Stephen F. Ells, Massachusetts Open Space Law: Government's Influence Over Land Use Decisions, 165 pp. (April 1969), being Volume 4 in Open Space and Recreation Program for Metropolitan Boston (Boston: Metropolitan Area Planning Council, 1967-1977?, prepared in cooperation with the Metropolitan District Commission, and Massachusetts Department of Natural Resources).
Table of Contents
I. Introduction: The Power of Government to Control Open Space Land
II. The Home Rule Amendment: New Opportunities for Local Initiative
III. The Doctrine of Public Use: The Town's Power to Buy Land
A. Constitutional Limits on the Power to Spend and the Power of Eminent Domain
B. Purchases to Preserve Natural Resources
1. Conservation Commissions: A New and Effective Tool with Flexible Legal Powers
2. Municipal Natural Resources Agencies
IV. Conservation Easements and Restrictions
A. The Massachusetts Experience with "Conservation Easements"
B. Tax Consequences and Legal Particulars
C. Legislative Reform Efforts
V. The Police Power: The Power to Regulate Land Use without Compensation
A. Relationship between Police Power and Eminent Domain
B. The Constitutional Tests
C. Local Action for Regulation: MunicipaI Zoning
1. Large Lot Zoning
2. Cluster Zoning
3. Shoreline Zoning
4. Re-zoning Conditional upon Agreement
5. "Aesthetic" Zoning
6. Historic District Zoning
VI. The Police Power: Wetland, Floodplain and Natural Resource Regulation
A. Regulation of Land Use to Prevent Pollution
B. Inland and Coastal Fioodplain Protection
1. The Hatch Act of 1965
2. The Inland Wetlands Act of 1968
3. Coastal Dredge and Fill Law (Jones Act) of 1963
4. Municipal Regulation of the Floodplain
a. Floodplain Zoning
5. Conservancy District Zoning
6. The Watershed Protection District
C. Natural Resource Regulation
1. The Broad Marsh Case: A Court Challenge to the Jones Act
2. The Coastal WetIands Act of 1965
3. The Natural Resources Amendment to the Massachusetts Constitution
4. The Forest Conservation Laws and Other Examples of State Resource Regulation
5. Municipal Regulation of Natural Resources
6. Zoning to Preserve Prime Agricultural Soils
7. Resource Reservation Zoning
VII. The Power to Tax and Techniques to Reduce the Pressure of Real Estate Taxation
A. The Forest and Wild Land Amendment
B. Reduction of Fair Market Value
C. Deferral of Taxes
D. Partial Exemption from Taxation
VIII. Action Programs for Conservation and Recreation
A. Historis Sites
B. Water Resources
1. The Attack on Water Pollution
2. Great Ponds and the Public Access Board
3. The Seashore
C. Beautification Programs
1. The Highway Beautification Act of 1965
2. State Beautification Laws Including the Shade Tree Laws
D. Paths and Trails
E. The Massachusetts Bay Circuit
F. Federal and State Assistance Programs
1. Planning Grants
2. Money for Land Acquisition
a. The Open Space Land Program
b. The Land and Water Conservation Fund
c. Massachusetts Conservation Self-Help Program
d. Other Federal Programs
3. Development and Improvement Funds
4. Summary
IX. Public Agencies with Regional Open Space Responsibilities
A. Comprehensive Planning
1. State Planning
2. Regional Planning
3. Agency Planning
B. State Agencies
1. Department of Natural Resources
a. The Commissioner
b. Division of Forests and Parks
c. Division of Conservation Services
d. Division of Marine Fisheries .
e. Division of Mineral Resources
f. Division of Law Enforcement
g. Division of Water Resources
h. Division of Water Pollution Control
i. Division of Fisheries and Game
2. Department of Public Works
3. Department of Commerce and Development
4. Department of Community Affairs
5. Other Agencies
C. The Metropolitan District Commission
D. Counties
E. Special Purpose Districts
1. Conservation Districts
2. The Ipswich River Watershed District
3. Water Pollution Control Districts
4. New England River Basins Commission
X. Preventing the Loss of Valuable Open Space
A. Lost Opportunities: Preventing the Diversion of Privately Owned Resource Lands
1. Identification of Resource Lands
2. Encouraging or Guaranteeing Consistent Private Use .
3. Providing An Opportunity for Government Acquisition: "Resource Reservation Zoning"
4. Protection from Diversion to Inconsistent Public Use
B. Preventing the Loss of Public Open Space and Resource Lands
1. The Doctrine of Prior Public Use
2. Legislative Direction to the Land-Using Agency to Protect Open Space Values
3. Compensation for Diverted Public Lands
Appendix
1 The Home Rule Amendment
2 Conservation Commission Act and Supporting Programs
A. Conservation Commission Act
B. Conservation Fund Act
C. Massachusetts "Self-Help Program"
3. Massachusetts Bay Circuit Act
4. Inland Dredge and Fill Act (Hatch Act)
5. The Coastal Dredge and Fill Act (Jones Act) and Supporting Court Decisions
A. The Coastal Dredge and Fill Act (Jones Act)
B. Trial Court Opinion in Volpe Case
C. Supreme Judicial Court Opinion in Volpe Case
D. Another Trial Court Opinion Up- holding the Jones Act
6 The Coastal Wetlands Act and Sample Order
A. The Coastal Wetlands Act
B. Sample Coastal Wetland Order
7. The Inland Wetlands Act
8. Conservation Easements
A. Legal Checklist
B. Sample Form for Gift of Conservation Easement
C. The Farm Street Agreement
D. Notes on the Property Law Technicalities
E. Statement in Support of Conservation and Preservation Restriction Act
F. Judiciary Committee Report Relative to the Protection of Conservation and Preservation Restrictions
G. 1969 Conservation and Historic Preservation Restriction Legislation
9 Open Space Tax Proposal
10 Suggested Coastal or Inland Flood Plain Zone
Index