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CITY OF SALEM, MASSACHUSETTS
'J BOARD OF APPEAL
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120 WASHINGTON STREET* SAi.{?il1,NtAS'.5'AC.I-IUSE'1'1'S 01970
KiNiBTmiu'YDRiscoiu, na.6:978-745-9595 ♦ FAx:978-740-9846 - FILE #
MAYORCITY CLERK. SALEM,MASS,.
October 2, 2013
Decision
City of Salem Board of Appeals
Petition of NEW ENGLAND POWER COMPANY d/b/a NATIONAL GRID for a new Special
Permit for an Essential Services Use pursuant to Section 3 Use Regulations and a Special Permit to
extend a pre-existing non-conforming use pursuant to Section 3.3.2 Nonconforming Uses and
Structures, for the construction of a new control house with related facilities at the property located
at 57 CANAL ST (134, R2, and Entrance Corridor Overlay Zoning Districts).
A public hearing on the above Petition was opened on September 18, 2013 pursuant to M.G.L Ch. 40A, g 11.
The hearing was closed on that date with the following Salem Board of Appeals members present: Ms.
Curran (Chair),Mr. Dionne, Mr. Duffy,Ms. Harris, Mr. Watkins, and Mr. Eppley (Alternate).
The Petitioner seeks a Special Permit pursuant to Sec. 3.0 Use Table and a Special Permit pursuant to Section
3.3.2 of the Salem Zoning Ordinance.
Statements of fact:
1. Attorney Joshua Lee Smith representing New England Power Company, d/b/a/ National Grid and
Mr. Dan McIntyre, consulting engineer, presented the petitions for the property at 57 Canal Street
(134, R2, and Entrance Corridor Overlay Zoning Districts).
2. In the petition, date-stamped August 28, 2013, the Petitioner requests a Special Permit for an
Essential Services Use pursuant to Section 3 Use Regulations and a Special Permit to extend a pre-
existing non-conforming use pursuant to Section 3.3.2 Nonconforming Uses and Structures, for the
construction of a new control house with related facilities.
The Salem Board of Appeals, after careful consideration of the evidence presented at the public hearing, and
after thorough review of the petitions, including the application narrative and plans, and the Petitioner's
presentation and public testimony, makes the following findings that the proposed project meets the
provisions of the City of Salem Zoning Ordinance:
S9.4 pecial Permits
§9.4.2 Criteria, Subsections 1 through G
1. The facility is and has been an essential services use since the 1950s. The facility as proposed
continues that essential services use to meet the needs of the community. The updating of the control
house and related facilities is necessary to improve the capacity and reliability of electrical service to
the City of Salem and neighboring communities.
2. The facility, as proposed, does not change the traffic flow or safety of the neighborhood traffic flow
of the neighborhood.
3. The proposed facility will not adversely impact the public services and has adequate access to utilities.
4`
pity of Salem Board of Appeals
October 2,2013
Project: 57 Canal Street
Page 2 of 3
4. The proposed facility will not be substantially more detrimental than the existing nonconforming use
to the neighborhood.
5. The proposed work includes planting new trees and shrubs for screening of abutters, and screening of
Canal Street where feasible. All new lighting will be directed downward toward equipment on-site,
and will not be directed out of the site."
On the basis of the above findings of fact and all evidence presented at the public hearing including, but not
limited to, the plans, documents and testimony, the Salem Board of Appeals concludes:
1. A Special Permit for an Essential Services Use under Section 3 Use Table and a Special Permit to
extend a pre-existing non-conforming use under Section 3.3.2 for the construction of a new control
house with related facilities are granted as conditioned.
2. In permitting the Special Permit for an Essential Services Use and a Special Permit to extend a pre-
existing non-conforming use, the Salem Board of Appeals requires certain appropriate terms,
conditions and safeguards as noted below.
In consideration of the above, the Salem Board of Appeals voted five (5) in favor (Ms. Curran — Chair, Mr.
