Number 15 May 16, 1980

Number 15 May 16, 1980 Richard E. Kendall, Commissioner Department of Environmental Management Leverett Saltonstall Building Government Center 100 Cambridge Street Boston, MA 02202 Dear Commissioner Kendall: In September, 1966, the Department of Natural Resources, the predecessor agency to the Department of Environmental Management (the Department), purchased the Otis Reservoir from the Farmington River Water Power Com- pany. The Department made the purchase pursuant to chapter 457 of the Acts of 1966, which authorized the purchase for water conservation and recreational purposes. The Department took title to the reservoir and the immediate shore- line (the perimeter strip), a piece of land ranging in width from five to twenty feet.' Since taking title, the Department has issued permits to the abutting 'The Department's title to this penmelcr strip was not ccimpletely free and clear, but was taken subject to a pre-existing •casement in gross" held by several abutting property owners The easements were granted by the Farmington River VValer Power Company in 1935 and gave the abutting owners the right to 'pass and repass over the pcnmetcr slnp on foot or in vehicles and lo erect thereon temporary structures, boathouses. and docks, and to use the land in a general way. 130 P.D. 14 property owners for the exclusive use of the perimeter strip abutting their land. The permits allow the abutting property owner to use the perimeter strip in a manner defined by the Department's regulation set forth at 304 C.M.R. 5.03. The permits are issued on an annual basis upon payment of a fee, as set forth in 304 C.M.R. 5.03 (1) and (2); are not transferrable without the prior approval of the Department, 304 C.M.R. 5.03 (3); and are revocable, 304 C.M.R. 5.03 (1), (8). You have asked my opinion as to the effect of Article 97 of the Amendments to the Massachusetts Constitution on the issuance of these permits. Specifically, you have asked the following four questions: 1. Is the issuance of exclusive land use permits which preclude access by the general public an "other purpose" under Article 97, different from the public purpose for which the land was acquired? 2. Does the issuance of exclusive land use permits violate the pub- lic trust duties under which the Department of Environmental Management holds title to the land? 3. Are the exclusive land use permits, under their present condi- tions of revocability, a disposition within the meaning of Article 97? 4. Do the answers to these questions depend upon whether there were prior easements, or can the Department issue permits, ir- respective of whether there were prior easements? For the reasons set forth in the ensuing pages, I answer your questions as follows: (1) the permits are not an "other purpose" under Article 97, different from the public purpose for which the land was acquired; (2) the permits do not violate the public trust duties under which the Department holds title to the land; (3) the permits are not a disposition within the meaning of Article 97; and (4) the abutters with pre-existing easements need not be required to purchase the permits, in order to use the strip. If they do not purchase the permits, however, they may use the strip only in a manner consistent with the "pre-existing" easement. If they wish the exclusive use of the strip, they must purchase the permits. Article 97 of the Amendments to the Constitution of Massachusetts provides: The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, his- toric, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose. The general court shall have the power to enact legislation neces- sary or expedient to protect such rights. In the furtherance of the foregoing powers, the general court shall have the power to provide for the taking, upon payment of just compensation therefor, or for the acquisition by purchase or other- wise, of lands and easements or such other interests therein as may be deemed necessary to accomplish these purposes. Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by P.D. 14 ,3, laws enacted by a two thirds vote, taken by yeas and na\s, of each branch of the general court. (Emphasis supplied. ) Chapter 457 of the Acts of 1966 authorized the Department to purchase Otis Reservoir and the perimeter strip ''for the protection of water supply, and for conservation and recreation as described in chapter one hundred and thirty-two A of the General Laws . . . ." The land was therefore acquired for the conser- vation-related purposes enumerated in Article 9T and any further dispostion or alteration in its use will require a two-thirds vote of each branch of the Legisla- ture.'