TOWN OF DEDHAM vs. FRANK GOBBI & others.

TOWN OF DEDHAM vs. FRANK GOBBI & others.

6 Mass. App. Ct. 883

May 31, 1978

The requirement of G. L. c. 40, Section 8C (as amended through St. 1967, c. 885), that a municipal taking of land or waters for conservation purposes under the authority of that section be founded "upon the written request of the [conservation] commission" must be regarded as a condition precedent to the validity of such a taking. Compare Shea v. Inspector of Bldgs. of Quincy, 323 Mass. 552 , 558 (1949). The judge did not err in ruling that the inconclusive references in the minutes of the commission fell short of establishing that the commission had made, or directed to be made, such a request. Nor did the judge err in ruling that the testimony of the commission chairman concerning votes not recorded in the minutes did not warrant a finding to that effect. Scullin v. Cities Serv. Oil Co., 304 Mass. 75 , 79, 83-84 (1939), and cases cited. New England Box Co. v. C & R Constr. Co., 313 Mass. 696 , 702 (1943). Compare Planning Bd. of Springfield v. Board of Appeals of Springfield, 338 Mass. 160 , 163-164 (1958). Contrast Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366 , 371 (1965). 2. We reject the town's contention that the validity of the taking may be predicated on G. L. c. 40, Section 14, rather than on Section 8C, because Section 14 is restricted to takings "for any municipal purpose for which the purchase or taking of land . . . is not otherwise authorized or directed by statute . . . ." Burnham v. Mayor & Aldermen of Beverly, 309 Mass. 388 , 394 (1941). Shea v. Inspector of Bldgs. of Quincy, supra at 557. We find no significance in the fact that at the time of the town meeting vote authorizing the taking (March 18, 1968) amounts in the conservation fund established under Section 8C could not have been used for eminent domain takings. See G. L. c. 40, Section 5(51), and St. 1967, c. 885, amending G. L. c. 40, Section 8C, effective April 4, 1968. It is clear from G. L. c. 40, Section 5, read together with Section 8C as in effect prior to the 1967 amendment, that a town meeting could appropriate monies directly for a taking under

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the authority of Section 8C.

Judgment affirmed.