Save the Bay, Inc. v. Department of Public Utilities

• Decision Date: 27 January 1975
• Citation: 322 N.E.2d 742,366 Mass. 667
• Parties: SAVE THE BAY, INC. v. DEPARTMENT OF PUBLIC UTILITIES (and a companion case). 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 742

322 N.E.2d 742

366 Mass. 667

SAVE THE BAY, INC. v. DEPARTMENT OF PUBLIC UTILITIES (and a companion case).¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 10, 1974.

Decided Jan. 27, 1975.

John J. Graham, Boston, for Save the Bay, Inc.

Michael Sahady, Fall River, for Manuel Pereira and others.

Walter H. Mayo, III, Asst. Atty. Gen., for Dept. of Public Utilities.

Acheson H. Callaghan, Jr., Boston, for the intervener, New England Liquified Natural Gas Co., Inc.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and KAPLAN, JJ.

HENNESSEY, Justice.

These are two consolidated appeals pursuant to G.L. c. 25, § 5, ² as amended through St.1971, c. 485, from a decision and order of the Department of Public Utilities (the Department) granting an exemption under G.L. c. 40A, § 10, to New England LNG Company, Inc. (New England LNG) from a Fall River zoning ordinance. ³ The area involved consists of land in Fall River bordering on Mount Hope Bay on which New England LNG proposes to build a facility for the liquefaction, storage, transportation, and distribution of liquefied natural gas (LNG). ⁴ The first petition is brought by Save the Bay, Inc., a Rhode Island nonprofit corporation; the second is filed jointly by Concerned Citizens of the South End (of Fall River), an unincorporated association, among whose members are three persons, also named in the petition as individuals who own property in the vicinity of the proposed facility.

New England LNG intervened in the proceedings and filed demurrers to the petitions for appeal on the ground that the petitioners were without standing to prosecute the appeals. The demurrers were overruled by a single justice of this court and New England LNG filed timely appeals. The original petitions for appeal, together with the intervener company's appeals from the interlocutory orders overruling its demurrers, were reserved and reported without decision by the single justice, and are before this court on the pleadings and record before the Department, including the transcript and exhibits.

The evidence in so far as it is material to the issues before this court is as follows. New England LNG is a Massachusetts corporation engaged in the business of buying, selling and distributing gas. It has been issued a temporary certificate or public convenience and necessity by the Federal Power Commission authorizing the proposed LNG service as the Department found 'for a limited term pending filing for further authority upon the acquisition of additional supplies of LNG.' New England LNG is the owner of, or has options on, certain parcels of land (the locus) which consist of 22.17 acres continguous to Mount Hope Bay. New England LNG proposes to import natural gas by ships from foreign and domestic sources, to process and store it ⁵ at the facility, and to sell the gas in peak demand periods to gas distribution companies located throughout Massachusetts and New England.

Although the locus is within an industrial zone, the proposed facility is not included among the specifically permitted uses in the district. Hence, on July 16, 1971, New England LNG applied to the Department under G.L. c. 40A, § 10, for an exemption of the locus from the requirements of the zoning ordinance, and at the same time applied under G.L. c. 164, § 105A, for approval of the manner in which and the pressure at which gas, both propane and LNG, is to be stored, transported and distributed.

On August 5, 1971, and September 27, 1971, the Department in accordance with G.L. c. 40A, § 10, held public hearings at Boston and Fall River regarding New England LNG's application for exemption. On December 15, 1971, the Department issued a decision and order granting New England LNG an exemption from the applicable zoning ordinances and imposing certain conditions concerning the construction and operation of the facility. The major issues presented by these appeals from that order and decision involve (1) the standing of the petitioners to prosecute these appeals, more specifically whether they are 'aggrieved part(ies) in interest' within the meaning of G.L. c. 25, § 5; (2) the adequacy of the notice of the proceedings given by the Department and the standards pursuant to which such notice was given; (3) whether New England LNG is a 'public service corporation' eligible for exemption under G.L. c. 40A, § 10; (4) whether the Department correctly applied the standard of 'reasonably necessary for the convenience or welfare of the public' required by G.L. c. 40A, § 10; and (5) whether the Department may designate a hearing officer to preside over the public hearing. We consider these issues seriatim.

