Article 97 in Massachusetts: Two-Thirds Vote and No Net Loss

Article 97 of the Massachusetts Constitution is a 1972 amendment that gives every resident a legal right to clean air and water, freedom from excessive noise, and the preservation of the natural, scenic, historic, and aesthetic qualities of the environment. Its most consequential feature is a procedural safeguard: any land or easement that a public entity holds for conservation purposes cannot be sold, transferred, or repurposed unless two-thirds of each chamber of the state legislature approves by roll call vote. That requirement makes Article 97 one of the strongest constitutional protections for public land in the country, and it shapes what cities, towns, and state agencies can do with parks, forests, water supply land, playgrounds, and conservation easements.

What Article 97 Says and Why It Exists

The amendment does three things. It declares a public right to clean air, clean water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and aesthetic qualities of the environment. It identifies the conservation and use of natural resources as a public purpose and gives the legislature authority to acquire land and easements to serve that purpose. And it provides that any land or easement taken or acquired for those purposes cannot be used for something else, or disposed of, unless both the House and Senate approve by a two-thirds roll call vote.¹

The third provision is the one with real force. Voters who ratified the amendment in 1972 wanted to make sure conservation commitments could not be quietly undone by a voice vote or buried in an omnibus bill. The roll call requirement puts every legislator on the record.

What Land Is Covered

Article 97 reaches a broader set of properties than most people assume. The protection attaches to any land or easement held by a public entity for natural resource purposes, a phrase Massachusetts interprets broadly. Covered properties include state parks and forests, municipal parks and playgrounds, town forests, shore reservations, conservation land, water supply land, historic sites, and wildlife sanctuaries.¹

Protection applies at every level of government. A state forest managed by the Department of Conservation and Recreation has the same constitutional protection as a neighborhood playground run by a city parks department. Conservation restrictions and easements held by a public entity are also covered, not just land owned outright. If a town accepted a conservation restriction over private land, that restriction cannot be released without going through the full Article 97 process.

A critical point: protection follows how the land was acquired or dedicated, not just how it looks on a given day. In a 2017 case involving the City of Westfield, the Supreme Judicial Court held that a parcel used as a playground had been dedicated as a public park and was therefore protected under Article 97, even though the city wanted to build an elementary school on the site. Residents obtained an injunction blocking the project until the constitutional requirements were met. Land that a municipality simply happens to own, without any acquisition or dedication for natural resource purposes, is a different matter and may not be covered.

The Two-Thirds Vote Requirement

Ordinary legislation passes with a simple majority. An Article 97 disposition requires a two-thirds supermajority in both the House and Senate, taken by roll call.¹ A legislator must file a bill in the General Court to begin the process. The bill moves through committee, where public testimony is heard, then to the floor of each chamber. If both chambers clear the two-thirds threshold, the bill goes to the Governor. The disposition only takes effect once the Governor signs.

The Public Lands Preservation Act

For decades the process leading up to that legislative vote was governed by EEA policy rather than statute. The Public Lands Preservation Act, enacted in 2022 and codified at M.G.L. c. 3, § 5A, changed that by writing the requirements into law.²

The Act binds every public entity in the Commonwealth, including state agencies, municipalities, counties, quasi-public agencies, authorities, boards, and commissions. Before any Article 97 land can be repurposed or transferred, the proponent must satisfy three core requirements: notification and an alternatives analysis, identification of qualifying replacement land, and dedication of that replacement land for conservation in perpetuity.³

Replacement Land and the No Net Loss Rule

EEA’s long-standing policy is no net loss of Article 97 land, and the 2022 statute now codifies it. The proponent must identify replacement land that meets each of the following:

Natural resource value. The replacement land must have equal or greater natural resource value, as determined by the Secretary of EEA.
Acreage. The replacement parcel must be equal to or larger than the land being taken.
Monetary value. The replacement land must match or exceed the fair market value, or value in use, whichever is greater, established by a professional appraisal.
Comparable location. The replacement land must be in a comparable location to the land being lost.

