Planning Bd. of Braintree v. Department of Public Utilities
Decision Date | 11 April 1995 |
Citation | 647 N.E.2d 1186,420 Mass. 22 |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Parties | , Util. L. Rep. P 26,467 PLANNING BOARD OF BRAINTREE & others 1 v. DEPARTMENT OF PUBLIC UTILITIES & another. 2 |
Bryan J. Stevens, Braintree, for Edwin Pinola & another.
Eric A. Smith, Asst. Atty. Gen., for Dept. of Public Utilities.
Alan K. Posner, Boston, for Braintree Elec. Light Dept.
Phyllis Field, Quincy, for Planning Bd. of Braintree, was present but did not argue.
Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.
A single justice of this court has reserved and reported this case concerning the correctness of the Department of Public Utilities's (department's) decision to grant the Braintree Electric Light Department (BELD) an exemption from the zoning by-law for its new electric substation. See G.L. c. 40A, § 3 (1992 ed.). BELD is a municipal electric department established by two successive town votes in 1891 pursuant to St.1891, c. 370, § 2. It is located in Braintree and is the sole supplier of retail electric service in the town.
On April 14, 1987, BELD filed a petition, pursuant to G.L. c. 164, §§ 69H and 69I (1992 ed.), with the Energy Facilities Siting Council (now Energy Facilities Siting Board [EFSB] ) for approval to construct a substation and two transmission lines. The EFSB approved the construction, as did the Braintree conservation commission. Some Braintree residents appealed from this decision to the Department of Environmental Quality Engineering (now Department of Environmental Protection) which conditionally approved the project.
On July 28, 1988, the Braintree building inspector issued an opinion that no building or special permit was required for the substation. On a request for reconsideration filed by some Braintree residents, 3 the building inspector reaffirmed his decision. The residents appealed from the decision to the Braintree zoning board of appeals which affirmed the decision of the building inspector. The residents and the planning board of Braintree (planning board) appealed to the Superior Court, pursuant to G.L. c. 40A, § 17 (1992 ed.). After a hearing, the Superior Court judge denied the plaintiffs' motion to enjoin the construction of the substation. 4 BELD completed construction of the substation in December, 1989, and in June, 1990, commenced its operation.
On October 2, 1990, while the case was pending in the Superior Court, BELD filed a petition with the department, pursuant to G.L. c. 40A, § 3, for an exemption from the town's zoning by-law. 5 At a hearing on November 1, 1990, the department allowed motions to intervene filed by the present plaintiffs, Janice and Edwin Pinola, abutters of the substation, and the planning board. On November 1, 1991, the department issued a decision granting BELD an exemption from local zoning requirements. The plaintiffs sought judicial review of the department's decision pursuant to G.L. c. 25, § 5 (1992 ed.). 6 BELD moved to intervene, and a single justice of this court allowed the motion on December 23, 1992. On November 23, 1993, BELD moved to dismiss for lack of prosecution. A single justice denied the motion to dismiss on March 24, 1994, and on March 28, 1994, reserved and reported the case to this court. We conclude that the department's decision should be affirmed.
1. Standard of review. "Our review of petitions under G.L. c. 25, § 5, is limited, although not perfunctory." Wolf v. Department of Pub. Utils., 407 Mass. 363, 367, 553 N.E.2d 922 (1990). "We will uphold the department's actions unless the plaintiffs can demonstrate that they are flawed by an error of law, lack support by substantial evidence, are arbitrary or capricious, or suffer from one of the other defects spelled out in [G.L. c. 30A,] § 14(7) [1992 ed.]." Id., quoting Zachs v. Department of Pub. Utils., 406 Mass. 217, 219-220, 547 N.E.2d 28 (1989). Wolf, supra, 407 Mass. at 367, 553 N.E.2d 922, quoting Costello v. Department of Pub. Utils., 391 Mass. 527, 533 (1984).
2. Jurisdiction under G.L. c. 40A, § 3. General Laws c. 40A, § 3, authorizes the department to exempt land or structures used by public service corporations from zoning ordinances and by-laws if the department determines that the present or proposed use of the land or structure is reasonably necessary for the convenience or welfare of the public. 7 The plaintiffs argue that the department did not have jurisdiction to grant BELD an exemption under G.L. c. 40A, § 3, because BELD is not a public service corporation.
