NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; [email protected]
SJC-13865
EMERALD NECKLACE CONSERVANCY, INC., & others1 vs.
CITY OF BOSTON & others.2
Suffolk. April 8, 2026. - August 19, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges,
Dewar, & Wolohojian, JJ.
Municipal Corporations, Parks, Use of municipal property. Parks
and Parkways. Constitutional Law, Taking of property.
Declaratory Relief. Boston. Statute, Construction.
Trust, Charitable trust, Construction, Breach of trust.
Practice, Civil, Standing, Declaratory proceeding,
Dismissal. School and School Committee. Attorney General.
1 Beth Abelow, Jerrold Abelow, Jon Ball, Carla-Lisa Caliga, Rory Coffey, Jamie Cohen, John R. Cook, Louis Elisa, Derrick Evans, Marjorie Greville, Melissa Hamel, Pamela Jones, Arlene Mattison, Karen Mauney-Brodek, Jean McGuire, Beverly Merz, Daniel K. Moon, Rodney Singleton, Ben Taylor, and Renee Welch.
2 Trustees of the George Robert White Fund; Michelle Wu, as mayor of Boston and chairperson and trustee of the George Robert White Fund; Ruthzee Louijeune, as president of the city council of Boston and trustee of the George Robert White Fund; Maureen Joyce, as auditor of Boston and trustee of the George Robert White Fund; James E. Rooney, as president and chief executive officer of the Boston Chamber of Commerce and trustee of the George Robert White Fund; Matthew P. McTygue, as president of the Boston Bar Association and trustee of the George Robert White Fund; Boston public schools; parks and recreation department of Boston; Boston Unity Soccer Partners LLC; and Boston Unity Stadco LLC.
2
Real Property, Easement, License. Contract, Construction
of contract.
Civil action commenced in the Superior Court Department on February 20, 2024.
The case was heard by Matthew J. Nestor, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Alan E. Lipkind (Nicholas Allen also present) for the plaintiffs.
Sammy S. Nabulsi (Gary M. Ronan, Christopher C. Tsouros, & Lauren C. Galvin also present) for city of Boston & others.
Callum LaFrance, for Environmental Justice Assistance Network, amicus curiae, was present but did not argue.
The following submitted briefs for amici curiae:
Alexandra Arnold & David A. Bunis for Trustees of Amherst College & others.
Francis E. O'Brien, pro se.
Harley C. Racer & Yelitza Montesino for Hugh Mattison & others.
Andrea Joy Campbell, Attorney General, Emily T. Gabrault & Jonathan C. Green, Assistant Attorneys General, for the Attorney General.
Thomas J. Carey, Jr., for Olmsted Network & others.
Michael E. Kenneally, Pranav Mulpur, & Charles L. Solomont for New England Revolution.
Eric L. Klein, C. Dylan Sanders, Joseph R. Ruggiero, & Korinna I. Garfield for Massachusetts Land Trust Coalition & others.
Michael J. McDermott & Sarah J. McHale for Franklin Park Coalition.
Andrew R. Dennington & Ali T. DiMatteo for Massachusetts Municipal Association, Inc.
Keith P. Carroll & Christopher H. Booth for Hatim JeanLouis & others.
WOLOHOJIAN, J. The central issue in this appeal is whether
the parcel of land located in Boston's Franklin Park upon which
3
the George Robert White Fund Memorial Stadium (White Stadium or
stadium) was situated is subject to art. 97 of the Amendments to
the Massachusetts Constitution, which requires a two-thirds vote
of the Legislature to dispose of parkland or convert it to
another use.
We first conclude that the plaintiffs have no cognizable
individual interest in the George Robert White Fund (White Fund,
fund, or trust), and therefore do not have standing to challenge
alleged violations of its provisions. Turning then to the main
issue in this appeal, we conclude that, although the stadium
parcel was originally acquired by the city of Boston (city) by
eminent domain for use as a public park, as a result of
legislative action in 1947 and 1950, the stadium parcel was
thereafter dedicated to another use not subject to the
provisions of art. 97. More specifically, in 1947, the
Legislature authorized the stadium parcel to be conveyed at fair
market value to the White Fund to be used in accordance with the
purposes identified in Article Fourteenth of the will of George
Robert White, and those purposes were not limited to park use.
St. 1947, c. 542, § 1 (1947 statute). And, in 1950, the
Legislature recognized and designated White Stadium and the
stadium parcel as "a school building and yard," to be repaired
and maintained as such through appropriations by the city's
school committee. St. 1950, c. 291, § 1 (1950 statute). See
4
St. 1936, c. 224, § 2 (b). Taken together, these two pieces of
legislation effectively removed the stadium parcel from its
previous designation as parkland and made it a school department
facility to be maintained by the school committee. Accordingly,
by the time art. 97 was ratified over twenty years later in
1972, the stadium parcel was no longer subject to its
provisions. Finally, we conclude that the plaintiffs'
challenges to the proposed use of areas within Franklin Park,
but outside the stadium parcel, fail. We accordingly affirm the
judgment of the Superior Court in favor of the defendants.3
3 We acknowledge the amicus briefs submitted in support of the defendants by Trustees of Amherst College, Bentley University, Trustees of Boston College, Trustees of Boston University, Brandeis University, Trustees of Clark University, Emerson College, President and Fellows of Harvard College, Trustees of the College of the Holy Cross, Massachusetts Institute of Technology, Franklin W. Olin College of Engineering, Inc., Regis College, Trustees of the Smith College, Suffolk University, Trustees of Tufts College, Wellesley College, Wheaton College, President and Trustees of Williams College, and Worcester Polytechnic Institute; the Attorney General; the New England Revolution; Franklin Park Coalition; Massachusetts Municipal Association, Inc.; and Hatim Jean-Louis, Terry Cousins, Tony Darocha, and David Shapiro. We also acknowledge the amicus briefs submitted in support of the plaintiffs by Francis E. O'Brien; Hugh Mattison, Ethan Carr, Keith Morgan, Elizabeth Saunders, Charles Beveridge, and Tupper West Thomas; Olmsted Network, William Bell, Friends of OlmstedBeil House, Austin Allen, Friends of the Parks, Olmsted Linear Park Alliance, and Olmsted Parks Conservancy; Environmental Justice Assistance Network; and Massachusetts Land Trust Coalition, Kestrel Land Trust, Greater Worcester Land Trust, Douglas Foy, Andrew Falender, James Hoyte, and William Constable.
