Number 3. July 7, 1967

Number 3. July 7, 1967. Honorable Howard Whitmore, Jr., Commissioner Metropolitan District Commission Dear Commissioner Whitmore: — You have requested my opinion as to the power of the Metropolitan District Commission to lease certain land under its control in the City of Newton to a private organization. Your of- fice has advised me that the land is part of a larger tract which was pur- chased by the Commonwealth, acting through the Metropolitan Park Com- mission, on June 6, 1916, and, to the extent of any outstanding interests therein, included in an order of taking by eminent domain adopted by the Park Commission on January 31, 1917. It is my understanding that both the purchase and the taking were made under authority of St. 1 894, c. 288 and St. 191 2, c. 699, for the purpose of laying out and constructing a por- tion of the Hammond Pond Parkway. In 1954 the Metropolitan District Commission, which had succeeded to the powers of the Metropolitan Park Commission in 1919, sold a portion of this tract abutting on the Parkway to Temple Mishkan Teffila, a private religious organization. The Temple now wishes to lease from the Commission an additional portion of this land, also abutting on the Parkway, and adjacent to the land previously purchased by it, for use as a parking area. I assume that the proposed lease would be for a term of ninety-nine years or less.* The questions you have raised are in substance as follows: 1. Is the Metropolitan District Commission authorized by G. L. c. 92, § 83 to lease the land in question to the Temple? 2. If such a lease is authorized, is the Commission required: (a) To restrict the use of the leased property to uses consistent with the purposes for which the land was acquired? (b) To obtain the concurrence of the Park Commissioners of the City of Newton, as provided in G. L. c. 92, § 85? Under G. L. c. 186, S I , a lease for a term of one hundred years or more is for many purposes treated as a conveyance of an estate in fee simple. Thus, the conclusions in this opinion do not necessarily apply to such a lease. 36 P.D. 12 QUESTION 1. With reference to Question 1, G. L. c. 92, § 83 plainly authorizes the Metropolitan District Commission to grant leases for various purposes in certain lands under its control. Section 83 provides: "The (metropolitan district] commission may, for all purposes consistent with the purposes specified in sections thirty-three and thirty-five [parks and boulevards], erect, maintain and care for buildings, and grant easements, rights of way or other interests in land, including leases^ in any portion of the lands taken or ac- quired by it for the purposes of said sections, and may accept and assent to any deed containing reservations of such easements or other interests in land, all for such considerations or rentals, and upon such terms, restrictions, provisions or agreements, as the commission may deem best." (Emphasis supplied.) There is nothing in this statute or elsewhere in G. L. c. 92 to suggest that leases thereunder may be granted only to municipalities or other public bodies, and not to private individuals and organizations. On the contrary, the two sections which immediately follow § 83 in G. L. c. 92 imply that the Legislature was thinking primarily in terms of private lessees. Sections 84 and 85 deal with the Commission's power to dispose of such land by abandonment and by sale respectively, and both sections refer to the "heirs and assigns" of the transferee — terms which make no sense if applied to other than a private individual or entity. These two sections, together with § 83, form a closely related statutory sequence, and the eligibility of private persons to acquire such land by abandonment and sale under §§84 and 85 suggests that they are likewise eligible to acquire it by lease under § 83. While the power to grant leases under G. L. c. 92, § 83 is confined to land acquired "for the purposes oT" G. L. c. 92, §§33 and 35 [parks and boulevards] , I think that the land in question falls within this category even though it was acquired under St. 1894, c. 288 and St. 1912, c. 699. Section 1 of the 1 894 statute authorized land acquisition by the Metropolitan Park Commission to "connect any road, park, way or other public open space with any part of the cities or towns of the metropolitan parks district under its jurisdiction, by a suitable roadway or boulevard. . . ." In almost identical language, G. L. c. 92, § 35 empowers the Metropolitan District Commis- sion to acquire land to "connect any way, park or other public open space with any part of the towns of the metropolitan parks district under its juris- diction by suitable roadways or boulevards. . . ." This similarity between the two statutes resulted from the incorporation of the 1 894 statute into the General Laws upon their adoption in 1921.'^ Under G. L. c. 281, § 2, "the provisions of the General Laws [such as G. L. c. 92, § 35], so far as they are the same as those of existing statutes [such as St. 1894, c. 288, § 1 ], shall be construed as a continuation thereof and not as new enactments. . . ." For this reason I conclude that any land acquired under the 1 894 statute is land acquired "for the purposes of G. L. c. 92, § 35, within the meaning of G. L. c. 92, § 83. (The fact that powers conferred by St. 1912, c. 699 were also involved in the acquisition of this land does not alter this conclu- sion, since the 1912 statute merely authorized the particular acquisition and appropriated money therefor.) "In the same way, G. 1.. c. 92, ij 83 is traceable to St. 1895, e. 450, S I. which was in effect when this land was acquired. P.D. 12 37 Nor does any serious difficulty arise from the fact that the land was orig- inally acquired by the Metropolitan Park Commission rather than the