Topic: Eminent Domain-Vote required
Author: Robert S. Mangiaratti
To City Council President:
I am writing in response to your letter of April 2, 2003 in which you asked for a legal opinion regarding a vote of the municipal council on that occurred April 1, 2003 to take certain land on County Street. You informed me that ten members were in attendance at the meeting. Seven councilors voted in favor of the taking and three were opposed. You correctly acknowledged that a two thirds vote of the council is required to authorize an eminent domain taking. However, the seven favorable votes constituted two thirds of the members present but not two thirds of the entire eleven member council. You asked whether the required vote is two-thirds of the entire council or two-thirds of the members present.
Eminent domain takings in the City of Friendlyville[1] are subject to M.G.L. c. 40, § 14, which states in relevant part:
…no land … shall be taken or purchased … unless the taking or purchase thereof has previously been authorized by the city council … nor until an appropriation of money … has been made for the purpose by a two thirds vote of the city council…(emphasis added)
The Massachusetts Supreme Judicial Court in Ellison v. City of Haverhill 309 Mass. 350 (1941) directly addressed the meaning of “a two thirds vote” in that statute. That case arose on facts similar to the current situation in Friendlyville. Three out of five members present at a meeting of the Haverhill municipal council voted to acquire certain land for public parking. Two members of the council were absent on the day of the vote. The three votes in favor constituted two thirds of the members present but did not constitute two thirds of the entire council. The court held:
…we are of the opinion that … section 14 requires no more than the votes of two thirds of the members of the council present at the meeting.
The court observed that in the absence of specific language to the contrary, statutes requiring a particular vote are consistently interpreted to apply to the members at a meeting in the presence of a quorum.
Therefore, in my opinion, the vote in favor by seven out of ten members of the municipal council present on April 1st constituted a two thirds vote for the purposes of M.G.L. c. 40, § 14. I hope that you find this information useful. Please contact me if I may be of any further assistance.
[1] In your correspondence you brought to my attention M.G.L. c. 43, § 30. However, that statute is applicable only to cities that are organized as a Plan A, B, C, D, E or F form of government. The City of Friendlyville is organized pursuant to a home rule charter and is therefore not controlled by M.G.L. c. 43, § 30.