420 Mass. 702 | Mass. | 1995
The plaintiffs complaint for declaratory relief pursuant to G. L. c. 231A (1992 ed.), challenges the consti
The plaintiff contends that the ordinance is invalid under § 6 of art. 89 of the Amendments to the Massachusetts Constitution (Home Rule Amendment), because it is inconsistent with G. L. c. 164 (1992 ed.), the State’s regulatory scheme for public utilities.
The manufacture and sale of gas and electricity by public utilities is governed by G. L. c. 164. Given the comprehensive nature of this statute, we conclude that the Legislature intended to preempt local entities from enacting legislation in this area. See Boston Edison Co. v. Boston, 390 Mass. 772, 774 (1984) (recognizing comprehensiveness of G. L. c. 164). Furthermore, the ordinance is inconsistent with particular provisions of the statute and the regulations of the Department of Public Utilities (department).
When the plaintiff excavates a street to work on its underground gas distribution facilities or to provide gas service to the general public, the department mandates that the plaintiff utilize a “least-cost” strategy to repair the excavation site including the use of competitive bidding procedures. See D.P.U. 93-60 at 232-233 (1993). See also D.P.U. 92-210 at 196 (1993). However, because of the ordinance the plaintiff must hire a “city contract representative,” selected by the defendant, to provide patching, paving, and repair services at
Finally, although the defendant argues that G. L. c. 164, § 75,
The judgment of the Superior Court is vacated. The case is remanded for the entry of a judgment declaring that § 12-20 of the Somerville Code of Ordinances is invalid.
So ordered.
This ordinance is entitled “Asphalt street and sidewalk openings” and governs all aspects of street excavations in Somerville including: (1) the applicable fees, deposits, performance bonds, and fines required for each street opening permit granted; (2) the required highway department notification procedures; (3) the required procedures for excavating, backfilling, patching, paving, and barricading of excavation sites; and (4) the financial responsibilities and billing procedures required for permittees.
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. . .” (emphasis added). Art. 89, § 6, of the Amendments to the Massachusetts Constitution. The plaintiff also contends that this ordinance violates § 7 of the Home Rule Amendment because it imposes a tax on the plaintiff. However, this contention was not raised below and may not be raised for the first time on appeal. Guardianship of Doe, 411 Mass. 512, 513 n.2, cert. denied sub nom. Doe v. Gross, 503 U.S. 950 (1992). Moreover, because we conclude the ordinance to be invalid for other reasons, we need not address this argument.
It appears that, at the present time, only one paving contractor has the “qualifications” necessary to provide paving services under the ordinance. It is also noteworthy that this same contractor was involved in drafting the ordinance.
Regardless, § 8 of the ordinance states that, “[a]fter a proper settling period, the excavating shall be infra-red heat treated by the contract representative of the city. This work shall be the financial obligation of the permittee.” Moreover, § 10 of the ordinance provides that “[a] 11 street excavations shall be made permanent by the infra-red heat process and will be the financial responsibility of the permittee.”
General Laws c. 164, § 70, provides in pertinent part that “[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. ... It shall put all such streets, lanes and highways in as good repair as they were in when opened.” However, § 11 of the ordinance provides that “[t]he installation of permanent patch does not alleviate the permittee from the responsibility for trench settlement for a period of three (3) years from the date of the final infra-red permanent repair . . . .”
General Laws c. 164, § 75, provides: “The aldermen or selectmen may regulate, restrict and control all acts and doings of a corporation subject to