Town of Hamilton v. Department of Public Utilities

• Citation: 190 N.E.2d 545,346 Mass. 130
• Parties: , 49 P.U.R.3d 282 TOWN OF HAMILTON et al. v. DEPARTMENT OF PUBLIC UTILITIES et al. (and three companion cases).
• Decision Date: 17 May 1963
• Court: United States State Supreme Judicial Court of Massachusetts

Page 545

190 N.E.2d 545

346 Mass. 130, 49 P.U.R.3d 282

TOWN OF HAMILTON et al.

v.

DEPARTMENT OF PUBLIC UTILITIES et al. (and three companion cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 5, 1963.

Decided May 17, 1963.

Edward Morley, Manchester for town of Hamilton and others.

Richard M. Russell, Boston, pro se, and for estate of Henry R. Shepley.

Robert H. Hopkins, Boston (Ansel B. Chaplin, Boston with him), for town of Ipswich.

Alan S. Rosenthal, Atty., Dept. of Justice (Daniel B. Bickford, Asst. U. S. Atty., with him), for United States.

Harold Putnam, Asst. Atty. Gen., for Dept. of Public Utilities.

Charles C. Cabot, Boston (Philip H. R. Cahill, Boston, with him), for Massachusetts Elec. Co., intervening respondent.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.

WHITTEMORE, Justice.

These four consolidated appeals under G.L. c. 25, § 5, reported by a single justice without decision upon the pleadings and the complete record, present issues of law in respect of a decision and underlying rulings of the Department of Public Utilities. The decision, dated June 2, 1961, determined under G.L. c. 164, § 72, that the construction and use by Merrimack-Essex Electric Company (now, by merger, Massachusetts Electric Company, herein called the company) of a line for the transmission of electricity between Newburyport and North Beverly and (by connection at Ipswich) Gloucester, are (substantially in the words of § 72) 'necessary for the purposes alleged and will serve the public convenience and are consistent with the public interest.' The decision reserved to the department power to order replacement of a portion of the line close to a United States Air Force radio astronomy station at Sagamore Hill in Hamilton near the Essex boundary.

The appeals are by (1) the town of Hamilton, Francis R. Appleton, Jr., the estate of Fanny L. Appleton, and Henry R. Shepley; ¹ (2) Henry H. Meyer, Richard M. Russell, Essex township preservation and improvement committee, and committee for underground power lines; (3) the town of Ipswich; and (4) the United States of America. There is no brief for three of the four parties in the second appeal, but Richard M. Russell for himself and the estate of Henry R. Shepley has joined in the brief of the parties in the first appeal (hereinafter the Hamilton parties). The company has intervened as a respondent in each appeal.

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

The approved new line, about thirty-two miles in total length, runs southerly from Newburyport 12.4 miles through Newbury, Rowley, and Ipswich to 'Ipswich Junction.' From the junction the southeasterly segment runs 13.7 miles through Ipswich, a corner of Hamilton, Essex, and Gloucester. This segment of the line will pass within a half mile of Sagamore Hill. The other segment runs 5.8 miles along the Boston and Maine Railroad right of way through Ipswich, Hamilton, Wenham, and Beverly, to the North Beverly substation.

The route which has been approved is substantially that originally proposed by the company. In the course of the hearing the department, pursuant to G.L. c. 164, § 72, ² proposed consideration of an alternate route over the Ipswich and Essex marshes, taking off from the north-south line in Ipswich at a point above Ipswich Junction, that is, at Paradise Road, and rejoining the approved route near the Gloucester boundary. Additionally, parties other than the company suggested and presented evidence as to a shorter and partially underground course across the marshes and as to alternatives to the construction of a tie line.

The approved proposal is the erection, ultimately, of two 23,000 volt, 60-cycle three-phase circuits, on parallel lines of wooden poles about thirty-five feet high with cross arms 'normally' twenty-six feet above ground. Each circuit structure will 'carry three conductors in a four foot triangular configuration.' Only one circuit is to be constructed presently.

The purpose of the new line is to tie together separated segments of the eastern part of the company's system for distribution and sale of electricity, that is, Newburyport, Newbury, West Newbury, and Haverhill on the north (the Haverhill-Newburyport area), and Beverly, Wenham, Hamilton, Essex, Rockport, and Gloucester on the south (the Beverly-Gloucester area). Each area has different sources of power.

