420 Mass. 22 | Mass. | 1995
A single justice of this court has reserved and reported this case concerning the correctness of the Department of Public Utilities’s (department’s) decision to grant the Braintree Electric Light Department (BELD) an exemption from the zoning by-law for its new electric substation. See G. L. c. 40A, § 3 (1992 ed.). BELD is a municipal electric department established by two successive town votes in 1891 pursuant to St. 1891, c. 370, § 2. It is located in Braintree and is the sole supplier of retail electric service in the town.
On July 28, 1988, the Braintree building inspector issued an opinion that no building or special permit was required for the substation. On a request for reconsideration filed by some Braintree residents,
On October 2, 1990, while the case was pending in the Superior Court, BELD filed a petition with the department, pursuant to G. L. c. 40A, § 3, for an exemption from the town’s zoning by-law.
1. Standard of review. “Our review of petitions under G. L. c. 25, § 5, is limited, although not perfunctory.” Wolf v. Department of Pub. Utils., 407 Mass. 363, 367 (1990). “We will uphold the department’s actions unless the plaintiffs can demonstrate that they are flawed by an error of law, lack support by substantial evidence, are arbitrary or capricious, or suffer from one of the other defects spelled out in [G. L. c. 30A,] § 14 (7) [1992 ed.].” Id., quoting Zachs v. Department of Pub. Utils., 406 Mass. 217, 219-220 (1989). “General Laws c. 25, § 5, allocates to [the plaintiffs] the burden of proving such error. This burden is a heavy one. We give great deference to the department’s expertise and experience in areas where the Legislature has delegated to it decision-making authority.” Wolf, supra at 367, quoting Costello v. Department of Pub. Utils., 391 Mass. 527, 533 (1984).
2. Jurisdiction under G. L. c. 40A, § 3. General Laws c. 40A, § 3, authorizes the department to exempt land or structures used by public service corporations from zoning ordinances and by-laws if the department determines that the present or proposed use of the land or structure is reason
Our cases determining whether an entity qualifies as a public service corporation have addressed private corporations. See, e.g., Save The Bay, Inc. v. Department of Pub. Utils., 366 Mass. 667, 680 (1975); Truro v. Department of Pub. Utils., 365 Mass. 407, 408 (1974); Attorney Gen. v. Haverhill Gas Light Co., 215 Mass. 394, 398 (1913). Nonetheless, “public service corporation” is a term of art which is not limited to corporations, but may include municipal electric departments such as BELD. See Brand v. Water Comm’rs of Billerica, 242 Mass. 223, 226 (1922) (referring to town water commissioners as “public service company” and “corporation”). See also Yankee Celltell, D.P.U. 84-72 (1984) (applying G. L. c. 40A, § 3, to utility owned by a partnership); Rep. A.G., Pub. Doc. No. 12, at 182 (1962) (Metropolitan Transit Authority was public service corporation under predecessor of G. L. c. 40A, § 3).
In determining whether BELD should be considered a public service corporation, the department applied the standards set forth in Save the Bay, Inc., supra at 680, namely: “whether [it] is organized pursuant to an appropriate franchise from the State to provide for a necessity or convenience to the general public which could not be furnished through the ordinary channels of private business; whether [it] is subject to the requisite degree of governmental control and regulation; and the nature of the public benefit to be derived from the service provided” (decided under former G. L.
Like a private corporation, BELD is an independent entity created pursuant to a statute. St. 1891, c. 370. See Adie v. Mayor of Holyoke, 303 Mass. 295, 298 (1939) (power to maintain gas and electric plant arises from authority conferred by G. L. c. 164); MacRae v. Selectmen of Concord, 296 Mass. 394, 396-397 (1937) (“right to erect, maintain and operate electric plants is not one of the general powers conferred by implication of law upon municipalities”). It is separate from the town and exists to operate property “in its right of private ownership,” to the end of providing electricity to retail consumers. Whiting v. Mayor of Holyoke, 272 Mass. 116, 120 (1930).
