The plaintiff filed an action for declaratory relief pursuant to G. L. c. 231 A, arguing that § 26-11 of the Revised Ordinances of Newton, as amended by Newton Ordinance No. T-161, was preempted by State law and constituted an improper tax. On cross motions for summary judgment, a Superior Court judge allowed the city of Newton’s (city) motion. The plaintiff appealed. We granted the city’s application for direct appellate review.
The following facts are undisputed. The ordinance at issue imposes a monetary cost on public utility companies such as the Boston Gas Company as a prerequisite to acquiring a permit to excavate public ways and sidewalks in the city. Under the ordinance, a party seeking a permit to excavate a public way is charged an application fee of $25. In addition, for an excavation of one hundred square feet or less, an “Inspection and Maintenance” fee of $150 is imposed. For each additional one hundred square feet or portion thereof, an additional $50 is charged. The ordinance also imposes an inspection and maintenance fee of $50 for “shut-off holes” and a fee of $10 each for “corings.”
The plaintiff contends that the ordinance is invalid under § 6 of art. 89 of the Amendments to the Massachusetts Constitution
Discussion. Municipalities may not adopt by-laws or ordinances that are inconsistent with State law. Boston Gas Co. v. Somerville,
Maintenance. General Laws c. 164, § 70, imposes an affirmative obligation on the plaintiff to restore all streets, lanes, and highways to the condition they were in prior to being
Inspection. The city also argues that, even if the portion of the fee attributable to the reduction in street Ufe is eliminated, costs incurred by the city in inspecting the excavation sites justify the fee. Thus, according to the city, the fees are reasonable regardless of whether the city permissibly may charge the plaintiff for the reduction in street life and are impliedly authorized by the statutory and regulatory scheme. We disagree.
In mandating that pubhc utihties restore a street or highway to the condition it was in prior to any excavation, we beheve that the statute can be fairly read as placing the burden of fulfilling such statutory duties squarely on the shoulders of the public utility. See G. L. c. 164, § 70. The statute implies, therefore, that the plaintiff, not the city, has the obligation to inspect excavation sites after the necessary repairs have been made. Moreover, the statute vests with the department, not the city, the authority to oversee the plaintiff and to ensure the safe and efficient distribution of gas. Where excavation is necessary in order to ensure the safe and efficient distribution of such gas to consumers and compliance with numerous Federal and State regulations, such excavation is inextricably linked with the distribution of gas.
It is true, as the city argues, that the statute does not expressly forbid the inspection process established by the city here. What the statute does prohibit is the imposition of the city’s inspection costs on the plaintiff and its customers. We reiterate our conclusion in Boston Gas Co. v. Somerville, supra at 704, however, that “[t]he manufacture and sale of gas and electricity by public utilities is governed by G. L. c. 164. Given [its] comprehensive nature ... the Legislature intended to preempt local entities from enacting legislation in this area.” See Boston Edison Co. v. Boston,
In rejecting the city’s argument that imposition of such fees is consistent with § 75, we do not agree with its contention that we have “effectively repealed § 75.” We have recognized that § 75 provides limited authority to a municipality and must yield at times to the broader grant of authority given to the department. See Boston Gas Co. v. Somerville, supra at 705-706; New England LNG Co. v. Fall River, supra. Allowing the city to use § 75 to assess fees not authorized by, and indeed, inconsistent with, the statute, however, would impose an additional burden on the plaintiff, a burden which undermines the “fundamental State policy of ensuring uniform and efficient utility services to the public.” Boston Gas Co. v. Somerville, supra at 706. See New England Tel. & Tel. Co. v. Lowell, supra at 834 (ordinance imposing additional burden on plaintiff which forced plaintiff to expend in particular district sums it was not required to expend elsewhere interfered with uniformity desirable in regulation of utilities throughout Commonwealth and was preempted).
That § 70 requires the city’s consent before excavating a street does not mandate the conclusion that an inspection fee is permitted. See Wendell v. Attorney Gen.,
Finally, the city argues that the department has enacted regulations which consider municipal inspection and permit fees as legitimate costs for gas companies which may then be recovered by the plaintiff by passing on such costs to its customers.