^ You have asked first whether the issuance of the permits constitutes an "other purpose," different from that for which the land was acquired. In order to properly analyze what are "other purposes," the language of Article 97 must be read in conjunction with the judicially developed doctrine of "prior public use," whereby public lands devoted to one public use cannot be diverted to another inconsistent public use without plain and explicit legislation to that effect. Brookline v. Metropolitan District Commission, 357 Mass. 435, 440 (1970); Robbins v. Department of Public Works, 355 Mass. 328, 330 (1969), and cases cited therein; Op. Atty. Gen., No. 45, Rep. A.G., Pub. Doc. No. 12 at 139, 144-147 (1973). The relevant inquiry is whether the permits effect a change in the use of the land, which use is inconsistent with conservation and recreation. You have indicated to me that the Department believes that there is adequate justification for granting exclusive use permits. The Department has determined that public safety requires that access to the reservoir be limited and that conser- vation would be enhanced if the use of the perimeter strip were exclusive.^ The Department has also concluded that the small and irregular size of the perimeter strip renders impractical any development of this land for recreational purposes which would be available to the general public. Moreover, the Department's regulation is designed to ensure that the use of this land does not lower the environmental quality of the reservoir and the sourrounding area. See 304 C.M.R. 5.03(1), (5), (8). For these reasons, I am unable to conclude that the Department, by issuing exclusive permits to abutting property owners, has diverted the perimeter strip to a use inconsistent with that for which it was acquired. You have next asked whether issuance of the permits violates the Depart- ment's public trust obligations. The answer to this question depends in part upon whether their issuance violates the Department's obligations under c. 132A.^ G.L. 132A, §2B, provides that all lands acquired by the Department for conservation and recreation purposes "shall in so far as practicable" be pre- ^In a prior opinion, the Attorney General has concluded that Article 97 applied to public lands acquired prior to ihc Amendmcni's effective date. Op. Atty Gen.. No. 45. Rep AG., Pub Doc. No. 12 at 139, 140 (1973). Thus, the fact that this land was purchased in September, 1966, prior to the Amendment's passage, is irrelevant. ^e fact thai the land vtas acquired for recreational, as well as conservation purposes, does not affect the applicability of Anicle 97. Article 97 applies to recreation park land, as well as land acquired for purely conservalional purposes See Op. Ally. Gen., No 45, Rep. AG., Pub. Doc. No. 12 at 139. 142 (1973). Since the land is to be used for both recreational and conservation purposes, however, the Department will be required to mediate the conflicts between what may be inconsistent goals. •You have informed me of several reasons for your determination that the general public must be excluded from the land. For example, you have determined that it would be prohibitively expensive to post lifeguards along the entire strip and that exclusive permits relieve the Commonwealth of the burden of enforcing a ban against public access for safety reasons. It is clear that the Commonwealth may exercise the police power over property held in trust for the public, for the good of the public Home for Aged Women v. Commonwealth. 202 Mass. 422, 435 ( 1909). ^Because the Department was authorized to buy the Otis Reservoir property "for the purposes of conservation and recreation as described in chapter one hundred and thirty-two A of the General Laws," see St. 1966. c. 457. the Department holds title to the land under G.L. c. I32A. 132 P.D. 14 served in their natural state." Thus, the Department's primary obligation is to preserve such land in its natural state or to effectuate the policy of conservation set forth in c. 132A. When land is acquired for both conservation and recre- ational purposes, however, the Commissioner must reconcile the conflicts which may arise between these two goals. He is responsible for the planning, maintenance, and development of whatever land he is authorized to acquire. G.L. c. 132A, §§2C and 2D. When implementing this mandate the Commis- sioner may utilize the assistance of private individuals. Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 335, 338 (1966). The Department may, consistent with its obligations under c. I32A, solicit aid from the perimeter strip abutters when implementing its duty to protect the water supply in the Reservoir and to establish a recreational area for the public enjoyment. The issuance of permits is a permissible means of soliciting this assistance.^ Thus, the issuance of the permits has not violated the public trust obligations of the Department insofar as they are set out in G.L. c. 132A. It is within the sound discretion of the Department to determine the role which the abutters play and whether or not the permits should be exclusive. The Department may "evaluate the situations presented it on the basis of its own expertise, and . . . make appropriate decisions in conformity to the legislative policy and purpose." Op. Atty. Gen., Rep. A.G., Pub. Doc. No. 12 at 335, 337 (1966). Using its experience and knowledge, the Department may deterime which type of permit most effectuates the legislative policy. It "must - in the first instance - make a factual determination whether [an activity] may be car- ried on consistently with the Commonwealth's policy of conservation and recre- ation." Id. Because the Department has determined that the exclusive use per- mits effectuate the legislative policy of conservation and recreation at Otis Reservoir, their issuance does not violate the Department's public trust duties. This conclusion, however, is made subject to two qualifications. If the De- partment fails to enforce its regulations or take action when the permittees abuse their rights, the Department will violate its statutory duty to hold land in the public trust. G.L. c. 132 A. See, e.g., Blaney v. Commissioner of Corrections, Mass. Adv. Sh. (1978) 278, 283. Second, restricting the issuance of permits to abutters alone may be necessitated by the inability of the general public to obtain easy access to the strip. 