Boston Edison Co. v. Town of Sudbury

• Decision Date: 26 November 1969
• Citation: 253 N.E.2d 850,356 Mass. 406
• Parties: BOSTON EDISON COMPANY v. TOWN OF SUDBURY et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 850

253 N.E.2d 850

356 Mass. 406

BOSTON EDISON COMPANY v. TOWN OF SUDBURY et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 4, 1969.

Decided Nov. 26, 1969.

James M. Carroll, Donald R. Grant and John J. Desmond, III, Boston, Mass., for Boston Edison Co.

Philip B. Buzzell and Joseph P. Warner, Boston, Mass., for the towns of Sherborn, Sudbury and Wayland; Theodore Chase, Town Counsel, for the Town of Sherborn; John M. Kahn, Town Counsel, for the Town of Framingham; C. Peter R. Gossels, Town Counsel, for the Town of Wayland; and Earl F. Nauss, Jr., Town Counsel, for the Town of Sudbury.

Robert H. Quinn, Atty. Gen., and William E. Searson, III, Asst. Atty. Gen., for the Department of Public Utilities, amicus curiae.

Before SPALDING, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

CUTTER, Justice.

The plaintiff (Edison) proposes to construct an overhead line for the transmission of electricity at 230,000 volts (230 KV) between an existing Edison substation in Medway and one in Sudbury. Questions concerning this or related transmission lines have been before this court in Town of Sudbury v. Department of Pub. Util., 343 Mass. 428, 179 N.E.2d 263 (the first Sudbury case), and 351 Mass. 214, 218 N.E.2d 415 (the second Sudbury case); in Boston Edison Co. v. Board of Selectmen of Concord, 355 Mass. 79, 242 N.E.2d 868 (the Concord case); and in Town of Framingham v. Department of Pub. Utilities, 355 Mass. 138, 244 N.E.2d 281.

The general location of the proposed and certain related lines is shown on the attached sketch map (which does not purport to be drawn to scale). The proposed line is to be on steel towers and is to run about seventeen miles over an existing route 250 feet wide, over which Edison has maintained one or more overhead transmission lines. The Department of Public Utilities (D.P.U.) has made various past determinations of public convenience and necessity, affecting the route or parts of it, and various authorizations to make eminent domain takings of easements. Edison concedes, however, that these 'do not include a specific authorization under * * * (G.L. c. 164, § 72, as amended) to construct the * * * (proposed) 230 KV line.' The D.P.U. has specifically exempted the lands within the strip 250 feet wide and the proposed structures from the operation of the zoning by-laws of Medway, Sherborn, Framingham, Wayland, and Sudbury, to the extent that they may be used for the transmission lines described before the D.P.U. in its opinion (D.P.U. 15192, March 29, 1967). ² See the Framingham case, 355 Mass. 138, 140--143, 145--148, 244 N.E.2d 281.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In the summer of 1969, Edison brought in the Superior Court declaratory proceedings against the building inspectors of Sudbury and of Wayland. The towns of Sudbury, Wayland, Sherborn, and Framingham (the towns and the building inspectors of two of them are, for convenience, collectively referred to as the towns) brought bills in the Superior Court against Edison for declaratory and other relief. This litigation, consolidated in the Superior Court (fn. 1), raises the issues discussed below. A Superior Court judge enjoined the building inspectors of Wayland and of Sudbury from enforcing the building codes of these towns respectively. He denied applications of these towns for preliminary injunctive relief against further construction by Edison.

On August 6, 1969, acting under G.L. c. 214, § 22, as amended by St.1948, c. 309, a single justice of this court, in the county court, enjoined further construction of any part of the proposed line. The full court on October 3, 1969, denied Edison's petition to dissolve this order. Another justice of this court then entered an order (October 6, 1969) transferring to the county court all the cases mentioned above then pending in the Superior Court. See G.L. c. 211, § 4A, inserted by St.1962, c. 722, § 2. The parties, acting with great expedition, have submitted a consolidated statement of agreed facts. The cases have been reserved, without decision, for the determination of the full court.

Portions of the right of way between Medway and Sudbury are already used for transmission lines (13.8 KV and 115 KV) supported on wood poles, described by the D.P.U. as 'from 65 to 80 feet' in height 'depending on the terrain.' The contemplated construction, on the other hand (see the Framingham case, 355 Mass. 138, 140--141, 244 N.E.2d 281) is to be on 'two circuit, wide base, lattice type, steel towers varying in height from 110 to 125 feet, except at certain substations where the towers would be 160 feet in height. The structures would be spaced * * * (about) 1,000 feet apart. Clearance above the ground of the wires suspended from such structures would be not less than twenty-five feet, and over highways not less than twenty-eight feet.' The towns greatly fear the line's 'deteriorating effect on aesthetic and property values as well as safety considerations.'

