Town of Sudbury v. Department of Public Utilities

• Decision Date: 24 June 1966
• Parties: TOWN OF SUDBURY v. DEPARTMENT OF PUBLIC UTILITIES et al. (and three companion cases). *
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 415

218 N.E.2d 415

351 Mass. 214

TOWN OF SUDBURY v. DEPARTMENT OF PUBLIC UTILITIES et al. (and three companion

cases). ^*

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 4, 1966.

Decided June 24, 1966.

Philip B. Buzzell, Boston, (Joseph P. Warner, Boston, with him) for Town of Sudbury and others; Frank W. Kilburn, Jr., Town Counsel, for Town of Wayland, also with him.

Frank B. Frederick, Boston, (Hervey W. King and James M. Carroll, Boston, with him) for intervener, Boston Edison Co.; Peter Roth, Asst. Atty. Gen., for Department of Public Utilities, also with him.

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

WILKINS, Chief Justice.

These four petitions for appeal under G.L. c. 25, § 5, are from the decision, rulings, and order of the respondent department authorizing the respondent Boston Edison Company (Edison) upon its petition pursuant to G.L. (Ter.Ed.) c. 164, § 72, to take by eminent domain certain lands, rights of way or other easements in the towns of Concord, Sudbury, and Wayland for the construction and use of a proposed overhead line or lines for the transmission of electricity. The petitioners for appeal are two of the towns and two of the owners of land authorized to be taken. The proposed line is approximately 7.5 miles long, of which approximately 5.5 miles are in Sudbury, 1.5 miles in Wayland, and 0.5 miles in Concord. It will run from Edison's substation in Sudbury to a proposed substation 'to be located near the corner of the towns of Sudbury, Action, Marynard and Concord.' When completed it will become an integral part of the so called 110 KV 'outer ring' which runs from Weymouth in a circle to the Mystic Station located in Everett and Boston.

The proposed right of way is 250 feet in width, and at the time of the hearing satisfactory rights had been obtained by negotiation for 56.75 per cent of the length of the line. In Concord rights in private property had been acquired for the entire length in that town; in Wayland for approximately 0.5 miles, leaving one mile to be acquired; and in Sudbury for approximately 3.0 miles, leaving 2.5 miles. Of the last mentioned amount less than 1,000 feet is in the residential zone, the balance falling in land designated as swamp or flood plain area. Under existing by-laws residential construction is prohibited in the flood plain area. Initial construction was the same as in the first stage hearing, and is to consist of wood pole H-frame structures spaced approximately twelve to the mile. Pole heights will vary from fifty-five to ninety-five feet. Each circuit will consist of three conductors. The minimum conductor to ground clearance is to be twenty-five feet.

The petition prays that Edison be authorized to construct and use the line and to take by eminent domain 'such lands or such rights or way or other easements * * * along the route described as may be necessary as to all parcels as to which the same have not already been acquired, except public ways, public places, parks or reservations and lands within the locations of any railroads, electric railroads or street railway companies.'

On a previous petition by Edison the department determined that 'the proposed line is necessary for the purposes alleged, will serve the public convenience and is consistent with the public interest.' That decision war affirmed in Town of Sudbury v. Department of Pub. Util. 343 Mass. 428, 179 N.E.2d 263 (the first Sudbury case). It was there stated with reference to G.L. c. 164, § 72, and related sections of the statutes that there were three stages of procedure: (1) whether a transmission line will be authorized at all upon an initial petition under § 72; (2) whether any necessary eminent domain proceedings will be authorized; (3) and whether the department's authority under G.L. c. 166, § 28, as amended, will be exercised to overrule local refusals to grant locations across public ways. At p. 433, 179 N.E.2d at p. 267, we said, '(T)he department is in each instance exercising a separate function as to which, in the light of the competent evidence before it, it must make a determination. * * * (E)ach stage of the procedure is a separate proceeding and * * * in each such proceeding all relevant questions of the public convenience and necessity must be considered. * * * (T)he decision of the department at each stage is a final decision from which an appeal may be taken under c. 25, § 5, as amended.' That case related to the first stage of the procedure, and the present case relates to the second.