The replacement land cannot already be subject to Article 97 protections; re-dedicating land that was already conserved does not count. And it must be dedicated for Article 97 purposes in perpetuity, not for a set term.²

The Secretary of EEA can waive or modify the replacement land requirement in two narrow situations: when the disposition is only a transfer of control between public entities with no actual change in use, or when the parcel is smaller than 2,500 square feet, has insignificant natural resource and recreation value, and the transfer serves a significant public interest.²

A proponent can also offer funding in place of replacement land, but only if the Secretary of EEA explicitly finds, in a report to the legislature, that all four of these conditions are met:

Significant public interest. The proposed change in use serves a significant public interest.
Environmental justice. The disposition will have no adverse impacts on an environmental justice population.
Alternatives exhausted. The alternatives analysis has been completed, has gone through public comment, and shows no feasible alternative.
Replacement not feasible. Designating replacement land at the same time as the disposition is not feasible.

The environmental justice requirement alone defeats many funding-in-lieu proposals, and the Secretary must report annually to the legislature on every instance where funding was accepted in place of land.³

How a Disposition Actually Moves

The full sequence runs through both the executive branch and the legislature, and it rarely moves quickly.

Notification. The proponent notifies EEA and the public of the proposed disposition or change in use.
Alternatives analysis. The proponent prepares a detailed analysis showing no feasible or substantially equivalent alternative exists and submits it through EEA’s online portal.²
Replacement land identification. The proponent identifies qualifying replacement land, or requests a waiver, modification, or funding-in-lieu approval.
EEA review. The Secretary of EEA evaluates whether the replacement land meets the statutory requirements and issues a written determination, which is posted publicly.
MEPA review. If the project meets review thresholds under the Massachusetts Environmental Policy Act, the proponent files an Environmental Notification Form. Conversion of Article 97 land to a non-conservation use is itself a MEPA review threshold.⁴
Legislative filing. A legislator files a bill in the General Court authorizing the specific disposition.
Committee review. The bill moves through committee with public testimony.
Two-thirds vote. Both the House and Senate must approve by a two-thirds roll call vote.
Governor’s signature. The Governor signs, and the disposition becomes effective.

EEA tracks active Article 97 proposals on its website, so residents can see whether a parcel in their community is under review.

Federal Rules That Can Also Apply

Many Article 97 properties were acquired with help from federal grants, and those grants carry their own conversion restrictions on top of the state process. The most common is Section 6(f) of the Land and Water Conservation Fund Act, which bars conversion of LWCF-funded property to non-recreation uses without approval from the Secretary of the Interior. If approval is granted, the state must substitute replacement recreation land of at least equal fair market value and reasonably equivalent usefulness and location. The conversion request goes to the National Park Service through EEA, which acts as the state liaison.

If the land harbors a federally listed endangered or threatened species and any federal agency is involved in the project, Section 7 of the Endangered Species Act requires that agency to consult with the U.S. Fish and Wildlife Service to ensure the action will not jeopardize the species or destroy critical habitat.⁵ And when a federal agency is funding, permitting, or otherwise involved, the National Environmental Policy Act may require an environmental assessment or environmental impact statement before the federal action can proceed. These federal layers stack on top of the state Article 97 process and can add months or years.

If You Think Protected Land Is Being Converted

Massachusetts courts take Article 97 violations seriously, and residents have standing to enforce the constitutional process. The Westfield playground case shows the mechanism at work: residents who believed the city was converting dedicated parkland without legislative authorization went to court and obtained an injunction stopping the project.

Start with the threshold question of whether the land actually qualifies. Was it acquired for natural resource purposes, or later formally dedicated to them? If so, Article 97 applies and the full process must be followed. From there, you can raise the issue with your local conservation commission, contact EEA directly, or seek legal action to enforce the constitutional requirement.

1
Executive Office of Energy and Environmental Affairs. Article 97 and An Act Preserving Open Space in the Commonwealth (M.G.L. c. 3, 5A)
2
General Court of Massachusetts. Massachusetts General Laws Chapter 3 Section 5A
3
Commonwealth of Massachusetts. Guidance on Implementation of An Act Preserving Open Space in the Commonwealth
4
Massachusetts Environmental Policy Act Office. MEPA Regulations Section 11.03
5
U.S. Fish & Wildlife Service. ESA Section 7 Consultation