Dionne, Mr. Duffy, Ms. Harris, and Mr. Watkins in favor) and none (0) opposed, to approve the Special
Permit for an Essential Services Use and the Special Permit to extend a pre-existing non-conforming use,
subject to the following terms, conditions, and safeguards:
1. The Petitioner shall comply with all city and state statutes, ordinances, codes and regulations.
2. All construction shall be done as per the plans and dimensions submitted to and approved by the
Building Commissioner.
3. All requirements of the Salem Fire Department relative to smoke and fire safety shall be strictly
adhered to.
4. Petitioner shall obtain a building permit prior to beginning any construction.
5. A Certificate of Inspection is to be obtained.
6. Petitioner shall obtain street numbering from the City of Salem Assessor's Office and shall display
said number so as to be visible from the street.
7. Petitioner is to obtain approval from any City Board or Commission having jurisdiction including, but
not limited to, the Planning Board.
8. A retaining wall shall.be constructed along the western boundary of 8 Cypress Street, and no barbed
wire shall be affixed to the top of the chain link fence that will be installed on top of the retaining wall
along the western boundary of 8 Cypress Street.
9. Additional landscaping shall be installed along Canal Street, where feasible, and along the northern
boundary of 8 Cypress Street, in order to provide screening.
10. The location of the building may vary from the location shown on the submitted plans by no more
than 20 feet eastward, and it shall not be moved anv closer to Canal Street.
11. The barbed wire affixed to the top of the chain link fence bordering the north side of 8 Cypress Street
shall be angled in toward the site, and shall not be angled out over 8 Cypress Street.
` air c GwAn /zr
Rebecca Curran, Chair
Board of Appeals
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND THE CITY CLERK
(7ity of Salem Board of Appeals
October 2,2013
Project: 57 Canal Street
Page 3 of 3
Appeal from this decision, if any, shall be made pursuant to Section 17 of the Massachusetts General Laws Chapter 40A, and shall be filed within 20
days of fth'ng of this dea soon in the office of the City Clerk. Pursuant to the Massachusetts General Laws Chapter 40A, Section 11, the Variance or
Special Permit granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk has been filed with the Essex South
Registry of Deeds.
n- t
`°- QTY OF SALEM, MASSACHUSETTS
a yj) BUILDING DEPARTMENT
1It 120 WASHINGTON STREET,3RD FLOOR
ns+ TEL. (978) 745-9595
FAX(978)740-9846
KIMBERLEY DRISCOLL
MAYOR THOMAS STTIERRE
DIRECTOR OF PUBLIC PROPERTY/BUILDING CONMSSIONER
September 10,2013
New England Power Company d/b/a National Grid
40 Sylvan Road
Waltham, MA 02451
Attn: Legal Department
Lauren Peloquin, Esq.
Re: City of Salem, National Grid Underground Cable Replacement and Substation Improvement
Project
Dear Attorney Peloquin:
We appreciate having met with representatives of New England Power Company d/b/a National
Grid("NEP")to discuss the above-referenced project, which includes the replacement of two 115kV
underground cables within various public streets in the City of Salem and associated work at NEP's
existing substations known as the Canal Street Substation and the Salem Harbor Substation located at 57
Canal Street and off Fort Avenue. The letter from Joshua Lee Smith of Bowditch&Dewey to Thomas
St. Pierre, the Inspectional Services Director for the City of Salem, dated August 22, 2013,accurately
summarizes these discussions.
As we discussed at the meetings, while some local zoning relief would be required, it is difficult
to ascertain the extent and nature of relief required given the unique project use and facilities. We
understand that NEP intends to petition concurrently both the Salem Board of Appeals for two special
permits and the Massachusetts Department of Public Utilities for individual and comprehensive
exemptions from the applicable provisions of the City of Salem Zoning Ordinance. The City of Salem
supports NEP's determination to secure such exemptions, understanding that it will achieve clear,
consistent and efficient regulation of the project and will allow the project to proceed in a timely manner.
We appreciate your consideration to date with respect to this project and look forward to working
with NEP to ensure that this important project proceeds expeditiously.
