Town Meeting left the Hawthorne outside Article 97 protection

← All news · August 9, 2026

In 2022 Swampscott bought the Hawthorne and two Archer Street parcels for $8.875 million. Town Meeting declined to bind the Hawthorne to open space, after a Select Board member explained the Article 97 consequence. That choice made the 2026 residential RFP possible, while the Archer Street restriction remains unconfirmed.

Swampscott’s 2022 purchase of the former Hawthorne-by-the-Sea restaurant left the property outside Article 97 protection by choice, after Town Meeting was told what that meant.

That choice is why the town could issue a 2026 request for proposals that, until the Select Board removed it on Aug. 4, could consider housing on the Hawthorne site. The town did not drift into that position. It bought the property without an open-space restriction after a member raised the issue on the floor, a Finance Committee member defended the process, a Select Board member explained the constitutional rule, and Town Meeting rejected an amendment that would have locked up 90 percent of the land.

The vote came at the June 14, 2022 Special Town Meeting, when the town was about to borrow $8.875 million to buy the Hawthorne and two open-space parcels off Archer Street. The Archer parcels came into the warrant with a condition: they were land “to be used for open space and conservation purposes only, to be evidenced by a conservation restriction on the property.” The Hawthorne did not.

A Precinct 6 member asked why. He said the difference made him “suspicious that maybe later there’s going to be something else brought up.”

Then-Finance Committee chair Tim Dorsey gave the process answer. The property was too central not to let “the entire town have a chance to have input,” he said, and residents should be comfortable because “the final use will be determined by the town meeting after that process.” He added, “There’s nothing suspicious about it in our public meetings.” Dorsey did not mention Article 97.

Select Board member Peter Spellios did. “In Massachusetts, though, there’s a quirky constitution that includes an article that says once we dedicate something to open space, we have to go back to the legislature and get two-thirds of the legislature and the governor to agree that we can do something else with it.” Because of “the severity of that,” he said, the board had chosen to leave the Hawthorne’s future open and send it through a public process.

Spellios, who also told the room, “I’m an evil real estate developer. I do not think we should be doing or partaking with development on this property,” was explaining why a board that wanted open space had not bound the Hawthorne to it.

Article 97 made the 2026 RFP possible

Article 97 of the Amendments to the Massachusetts Constitution, ratified in 1972, declares clean air, water, and the “natural, scenic, historic, and esthetic qualities” of the environment a public right. It also says land “taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court.”

Once land is dedicated to conservation, a town cannot quietly undedicate it. It must persuade two-thirds of both houses of the Legislature to pass a law. The governor then signs that law, which is the “and the governor” in Spellios’s shorthand.

The harder question is when land enters that protection. The courts have not treated intent alone as enough.

In Selectmen of Hanson v. Lindsay (2005), a town meeting voted unanimously to accept a parcel “for conservation purposes,” but the town never recorded any instrument. Years later, the town’s tax office auctioned it off. When the town sued to void the sale under Article 97, it lost. The vote “merely expressed the town’s interest,” the Supreme Judicial Court held; the parcel “never became specifically designated for conservation purposes in the first instance,” so “the 1971 vote, alone, had no legal effect.” A recorded deed or conservation restriction is what perfects the protection.

The modern test, from Mahajan v. Department of Environmental Protection (2013), gives three ways in: land taken or acquired for an Article 97 purpose; land designated afterward by a recorded restriction; or, in limited circumstances, land whose “ultimate use” reveals the purpose. That third route is narrow. Mahajan cites Muir v. Leominster, where thirty years of actual use as a playground did not convert unrestricted land into protected land. Use alone does not do it.

The Hawthorne record does not show Article 97 protection. The 2022 vote attached no open-space purpose to the Hawthorne. The article’s only forward-looking guarantee was “public access to the portions of the property adjacent to the coastline.” No conservation restriction was recorded. The site is not used as a park: it is a leased venue, home since this spring to the Swampscott Center for the Performing Arts at about $10,000 a month. The town assessor still codes the main parcel as a restaurant/bar and values it at $7,214,900, a commercial assessment rather than an open-space one.

Town Meeting was also asked to reverse that choice in 2022 and declined.

Stephen Iannacone, a Precinct 4 member, moved to guarantee 90 percent of the Hawthorne as “a recreational park and or open conservation space” and to bar any lease, sale, private use, or development. He wanted “an assurance that the property will remain, after purchase, as a park or recreation area.” Consulting Town Counsel, the moderator, an office held in 2022 by Michael McClung, told the body the amendment created no conservation easement but “would potentially still trigger the Article 97 restriction,” locking up 90 percent of the land.

On a show of hands, the amendment failed. The main article then passed by a counted standing vote, 214-3.

The same doctrine applies to the 2026 debate. The Select Board’s consensus is to lease the Hawthorne, not sell it, on a long-term ground lease. Because the Hawthorne is not Article 97 land, that lease does not require a two-thirds legislative vote. If the Hawthorne were protected, the answer would change: Mahajan treats a lease or easement over Article 97 land as a “disposition” that triggers the vote.

Archer restriction remains unconfirmed

The Archer parcels did get the open-space language the Hawthorne did not. Spellios also promised more on the floor: “with your approval tonight, we will be placing a conservation restriction on this property, which, again, forever protects it.”

Under Hanson, that promise starts the inquiry. Protection turns on whether an instrument was later recorded.

The town assessor shows the Archer parcels in municipal hands but coded vacant-municipal, with no separate conservation restriction visible and only the acquisition deeds cited. That is consistent with the promise having been kept or not kept; the assessor record cannot answer the question. We could not confirm a recorded conservation restriction.

The definitive check is in the Essex South Registry of Deeds, at Book 41288, Page 257 and Book 41394, Page 542 — a records question a resident or town official could resolve in an afternoon, and one no one in the public record has yet asked.

Spellios, now off the Select Board and serving as a Precinct 3 Town Meeting member, warned at a March 2025 Town Meeting: “do not be surprised when the Hawthorne and other things don’t turn out the way you think they’re going to.”

For the Hawthorne, the 2022 vote explains what is happening now. For Archer Street, the recorded-instrument question remains open.

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