Administrative costs. Finally, we consider whether a fee to reimburse the city for its costs in processing permit applications is within the contemplation of the statute. We have long held that a municipality required by statute to participate in a scheme established by statute is entitled to “cover reasonable expenses incident to the enforcement of the rules.” Southview Coop. Hous. Corp. v. Rent Control Bd. of Cambridge,
So ordered.
Notes
Shut-off holes are openings of approximately one square foot. Corings are small, deep openings of approximately two inches in diameter.
According to the city, the life expectancy of a street is reduced by twenty-five per cent by street openings. The city therefore calculated that the reduced life expectancy added $15.25 per year per one hundred square feet to the city’s cost of maintaining its roadways.
The city also points out that inspection and maintenance fees for street openings are waived if a particular street is scheduled for reconstruction or resurfacing later in that calendar year or if the street is under construction at the time of the permit request.
The Home Rule Amendment states, “[a]ny city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court. . . .” Art. 89, § 6, of the Amendments to the Massachusetts Constitution.
General Laws c. 164, § 70, provides: “A gas company may, with the written consent of the aldermen or the selectmen, dig up and open the ground in any of the streets, lanes, and highways of a town, so far as necessary to accomplish the objects of said corporation; but such consent shall not affect the right or remedy to recover damages for an injury caused to persons or property by the acts of such corporation. It shall put all such streets, lanes and highways in as good repair as they were in when opened, and upon failure to do so within a reasonable time, shall be guilty of a nuisance.”
General Laws c. 164, § 75, provides: “The aldermen or selectmen may regulate, restrict and control all acts and doings of a corporation subject to this chapter which may in any manner affect the health, safety, convenience or property of the inhabitants of their towns.”
The city argues that the plaintiff did not raise below the argument that the ordinance mandates the plaintiff to perform duties in excess of those defined by G. L. c. 164, § 70, by requiring the plaintiff to become involved in the long-term maintenance of roadways and has moved to strike this portion of the plaintiff’s brief. We conclude that the plaintiff did properly raise this argument. Indeed, in the plaintiff’s memorandum of law in support of summary judgment and its opposition to the city’s cross motion for summary judgment, the plaintiff pointed out that a gas company need only put its street openings
To die extent that the city may suggest that the Legislature was incorrect in its assumption that a street, once excavated, can be restored to its former condition, any such arguments should be addressed to the Legislature.
Indeed, it appears to be undisputed that the distribution system used by Boston Gas Company consists of fifty million linear feet of pipes and mains, 99.9% of which is underground. In Newton, Boston Gas Company owns 1,512,247 linear feet of gas mains, 99.8% of which is underground. Moreover, according to information contained in the record which the city does not appear to dispute, between February 3, 1992, and July 15, 1994, the plaintiff applied for 551 permits from the city, all of which were granted. Of these, approximately sixty per cent were obtained to per- form work necessary to the safe maintenance of gas service and to ensure compliance with department regulations, which, in many
GeneraI Laws c. 164, § 105A, provides in pertinent part: “Authority to regulate and control the storage, transportation and distribution of gas and the pressure under which these operations may respectively be carried on is hereby vested in the department.”
In addition, G. L. c. 164, § 76, provides: “The department shall have the general supervision of all gas and electric companies and shall make all necessary examination and inquiries and keep itself informed as to the conditions of the respective properties owned by such corporations and the manner in which they are conducted with reference to the safety and convenience of the public, and as to their compliance with the provisions of law and the orders, directions and requirements of the department. . . .”
Given our conclusion that the statute requires the plaintiff to inspect excavation sites, it is likely that the ordinance, by imposing a fee for a second inspection by city officials, is inconsistent with department regulations mandating that the plaintiff pursue a “least-cost” approach to providing gas service to its customers. See Boston Gas Co. v. Somerville,
In that case, the ordinance required the plaintiff to hire particular contractors, selected by the city, to provide patching, paving, and repair services at specified rates. Boston Gas Co. v. Somerville, supra. In addition, the ordinance required the plaintiff to use certain materials and paving techniques to repair the streets and mandated that the plaintiff’s responsibility for the excavation site continue for three years beyond the final infrared treatment. Id. at 705.
