CORPORATION WAY REALTY TRUST vs. BUILDING COMMISSIONER OF MEDFORD.

CORPORATION WAY REALTY TRUST vs. BUILDING COMMISSIONER OF MEDFORD.

348 Mass. 732

January 8, 1965 - April 2, 1965

Middlesex County

Present: WILKINS, C.J., SPALDING, WHITTEMORE, CUTTER, & SPIEGEL, JJ.

A provision of a city's zoning ordinance requiring approval of the board of aldermen for certain uses otherwise permitted constituted a reservation to that board, as the legislative branch of the city, of a legislative zoning power which, upon adoption by the city of a Plan E charter, passed to the city council as the legislative branch under G. L. c. 43, Sections 3, 97, and not to the city manager or his appointees under Section 104.

PETITION for a writ of mandamus filed in the Superior Court on October 2, 1963.

The petitioner appealed from an order for judgment dismissing the petition after hearing by Coddaire, J.

The case was submitted on briefs.

Louis Karp for the petitioner.

Mark E. Gallagher, City Solicitor, for the respondent.

WHITTEMORE, J. The issue in this proceeding for a writ of mandamus is whether a provision of the Medford zoning ordinance, requiring approval of the "board of aldermen" of an application for a permit for the construction of a building for certain uses, operated to require the approval of the city council after the adoption by the city in 1949 of a Plan E charter under G. L. c. 43, Sections 93-116. The prior charter of Medford, St. 1903, c. 345, Section 2, provided for "a legislative body, to be called the board of aldermen." The permit sought was for an addition to a trucking terminal building on the petitioner's land in a heavy industrial district.

The zoning ordinance provides "Sec. 19. No permit for . . . [various specific uses] or for anything permitted only

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under Sections eight and nine, shall be issued by the building commissioner until the application therefor has been approved by the board of aldermen as provided in Section twenty."

Section 9 of the zoning ordinance provides in part: "In heavy industrial districts, subject to the provisions of Section nineteen, buildings and land may be used for any purposes, except dwellings . . .." The record does not expressly foreclose the possibility that a trucking terminal building was permitted under some section of the ordinance other than Section 9. But the trial, however, proceeded on the basis that Section 9 was before the court and that no sections other than 9, 19 and 20 were relevant and we decide the appeal accordingly.

Section 19 of the ordinance reserves to the legislative branch of the city a part of the delegated legislative zoning power. Building Commr. of Medford v. C. & H. Co. 319 Mass. 273 , 280-281. See Coolidge v. Planning Bd. of No. Andover, 337 Mass. 648 , 651. Section 97 of c. 43, inserted by St. 1938, c. 378, Section 15, provides for a Plan E city, in part: "The city council shall have and exercise all the legislative powers of the city, except as such powers are reserved by this chapter to the school committee and to the qualified voters of the city." General Laws c. 43, Section 3, provides: "None of the legislative powers of a city shall be abridged or impaired by this chapter; but all such legislative powers shall be possessed and exercised by such body as shall be the legislative body of the city under this chapter."

We hold that c. 43, Section 3, is applicable and that the reserved legislative power is now in the city council and not, as the petitioner contends, in the city manager, or his appointees, under G. L. c. 43, Section 104. Compare King v. Mayor of Quincy, 270 Mass. 185 .

Order for judgment dismissing petition affirmed.