1. The two demurrers filed in these appeals by the intervener New England LNG allege that the petitioner Save the Bay, Inc. (Save the Bay), is not an aggrieved party in interest for purposes of appeal under G.L. c. 25, § 5, that Concerned Citizens of the South End (Concerned Citizens), as an unincorporated association, was not a proper party to the proceedings and moreover was not an aggrieved party in interest; and that the individual petitioners did not intervene at the public hearing and are not aggrieved parties in interest.

We conclude that the standing of Save the Bay to appeal is at best doubtful, and that Concerned Citizens has no such standing. These conclusions are not crucial, however, since the standing to appeal of at least one individual (Pereira) is clear. We add that we nevertheless have devoted careful attention to the brief and arguments of all petitioners.

We point out that the question whether a party has standing to participate in a judicial proceeding is not simply a procedural technicality but rather involves remedial rights affecting the whole of the proceeding. Additionally, whether a party is properly before a tribunal to invoke its judicial powers affects the good order and efficiency with which the matter proceeds. We emphasize that the Department in these hearings was engaged in an adjudicatory proceeding wherein legal rights and duties were to be determined and that therefore appropriate limitations could properly be placed on those persons allowed to intervene. Similar considerations apply where appeal from an administrative order is sought before this court. Only where the parties have demonstrated the required participation in the administrative proceeding and have presented an orderly record before the agency have they properly preserved their appellate rights. The multiplicity of parties and the increased participation by persons whose rights are at best obscure will, in the absence of exact adherence to requirements as to standing, seriously erode the efficacy of the administrative process. We do not say that increased citizen participation is bad. On the contrary, such interest ensures full review of all issues. However, to preserve orderly administrative processes and judicial review thereof, a party must meet the legal requirements necessary to confer standing. We review this proceeding according to those principles.

The State Administrative Procedure Act, G.L. c. 30A, applies generally to proceedings under G.L. c. 25, § 5. CAMBRIDGE ELEC. LIGHT CO. V. DEPARTMENT OF PUB. UTIL., --- MASS. --- , 295 N.E.2D 876 (1973)^A. However, standing to appeal in this case is to be determined not by the provisions of the State Administrative Procedure Act but by G.L. c. 25, § 5, for the reason that the latter section expressly limits standing to an 'aggrieved party in interest' (emphasis supplied). Newton v. Department of Pub. Util., 339 Mass. 535, 544, 160 N.E.2d 108 (1959). Cf. G.L. c. 30A, § 14, which provides that 'any person or appointing authority aggrieved by a final decision of any agency in an adjudicatory proceeding' (emphasis supplied) may seek judicial review.

Our determination whether one is a party to an adjudicatory proceeding, for purposes of standing to seek review of the administrative decision reached in that adjudicatory proceeding, is guided by G.L. c. 30A, § 1(3), which defines a party to an adjudicatory proceeding as '(a) the specifically named persons whose legal rights, duties or privileges are being determined in the proceeding; and (b) any other person who as a matter of constitutional right or by any provision of the General Laws is entitled to participate fully in the proceeding, and who upon notice as required in paragraph (1) of section eleven makes an appearance; and (c) any other person allowed by the agency to intervene as a party. Agencies may by regulation not inconsistent with this section further define the classes of persons who may become parties.'

Accordingly, for purposes of establishing standing to seek review under G.L. c. 25, § 5, a petition must allege either that the Department did in fact exercise its discretion pursuant to G.L. c. 30A, § 10, to admit the petitioner as an intervener; that as matter of law the petitioner was entitled to intervene before the Department and was improperly denied that right, or that the petitioner is a person who as matter of constitutional or statutory law was entitled to participate fully in the proceedings and who on proper notice did make an appearance in said proceedings. See Wilmington v. Department of Pub. Util., 340 Mass. 432, 436, 165 N.E.2d 99 (1960).

The Department and intervener New England LNG argue that Save the Bay does not qualify under provisions (a) or (b) of G.L. c. 30A, § 1(3), and would be a party under (c) only if it had requested and been allowed to intervene in the proceedings before the Department or if such request for intervention had been improperly denied. ⁶ Newton v. Department of Pub. Util., supra, 339 Mass. at 544, 160 N.E.2d 108. From this record, it does not appear that Save the Bay was in any formal sense a party before the Department or that it sought but was improperly denied leave to intervene. Save the Bay's appearance before the Department was...