The zoning exemption available under G. L. c. 40A, § 3, is intended to assure utilities’ ability to carry out their obligation to serve the public when this duty conflicts with local interests. See, e.g., Pereira v. New England LNG Co., 364 Mass. 109, 119-120 (1973), quoting Mezitt v. Department of Pub. Utils., 354 Mass. 692, 695 (1968); New York Cent. R.R. v. Department of Pub. Utils., 347 Mass. 586, 592 (1964). See also Truro, supra at 410, quoting New York Cent. R.R., supra at 592 (G. L. c. 40A, § 10, ensures “broad and balanced consideration of all aspects of the general public interest and welfare and not merely examination of the local and individual interests which might be affected”). This concern for public service applies to all utilities, not just those operated by corporations.
Municipal and private utilities are subject to identical public service obligations. See Rounds v. Water & Sewer Comm’rs of Wilmington, 347 Mass. 40, 44 (1964); Wellesley Bd. of Pub. Works, D.P.U. 86-45/86-144, at 18-20 (1987). Each has the same “duty to exercise [their] franchise for the benefit of the public, with a reasonable regard for the rights of individuals who desire to be served, and without discrimination between them.” Bertone v. Department of Pub. Utils.,
The plaintiffs argue that municipal electric departments are governed not by regular corporate laws, but by special statutory provisions in G. L. c. 164 (1992 ed.). Municipal Light Comm’n of Taunton v. Taunton, 323 Mass. 79, 84 (1948). Adie, supra at 298. This argument misses the mark. While G. L. c. 164 makes distinctions between electric utility corporations and municipal electric departments, these distinctions simply reflect the differences in ownership and structure. See G. L. c. 164, §§ 3-33 (applying to corporations); §§ 34-69 (applying to municipal operations). They do not provide any reason for treating such utilities differently under G. L. c. 40A, § 3. In fact, for certain purposes, the Legislature has included municipal electric departments within the term “corporation.” See G. L. c. 164, § 2 (1992 ed.) (“in construing [certain sections], the terms ‘corporation,’ ‘gas company,’ and ‘electric company’ shall include municipal corporations which own or may acquire municipal lighting plants”). There was more than ample evidence to support the department’s determination that BELD should be treated as a public service corporation.
3. Particularity. General Laws c. 40A, § 3, provides that “a public service corporation may be exempted in particular respects” from zoning by-laws if the department “determinéis] the exemptions required” (emphasis added). The plaintiffs argue that the requirement of particular specifica
4. G. L. c. 30, § 61, finding. The plaintiffs next argue that BELD did not satisfy its burden of producing evidence to warrant a finding pursuant to G. L. c. 30, § 61 (1992 ed.).
5. Alternative sites. The plaintiffs argue that it was error for the department to exclude evidence on possible alternative sites for the substation and that such evidence was necessary under G. L. c. 40A, § 3. General Laws c. 40A, § 3, does not require consideration of alternative sites. See Martorano v. Department of Pub. Utils., 401 Mass. 257, 265 (1987), quoting Wenham v. Department of Pub. Utils., 333 Mass. 15, 17 (1955) (“the availability of other sites and the efforts made to secure them, in so far as pertinent at all, are merely matters of fact bearing upon the main question”). The exempted site need not be the “best” site available. All that is needed is that its use be “reasonably necessary for the convenience or welfare of the public.” G. L. c. 40A, § 3. See Martorano, supra at 266. There was substantial evidence supporting such a conclusion.