5
Background. We draw the facts from the trial judge's
findings and the undisputed documentary evidence at trial.
1. Franklin Park. In 1883, the city took by eminent
domain several parcels of land in the city's West Roxbury
section "as, and for, a public park." The acquisition was
authorized by "An Act for the laying out of public parks in or
near the city of Boston" (Parks Act), which enabled the city to
appoint a board of park commissioners empowered to acquire land
for public parks. St. 1875, c. 185, §§ 1-3.
The city turned to the prominent landscape architect
Frederick Law Olmsted to design a park using the acquired land.
Olmsted proceeded to design what is now known as Franklin Park,
the largest public park in Boston and the "crown jewel" of the
system of parks that ultimately became known as the Emerald
Necklace. Olmstead envisioned an area he called the "Playstead"
at the north end of Franklin Park to be used "for the athletic
recreation and education of the city's schoolboys, for
occasional civil ceremonies and exhibitions, and for any purpose
likely to draw spectators in crowds" (citation omitted). Since
Franklin Park's opening, the Playstead has been used for both
individual recreation and large-scale gatherings such as
athletic events, festivals, and parades.
2. The White Fund. In 1922, antibacterial soap magnate
George Robert White died in Boston. Article Fourteenth of
6
White's will created the White Fund for the purpose of "creating
works of public utility and beauty, for the use and enjoyment of
the inhabitants of the City of Boston."4 The will expressed
4 In pertinent part, Article Fourteenth of White's will provides:
"Whereas my sister Mary E. Sullivan has died, and I have
otherwise provided for my sister Harriet J. Bradbury, I do
now carry out by immediate gift my public charitable
purpose which in previous wills I had provided for in
remainder, and I do now give all the rest and residue of my
property of every nature to the City of Boston, the same to
be held as a permanent charitable trust fund to be known as
the George Robert White Fund, and the net income only to be
used for creating works of public utility and beauty, for
the use and enjoyment of the inhabitants of the City of
Boston. It is my intention that no part of said income,
however, shall be used for a religious, political,
educational or any purpose which it shall be the duty of
the City in the ordinary course of events to provide. . . .
Any work or works established from the Fund may be
improved, extended, enlarged or added to from time to time,
but the current expense of their care and maintenance shall
be borne by the City. . . . While I think that Boston has
now few, if any, superiors in beauty and in the many
privileges it affords to its citizens, yet I believe it has
greater possibilities for the future, and there are several
public blessings among those afforded by other cities, --such as a zoological garden and handsome buildings
therefor, an aquarium, a forum of substantial proportions
for public gatherings, etc. –- which we do not possess. It
is with such things as these in mind that I have
established the foregoing trust fund. I can conceive that
pressure might be brought to bear to use the income of the
Fund for small and comparatively unimportant needs, which
might be equally deserving and technically within the
general scope of the Trust as heretofore expressed. A use
of it for such purposes to any substantial extent would be
contrary to my intention, which is that its income,
accumulated if need be for a time long enough to make it
sufficient, should be used only for important civic
improvements."
7
White's intention that the income of the White Fund "be used
only for important civic improvements," not "to any substantial
extent" for modest projects, and gave examples of the kinds of
works White intended, "such as a zoological garden and handsome
buildings therefor, an aquarium, a forum of substantial
proportions for public gatherings, etc." Although income from
the White Fund could be used to build edifices of the sort White
intended, it could not be used to pay for their upkeep and
maintenance costs. Instead, White specified that the city was
to bear those costs, and that the fund's income should not be
"mingled with other funds or applied in joint undertakings."5,6
The city accepted White's bequest and its accompanying terms in
1922.
3. Legislative and city action. Twenty-five years later,
in 1947, the Legislature authorized the city to transfer "any
land . . . including park land" owned by the city to the White
5 Management of the White Fund is entrusted to a board of trustees (trustees) composed primarily of city officials, including the mayor, the president of the city council, and the auditor, as well as the presidents of the Boston Chamber of Commerce and Boston Bar Association. In addition, White's will charged the "regular departments of the City" with transacting the White Fund's business, and the city with providing an office, currently located in Boston City Hall, for the keeping of the White Fund's records.
6 Any public work constructed with money from the White Fund is to be conspicuously identified as "erected or established from" the fund.
8
Fund "to be held thereafter for the purposes of" Article
Fourteenth of White's will, upon the trustees' request and in
exchange for the fair cash value of the land. St. 1947, c. 542,
§ 1. In full, the relevant provision provides:
"Any land heretofore or hereafter acquired in fee by the
city of Boston by tax title foreclosure and any land,
including park land, heretofore or hereafter acquired in
fee by said city by eminent domain or by purchase, gift,
devise or otherwise may, if the board of trustees of the
fund established by article fourteenth of the will of
George Robert White and known as the George Robert White
Fund so requests and the board or officer having charge of
said land so recommends, be transferred for the fair cash
value thereof by vote of the city counsel of said city,
subject to the provisions of its charter, to said fund to
be held thereafter for the purposes of said article
fourteenth . . ." (emphasis added).
Id. Later that year and pursuant to the 1947 statute, the city
transferred a fourteen-acre parcel within the Playstead (stadium
parcel) to the White Fund "for the purpose of the establishment
of a stadium on said land." Construction soon began on White
Stadium, which was completed in 1949.
