FILED ON: 1/24/2012
HOUSE . . . . . . . . . . . . . . . No. 3438
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The Commonwealth of Massachusetts
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In the Year Two Thousand Twelve
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An Act to protect the natural resources of the Commonwealth.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. The General Laws are hereby amended by inserting after chapter 132B the following chapter:-
CHAPTER 132C. PUBLIC LANDS PRESERVATION ACT.
Section 1. It is hereby declared to be the policy of the commonwealth that lands or easements taken or acquired for natural resource purposes, consistent with Article 97, are a vital and indispensable public natural resource and, therefore, that there shall be no net loss of public lands or easements taken or acquired for natural resource purposes as a result of disposition or change in use of these lands.
Section 2. Definitions. As used in this chapter, the following words shall have the following meanings: -
“Alternatives analysis”, a description of alternatives to a proposed disposition or change in use of lands or easements protected under Article 97, including, but not limited to, an analysis of the most reasonable alternative (other than taking no action) that does not require disposition or change in use under Article 97; the description of an alternative shall include analysis of cost, impact on current use, environmental impact and non-financial advantages and disadvantages, vis-a-vis the proposed disposition or change in use.
“Appraisal”, a written statement independently and impartially prepared by a state certified or state licensed appraiser setting forth an opinion as to the fair market value of an adequately described property as of a specific date, supported by the presentation and analysis of relevant market information.
“Article 97”, Article XLIX, as appearing in Article XCVII, of the Amendments to the Constitution.
“Article 97 lands or easements”, lands or easements taken or acquired for natural resource purposes under Article 97.
“Change in use” or “used for other purposes”, a diversion of Article 97 lands or easements, or portion thereof, from existing use.
“Disposition”, "dispose" or “disposed”, the transfer of physical or legal custody or control of lands or easements, or a portion thereof, by conveying, relinquishing, leasing for any term, granting of interests in, or transferring by any other means physical or legal custody or control, regardless of whether the transfer is for the same or different uses, or for consistent or inconsistent purposes.
“Fair market value”, the price, expressed in terms of cash equivalents, at which property would change hands between a hypothetical willing and able buyer and a hypothetical willing and able seller, acting at arm’s length in an open and unrestricted market, when neither is under compulsion to buy or sell and when both have reasonable knowledge of the relevant facts, and assuming the property would or could be put to its highest and best economic use.
“Lands or easements”, lands; easements; conservation restrictions, agricultural preservation restrictions and watershed preservation restrictions, as defined in section 31 of chapter 184; and other restrictions or conditions contained in a deed, grant or other instrument purporting to transfer or convey an interest in land, regardless of the term of such easements, restrictions or conditions.
“Natural resource purposes”, the purposes described in Article 97.
“Owner”, the commonwealth department, agency, authority, public instrumentality, town, municipality or political subdivision that owns or has care, custody or control of the lands or easements for which there is a proposed disposition or change in use.
“Replacement land”, lands or easements acquired by the owner that are of equal or greater area, market value and natural resource value and of comparable location and use, as compared with the Article 97 lands or easements being disposed of or changed in use; lands or easements already protected under Article 97 shall not qualify as replacement land.
“Taken or acquired”, obtained by gift, purchase, devise, grant, exchange, lease, taking by eminent domain or otherwise, by the commonwealth, any of its political subdivisions or bodies politic, or any instrumentality thereof, or through use of public funds, including land bank funds.
Section 3. It shall be the policy of the general court not to enact legislation to allow a disposition or change in use of lands or easements taken or acquired for natural resource purposes under Article 97, unless the owner of the lands or easements provides the general court the following:
(a) a statement from the secretary of energy and environmental affairs as to whether the lands or easements are classified as Article 97 lands or easements;
(b) either in the text of the proposed legislation or separately in writing a description of the lands or easements, including legal description, location, name of owner, acreage, purpose for which land was acquired, current use and natural resource benefits, and a description of the proposed disposition or change in use, including name of any proposed grantee, purpose of the proposed disposition or change in use, proposed new use, and anticipated physical changes in the land or easements;
(c) copies of the deed conveying the lands or easements to the present owner and of any restrictions on the lands or easements;
(d) copies of statutorily required approvals by the governing body or officer of the owner, approving the disposition or change in use of the lands or easements, including, if applicable, copies of required approvals by the local conservation commission, which shall have been obtained prior to approval by the governing body or officer;
(e) either in the text of the proposed legislation or separately in writing a description of the replacement land, including legal description, location, name of landowner, acreage, current use, and, if the landowner is a public entity, purpose for which land was acquired;
(f) an alternatives analysis approved by the secretary of energy and environmental affairs;
(g) statements of the fair market value of the lands or easements and of the replacement land, each substantiated by an appraisal;
(h) copies of statutorily required approvals by the governing body or officer of the owner, approving the acquisition of the replacement land; and
(i) a statement from the secretary of energy and environmental affairs that the proposed replacement land meets the requirements set forth in the definition of replacement land.
Section 4. Upon application of the owner, the secretary of energy and environmental affairs may grant a waiver releasing the owner from the requirements set forth in sub-sections (e) through (i) of Section 3, conditional upon:
(a) subsequent to disposition there being no change in use or physical change in the lands or easements disposed other than change due to natural causes, provided the lands or easements are currently serving a public natural resource purpose;
(b) any proposed change in use being temporary and within no more than five years from the change in use the lands or easements reverting to the same state and use as existed immediately prior to the change in use;
(c) the lands or easements proposed for disposition or change in use being occupied primarily and substantially by pre-existing, non-encroaching buildings or sheds, which may include immediately adjacent land containing out-buildings, paved areas or landscaped areas appurtenant to, necessary for and used solely for said pre-existing buildings or sheds; or
(d) the lands or easements having an area of 2,500 square feet or less, the secretary of energy and environmental affairs providing a statement that the lands or easements are insignificant for natural resource purposes, and the lands or easements not being part of a contiguous area of Article 97 lands or easements any part of which have been approved by statute for disposition or change in use within the five years prior to filing of legislation proposing disposition or change in use.
If a waiver is granted such waiver shall be provided to the general court in lieu of the requirements set forth in sub-sections (e) through (i) of Section 3.
Section 5. Any act authorizing disposition or change in use of Article 97 lands or easements shall stipulate that approval of the disposition or change in use shall be conditional upon acquisition of the replacement land described in Section 3, unless a waiver has been granted pursuant to Section 4. Any act authorizing disposition or change in use Article 97 lands or easements subject to a waiver under conditions in Section 4(a) or Section 4(b) shall stipulate that, if at any time any condition on which the waiver is based ceases to be met, title, jurisdiction, control, and other rights and perquisites disposed shall revert to the owner or the change in use shall become invalid and cease to have statutory approval, and any deed, lease, or other instrument effecting the disposition or change in use shall so state.
Section 6. Any committee in the Massachusetts General Court to which has been referred any bill involving dispositions or changes in use of lands or easements taken or acquired for natural resources purposes under Article 97 shall, by August 31 of the second year of each legislative session, each file with the clerks of the senate and house of representatives a report detailing their activities on all said bills.
Section 7. The commonwealth or its agency, authority or instrumentality, but not including municipalities, shall notify the public at least 30 days prior to filing a bill to dispose or change the use of any Article 97 lands or easements.
SECTION 2. Within 6 months after the effective date of this act, the secretary of energy and environmental affairs shall develop and publish for public review and comment guidelines for conducting an alternatives analysis and identifying replacement land and within 1 year after the effective date of this act shall publish the guidelines in final form.