6. Hearing testimony. The plaintiffs argue that the procedures of the department in hearing the petition were deficient. Specifically, they object to the department’s allowance of pre-filed testimony and the denial of cross-examination. While much of the testimony elicited by BELD took the form of pre-filed written testimony, the witnesses adopted it under oath and on the record at the hearing. The witnesses were made available for cross-examination by the plaintiffs and were cross-examined by the department. The department “need not observe the rules of evidence observed by courts .... Evidence may be admitted and given probative
The plaintiffs also object to the department’s denial of their request to recross-examine one of BELD’s witnesses who was cross-examined by the department. At the hearing, after a brief cross-examination of one witness, the plaintiffs announced that they would not cross-examine the other BELD witnesses.
7. Timeliness of petition. The plaintiffs next contend that BELD should not have been allowed to petition for an exemption under G. L. c. 40A, § 3, after the substation was constructed. By its terms, G. L. c. 40A, § 3, applies to structures that already exist, as well as to those that have yet to be constructed (department can exempt “[l]and or structures used, or to be used” if the “present or proposed use” meets the reasonably necessary requirement [emphasis added]).
The plaintiffs also argue that it was improper for BELD to file a petition for relief under G. L. c. 40A, § 3, in light of the pending Superior Court litigation.
8. Denial of rulings. Finally, the plaintiffs dispute the department’s denial of their request for rulings. The department denied the request because it was not timely filed. See 220 Code Mass. Regs. § 1.11 (1) (1986). In its final order, the department responded to the issues raised in the request.
The case is remanded to the Supreme Judicial Court for Suffolk County for the entry of a judgment affirming the decision of the department.
So ordered.
The residents included the plaintiffs, Janice and Edwin Pinola, and other residents not before us in this appeal.
At the hearing on the restraining order, BELD represented that, “in the unlikely event that a legal challenge to the substation is successful, BELD would remove the equipment and relocate to a new site.”
BELD requested an exemption from the special permit and dimensional requirements of town by-law § 135-701 (requiring one hundred feet of frontage), § 135-102 (defining a building), § 135-601 (defining an essential service), § 135-608 (requiring special permit for construction in flood plain), § 135-201 (requiring building permit), § 135-711 (requiring a special permit) and “any other applicable zoning requirements.”
This section provides, in pertinent part: “An appeal as to matters of law from any final decision, order or ruling of the [department] may be taken to the supreme judicial court by an aggrieved party in interest . . . .” G. L. c. 25, § 5 (1992 ed.).
This section provides in relevant part: “Land or structures used, or to be used by a public service corporation may be exempted in particular respects from the operation of a zoning ordinance or by-law if, upon petition of the corporation, the department of public utilities shall, after notice given pursuant to section eleven and public hearing in the town or city, determine the exemptions required and find that the present or proposed use of the land or structure is reasonably necessary for the convenience or welfare of the public . . . .” G. L. c. 40A, § 3 (1992 ed.).
The plaintiffs argue that BELD’s position is inconsistent with the position it maintained, and upon which it prevailed in a recent case. Conley vs. Braintree Elec. Light Dep’t, Norfolk Superior Court No. 88-727. The issue there was whether the Massachusetts Tort Claims Act, G. L. c. 258, § 1 (1992 ed.), which has since been amended, and its liability limitations applied to BELD. BELD argued that the exclusion from the act which covers “independent body politic and corporate” entities did not apply to it. The Tort Claims Act is unrelated to and does not govern the issues before us.
The department only granted those exemptions that were necessary for the substation as presented to it.
This section provides, in relevant part, that “[a]ny determination made by an agency of the commonwealth shall include a finding describing the environmental impact, if any, of the project and a finding that all feasible measures have been taken to avoid or minimize said impact.” G. L. c. 30, § 61 (1992 ed.).
Substantial evidence is that evidence which “a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6) (1992 ed.). See Martorano v. Department of Pub. Utils., 401 Mass. 257, 261 n.5 (1987).
They did reserve the right to cross-examine any new witnesses presented by BELD. There were no new witnesses.
The plaintiffs claim that this complaint was an attempt by BELD to cover up a bad faith misrepresentation to the Superior Court is not supported by the record.