1 must note my concern, however, about any policy which may discriminate among citizens of the Commonwealth, that is, between abutters and non-abutters, in the issuance of the exclusive permits. See, e.g., Neptune City v. Avon-By-The-Sea, 61 N.J. 296 (1972). Your third question turns on the meaning of the word "disposition" as it is used in Article 97. That issue was addressed in a prior opinion of the Attorney General. Op. Atty. Gen., No. 45, Rep. A.G., Pub. Doc. No. 12 at 139 (1973). That opinion concluded that a ". . . 'disposition' includes any change of legal or physical control, including but not limited to outright conveyance, em.inent domain takings, long and short-term leases of whatever length and the granting of taking of easements." Id. at 147, Thus, a disposition occurs, for purposes of Article 97, whenever there is any transfer, without limitation, of either the legal interest in the acquired land or physical control over it. The permits under ®The Commissioner may not, without legislative authority, however, retain this aid by transfeiring any legal interest in the land. See Op. Atty. Gen, Rep. A.G., Pub. Doc. No. 12 at 45, 46 (1939); Op. Atty. Gen, Rep. AG, Pub. Doc. No. 12 at 335, 338 (1966). P.D. 14 ,33 discussion here do not effect such a transfer and hence do not rise to the level of a "disposition." A permit is a written license or grant of authority to do a thing which otherwise would not be allowed. Black's LAW DICTIONARY 1026 (5th Hd. 1979). A permit to use public land, like a license to use such land, is not an interest in land and grants to the person(s) holding it only conditional use of the land. Woodbury v. Municipal Council of Gloucester, 318 Mass. 385, 388 (1945). See City of Boston v. A. W. Perry, Inc. 304 Mass. 18, 21 (1939); Baseball Publishing Co. v. Bruton, 302 Mass. 54, 56 (1938). Thus, the permits granted by the Department to the abutting landowners surrounding Otis Reser- voir do not transfer any interest in the perimeter strip. All legal interest in the land remains in the Department. The pennits, are by definition, revocable at any time. Woodbury v. Municipal Council of Gloucester, supra, 318 Mass. at 388. Since they transfer no legal control or interest to the person(s) holding the permits, their issuance, per se, does not violate Article 97. A permit, however, may violate the disposition provision of Article 97 if it transfers physical control over the land to the person(s) holding it. See Op. Atty. Gen., No. 45, Rep. A.G., Pub. Doc. No. 12 at 139, 144 (1973). Any relinquishment of physical control over the land would be a disposition and would require a vote of two-thirds of both Legislative branches. The Depart- ment cannot, therefore, through these permits, surrender its duty to police, conserve, preserve, and care for the reservoir and the perimeter strip. Whether or not these exclusive land use permits transfer such control depends upon their scope. The scope of the permits granted by the Department is found in the Depart- ment's regulation, 304 C.M.R. 5.03. The regulation prohibits any activity "which contributes to water or air pollution or to a general lowering of the environmental quality". 304 C.M.R. 5.03 (5).' The permits are issued subject to the provision that "should further investigation by the Department of Envi- ronmental Management and other appropriate agencies, reveal the presence of a source of water pollution, on or adjacent to the permit area, that the permit may be terminated immediately, if there are not satisfactory corrective measures taken." 304 C.M.R. 5.03 (1). Violations of any Departmental regulation result in the immediate cancellation of the permit. See 304 C.M.R. 5.03 (8). Thus, the Department controls the land by regulating its uses and does not, through the issuance of the permits, relinquish control over it. You have brought to my attention® the fact that some person(s) holding permits have attempted to expand the permits' scope and use the land as if it were their own. Acquiescence in such use of the land by the Department would constitute a relinquishment of physical control over the land in violation of Article 97. The Department must assure, through its power of revocation and through the enforcement of its regulations, that the abutters limit the scope of their activities. Finally, you have asked what effect, if any, the prior easements have on the issuance of these exclusive use permits. You have indicated that the Department 'Under proposed regulations, the Director of the Deparlmenl will determine what activities are detrimental to the public interest and, therefore, prohibited. *In your request for an opinion, you have indicated that some permittees have built permanent structures on the land, have Tilled in the reservoir in order to build on the land, and have altered the shoreline to accommixJate their needs Such use may violate 304 C MR 5.03. You have referred to this office for enforcement two related matters. It is appropriate thai you continue to refer for enforcement action such instances of misuse of the exclusive use permits. 