Town of Wenham v. Department of Public Utilities
| Citation | 127 N.E.2d 791,333 Mass. 15 |
| Parties | , 10 P.U.R.3d 248 TOWN OF WENHAM v. DEPARTMENT OF PUBLIC UTILITIES and another. |
| Decision Date | 30 June 1955 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William B. Trafford, Boston, for plaintiff.
Matthew S. Heaphy, Asst. Atty. Gen., for Department of Public Utilities.
Lewis M. Stillman, and Sargent H. Wellman, Boston, for Haverhill Gas Co.
Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.
This is a petition brought in this court by the town by way of appeal under G.L. (Ter.Ed.) c. 25, § 5, as appearing in St.1953, c. 575, § 1, from an order of the department dated December 17, 1954, made under G.L. (Ter.Ed.) c. 40A, § 10, inserted by St.1954, c. 368, § 2, exempting from the operation of a zoning by-law of the town a parcel of land in a residence district for the purpose of a gate house to be erected by Haverhill Gas Company (formerly Haverhill Gas Light Company) to contain apparatus for reducing the pressure of gas to be taken from a high pressure pipe line of Tennessee Gas Transmission Company (formerly Northeastern), and other apparatus designed to prepare the gas to enter the lower pressure distributing system of the Haverhill company.
Chapter 40A, § 10, under which the department acted reads as follows: 'A building, structure or land used or to be used by a public service corporation may be exempted from the operation of a zoning ordinance or by-law if, upon petition of the corporation, the department of public utilities shall, after public notice and hearing, decide that the present or proposed situation of the building, structure or land in question is reasonably necessary for the convenience or welfare of the public.'
The land is situated adjacent to a location of the Boston and Maine Railroad, and the high pressure pipe line passes through it. The department made detailed findings of fact and concluded that 'the proposed situation of the building, structure and land in question is reasonably necessary for the convenience and welfare of the public.' The evidence taken by the department is included in the record and has been carefully examined by us. In a case of this kind, where no question of constitutionality is involved, this court under the express terms of c. 25, § 5, considers only questions of law. Compare Lowell Gas Co. v. Department of Public Utilities, 324 Mass. 80, 86-89, 84 N.E.2d 811. None of these questions requires lengthy discussion. We deal with them as presented.
1. There can be no doubt that the Haverhill Gas Company is 'a public service corporation', and therefore entitled to petition the department for exemption from the zoning ordinance under c. 40A, § 10, even if it had no power of eminent domain and had to buy its land as best it could. It was in substance held to be a public...
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