By comparing the city’s ordinance with a by-law enacted by the town of Wellesley that also regulates street excavation, the interference with a uniform and efficient system of gas distribution presented by these regulations becomes clear. Indeed, according to information contained in its amicus brief, Wellesley charges an inspection and maintenance fee of $140 for street openings 150 square feet or less, and $25 for each additional 150 square feet. In addition, Wellesley charges an extended maintenance fee for excavations into streets which are less than three years old. The Wellesley by-law provides that no newly constructed or reconstructed pavement less than three years old may be cut into except in an emergency; if such cuts must be made in pavement less than one year old, the fee assessed is four times standard cost. Moreover, it appears that, since the city enacted its ordinance, more than forty municipalities have also adopted permit fees; at least five of those municipalities expressly charge fees denoted as inspection and maintenance fees. Clearly, the
From February 3, 1992, through July 15, 1994, inspection and maintenance fees charged by the city to the plaintiff totaled $102,230.
General Laws c. 164, § 70, also contemplates that an action for nuisance will lie against a gas company that fails to put all streets in as good repair as they were in prior to being opened.
Moreover, the statute also contains other remedies that may be pursued if the utility company fails to fulfil its statutory obligations. General Laws c. 164, § 105A, provides in part: “Upon the filing with the department of a written complaint of the mayor of the city or selectmen of the town where a gas company is operating, or of twenty of its consumers, either as to the manner in which or pressure at which gas is being or shall be stored, transported or distributed, the department shall . . . give a public hearing . . . and after said hearing may make such order, if any, as it may deem necessary.”
In addition, G. L. c. 164, § 78, provides: “If any corporation engaged in the manufacture and sale or distribution and sale of gas or electricity violates or fails to comply with the provisions of law, or violates or fails to comply with any lawful order of the department, [the department] shall give written notice thereof to such corporation and to the attorney general.”
We recognize, as the city points out, that a city may need to inspect a site in order to determine whether it should proceed with a remedy contemplated by the statute. That the city decides to take such a step does not, however, give the city the right to pass on these costs to the plaintiff. Indeed, the city has an independent obligation under G. L. c. 84 to ensure that all its ways are in good repair. Arguments that the remedies provided by the statute are inadequate should be made to the Legislature.
The city also argues that the plaintiff did not raise below its argument that the city had a statutory remedy under G. L. c. 164, § 105A, that allows the city to bring a complaint to the department regarding street openings and has moved to strike portions of the plaintiff’s brief regarding this argument. We agree that the plaintiff did not expressly argue that an administrative remedy existed under G. L. c. 164, § 105A. The plaintiff did argue, however, that the ordinance “interferes with a comprehensive, unified, and exclusive statutory scheme, created by the Legislature governing the obligation of a gas company to repair street excavations” and that “the Department exercises its statutory authority over gas company operations under G. L. c. 164, § 105A, in a manner that leaves no role for further local action.” Moreover, the plaintiff argued that G. L. c. 164, §§ 70 and 74, provided a municipality with remedies in the event that the plaintiff did not fulfil its statutory duties. Thus, we decline to strike portions of the brief where the plaintiff argues that the city did not utilize any statutory remedies before imposing the fees at issue, particularly where, as here, the important fact is not that the city did not pursue any potential statutory remedies prior to enacting the ordinance but the fact that the statute itself establishes a comprehensive scheme.
The city points to numerous provisions in the Uniform System of Accounts for Gas Companies. For our purposes, the most relevant of these are account 367 of the gas plant accounts, which deals with an account called “Mains” and provides that municipal inspections may be included as a cost in this account, 220 Code Mass. Regs. § 50.00, gas plant accounts, account 367, item 16 (1993); and account 380, which deals with an account called “Services” and provides that municipal inspections may be included as a cost in this account, 220 Code Mass. Regs. § 50.00, gas plant accounts, § 380, item 4 (1993).
The plaintiff also argues that the fees imposed by the ordinance constitute an unlawful tax on the plaintiff; to the extent this portion of the fee is attributable to a permit, the plaintiff does receive a benefit in the form of a written permission to dig. Emerson College v. Boston,