Boston Gas Co. v. City of Newton

• Decision Date: 14 August 1997
• Citation: 425 Mass. 697,682 N.E.2d 1336
• Parties: , Util. L. Rep. P 26,625 BOSTON GAS COMPANY v. CITY OF NEWTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1336

682 N.E.2d 1336

425 Mass. 697, Util. L. Rep. P 26,625

BOSTON GAS COMPANY v. CITY OF NEWTON.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued April 7, 1997.

Decided Aug. 14, 1997.

Steven W. Phillips (Michael I. Joachim, with him), Boston, for plaintiff.

Frances E. Balin, Assistant City Solicitor, for defendant.

The following submitted briefs for amici curiae:

Scott Harshbarger, Attorney General, and Thomas A. Barnico, Assistant Attorney General, for the Department of Public Utilities.

Paul K. Connolly, Jr., and Eileen M. Fava, boston, for the Massachusetts Natural Gas Council.

Albert S. Robinson, Town Counsel, and James A. Goodhue, Wellesley, for the Town of Wellesley.

David M. Moore, Worcester, for the Massachusetts Municipal Association.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and FRIED, JJ.

LYNCH, Justice.

The plaintiff filed an action for declaratory relief pursuant to G.L. c. 231A, arguing that § 26-11 of the Revised Ordinances of Newton, as amended by Newton Ordinance No. T-161, was preempted by State law and constituted an improper tax. On cross motions for summary judgment, a Superior Court judge allowed the city of Newton's (city) motion. The plaintiff appealed. We granted the city's application for direct appellate review.

The following facts are undisputed. The ordinance at issue imposes a monetary cost on public utility companies such as the Boston Gas Company as a prerequisite to acquiring a permit to excavate public ways and sidewalks in the city. Under the ordinance, a party seeking a permit to excavate a public way is charged an application fee of $25. In addition, for an excavation of one hundred square feet or less, an "Inspection and Maintenance" fee of $150 is imposed. For each additional one hundred square feet or portion thereof, an additional $50 is charged. The ordinance also imposes an inspection and maintenance fee of $50 for "shut-off holes" and a fee of $10 each for "corings." ¹ The city based the charges on the costs it incurs in issuing permits and in inspecting the excavations. The city maintains that the fee structure also takes into account the reduction in the useful life of streets and sidewalks caused by openings into their surfaces. ^{2 3}

The plaintiff contends that the ordinance is invalid under § 6 of art. 89 of the Amendments to the Massachusetts Constitution Home Rule Amendment) because it is inconsistent with G.L. c. 164, the State's regulatory scheme for public utilities, including gas companies, and regulations of the Department of Public Utilities (department). ⁴ We agree that the portion of the ordinance charging inspection and maintenance fees is invalid; we conclude, however, that the city is entitled to charge a fee based on its administrative costs incurred in the issuance of permits.

Discussion. Municipalities may not adopt by-laws or ordinances that are inconsistent with State law. Boston Gas Co. v. Somerville, 420 Mass. 702, 703, 652 N.E.2d 132 (1995), and cases cited. "To determine whether a local ordinance is inconsistent with a statute, this court has looked to see whether there was either an express legislative intent to forbid local activity on the same subject or whether the local regulation would somehow frustrate the purpose of the statute so as to warrant an inference that the Legislature intended to preempt the subject." Id. at 704, 652 N.E.2d 132. Accord Bloom v. Worcester, 363 Mass. 136, 155, 293 N.E.2d 268 (1973). "Moreover, in some circumstances we can infer that the Legislature intended to preempt the field because legislation on the subject is so comprehensive that any local enactment would frustrate the statute's purpose." Boston Gas Co. v. Somerville, supra. Accord Wendell v. Attorney Gen., 394 Mass. 518, 527-528, 476 N.E.2d 585 (1985); New England Tel. & Tel. Co. v. Lowell, 369 Mass. 831, 834-835, 343 N.E.2d 405 (1976). We have stated that the purpose of G.L. c. 164 is to ensure uniform and efficient utility services to the public. Boston Gas Co. v. Somerville, supra at 706, 652 N.E.2d 132. See also New England Tel. & Tel. Co. v. Lowell, supra at 834, 343 N.E.2d 405 (emphasizing "the desirability of uniformity of standards applicable to utilities regulated by the Department of Public Utilities"). We consider, therefore, whether the ordinance, which imposes a fee based on three separate considerations, is inconsistent with G.L. c. 164, such that it interferes with uniform and efficient utility services.