134 P.D. 14 took title to the perimeter strip subject to a prior easement in gross granted to certain land owners by the Farmington River Water Power Company.^ The easement holders have the right to use the perimeter strip in a manner consistent with their easement. They may pass and repass over the land, erect temporary structures, and use the land in a general way. The Department cannot interfere with or impair these rights. See Metropolitan District Commission v. Plotnick, 354 Mass. 1, 3 (1968); Lizzo v. Drukas, 333 Mass. 242, 243 (1955). Thus, the Department may not issue permits which extinguish the rights of the easement holders, nor can it require the easement holders to purchase permits to use the land.^° In order to assure the exclusive use of the strip, however, the abutter may choose to purchase a permit. The permit would grant the land owner no greater use of the land than that enjoyed under his easement and would not, therefore, violate Article 97. It would only grant to the abutter the exclusive use of the strip for a one year period.^' In this context, the permit acts as a contract between the easement holder and the Department. In consideration of the fee paid by the owner, the Department promises not to grant a permit to other individuals.'^ In these circumstances, there is no dispostion or other use prohi- bited by Article 97. Thus, the existence of these easements has no effect on whether the permits violate the provision of Article 97, and the permits in this context would not be a "disposition" or "other use" prohibited by Article 97.'^ In sum, it is my opinion that the exclusive land use permits do not violate either the provisions of Article 97 or the public trust duties under which the Department holds title to the perimeter strip. Rather, the permits are a legitimate mechanism for implementing the legislative policy of protecting the recreational and conservation uses of Otis Reservoir. Very truly yours, FRANCIS X. BELLOTTI Attorney General See n, 1 , supra. ^"Of course, if any of the easements have terminated, the Department may require the land owner to purchase a permit as a precondition to use of the perimeter strip. Easements in gross are normally personal in nature and are not incidental to the land; thus they terminate with the death of, or a transfer by, the easement holder. See Restatement (First) of Property §454 ( 1944). However, the easements may run with the land if the facts demonstrate that the parties intended them so to run. See Restatement (First) of Property §492(1944). ^'As discussed above, the exclusivity of the permit would not violate Article 97. '^As a practical matter, of course, the easement holder may already have exclusive use of the land which abuts his property, since the Department has indicated that it would not allow the general public access in any event. '^The Department may prohibit the easement holders from using the strip in a manner that is inconsistent with the scope of the easements. See Brassard v. Flynn. 352 Mass. 185, 190 ( 1967); Nanluckel Consen'alion Foundtion. Inc. v. Russell Management. Inc.. 2 Mass. App. Ct. 868 ( 1974). The Department may also seek to enjoin any easement holder who abuses his easement rights by filling in the reservoir or building permanent structures on the perimeter strip. See. e.g.. Doodv v. Spurr. 315 Mass. 129, 133 (1944); Swenson v. Marino. 306 Mass. 582, 585-586 (1940); Michaelson v. Nemetz, 4 Mass. App. Ct. 806, 807 (1976). P.D. 14 ,35 Number 16 j^^^ 6 ,9gQ John J. Droney District Attorney for Middlesex Counts' Middlesex County Courthouse East Cambridge, Massachusetts 02141 Dear District Attorney Droney: You have requested my opinion^ whether General Laws chapter 12, section 15, prohibits you from receiving a fee for legal services performed prior to your becoming a full-time district attorney.^ The facts as you have informed me are as follows: In 1973, you represented a client in a civil case involving a motor vehicle accident. At that time you referred the case to a trial attorney for immediate attention and investigation, but you continued to act as co-counsel until February 6, 1976, when you relin- quished your private practice and became a full-time district attorney. From February 6, 1976, until after the case was settled on or about April, 1980, you had no contact with your client or the attorney concerning this case. After the case was settled, the attorney proposed to pay you a fee for your services as co- counsel from 1973 until February 6, 1976. You have asked whether G.L. c. 12, §15, prohibits you from accepting such payment. For the reasons discussed below, it is my opinion that your receipt of a fee for legal services performed