On June 7, 1949, the White Fund trustees voted that the
stadium be "turned over to the City -- according to the terms of
[White's] [w]ill." The city considered various options for
which department should have custody of (and financial
responsibility for) the stadium, including the park department
or a new stadium commission. Ultimately, on the trustees'
recommendation, the city school committee's request, and the
mayor's instructions, the city's school department took over
9
care, custody, and control of White Stadium.7 That said, the
White Fund retained ownership of the stadium parcel, and
continues to do so to this day.
In 1950, the Legislature passed "An Act relative to the
George Robert White Fund Schoolboy Stadium in the city of
Boston." St. 1950, c. 291. In relevant part, the 1950 statute
provided:
"So long as the stadium in the city of Boston known as the
George Robert White Fund Schoolboy Stadium shall remain in
the custody and control of the school committee of said
city, said stadium, together with the estate upon which it
stands, shall be deemed to be a school building and yard,
and shall be repaired, altered, improved and furnished in
the same manner as a school building and yard . . . and
shall be cared for and maintained in like manner . . ."
(emphasis added).8,9
Id.
4. White Stadium. As initially constructed, White Stadium
consisted of a central field surrounded by a track and bracketed
by two grandstands (east and west grandstands) with 10,000 total
7The school committee had argued that placing the stadium under its jurisdiction was "the only sound method of administration, both from an educational and financial standpoint."
8The 1950 statute specifically provided that expenses for the stadium would be funded via the mechanisms in St. 1936, c. 224, for funding the "alteration and repair of school buildings" and for "all other school purposes."
9The Legislature later removed the condition that the stadium remain in the school committee's custody and control. St. 1973, c. 1177, § 44.
10
seats. The stadium and field, as well as an open area south of
the stadium known as the Grove, were surrounded by a fence
separating them from the rest of the stadium parcel.
Since its opening in 1949, White Stadium has been used by
Boston public schools to host athletic events, including games
and practices,10 as well as graduation ceremonies. The Boston
public schools athletics department has maintained offices in
the west grandstand. The general public has also used the
stadium for informal exercise and recreation, and for community
events such as cultural festivals. As of 2025, the track and
seating and aisle areas of the grandstands were open to the
public on weekdays from 7 A.M. to 4 P.M. The public did not
have access to the playing field or to the interior of the
grandstands, and the entire stadium was locked outside open
hours.
Outside the stadium itself, the stadium parcel has also
long been used by the public for exercise and recreation and for
community events.11 The unfenced portion of the stadium parcel
has generally been accessible to the public at all times.
10Four local high schools have historically used White Stadium for football games, and the stadium has hosted school football, soccer, cross country, cheerleading, and track and field, and Special Olympics practices and competitions.
11For example, the city's Puerto Rican and Dominican festivals and the celebration of artists of color known as BAMS Fest are held on the stadium parcel.
11
5. Planned project. In 2023, in response to White
Stadium's increasing dilapidation,12 the city and Boston public
schools issued a request for proposals seeking private firms
interested in partnering to "fully renovate, rebuild, and
reimagine White Stadium." The only organization to respond was
Boston Unity Soccer Partners LLC, which formed for the purpose
of seeking a franchise to operate a professional women's soccer
team to play at White Stadium.13
On December 23, 2024, without seeking or obtaining approval
from the Legislature pursuant to art. 97, the city signed a
lease agreement and a stadium usage agreement (collectively,
agreements) with Boston Unity Soccer Partners LLC and its
subsidiary, Boston Unity Stadco LLC (collectively, Unity
Soccer). Among other things, the agreements provide for the
demolition of White Stadium, the construction of a replacement
stadium, and a lease to Unity Soccer for a portion of the
replacement stadium (project). The agreements contemplate a
12As of 2025, the interior of the east grandstand was virtually unusable due to decades-old fire damage; the grandstands' foundation had structural deficiencies; the stadium's plumbing was inoperable during the winter and needed replacement, as did the lighting and heating, ventilation, and air conditioning systems; the stadium floors had suffered water damage; the field was only usable for 250 hours a year due to maintenance issues; and the stadium did not comply with current building and fire codes or the Americans with Disabilities Act.
13The National Women's Soccer League awarded Boston Unity Soccer Partners LLC such a franchise in 2023.
12
collaboration between Unity Soccer and the city whereby the city
will be responsible for building the new eastern grandstand,
track, and athletic field while Unity Soccer will be responsible
for building the western grandstand, a restaurant and bar in the
Grove, and other miscellaneous improvements to the stadium
parcel such as new pathways and lighting. The agreements also
provide for various upgrades to the functionality of the stadium
itself. In addition, the project will entail work in Franklin
Park outside the stadium parcel, including construction and
improvement of pedestrian paths to the stadium. The replacement
stadium will be named after White.
Upon conclusion of construction, the city will lease the
western grandstand and the Grove to Unity Soccer for a ten-year
term, with up to two renewal terms at Unity Soccer's option.
Unity Soccer will have exclusive use of the western grandstand's
interior and of the restaurant building in the Grove for the
duration of the lease, as well as of the stadium as a whole for
twenty home soccer games each year and for team practices and
other team events. In addition, the agreements grant Unity
Soccer a right to access the stadium parcel through Franklin
Park sufficient to accommodate home soccer games, practices, and
events and the operation of the Grove restaurant. High school
football games will not be allowed at the stadium during the
soccer season. Except for days including team events, such as
13
games, or city events, such as public school games or practices,
the new stadium will be open to the public from 6 A.M. to 9 P.M.
every day of the week.
Procedural background. Plaintiff Emerald Necklace
Conservancy, Inc. (Conservancy) is a nonprofit organization
whose mission is to "preserve, improve, promote, and maintain
the system of land and water park areas known as the Emerald
Necklace." The Conservancy is joined by twenty individual
plaintiffs, some of whom are members of the Conservancy, who
primarily live near Franklin Park, including the stadium parcel.