Maintenance. General Laws c. 164, § 70, imposes an affirmative obligation on the plaintiff to restore all streets, lanes, and highways to the condition they were in prior to being opened. ⁵ The ordinance, however, assesses a fee based on the city's calculation that street life is reduced twenty-five per cent by excavations. While the city argues that it is entitled to recover such future costs as property damage under G.L. c. 164, § 75, ⁶ the logical corollary of the city's argument is that it is all but impossible for the plaintiff to restore a street that has been the site of an excavation to its former condition and the plaintiff must therefore be made to pay for the diminished value. This assumption is contrary to that of the Legislature because the statute assumes that a street can and should be restored to its former condition. See G.L. c. 164, § 70. Therefore, imposing a cost on the plaintiff based on the reduction in street life caused by the excavation is inconsistent with the statute. See Boston Gas Co. v. Somerville, supra at 705, 652 N.E.2d 132 (requirement of ordinance that plaintiff maintain excavation site for three years inconsistent with statute); Seltzer v. Amesbury & Salisbury Gas Co., 188 Mass. 242, 244, 74 N.E. 339 (1905) (construing predecessor to G.L. c. 164, § 70, and stating that "the statute has reference simply to a temporary condition of things, existing while the work is going on, and extending only so long as may be reasonably necessary to put the road in its former condition"). Indeed, despite the fact that this charge must be paid at the time the permit is sought, it is inescapable that the cost the city seeks to impose will be incurred in the future. ⁷ By demanding that the plaintiff through an upfront fee, in effect pay for the long-term maintenance of the street, the ordinance mandates something not required by the statute and is, therefore, inconsistent with, and preempted by, G.L. c. 164. ⁸ See Wendell v. Attorney Gen., supra at 528-529, 476 N.E.2d 585 (holding by-law inconsistent because imposed conditions beyond those established by statute and exceeded authority of town's board of health); New England Tel. & Tel. Co. v. Lowell, supra.

Inspection. The city also argues that, even if the portion of the fee attributable to the reduction in street life is eliminated, costs incurred by the city in inspecting the excavation sites justify the fee. Thus, according to the city, the fees are reasonable regardless of whether the city permissibly may charge the plaintiff for the reduction in street life and are impliedly authorized by the statutory and regulatory scheme. We disagree.

In mandating that public utilities restore a street or highway to the condition it was in prior to any excavation, we believe that the statute can be fairly read as placing the burden of fulfilling such statutory duties squarely on the shoulders of the public utility. See G.L. c. 164, § 70. The statute implies, therefore, that the plaintiff, not the city, has the obligation to inspect excavation sites after the necessary repairs have been made. Moreover, the statute vests with the department, not the city, the authority to oversee the plaintiff and to ensure the safe and efficient distribution of gas. Where excavation is necessary in order to ensure the safe and efficient distribution of such gas to consumers and compliance with numerous Federal and State regulations, such excavation is inextricably linked with the distribution of gas. ⁹ See G.L. c. 164, § 105A. ¹⁰ See also New England LNG Co. v. Fall River, 368 Mass. 259, 265, 331 N.E.2d 536 (1975) establishing "supremacy" of G.L. c. 164, § 105A, over G.L. c. 164, § 75); Pereira v. New England LNG Co., 364 Mass. 109, 120, 301 N.E.2d 441 (1973) (G.L. c. 164, § 105A, indicates that Legislature "intended to give, and did give ... paramount power to the Department" to regulate and control storage, transportation, and distribution of gas).

It is true, as the city argues, that the statute does not expressly forbid the inspection process established by the city here. What the statute does prohibit is the imposition of the city's inspection costs on the plaintiff and its customers. We reiterate our conclusion in Boston Gas Co. v. Somerville supra at 704, 652 N.E.2d 132, however, that "[t]he manufacture and sale of gas and electricity by public utilities is governed by G.L. c. 164. Given [its] comprehensive nature ... the Legislature intended to preempt local entities from enacting legislation in this area." See Boston Edison Co. v. Boston, 390 Mass. 772, 774, 459 N.E.2d 1231 (1984) (recognizing comprehensiveness of G.L. c. 164). ¹¹ The city, of course, attempts to distinguish Boston Gas Co. v. Somerville, supra, and argues that this language in Somerville cannot be read so broadly as to encompass the situation now before us; to the extent that the language was meant to encompass a situation like the one before us, the city argues that it is dictum and incorrect. We disagree. Concededly, the ordinance at issue in Somerville was more onerous in some respects. ¹² However, it too regulated street and sidewalk openings, and we concluded that that ordinance was invalid. Id. at 704-705, 652 N.E.2d 132. Thus, in the instant case, the portion of the ordinance attributable to inspection costs, which in essence attempts to exert more control over the plaintiff than exercised by the department, may not stand.

In rejecting the city's argument...