prior to your becoming a full-time district attorney would not violate G.L. c. 12, §15. Your request raises two questions of statutory interpretation and application: (1) whether the receipt of compensation for legal services consti- tutes "the practice of law" within the meaning of G.L. c. 12, §15; and (2) whether G.L. c. 12, §15 should be applied retrospectively or prospectively. It is my opinion that "the practice of law" prohibited by G.L. c. 12, §15, does not include the receipt of compensation for legal services previously per- formed. This opinion is based, first, upon the common and approved meaning of the phrase "practice of law," since statutory words and phrases should be construed primarily according to their plain meaning. G.L. c. 4, §6; Burke v. Chief of Police ofNewton, Mass. Adv. Sh. (1978) 425, 427. The usual and accepted meaning of this phrase can be derived from diction- ary definitions and from its use in other legal contexts. Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977). The phrase "to practice [law]" is defined in Webster's Third New International Dictionary (1964) as "to exercise or pursue an employment or profession (as medicine or law) actively." (Empha- sis added). Black's Law Dictionary 1055 (5th ed. 1979) defines "practice of law" as "[t]he rendition of senices requiring the knowledge and the applica- tion of legal principles and technique to serve the interests of another with his 'Your opinion request is made pursuant to G.L. c. 12. §6. ^G.L. c. 12, §15, as amended by St. 1975 c. 632, §1, provides in relevant part: District attorneys shall devote their entire time during ordinary business hours to their duties, shall neither directly nor indirectly engage in the practice of law . . . The effective date of this provision was January 1 , 1979. 136 PD. 14 consent." (Emphasis added). The Supreme Judicial Court, construing the phrase "practice of law" in other statutory contexts, has defined it to include "maintain[ing] a legal [office] and fumish[ing] and render[ing] services requir- ing legal knowledge and skill," Matter of Lyon, 301 Mass. 30, 33 (1938), and "giving of legal advice and office practice in general." Collins v. Godfrey, 324 Mass. 574, 580(1949). For the foregoing reasons, I conclude that the commonly accepted meaning of the phrase "practice of law" would not include the mere receipt of compen- sation previously earned, without the current maintenance of a law office and the active rendering of legal services. This construction of G.L. c. 12, §15, is also supported by its legislative history, another recognized guide to statutory interpretation. See, e.g.. Murphy v. Bohn, Mass. Adv. Sh. (1979) 699, 703. Another bill, S.940 (1975), which was considered by the legislature along with the present statute, would have expressly prohibited district attorneys from receiving compensation from any source other than the Commonwealth. This provision was not enacted. The fact that such a provision was considered but not enacted indicates that the legisla- ture did not intend to prohibit the receipt of compensation per se. See Rea v. Alderman of Everett, 217 Mass. 427, 431 (1914). ^ The second question raised by your request is whether G.L. c. 12, §15 should be applied retrospectively to prohibit the practice of law. If it is so applied, your practice of law prior to February 6, 1976, and your receipt of compensation therefor, would be in violation of the statute. It is my opinion that this statute should not be applied retrospectively. Statutes which deal with substantive rights are to be construed as operating prospectively unless the legislature clearly intended otherwise. Hanscom v. Maiden and Melrose Gas Light Co., 220 Mass. 1, 3 (1914); Austin v. Boston University Hospital, 372 Mass. 654, 657 (1977). By prohibiting district attorneys from engaging in the private practice of law, this statute changed the then prevalent practice of such officers and clearly altered their substantive rights. Furthermore, section 2 of St. 1975, c. 632, clearly indicates that the Legisla- ture intended this statute to be prospective. That section provides that the act would not take effect until January 1, 1979, three years after its enactment. Given this provision, it is clear that the legislature intended to allow district attorneys sufficient time to wind down their practice of law. Retrospective application of the statute would be in conflict with that intent. Furthermore, serious constitutional questions, concerning interference with the obligations of contract, would arise if the statute were construed to prohibit the acceptance of fees previously earned. In sum, for the reasons discussed above, it is my opinion that your accept- ance of a fee for legal services performed prior to your becoming a full-time district attorney would not violate G.L. c. 12, §15. Very truly yours, FRANCIS X. BELLOTTI Attorney General H note further that Section 5.2 of the Personnel Manual for the Department of the Attorney General, prohibiting assistant attorneys general from privately practicing law. served as a prototype for G.L. c. 12, §15. I have not applied that provision to prohibit the receipt of fees previously earned. P.D. 14 137