Parks group challenges soccer stadium under state constitutional right to environmental conservation

A Boston lawsuit pits parks against soccer, tying in knots fans of both such as me.

The Emerald Necklace Conservancy on February 20 sued the City of Boston and Boston Unity Soccer Partners to stop the redevelopment of White Stadium to host a women's professional soccer team. 

(UPDATE, Mar. 25: The Superior Court on March 22 denied injunction of the redevelopment project. E.g., WBUR.)

What's compelling about the case as a matter of urban redevelopment arises from the fact that a stadium is already there. The conservancy is not trying to get rid of it. Though there is tentative objection to the footprint of the redevelopment project in Franklin Park, the complaint focuses on the repurposing of the stadium for the benefit of private investors, to the exclusion of public use.

Everyone agrees that White Stadium is in sore need of refurbishment. The 1945 construction has a storied history going back to Black Panther rallies in the 1960s. Its present state of deterioration for age is evident. Naturally, local government is keen to link arms with private investment. Boston Unity makes a heckuva pitch (pun intended) in a town willing and able to support an entrant in the expanding National Women's Soccer League.

Site plan in complaint exhibit.

However, the project, which Boston Unity characterizes as "a first-of-its-kind public/private partnership," will exclude the public from the redeveloped area on game days. That includes the expulsion of local high school times for their 10 to 12 games per year, according to the Dorchester Reporter. At the same time, city officials say other stadium uses, such as a track, might see more public use. 

The conservancy and residents say that the project has been moving too fast for them to study and comment, and that the headlong rush violates article 97 of the Massachusetts Constitution.

That's another eyebrow-raising point in the story. Article 97 of the Massachusetts Constitution is worth a read:

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.

Voters approved Article 97 in 1972. That's the same year as the federal Clean Water Act, and about halfway in between the Clean Air Act and Love Canal.

The "right to a clean environment" is a hallmark of contemporary human rights discussion, sometimes grouped in with "third generation" human rights. In this sense, notionally, Massachusetts was ahead of its time.

But like statutory expressions of environmentalism, Article 97 was not understood to ground an affirmative right, rather a negative right to prevent government from repurposing conserved land without legislative approval. The Supreme Judicial Court (SJC) entertained the constraint of Article 97 in cases in 2005 and 2013, but didn't find that the local governments in those cases had dedicated land to public purposes. The SJC did constrain local government in a 2017 case. 

The 2013 and 2017 cases might prove instructive in the White Stadium matter if the case progresses. In Mahajan v. Department of Environmental Protection (Mass. 2013), the court distinguished land taken for "conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources," which triggers Article 97, from land taken urban renewal, that is, "for the purpose of eliminating decadent, substandard or blighted open conditions." In that case, the Boston Redevelopment Authority was able to commit a part of Long Wharf in Boston Harbor to a private redevelopment project without legislative approval under Article 97.

In Smith v. Westfield (Mass. 2016), the court decided that the City of Westfield had dedicated a parcel of land, 5.3 acres comprising a playground and two little-league baseball fields, to serve as a park, so was constrained by Article 97 before the city could build a school there.

In Smith, the court opined that Article 97 would attach only "there is a clear and unequivocal intent to dedicate the land permanently as a public park and where the public accepts such use by actually using the land as a public park." The court also acknowledged that the analysis fact intensive.

On the face of it, Smith looks like the better fit with Emerald Necklace. The land is clearly dedicated to park use and has been used as a park. The baseball fields and playground in Smith show that a recreational use can include a structure, such as the stadium.

At the same time, there's a viable counterargument in the re- of the White Stadium redevelopment. The city will argue, I expect, that it's not changing the purpose of the land, i.e., its dedication to recreation. A stadium is and will remain. The city is just improving the land to do recreation better.

The problem then boils down to that "first-of-its-kind public/private partnership": whether the private end of the partnership means that the land is being "otherwise disposed of" within the meaning of Article 97.

I've written about transparency and accountability in foreign development specifically amid the challenges of privatization and quasi-privatization. So it's fascinating, if it shouldn't be surprising, to see this problem arise in my own backyard. I wonder as well whether there ever might be a future for Article 97's purported "right to clean air and water" that amounts to more than a procedural hurdle in property development.

See more about Boston's remarkable 1,100-acre Emerald Necklace park system, designed by architect Frederick Law Olmsted, with Will Lange on PBS in 2014.

The case is Emerald Necklace Conservancy, Inc. v. City of Boston, No. 2484CV00477 (filed as 24-0477) (Mass. Super. Ct. filed Feb. 20, 2024). Emerald Necklace asked for a temporary injunction. Hat tip @ Madeline Lyskawa, Law360 (subscription).