Edison in 1967 began to build the proposed line in Medway, Holliston, Sherborn, and Natick. These four towns did not appeal from the D.P.U.'s decision which resulted in the Framingham case, 355 Mass. 138, 244 N.E.2d 281. By December, 1968, the proposed line had been constructed between the Medway substation and the Natick-Framingham boundary. After the decision in the Framingham case, Edison started to build parts of the proposed line in Sudbury. There has been no further construction since the injunction issued by the single justice on August 6, 1969. No wires, forming part of the proposed line, have been installed over or under any public ways (mentioned later in part 3 of this opinion) in Framingham and Wayland as to which Edison has no presently existing rights of record under G.L. c. 166, §§ 21, 22, or 28, or over or under Stock Farm Road in Sudbury (see part 4 of this opinion).

The parties have agreed that there are four principal controversies presented by the present record. ³ These are discussed separately below.

1. On the first controversy, the towns contend that Edison must obtain from the D.P.U. a determination of public convenience and necessity under G.L. c. 164, § 72, as amended (see fn. 4). Edison, however, points out (a) that so much of the proposed route as lies within Sherborn (as was not already controlled by Edison) was acquired by Edison in 1941 under D.P.U. orders of May 13 and July 29, 1941, and (b) that portions of the route in Framingham, Wayland, and Sudbury, not then owned or controlled by Edison, were acquired by eminent domain either in 1953, pursuant to an order of the D.P.U. of November 30, 1951, or in 1955, pursuant to D.P.U. orders of July 28, 1955. See Cole v. Boston Edison Co., 338 Mass. 661, 157 N.E.2d 209. Edison then argues, in effect, that, because it already controls some easement over all the proposed route (except across certain streets or roads; see parts 3 and 4 of this opinion), there is no occasion for it to obtain from the D.P.U. any determination of public convenience and necessity under c. 164, § 72. In practical effect, Edison contends that § 72 does not require a transmission company to obtain any certificate of public convenience and necessity for construction of any transmission line (or of a line greatly increased in capacity and in size of structure from an existing line) over an easement which the company already controls. Edison (as indicated above) has agreed that, as to 'the line from the Medway substation to the Sudbury substation' now proposed, 'Edison has never obtained any specific approval of any part of * * * (the) line by the D.P.U.' under § 72, and contends that no such approval is now required.

The first controversy requires ree xamination of G.L. c. 164, § 72 (as amended through St.1965, c. 457), which is set out in the margin. ⁴ There have been inserted in the text of § 72 in brackets various capital letters for the purpose of convenient reference ⁵ to the portions of the section immediately following these letters, respectively.

The earliest predecessor of § 72 is found in St.1914, c. 742, § 128. The section, revised in various respects thereafter, was initially considered in detail by this court in the first Sudbury case, 343 Mass. 428, 179 N.E.2d 263. There we had to decide whether an appeal under G.L. c. 25, § 5 (as amended through St.1956, c. 190), by the town of Sudbury from D.P.U. action under the first sentence of § 72 was 'from the final decision of the (d)epartment.' There was thus occasion to ascertain what the Legislature had contemplated as the D.P.U.'s procedure under the 'not wholly clear' language (343 Mass. 428, 431, 179 N.E.2d 263, 266) of § 72. We interpreted the section as follows: '(1) Initially, a company wishing to build a transmission line must file with the department a petition (see point (A)) for 'authority to construct and use * * * a (transmission) line.' The appropriate departmental action upon such a petition, if * * * approved * * * is a determination that * * * (the) line is necessary * * * will serve the public convenience and is consistent with the public interest. (2) If the company cannot acquire the necessary right of way by negotiation, the company (see portion of § 72 between points (B) and (E)) may file detailed plans with the department, which then * * * may 'by order authorize the company to take' by eminent domain * * * the necessary * * * rights of way over privately owned land. The company may file a separate petition for this authority to take land by eminent domain. If there is no occasion for an eminent domain taking (as, for example, because all necessary land can be acquired by negotiation), then the company need file no such second petition. After such an order for an eminent domain taking (see point (F)), or without such an order if no eminent domain taking is necessary, the company 'may forthwith, except as hereinafter provided, proceed to erect, maintain...