As the Legislature concluded its formal sessions, legislation seeking to amend the longstanding process to preserve public lands during land transfers or land use changes remained in conference committee discussions.

Conference committee members indicated, however, that a final version of a public lands preservation bill could still be addressed during informal sessions, although doing so would require unanimous consent among legislators.

Article 97 of the Massachusetts Constitution provides a clear process for protecting public lands and establishes a series of steps necessary to preserve open space in the case of land use change or disposal. Open space refers to conservation, forested, recreational, agricultural and undeveloped land, as well as green buffers along open areas and roadways. These lands are often home to important environmental features such as natural habitats and terrain, and can be vital resources for public recreation.

Under Article 97’s “no net loss” policy, when a municipality or public entity makes a proposal to dispose of or use protected open space for a different purpose, it must mitigate the loss by providing comparable replacement land.

The two bills the conference committee is seeking to reconcile (H. 851 and S. 2831) would codify the process articulated by Article 97, and, in addition, would require communities to complete a feasibility study regarding the purchase of replacement land and/or the payment of mitigation fees for lost land.

The MMA argues that such a study could be costly and add significant delays to the new public benefits achieved through a change of use. For many years, the MMA has opposed further codification and expansion of Article 97 as unwarranted and an unnecessary burden on municipalities who have dutifully followed the established process for decades.

The Senate version of the bill provides an important alternative for municipalities that struggle to find replacement land to satisfy existing requirements. This flexibility would allow the secretary of Energy and Environmental Affairs to waive or modify requirements when comparable land is not easily available to be used as replacement, presenting more options for municipalities to satisfy the intent of Article 97’s “no net loss” policy.

Under the Senate bill, Energy and Environmental Affairs would have the ability to permit funding for the acquisition of replacement land at a later time. This language could help reduce the likelihood of delays and other unintended consequences from a more rigid, “one-size-fits-all” approach.

The MMA voiced its support for including these updated modifications in a letter to the conference committee on July 22.

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