Our cases determining whether an entity qualifies as a public service corporation have addressed private corporations. See, e.g., Save The Bay, Inc. v. Department of Pub. Utils., 366 Mass. 667, 680, 322 N.E.2d 742 (1975); Truro v. Department of Pub. Utils., 365 Mass. 407, 408, 312 N.E.2d 566 (1974); Attorney Gen. v. Haverhill Gas Light Co., 215 Mass. 394, 398, 101 N.E. 1061 (1913). Nonetheless, "public service corporation" is a term of art which is not limited to corporations, but may include municipal electric departments such as BELD. See Brand v. Water Comm'rs of Billerica, 242 Mass. 223, 226, 136 N.E. 389 (1922) ( ). See also Yankee Celltell, D.P.U. 84-72 (1984) ( ); Rep.A.G.Pub.Doc. No. 12, at 182 (1962) ( ).
In determining whether BELD should be considered a public service corporation, the department applied the standards set forth in Save the Bay, Inc., supra, 366 Mass. at 680, 322 N.E.2d 742, namely: "whether [it] is organized pursuant to an appropriate franchise from the State to provide for a necessity or convenience to the general public which could not be furnished through the ordinary channels of private business; whether [it] is subject to the requisite degree of governmental control and regulation; and the nature of the public benefit to be derived from the service provided" (decided under former G.L. c. 40A, § 10 [1992 ed.] ). The department determined that these standards were met. The plaintiffs do not challenge that determination. Instead, they argue that, because BELD is not a corporation, it cannot be a public service corporation.
Like a private corporation, BELD is an independent entity created pursuant to a statute. St.1891, c. 370. See Adie v. Mayor of Holyoke, 303 Mass. 295, 298, 21 N.E.2d 377 (1939) ( ); MacRae v. Selectmen of Concord, 296 Mass. 394, 396-397, 6 N.E.2d 366 (1937) (). It is separate from the town and exists to operate property "in its right of private ownership," to the end of providing electricity to retail consumers. Whiting v. Mayor of Holyoke, 272 Mass. 116, 120, 172 N.E. 338 (1930).
The zoning exemption available under G.L. c. 40A, § 3, is intended to assure utilities' ability to carry out their obligation to serve the public when this duty conflicts with local interests. See, e.g., Pereira v. New England LNG Co., 364 Mass. 109, 119-120, 301 N.E.2d 441 (1973), quoting Mezitt v. Department of Pub. Utils., 354 Mass. 692, 695, 241 N.E.2d 829 (1968); New York Central R.R. v. Department of Pub. Utils., 347 Mass. 586, 592, 199 N.E.2d 319 (1964). See also Truro, supra 365 Mass. at 410, 312 N.E.2d 566, quoting New York Cent. R.R., supra, 347 Mass. at 592, 199 N.E.2d 319 ( ). This concern for public service applies to all utilities, not just those operated by corporations.
Municipal and private utilities are subject to identical public service obligations. See Rounds v. Water & Sewer Comm'rs of Wilmington, 347 Mass. 40, 44, 196 N.E.2d 209 (1964); Wellesley Bd. of Pub. Works, D.P.U. 86-45/86-144, at 18-20 (1987). Each has the same "duty to exercise [their] franchise for the benefit of the public, with a reasonable regard for the rights of individuals who desire to be served, and without discrimination between them." Bertone v. Department of Pub. Utils., 411 Mass. 536, 544, 583 N.E.2d 829 (1992), quoting Weld v. Gas & Elec. Light Comm'rs, 197 Mass. 556, 557, 84 N.E. 101 (1908). Because they have the same duty to serve as private utilities, municipal utilities need to have the same tools available to perform their duty, including the G.L. c. 40A, § 3, exemption.
The plaintiffs argue that municipal electric departments are governed not by regular corporate laws, but by special statutory provisions in G.L. c. 164 (1992 ed.). Municipal Light Comm'n of Taunton v. Taunton, 323 Mass. 79, 84, 80 N.E.2d 31 (1948). Adie, supra, 303 Mass. at 298, 21 N.E.2d 377. This argument misses the mark. While G.L. c. 164 makes distinctions between electric utility corporations and municipal electric departments, these distinctions simply reflect the differences in ownership and structure. See G.L. c. 164, §§ 3-33 (applying to corporations); §§ 34-69 ( ). They do not provide any reason for treating such utilities differently under G.L. c. 40A, § 3. In fact, for certain purposes, the Legislature has included municipal electric departments within the term "corporation." See G.L. c. 164, § 2 (1992 ed.) ("in construing [certain secti...
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