the legalities of Article 97 are. Although it states that a municipality must follow these rules, and get 2/3rd approval from the State Legislature, it also appears to state that if a municipality does not follow these rules, the resulting consequence will be a loss of funds from the EOEA, and that compliance with this policy is to be determined by the EOEA Secretary. It seems to infer that the law does not have sharp teeth when it comes to compliance. So what does this mean for Pulaski Park? What does this mean for the hotel? If those stairs, for instance, are on park land, (and the committee claims they are) can the city remove them without approval by the State Legislature, with the only consequence to be a denial of EOEA grants in the future? If that is true, did they make that decision unilaterally, without soliciting the publics' opinion? If all of this is true, why hasn't the press, or the committee, or anyone in the meetings mentioned this? If the City of Northampton is required by the Constitution of the State of MA to, among other things, get 2/3rd approval from the State Legislature to go forward with these plans, why doesn't the public know that? Maybe it is not true? Maybe I am on the wrong track?

Mayor Higgins, in a recent podcast with Kelsey Flynn where she discusses the redesign of Pulaski Park, briefly touches on this issue. You can listen to that here, [mp3] in the last part of the interview. The Mayor says, in response to concerns from the public that we are going to lose the park. "The park is protected under state law as park land, and we would have to go to Legislature to take it out of park land and...I would never make that request."

I want to reiterate that the EOEA, and Article 97 of the State Constitution states that any changes that constitute a 'change of use', i.e. removing the stairs, would require 2/3rd approval from the State Legislature. Removing the stairs would qualify under "...municipalities that seek to dispose of any Article 97 land..."

On a quick side note, as the Mayor herself addressed this in the mp3 above, I have now heard at least three city officials make reference to the publics' concern that they are losing the park, and who have then offered to reassure the public that we are not giving away any of Pulaski Park land. Due to the infill the hotel will do to facilitate a level surface meeting the hotel's structure, "We will be gaining 30 ft. in the back" is a common assurance. I feel compelled to point out that it is clear to me that when the public refers to a 'loss of Pulaski Park' the concern is not about losing actual land and earth, but instead, as I noted to a City Councilor in an email response to him offering the same reassurances on the same concerns,
I want to note that I strongly believe that what people are referring to when speaking of a loss at Pulaski is not in reference to actual land, but a loss in ideal and sense of belonging and a loss of perceived ownership. I believe most people are concerned about those losses when they speak of loss. A towering, privately owned hotel, will overshadow the east side of the park, and by default, create a sense of lack of public ownership. Additionally, people have concerns about the influence the hotel and their guests might negatively have on activities at the Park. I do feel that is what people are referring to when speaking about a loss at Pulaski."
Back to Article 97. It is my understanding that removing the stairs in Pulaski Park is a 'disposal' of park land and a 'change of use'. It is my understanding that adding a hotel cafe (admittedly only a discussion) is a 'disposal' of park land and a 'change of use'. It is factual information that any disposal of land in Pulaski Park or 'change of use' requires 2/3rd approval of the State Legislature, among other requirements, per Article 97. This raises some very important questions for me.

Has the City of Northampton, or various officials within, been speaking about these issues in the back room, without speaking about it publicly? Are they addressing these issues quietly, intending to withhold or delay relevant information to the public, to the detriment of democracy? If so, why? Would they be concerned that with this information, the residents of town might use the available democratic process to advocate in a way that might prove to be problematic for the hotel development and park redesign? "Don't worry about it, go to the mall, we will take care of it." Is this really happening? Or have I just taken the ball and ran with it the wrong way down the field? I hope that I have.

LABELS: citizen journalism, city government, downtown, massachusetts, public space, pulaski park redesign

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