The plaintiffs brought suit in the Superior Court, seeking,
in broad strokes, (1) declarations that the project violated the
terms of the White Fund, (2) declarations that White Stadium,
the stadium parcel, and Franklin Park as a whole are protected
by art. 97, and that the project represents a change of use for
the stadium parcel and the surrounding areas of Franklin Park
that is prohibited by art. 97, and (3) injunctions preventing
the city and Unity Soccer from continuing the project until
various statutory requirements are met14 or from transferring any
portion of the stadium parcel to a private entity.
14The plaintiffs asserted that, in addition to seeking approval by two-thirds of the Legislature pursuant to art. 97, the defendants were required to satisfy various statutory requirements, including those imposed by G. L. c. 3, § 5A, G. L. c. 40, § 53, G. L. c. 45, § 7, and G. L. c. 214, § 7A. Each of these statutes is applicable here only insofar as the project
14
A judge denied the plaintiffs' motion for a preliminary
injunction, concluding that they had failed to demonstrate
either a likelihood of success on the merits or irreparable
harm.15 Subsequently, a different judge (trial judge) dismissed
the plaintiffs' claims seeking to enforce the terms of the
trust, concluding that the plaintiffs lacked standing to assert
claims for breach of a public charitable trust.
After a three-day bench trial, the trial judge entered
judgment in favor of the defendants on the remaining claims.
The plaintiffs timely appealed, and we transferred the case here
on our own initiative.
Discussion. At the core of this appeal is the plaintiffs'
contention that the stadium parcel was parkland at the time
art. 97 was ratified and, therefore, was and is subject to
art. 97's requirement that a two-thirds vote of the Legislature
is required to change the parcel's use. In addition, the
plaintiffs contend that their claims for breach of trust were
incorrectly dismissed for lack of standing, and that the trial
implicates art. 97. Because we conclude that legislative approval under art. 97 was not required, we do not discuss these statutes or claims further.
15The motion judge likewise denied the plaintiffs' requests for a temporary restraining order and for a memorandum of lis pendens. In the absence of an injunction, the defendants proceeded with the project by demolishing White Stadium and began reconstruction.
15
judge erred with respect to their claims regarding usage of
Franklin Park beyond the stadium parcel. We begin with the
question of standing.
1. Standing. The plaintiffs, who, as we have already
noted, are a nonprofit organization and a group of private
citizens, contend that the agreements constitute a breach of the
terms of the public charitable trust created by White's will by
allowing Unity Soccer -- a private for-profit entity -- to use
trust property for a private purpose. The plaintiffs also
allege that certain provisions of the lease to Unity Soccer
violate the terms of the trust.16 Based on these allegations,
counts I and II of the third amended complaint sought
declaratory relief to enforce the terms of the trust.
The issue here is whether the plaintiffs have standing to
pursue such relief on behalf of the trust. The trial judge
concluded that they did not, and accordingly dismissed counts I
and II of the third amended complaint. We review an order on a
motion to dismiss de novo, accepting as true the facts alleged
in the complaint and attached exhibits and drawing all
16More specifically, the plaintiffs point to a litigationloss provision and an expression of intent to enter an agreement for payment in lieu of taxes under G. L. c. 121B, § 16, as violating terms of the trust.
16
reasonable inferences in the plaintiffs' favor.17 Revere v.
Mass. Gaming Comm'n, 476 Mass. 591, 595 (2017).
Generally speaking, "the Attorney General is the only
person apart from a trustee who, on behalf of the general public
served by [a public charitable] trust's charitable mission, has
standing to bring [an action to correct abuses in the
administration of the trust]." DeGiacomo v. Quincy, 476 Mass.
38, 46 (2016). See G. L. c. 12, § 8. This "'power and duty'"
of the Attorney General "reflects [the] Legislature's
recognition 'of the necessity of protecting public charities
from being called upon to answer to proceedings instituted by
individuals, with or without just cause, who have no private
interests distinct from those of the public.'" DeGiacomo, 476
Mass. at 49, quoting Dillaway v. Burton, 256 Mass. 568, 575
(1926).
Where persons, such as the plaintiffs here, who are neither
the Attorney General nor a trustee seek to assert a claim of
breach of a public charitable trust, they must "[assert] an
individual interest in the charitable organization distinct from
17While the defendants styled their challenge to the plaintiffs' standing as a motion in limine, the trial judge appropriately treated it as a motion to dismiss. See Colorio v. Marx, 72 Mass. App. Ct. 382, 385 (2008) (motion's label is less important than its substance). See also Sudbury v. Massachusetts Bay Transp. Auth., 485 Mass. 774, 779 (2020) (standing may be raised at any time).
17
that of the general public." DeGiacomo, 476 Mass. at 46,
quoting Maffei v. Roman Catholic Archbishop of Boston, 449 Mass.
235, 245 (2007), cert. denied, 552 U.S. 1099 (2008). Such an
individual interest must arise from infringement of a "personal
right that directly affects" the plaintiff, Weaver v. Wood, 425
Mass. 270, 276 (1997), cert. denied, 522 U.S. 1049 (1998), such
as an asserted reversionary interest in the charitable trust's
property, see Maffei, 449 Mass. at 245, a loss of personal
funds, see id., or an unlawful denial of membership in the
charity, see Lopez v. Medford Community Ctr., Inc., 384 Mass.
163, 168 (1981). Where such an interest exists, the plaintiff's
standing is limited to enforcing that individual interest. See
id. (plaintiffs had standing to challenge allegedly unlawful
denial of their membership in charity, but not to raise other
claims of mismanagement by trustees). Membership in a
charitable organization, involvement in the community the
charity is intended to serve, or status as a donor to the
charity does not by itself create an interest sufficient to
confer standing. See Weaver, 425 Mass. at 277 (church
membership does not grant standing to challenge administration
of associated trusts); Ames v. Attorney Gen., 332 Mass. 246, 249
(1955) (members of committee that provided advice to management
of public arboretum, who were "actively interested" in arboretum
18
and contributed to it, had no individual interest in associated
trust distinct from that of public).