In the county court four petitions of Edison to intervene as a party respondent were allowed.

The single justice reserved and reported the case without decision upon the complete record before the department.

1. Before the department, the towns of Sudbury and Wayland each filed a petition for leave to intervene as a party in interest. These petitions were denied subject to the exceptions of the towns, which were nevertheless allowed to present evidence, examine and cross-examine witnesses, submit requests for rulings, and file briefs.

So far as appears, the towns of Sudbury and Wayland participated in the hearings as fully as though their petitions had not been denied. Now, however, on appeal their status is contested on the ground that they are not parties. In somewhat similar circumstances in Wilmington v. Department of Pub. Util, 340 Mass. 432, 437, 165 N.E.2d 99, and in the first Sudbury case, we held that the towns had been impliedly allowed to intervene. Compare Town of Hamilton v. Department of Pub. Util. 346 Mass. 130, 136, 190 N.E.2d 545.

The decision of the department states there was no contention that the line was not necessary for the purpose alleged, and contains the following: 'The primary efforts of the opposition were directed to the proposition that an overhead line in the general location proposed by the petitioner would not serve the public convenience and would not be consistent with the public interest and the reasons therefor were generally based on the alleged destruction of the aesthetic beauty of the countryside and the alleged devaluation of property.'

To represent the public interest, municipalities are in a superior position to individuals. Actually, as stated in Wilmington v Department of Pub. Util., supra, 340 Mass. p. 438--439, 165 N.E.2d 99, in quoting with approval an argument of counsel, cities and towns are the only entities which can be expected to offer a real, practical, and adversary representation of the public interest. We there emphasized that this factor should have weight int he consideration by the department of applications to intervene; and that it will be viewed in its proper perspective by this court in reviewing the department's discretion.

The stated basis of the denial of the petitions to intervene was an order of the department dated November 9, 1959, which provides that 'allowance * * * of the participation of any * * * political entity, in any proceeding * * * shall not be construed as an admission by the Department that such participant is a party in interest aggrieved by an order, ruling, finding or other action of the Department.' The order is a defensive one, obviously aimed, as shown by the word 'admission,' at later proceedings to which the department is a party.

Denial on this ground lacks persuasion. A departmental order of general application and necessarily making no reference to the subject matter of the hearing amounts to a command to omit pro tanto the exercise of discretion. The substance of the order, as well as its phraseology, could spring from a purpose to choke off appeals by municipalities. In the present case that is its effect.

The order significantly was not relied upon during the first stage of this project. No distinguishing reasons have been offered why the towns should not now be parties as much as in the first stage.

By G.L. c. 30A, § 10, the department may allow one to intervene who is 'substantially and specifically affected by the proceedings.' The ground assigned for denying intervention did not show compliance with § 10. No other reason for the ruling was given. No exercise of discretion on this issue is apparent. On the record before us, each town was entitled to intervene and should now have standing to appeal as an 'aggrieved party in interest.' G.L. c. 25, § 5. We so hold.

Some aspect of this project has been pending before the department or in the courts since 1960. No useful purpose would be served in incurring further delay by recommittal to the department. No argument is made that the towns could have done more had they been admitted as parties. On the present petitions they have argued fully and at length both by brief and orally before us.

2. We now take up rulings of the hearing examiner on questions of evidence. No error, much less harmful error, is shown as to any of them. Length of our discussion is limited by the unimportance of their subject matter relative to the mass of evidence as a whole and by the practical need for keeping the opinion within reasonable length. There is a printed record of 124 pages, testimony of 649 pages in six volumes, and 33 exhibits. There are twenty-seven errors assigned by Sudbury, thirteen each by Wayland, Rice, and Valley.

At the outset, it should be borne in mind that the department has a wide discretion in ruling on evidence. It 'need not observe the rules of evidence observed by courts * * *. Evidence may be admitted and given probative effect only if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. Agencies may exclude unduly repetitious evidence, whether offered on direct examination or cross-examination of witnesses.' G.L. c. 30A, § 11(2). '(U)nless the admission (or exclusion) of the evidence resulted in a denial * * * of substantial justice,' the appellants have no valid complaint. Mayor of City of...