Met- ropolitan District Commission. The Park Commission was abolished by St. 1919, c. 350, § 123, and the Metropolitan District Commission created in its place. The same statute declared that "all the rights, powers, duties and obligations of [the Park Commission] are hereby transferred to and shall hereafter be exercised and performed by the metropolitan district commis- sion established by this act, which shall be the lawful successor of said com- mission. . . ." It is therefore my opinion, subject to the qualification stated in my an- swer to Question 2(a), that the Metropolitan District Commission is author- ized by G. L. c. 92, § 83 to lease the land in question to Temple Mishkan Tefila. QUESTION 2(a). The answer to Question 2(a) lies in the opening portion of G. L. c. 92, § 83: "The commission may, for all purposes consistent with the purposes specified in sections thirty-three and thirty-five [parks and boulevards] . . . grant . . . leases. . . ." The land involved in the contemplated lease, as stated in my answer to Question 1, was acquired under St. 1894, c. 288, § 1, the statutory predecessor of G. L. c. 92, § 35, for the purpose of laying out and constructing the Hammond Pond Parkway. It is therefore my opinion that the use of the leased land must be restricted to uses consistent with that purpose. Whether or not the use of this land by the Temple for a parking area would be consistent with the purposes for which the land was acquired is essentially a question of fact. As a practical matter, the answer turns largely on the degree to which the proposed parking area would be beneficial to members of the general public using the Parkway. Under this test, the stat- ute would not, in my opinion, authorize a parking area which was restricted to use by members and licensees of the Temple. On the other hand, the allo- cation of an appropriate portion of parkway land to public parking might be consistent with the purposes for which the land was acquired by the Com- mission. See Revere Honsini> Authority v. Commonwealth, Mass. Adv. Sh. (1966) 1047, 1050. Thus, if it were demonstrated that there is a substantial need for a public parking area in this particular location, and if the leased premises would be available for parking by the public generally, I think that the use requirements of G. L. c. 92, § 83 would be satisfied. Such factual determinations must, of course, be made by the Commission rather than by this Department. QUESTION 2(b). Question 2 (b) involves the relationship between §§83 and 85 of G. L. c. 92. The first paragraph of § 85 provides: "The [metropolitan district] commission, with the concurrence of the park commissioners, if any, in the town where the property is situated, may sell at public or private sale any portion of the lands or rights in land the title to which has been taken or re- ceived or acquired and paid for by it for the purposes set forth in sections thirty-three and thirty-five, and may, with the concur- rence of such park commissioners, execute a deed thereof, with or without covenants of title and warranty, all in the name and be- half of the commonwealth, to the purchaser, his heirs and assigns. 38 P.D. 12 and deposit said deed with the state treasurer, together with a cer- tificate of the terms of sale and price paid or agreed to be paid at said sale, and, upon receipt of said price and upon the terms agreed in said deed, he shall deliver the deed to said purchaser. The state treasurer may, by the attorney general, sue for and col- lect the price and enforce the terms of any such sale." (Emphasis supplied.) I do not think that the "concurrence" provisions of § 85 are applicable to leases granted under § 83. Just as § 83 confers power to "erect, maintain and care for buildings, and grant easements, rights of way or other interests in land, including leases," § 85 confers power to "sell at public or private sale . . . lands or rights in land. . . ." Intervening between these two sections is § 84, which authorizes the Commission to "abandon any easement or right in land less than the fee. . . ." As previously indicated, all three sec- tions deal with the power of the Commission to dispose of land held for park or boulevard purposes under G. L. c. 92, §§33 and 35, and, together, they form a statutory sequence. The phrase "with the concurrence of the park commissioners" appears in §§ 84 and 85, but is absent from § 83. This leads me to believe that for leases under § 83 no such requirement ex- ists. This conclusion is supported by the language of the second paragraph of §85: "If the commission votes, under this or the preceding section, to abandon or sell any portion of the lands or rights in land so taken or acquired by it, and the park commissioners in any town where said property or right in property is situated refuse or fail to con- cur with the commission within fourteen days from the giving of written notice of such vote to said park commissioners, the com- mission, upon written notice of not less than seven days to said park commissioners, may appear before the governor and council and ask their concurrence in such sale or abandonment; and if the governor and council, after hearing, concur in such sale or aban- donment, it shall have full force and effect." (Emphasis supplied.) I think it significant that the references here are confined to §§ 84 and 85 ("this or the preceding section") and to the abandonment and sale of land. Again, the absence of any mention of § 83 or to leases thereunder suggests that the procedures prescribed in § 85 have no bearing on leases granted under § 83. It is therefore my opinion that the concurrence of the Newton Park Com- missioners, referred to in G. L. c. 92, § 85, is not required for the proposed lease. Very truly yours, Elliot L. Richardson, Attorney General