The plaintiffs in this case assert no cognizable interest
in the White Fund itself. And, to state the obvious, they are
neither the Attorney General nor trustees of the White Fund.
They thus do not fall within the parameters we have established
for standing to enforce the terms of a public charitable trust.
This is so despite the fact that the Conservancy's
organizational mission is to "preserve, improve, promote, and
maintain" parks within the Emerald Necklace, including Franklin
Park, and that the individual plaintiffs are involved in the
mission of the Conservancy or make use of the stadium parcel for
their own recreation. Membership in an organization having a
mission harmonious with the purpose of a public charitable trust
is not, by itself, enough to confer standing to enforce the
terms of that trust, nor is recreational use of trust-owned land
as a member of the general public. See Ames, 332 Mass. at 249
(volunteering for or donating to charitable organization is not
enough for standing). Nor does it help the plaintiffs that the
city's parks and recreation department temporarily contracted
with the Conservancy for tree-pruning in Franklin Park in 2020,
because that arrangement gave the Conservancy no ongoing
interest in the trust itself.
19
The plaintiffs urge that we adopt a more relaxed view of
standing where, as here, the Attorney General has decided not to
bring an enforcement action on behalf of the trust. The
plaintiffs advocate that, in such circumstances, standing should
be determined by reference to one of two multifactor tests,
which can be found in the margin.18 But such an approach would
be at odds with our established standard for special-interest
standing, and we decline to adopt it. For more than a century,
we have carefully limited special-interest standing due to a
recognition that the public interest is not served by exposing
public charitable trusts to "attack from all sides." Ames, 332
Mass. at 253. The duty to protect such trusts is "more
satisfactorily performed by one acting under official
responsibility," whose "duty [is] to see that the public
interests are protected and to proceed in the prosecution or to
decline so to proceed as those interests may require" (emphasis
18Under one, the so-called Blasko standard, plaintiffs have standing to enforce the terms of a charitable trust if the balance of five factors favors standing: "(1) the extraordinary nature of the acts complained of and the remedies sought; (2) the presence of bad faith; (3) the [A]ttorney [G]eneral's availability and effectiveness; (4) the nature of the benefitted class and its relationship to the charity; and (5) the social desirability of conferring standing." In re Trust of Eddy, 172 N.H. 266, 271 (2019), citing Blasko, Crossley, & Lloyd, Standing to Sue in the Charitable Sector, 28 U.S.F. L. Rev. 37, 61 (1993). Under the other, promulgated by the American Law Institute, plaintiffs must satisfy each of a similar list of factors. Restatement of Charitable Nonprofit Organizations § 6.05 (2021).
20
added). Dillaway, 256 Mass. at 573, quoting Burbank v. Burbank,
152 Mass. 254, 256 (1890). Abandoning our limitations on
standing when the Attorney General exercises her proper
authority to conclude that bringing suit is not warranted would
open charitable trusts to precisely the barrage of claims that
we have traditionally sought to prevent.
For these reasons, counts I and II of the third amended
complaint were properly dismissed for lack of standing.
2. Article 97. As relevant here, art. 97 requires a twothirds vote by both houses of the Legislature before land
subject to its provisions, such as land committed to use as a
park, may be used or disposed of for other purposes. See Smith
v. Westfield, 478 Mass. 49, 60 (2017). Even prior to the
adoption of art. 97, "[t]he rule that public lands devoted to
one public use cannot be diverted to another inconsistent public
use without plain and explicit legislation authorizing the
diversion [was] firmly established in our [common] law."
Robbins v. Department of Pub. Works, 355 Mass. 328, 330 (1969).
It is undisputed that no legislative approval was sought or
obtained with respect to the proposed use of the stadium parcel
before the city and Unity Soccer entered into the agreements.
But the question here is whether legislative approval was
required. And the answer to that question turns on whether the
stadium parcel was parkland at the time the agreements were
21
entered into. The trial judge concluded that it was not. We
review the trial judge's rulings of law de novo and his findings
of fact for clear error. Trace Constr., Inc. v. Dana Barros
Sports Complex, LLC, 459 Mass. 346, 351 (2011).
Although art. 97 was ratified in 1972, its protections,
including the requirement of a two-thirds vote by the
Legislature prior to disposition or diversion, apply to "all
property that was taken or acquired for art. 97 purposes" at any
point in the Commonwealth's history. Smith, 478 Mass. at 62,
citing Opinion of the Justices, 383 Mass. 895, 918 (1981).
Thus, it is not dispositive that the city acquired the stadium
parcel (together with the other land that became Franklin Park)
by eminent domain long before art. 97 was ratified. Instead,
the "critical question" is "whether the land was taken for [art.
97] purposes, or subsequent to the taking was designated for
those purposes in a manner sufficient to invoke the protection
of art. 97." Mahajan v. Department of Environmental Protection,
464 Mass. 604, 615 (2013).
The establishment of public parks is a quintessential use
of natural resources, and land exclusively designated as
parkland sits at the heart of art. 97's protections. See Smith,
478 Mass. at 62-63, citing Mahajan, 464 Mass. at 615. Here, the
city's 1883 taking order was explicit that the land to be taken
by eminent domain, including the stadium parcel, was taken "as,
22
and for, a public park" pursuant to the Parks Act of 1875. The
city's subsequent hiring of Frederick Olmsted to design and
reshape the landscape as parkland and for public recreation
confirmed and implemented the city's intended use of the land.
On these facts, we have no hesitation in concluding that at the
time it was taken by eminent domain in 1883, the stadium parcel
was dedicated parkland. Cf. Smith, 478 Mass. at 63 (postacquisition, land is dedicated as public park when "the
landowner's intent to do so is clear and unequivocal" and public
accepts dedication by using land as park). It was therefore
subject to art. 97 to the extent that its dedication as parkland
continued. See Higginson v. Treasurer & Sch. House Comm'rs of
Boston, 212 Mass. 583, 587-589 (1912) (land taken pursuant to
Parks Act is public park belonging to general public rather than
to municipality). See also Jacobson v. Parks & Recreation
Comm'n of Boston, 345 Mass. 641, 643 (1963) (holding that St.
