Codex Corp. v. Metropolitan District Commission

392 Mass. 245
CourtMassachusetts Supreme Judicial Court
DecidedJune 19, 1984
StatusPublished
Cited by1 cases

This text of 392 Mass. 245 (Codex Corp. v. Metropolitan District Commission) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Codex Corp. v. Metropolitan District Commission, 392 Mass. 245 (Mass. 1984).

Opinions

O’Connor, J.

On May 22, 1984, this court issued the following order: “This is an appeal by the Metropolitan District Commission from a decision of the Superior Court ordering the entry of summary judgment for the plaintiffs and further ordering that ‘the MDC shall not proceed with any eminent domain taking of land in Canton owned by Codex Corporation or impose any conservation or preservation restriction on such land unless it first obtains the concurrence of the Board of Selectmen of the Town of Canton.’

“After consideration of the record, briefs of the parties and amici curiae, and oral arguments of the parties, it is Ordered:

“1. that the judgment of the Superior Court be and hereby is vacated.

“2. that this case be remanded to the Superior Court for. the entry of judgment declaring that the Metropolitan District Commission is not required to request or obtain the concurrence of the Board of Selectmen of Canton in order to take in fee or otherwise, or impose restrictions on, the land in Canton, or rights therein, owned by Codex Corporation, by eminent domain.

“A rescript will issue forthwith. An opinion or opinions will follow.”

This opinion is given in explanation of that order. By a complaint filed in the Superior Court, Codex Corporation (corporation) and the town of Canton (town) sought a declaratory judgment and injunctive relief against the Metropolitan District Commission (commission). The plaintiffs claimed in the Superior Court, and argue here, that the commission was required by G. L. c. 92, § 79, to obtain the concurrence of a majority of the board of selectmen of the town before it could take by eminent domain the corporation’s land located in the town. All the parties moved for summary judgment, and a judge in the Superior Court granted the plaintiffs’ motions and entered the order quoted in part above. We do not agree with the plaintiffs and the judge that the concurrence of the selectmen of Canton was required for the commission lawfully to exercise its power of eminent domain.

[247]*247For background, we briefly recite some of the facts asserted in the pleadings and affidavits reproduced in the record. In 1977, the corporation purchased a fifty-five acre tract in the town, known as Prowse Farm. The corporation granted a conservation restriction to the town which would require that approximately 80% of the tract be maintained in an undeveloped state. The corporation desires to construct its worldwide headquarters, including office and research facilities, on the unrestricted portion of the property. A considerable amount of construction already has taken place. The board of selectmen has supported the corporation’s plan because of its promise to increase tax revenues and provide employment opportunities while preserving 80% of the site in an undeveloped condition.

The commission secretary’s affidavit, filed in the Superior Court in September, 1977, states that the commission owns and maintains as “open space” the Blue Hills Reservation, which consists of approximately 5,700 acres in Milton, Quincy, Braintree, Randolph, Canton, and Dedham. According to the affidavit, the commission was “witnessing a rapidly accelerating movement toward the sale of privately owned open space abutting the Blue Hills Reservation,” and therefore it formulated a plan to acquire interests in land that it had reason to believe would soon be for sale. This was in order to protect the reservation from “the visual blight, noise and air pollution, and traffic caused by development.” Because of “its strategic position at the base of the rock face of Great Blue Hill” the commission considered Prowse Farm as “the highest priority parcel ... for preservation of open space.”

According to an affidavit, the commission has tried since August, 1973, to obtain an ownership or other interest in the property. The commission would have voted on June 23,1977, to take the property or an easement in it, by eminent domain. On June 21, 1977, however, the present action was commenced. The plaintiffs promptly obtained a temporary order restraining the commission from taking the property by eminent domain, and that order was subsequently continued in the form of a preliminary injunction. The judgment from which the present appeal was taken was entered in the Superior Court on [248]*248December 28, 1983. The appeal was entered in the Appeals Court in March, 1984, where a motion for an injunction barring further construction pending appeal had been denied by a single justice of that court on January 13, 1984. We granted the commission’s application for direct appellate review.

General Laws c. 92, § 79, grants the commission the power to take land by eminent domain for reservations “provided, that no private property shall be taken or restrictions imposed by eminent domain hereunder without the concurrence of a majority of the commission and of the board of park commissioners, if any, of the town where said property is situated.” General Laws c. 45, § 2, provides that a town may elect a board of park commissioners or may authorize its planning board or department of public works or road commissioners to act as one. See St. 1924, c. 209, § 1; St. 1976, c. 274. A town is not required to do so. Section 2 also provides that a mayor of a city, with the approval of the city council, may appoint a board of park commissioners. A mayor is not required to make such an appointment. Section 2 further provides that “[i]n a town which has not elected a board of park commissioners or has not authorized the town planning board so to act, the selectmen shall act as such board of park commissioners.” There is no corresponding provision in § 2 for a board or a department of a city to “act as” a board of park commissioners in the absence of mayoral appointment.

Canton has not elected a board of park commissioners nor has it authorized its planning board, its department of public works, or its road commissioners to act in that capacity. Its selectmen, therefore, “act as” its park commissioners pursuant to G. L. c. 45, § 2. In deciding the one question presented by this case, whethér the commission was required by G. L. c. 92, § 79, to obtain the concurrence of a majority of Canton’s selectmen, we must consider whether the selectmen are the board of park commissioners within the meaning of G. L. c. 92, § 79, by virtue of the provision in G. L. c. 45, § 2, that they shall “act as” such board.

We do not rely entirely on niceties of expression, but we recognize that in common understanding one who acts as the [249]*249holder of an office does not hold that office but only has its responsibilities and powers. The holder of an office is not ordinarily considered to be acting as its holder. It is also true that although a town board acting as a board of park commissioners has the powers and responsibilities of such a board, it does not by virtue thereof become the board of park commissioners. General Laws c. 92, § 79, does not expressly require that the commission obtain the concurrence of local boards of park commissioners or of persons exercising the powers and having the responsibilities of such boards before exercising eminent domain powers. The requirement is limited to obtaining the concurrence of a town’s board of park commissioners “if any.” G. L. c. 92, § 79.

We also note that if the plaintiffs’ view were to prevail, the commission would be obliged to obtain the approval of either elected park commissioners or the selectmen of any town in which a taking is contemplated.

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Related

Metropolitan District Commission v. Codex Corp.
480 N.E.2d 1013 (Massachusetts Supreme Judicial Court, 1985)

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Bluebook (online)
392 Mass. 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/codex-corp-v-metropolitan-district-commission-mass-1984.