The Haverhill-Newburyport area is separated from the Beverly-Gloucester area by the towns of Rowley and Ipswich, which have municipal plants. None of the requirements of Ipswich is supplied by the company, and only a small part of the requirements of Rowley.

An important purpose of the new line when the petition was filed in 1958 was to provide the Haverhill-Newburyport area and, by the two segments below Ipswich Junction, the Beverly-Gloucester area with 'firm capacity,' that is, a capacity to serve the peak load in the area even though the largest generating unit or supply line is out of service. An additional purpose at all times has been to improve the company's capacity for growth in the hundred square mile district between Newburyport and Beverly.

The department found that each of the Haverhill-Newburyport and Beverly-Gloucester areas had adequate total capacity to meet its peak demands, but was deficient in firm capacity. It also found that, although in 1958 the new lines would have given each area firm capacity, the load growth had been such that in 1961 the 'excess capacity has diminished, if not disappeared.' It held, however, that this did not make the line unnecessary 'for the purpose alleged.' ³ 1. No objection appears to have been made to the participation of any appellant and it is not contended that any of them is not an aggrieved party. Wilmington v. Department of Public Utilities, 340 Mass. 432, 438-439, 165 N.E.2d 99. Sudbury v. Department of Public Utilities, 343 Mass. 428, 433-434, 179 N.E.2d 263.

2. There is nothing in the contention of the Hamilton parties that the construction of a transmission line without an accompanying new source of electric power is outside the scope of G.L. c. 164, § 72. The statute provides, inter alia: 'An electric company may petition the department for authority to construct and use * * * a line for the transmission of electricity for distribution in some definite area or for supplying electricity to itself or to another electric company or to a municipal lighting plant for distribution and sale, or to a railroad, street railway or electric railroad, for the purpose of operating it * * *.' This line, even if it is only a line 'to shuttle power back and forth between areas' as the Hamilton parties describe it, is a line to supply electricity for distribution and to the company, and nothing turns on the circumstance that the electricity supplied and transmitted may not originate in a new generator.

3. The decision includes findings, in substance, that the construction of the proposed tie line is a reasonable step toward meeting existing and impending demands for current which cannot presently be met and to improve the system for the purpose it serves. These findings are amply supported in the record; these purposes are appropriate purposes for a new line. The decision shows that the line has immediate importance and long-range significance event hough it will not give a fully sure and adequate reserve pending the addition of one of more new sources of power. From the standpoint of the company and its customers there can be no doubt that the order approving the new line meets the statutory criteria.

4. The remaining issues concern the location of the line and whether it should be, in part, underground. The appellants contend that the construction of the line in the approved locations will not serve large segments of the public convenience or be consistent with important public interests and that, there being reasonable alternatives, the line cannot be held 'necessary for the purpose alleged.'

The carefully prepared decision shows that the department has considered the conflicting interests and contentions; more than this, however, is now called for. The State Administrative Procedure Act, G.L. c. 30A, is applicable (Newton v. Department of Public Utilities, 339 Mass. 535, 542, 160 N.E.2d 108; Fortier v. Department of Public Utilities, 342 Mass. 728, 734, 175 N.E.2d 495) to require, by § 11(8), that the decision 'be accompanied by a statement of reasons * * * including determination of each issue of fact or law necessary to the decision * * *.' A purpose is to require the agency to give a 'guide to its reasons' so that this court may 'exercise * * * [its] function of appellate review.' There is thus a 'duty to make adequate subsidiary findings.' Leen v. Assessors of Boston, Mass., 188 N.E.2d 460. ^a Bay State Harness Horse Racing & Breeding Assn. Inc. v. State Racing Commn., 342 Mass. 694, 701, 175 N.E.2d 244. Packard Mills, Inc. v. State Tax Commn., Mass., 189 N.E.2d 549. ^b The findings do not enable us to ascertain whether, in aspects discussed below, the department's specific determinations were 'based upon an error of law,' or 'unsupported by substantial evidence' or in some respect 'not in accordance with law.' G.L. c. 30A, § 14(8). It is, therefore, necessary to set aside certain portions of the decision so that such findings may be made as will enable us to fulfill our function of reviewing these determinations.

The department's right to utilize its 'technical competence and specialized knowledge in the evaluation of the evidence' (G.L. c. 30A, § 11) may be reflected in the specific findings; it does not make specific findings unnecessary.

5. Turning first to the appeal of the United States, we hold that the subsidiary findings are insufficient to show that the public interest and convenience are met by the order for construction of an overhead line close to Sagamore Hill, subject to removal...