1899, c. 274, which gave Boston board of park commissioners "the
same powers over" lands subject to that statute as over lands
acquired via Parks Act, sufficed to make land at issue
parkland).
The defendants argue that the Legislature diverted the
stadium parcel from use as parkland by operation of the 1947 and
1950 statutes. Because these statutes predate the ratification
of art. 97, in order for the defendants' argument to succeed,
23
the statutes must satisfy the requirements of the common-law
doctrine of "prior public use" –- not the heightened and
enhanced requirements of art. 97. See Carroll v. Select Bd. of
Norwell, 493 Mass. 178, 184 (2024). See also Smith, 478 Mass.
at 61-62 (process for removing lands from art. 97 protection
must be understood in context of prior public use doctrine);
Mahajan, 464 Mass. at 616 ("spirit of art. 97 is derived from"
prior public use doctrine). A key distinction between art. 97
and the prior public use doctrine is that the latter does not
require a supermajority vote by the Legislature. See Smith, 478
Mass. at 61-62 (parkland can be repurposed under prior public
use doctrine by "bare majority" of Legislature).
The prior public use doctrine, developed during the
Nineteenth Century,19 provides that "public lands devoted to one
public use cannot be diverted to another inconsistent public use
without plain and explicit legislation authorizing the
diversion." Sudbury v. Massachusetts Bay Transp. Auth., 485
Mass. 774, 783 (2020), quoting Robbins, 355 Mass. at 330. We
have explained the contours of the doctrine as follows:
"We think it is essential to the expression of plain and
explicit authority to divert parklands, Great Ponds,
reservations and kindred areas to a new and inconsistent
public use that the Legislature identify the land and that
there appear in the legislation not only a statement of the
19See Old Colony R.R. Co. v. Framingham Water Co., 153 Mass. 561, 563 (1891); Boston Water Power Co. v. Boston & Worcester R.R. Corp., 23 Pick. 360, 398 (1839).
24
new use but a statement or recital showing in some way
legislative awareness of the existing public use. In
short, the legislation should express not merely the public
will for the new use but its willingness to surrender or
forgo the existing use." (Footnote omitted.)
Robbins, 355 Mass. at 331. See Higginson, 212 Mass. at 592
(Legislature's failure to grant "unequivocally clear"
authorization of particular new use of parkland "strongly points
as matter of construction to a legislative intent" not to allow
that use).
The requirement of plain and explicit legislative
authorization is applied especially "stringently" to attempted
encroachments on public parks. Robbins, 355 Mass. at 330. See
Higginson, 212 Mass. at 592 (policy of preserving public parks
from "intrusion of every kind" cannot be "lightly thrown
aside"). That stringency reflects the recognition that upon a
property's dedication as a public park, the general public
"obtains an interest in the land in the nature of an easement,"
which can only be surrendered or modified by the Legislature as
representative of the public. Lowell v. Boston, 322 Mass. 709,
730 (1948). See also Smith, 478 Mass. at 60, citing Higginson,
212 Mass. at 589-590 (right to use dedicated parkland belongs to
general public rather than to residents of any city or town).
Because we expect that the Legislature will be vigorously
protective of the people's rights in such land, we do not
presume an intent to surrender such rights where the Legislature
25
has not made such intent explicitly clear. See Commonwealth v.
Massachusetts Turnpike Auth., 346 Mass. 250, 253-254 (1963),
quoting Boston Water Power Co. v. Boston & Worcester R.R. Corp.,
23 Pick. 360, 398 (1839) (whether statute authorizes diversion
of land devoted to public use is "a question of legislative
intent; and it could not be presumed, that the legislature
intended that the power conferred by them should have such an
effect, unless it were unequivocally expressed").
With these principles in hand, we turn to the 1947 and 1950
statutes to determine whether they satisfy the requirements of
the public use doctrine.
As we have already noted above, the 1947 statute authorized
the city to transfer "any land, including park land," to the
White Fund "for the purposes" specified in Article Fourteenth of
White's will. St. 1947, c. 542. Those purposes were the
creation of "works of public utility and beauty," for which
White gave examples such as a zoo, aquarium, or forum for public
gatherings. Although creation of a park or a park project could
be considered a work of public utility and beauty within the
meaning of Article Fourteenth of White's will, that provision
contemplated a far broader range of projects. Indeed, among the
earliest uses of the White Fund was the construction, in the
1920s, of "Health Units" for the public in various neighborhoods
of Boston -- a work of public utility, but clearly not a park
26
one.20 Accordingly, the Legislature's 1947 authorization to
transfer parkland to the White Fund did not confine its use
thereafter; instead, it allowed the transferred land to be used
for any purpose within the scope of Article Fourteenth of
White's will, including uses inconsistent with park status.
That said, the 1947 statute on its own was insufficient to
satisfy the prior public use doctrine because it did not
specifically identify the land to be transferred. See Brookline
v. Metropolitan Dist. Comm'n, 357 Mass. 435, 440 (1970) (statute
authorizing taking of "public or private lands, including . . .
cemeteries, public parks or reservations" for highway purposes
did not satisfy prior public use doctrine); Appleton v.
Massachusetts Parking Auth., 340 Mass. 303, 305, 310 (1960)
(statute authorizing conveyance of "lands constituting Boston
Common and . . . the Public Garden" did not justify taking
"unspecified substantial portions" of those parks). That
lacuna, however, was bridged by the 1950 statute, which
unambiguously identified White Stadium and the "estate upon
which it stands." St. 1950, c. 291, § 1.
20The Health Units were neighborhood headquarters from which city health and welfare officials as well as charitable organizations could offer health services to local residents. Boston Board of Health, Boston's Health Units: Established from the Income of the George Robert White Fund, 1924-1944 (1945).
27
In addition, the 1950 statute identified White Stadium and
the stadium parcel as falling within the school committee's
custody and control, deemed the stadium and its parcel to be a
school building and yard, and specified that the parcel's upkeep
and improvements would be paid for with school funds. Id. This
repeated identification of the stadium parcel as part of the
school department's facilities and responsibilities -- and not
the park department's -- establishes that the Legislature did
not intend this particular parcel to remain dedicated to park
purposes. Where, as here, the Legislature acknowledged the
stadium as under the school department's custody and control --a stadium described as a "schoolboy stadium" that was used, at
the time and since, by the city's public schools, including as
office space for the athletics department -– the Legislature's
authorization of the use of the land for school purposes, rather
than for park purposes, is clear.21
Nonetheless, it is true, as the plaintiffs point out, that
the 1950 statute did not make reference to the stadium parcel's
prior status as parkland. But the 1947 statute made it clear
21The Legislature has transferred other park stadiums to school departments by way of legislation. See, e.g., St. 1967, c. 693 (authorizing city of Gloucester to transfer "park land known as Newell Stadium" from department of public works to school department); St. 1949, c. 42 (authorizing city of Salem to transfer stadium from park department to school department for school purposes).
28
that the Legislature was aware of the parcel's park status.
While the land to be diverted and the new use to which it will
be put must be identified with particularity under the prior
public use doctrine, we have required only that the Legislature
show "in some way" that it is aware of the land's prior use.
Robbins, 355 Mass. at 331. That awareness was amply supplied by
the 1947 statute, which explicitly authorized the transfer of
parkland.
Although the 1950 statute did not make reference to the
stadium parcel's prior status as parkland, and the 1947 statute
did not specifically identify the land to be transferred to the
White Fund, the public use doctrine is satisfied because the two
statutes should be read together as a "legislative unit."
Higginson, 212 Mass. at 592-593. Unlike in Higginson, where we
declined to treat two statutes as a unit for purposes of the
prior public use doctrine, concluding that "under all the
circumstances" the inconsistencies between the two statutes (one
of which authorized the taking of land for a building that would
function both as a school and as an administrative center, the
other of which authorized only a school) rendered it "too great
a stretch" to read them in combination, the 1947 and 1950
statutes are a harmonious whole. Cf. Gould v. Greylock
Reservation Comm'n, 350 Mass. 410, 419-422 (1966) (examining
multiple statutes to evaluate validity of challenged project
29
under prior public use doctrine). The two statutes relate to
the same contemplated series of interrelated actions whereby the
stadium parcel was to be sold to the White Fund at fair market
value, for any purpose consistent with Article Fourteenth of
White's will -- in this case, the erection of White Stadium
which, once erected, was conferred to the school department for
maintenance, operation, and funding.
We conclude that the 1947 and 1950 statutes collectively
establish the Legislature's unequivocal intent to extinguish the
stadium parcel's status as parkland. The 1947 statute
demonstrated the Legislature's willingness to divert parkland to
the White Fund for nonpark uses, and the 1950 statute showed the
Legislature's recognition and approval of the stadium parcel's
new status as a school ground. Taken together, the 1947 and
1950 statutes satisfy the prior public use doctrine.
Two additional facts reinforce this conclusion. The first
is the contrast between the 1947 and 1950 statutes and other
statutes in which the Legislature authorized the White Fund to
build recreational improvements on parkland. See St. 1941,
c. 585; St. 1937, c. 258. In those statutes, which authorized
transferring parkland to the White Fund's custody and control
(to build an esplanade and colonnade in 1937 and a recreation
center in 1941), the Legislature carefully specified that the
transferred land would revert to the control of the park
30
department when construction ended, and the White Fund never
obtained ownership of the delineated land. These statutes
evince a clear legislative intent to preserve the park status of
the transferred land. By contrast, the Legislature authorized a
different arrangement with respect to the stadium parcel
allowing the city to transfer it permanently to the White Fund
in exchange for fair market value and then conferring its
maintenance and upkeep to the school department.
Finally, we also note that the city received two Land and
Water Conservation Fund (LWCF) grants, in 1978 and 1983, for the
betterment of Franklin Park.22 The acceptance of LWCF grants
with respect to a given property, which obligate the recipient
to maintain the property for public outdoor recreation,
establishes that property as protected under art. 97 (if it was
not already). See Pub. L. No. 88-578, Title I, § 5(f), 78 Stat.
902 (1964), now codified at 54 U.S.C. § 200305(f)(3); Smith, 478
Mass. at 64. The city never used LWCF funds for the stadium
parcel, however, and the LWCF's map of the area covered by the
grant does not include the stadium parcel. In addition, the
Commonwealth's Bureau of Geographic Information public mapping
22LWCF grants are awards of matching Federal and State funds intended to support coordination of outdoor resources for the public's benefit. See Smith, 478 Mass. at 51-52.
31
tool shows that while Franklin Park generally is protected by
art. 97, the stadium parcel is not.23
The prior public use doctrine ensures that the public's
interest in parkland is not disposed of casually or
accidentally. We are satisfied that here, where the Legislature
approved a particular nonpark use in a particular location and
expressed willingness that parkland be diverted to that purpose,
it extinguished the stadium parcel's park status no later than
1950. As such, the parcel is not subject to art. 97, and a twothirds vote of the Legislature was not required in order for the
city to enter into the agreements with Unity Soccer.
3. Areas beyond the stadium parcel. The plaintiffs make
two arguments concerning the anticipated consequences of the
project to areas of Franklin Park beyond the stadium parcel.
First, they contend that –- despite language characterizing the
arrangement as a license -- the agreements in fact grant an
easement to Unity Soccer for access rights through Franklin
Park. The grant of an easement over art. 97 land would
constitute a disposition requiring a two-thirds vote of the
23The plaintiffs point to the city's published open space and recreation plans, which provide regularly updated overviews of the city's park system and which, since 2002, have characterized White Stadium as protected by art. 97. But the trial judge credited the testimony of the city employee responsible for preparing those plans from 2002 to 2015, who testified that this characterization of White Stadium was not based on legal or historical analysis.
32
Legislature, while the grant of a lesser property interest, such
as a license, would not. See Mahajan, 464 Mass. at 620, citing
Opinion of the Justices, 383 Mass. at 919. Second, the
plaintiffs contend that the project will change the usage of
areas of Franklin Park beyond the stadium parcel and that the
trial judge erred in denying their motion in limine to admit
certain city policies regarding alcohol use and traffic in
parks, which they argue would have fortified that argument.24 We
are not persuaded by either argument.
The intent of the parties is the "critical factor" in
determining whether an agreement creates a license or an
easement. J.W. Bruce & J.W. Ely, Jr., Easements and Licenses in
Land § 1.5 (2018). See Commercial Wharf E. Condominium Ass'n v.
Waterfront Parking Corp., 407 Mass. 123, 134 (1990). To
determine the parties' intent, we look first to the language of
paragraph 4.2(a)(ii) of the stadium usage agreement, by which
Unity Soccer was granted
"a license for pedestrian (and vehicular to the extent of
any paved roads intended for vehicular use) ingress and
egress to and from [White] Stadium through [certain
24The defendants argue that we should treat the plaintiffs' argument that the agreements grant Unity Soccer an easement as waived because it did not appear in the complaint. But the third amended complaint characterizes the agreements' description of Unity Soccer's right to use Franklin Park's paths as a grant of an easement. Moreover, the plaintiffs made their argument about the proper characterization of the access right at trial, with no objection from the defendants.
33
portions of Franklin Park], which ingress and egress the
[c]ity hereby acknowledges must be sufficient to
accommodate [Unity Soccer]'s use of [White] Stadium for
[Unity Soccer purposes]."
While the label the parties place on an interest is not
controlling, id., the words of an agreement are the "most
important evidence" of the parties' intent, Robert Indus., Inc.
v. Spence, 362 Mass. 751, 755 (1973). Here, the parties
described their arrangement as a license, not an easement.
Other provisions of the agreements also indicate that the
parties intended paragraph 4.2(a)(ii) to create a revocable
license arrangement, and not an irrevocable easement. The
"fundamental difference" between a license and an easement is
that a license is revocable at the will of the grantor.
Easements and Licenses in Land § 1.4. See Carroll, 493 Mass. at
192-193. And here, the parties specifically did not refer to
the paragraph 4.2(a)(ii) license as "irrevocable" even though
they used that terminology elsewhere to describe other property
interests. For example, Unity Soccer, as leaseholder of
portions of the stadium parcel, elsewhere granted Boston public
schools an "irrevocable, exclusive license and sublease" to
occupy a portion of the leased area and an "irrevocable license"
to access and use other portions (emphases added). See Wortis
v. Trustees of Tufts College, 493 Mass. 648, 665 (2024) (we
"strive to give effect to every word in a contract"). It would
34
have been a simple matter to add the word "irrevocable" to
paragraph 4.2(a)(ii) if that is what these sophisticated parties
had intended by their contractual arrangement. See Anderson St.
Assocs. v. Boston, 442 Mass. 812, 819 (2004) ("[W]here
sophisticated parties choose to embody their agreement in a
carefully crafted document, they are entitled to and should be
held to the language they chose").
In addition, the paragraph preceding paragraph 4.2(a)(ii)
granted Unity Soccer a separate "license" about which Unity
Soccer "acknowledge[d] and agree[d] that [this right] is a
license only, and that [Unity Soccer] shall not acquire any
estate or title or real property interest in [the covered
area]." Taken in context and given their proximity, we think it
safe to conclude the word "license" carried the same meaning in
paragraph 4.2(a)(ii) as it did in the preceding paragraph of the
same section of the agreement. See Bank v. Thermo Elemental
Inc., 451 Mass. 638, 650 (2008) (words used in one place in
contract are generally presumed to have same meaning in other
places in same contract). In short, we conclude that Unity
Soccer was granted a license, not an easement, to access the
stadium parcel through specified portions of Franklin Park.
The plaintiffs separately argue that the construction and
improvement of pedestrian and vehicular pathways and utility
lines to the stadium parcel through Franklin Park will change
35
the affected areas' park use and implicate art. 97. But
pathways, including vehicular pathways, are ordinary elements of
a park landscape, and the plaintiffs have not shown that routes
constructed outside the stadium parcel will differ in kind from
existing routes through Franklin Park or otherwise interfere
with park use. Compare Codman v. Crocker, 203 Mass. 146, 150-151 (1909) (construction of subway tunnel under Boston Common
not inconsistent with existing use), and Boston v. Inhabitants
of Brookline, 156 Mass. 172, 176-177 (1892) (laying utilities
under land not inconsistent with prior public surface use), with
Sacco v. Department of Pub. Works, 352 Mass. 670, 673 (1967)
(filling in pond and replacing it with highway changes use).
Finally, the plaintiffs assert that the trial judge erred
in denying their motion in limine to admit certain of the city's
policies regarding alcohol use and traffic in parks, which they
contend would have buttressed their argument that the project
would result in changes to the use of Franklin Park. Having
reviewed the proffered documents ourselves, we perceive neither
an abuse of discretion in excluding them, nor any prejudice from
the judge's ruling. See Pina v. McGill Dev. Corp., 388 Mass.
159, 164 (1983) (exclusion of evidence not grounds for reversal
if nonprejudicial). At most, the documents reflect certain city
policies regarding acceptable park activities; they do not show
36
that the project will change any area outside the stadium parcel
to nonpark use.
Conclusion. The Superior Court's judgment is affirmed.
So ordered.