Very trul(714
rs, o
By: "
Thomas St. Pierre
Inspectional Services Director
ti�osmr .{ CITY OF SALEM, MASSACHUSETTS
PUBLIC PROPERTY DEPARTMENT -
120 WASHINGTON STREET. 3RD FLOOR
SALEM, MASSACHUSETTS 01970
TELEPHONE: 978-745-9595 EXT. 380
�`�'MruE Wra FAX: 978-740-9846
KIMBERLEY DRISCOLL
MAYOR
September 90, 2011
New England Power Company d/b/a National Grid
40 Sylvan Road
Waltham, MA 02451
Attn: Legal Department
Lauren Peloquin, Esq.
Re: City of Salem, National Grid Transmission Line and Substation Improvement
Project
Dear Sir/Madam:
We appreciate having met with representatives of New England Power Company d/b/
a
National Grid ("NEP") to discuss the above-referenced project, which includes the replacement
of two 1 l5kV underground transmission lines within various public streets in the City of Salem
and associated improvements at NEP's existing substations known as the Canal Street Substation
and the Salem Harbor Substation located at 57 Canal Street and off Fort Avenue. The letter from
Robert C. Sudmyer of Bowditch & Dewey to Mr. Thomas St. Pierre, the Inspectional Services
Director for the City of Salem, dated September 16, 2011, accurately summarizes these
discussions.
As we discussed at the meeting, while some local zoning relief would be required, it is
difficult to ascertain the extent and nature of relief required given the unique project use and
facilities. We understand that NEP intends to petition the Massachusetts Department of Public
Utilities for individual and comprehensive exemptions from the applicable provisions of the City
of Salem Zoning Ordinance. The City of Salem supports NEP's determination to secure such
exemptions, understanding that it will achieve clear, consistent and efficient regulation of the
project and will allow the project to proceed in a timely manner.
We appreciate your consideration to date with respect to this project and look forward to
working with NEP to ensure that this important project proceeds expeditiously.
Very truly 1rs,
By:
'rhomas St. Pierre
Inspectional Services Director
Bowditch
&Dewey
ATTOftNEVS
Joshua Lee Smith
Direct telephone: (508)926-3464
Direct facsimile: (508)929-3064
Email: ismith(albowditch.com
August 22,2013
By Federal Express and E-Mail(isipierre@salem.com)
City of Salem Inspectional Services
120 Washington Street, P Floor
Salem,MA 01970
Attn: Thomas St. Pierre,Inspectional Services Director
Re: City of Salem,National Grid Underground Cable Replacement
and Substation Improvement Project
Dear Mr. St. Pierre:
We appreciate the time you took on July 8,2013 (the"2013 Meeting")to meet with me
and Lauren Peloquin and Eamon Kerrigan of New England Power Company d/b/a National Grid
("NEP")to discuss NEP's underground cable replacement project and associated work at the
Canal Street and Salem Harbor substations(collectively,the"Project").l We had met previously
on August 19, 2011 (the"2011 Meeting")to discuss the Project, and sent a confirmatory letter to
you dated September 16, 2011 which summarized and confirmed the conversations we had at the
2011 Meeting, and concluded that, except for the special permit required for the New Control
House,no zoning relief would be required for the Project(the"2011 Confirmatory Letter"). You
sent a letter of support dated September 20, 2011 in which you confirmed your agreement with
the conclusions set forth in the 2011 Confirmatory Letter. The purpose of this letter is to
summarize and confirm the conversations that we had at the 2013 Meeting.
At the 2013 Meeting,we discussed certain updates to the Project, including:
1)modifications to the preferred route of the two 115kV underground replacement transmission
lines; 2)installation of two concrete retaining walls at the Canal Street Property; 3)installation
of landscape screening at the Canal Street Property; and 4)minor modifications to the substation
equipment at the Substation Properties. Based on these updates, you reconfirmed the
conclusions set forth in the 2011 Confirmatory Letter,including,but not limited to, your position
that the New Control House will constitute an extension of a pre-existing nonconforming use
(i.e., essential service),will require a special permit for a Section 6 finding under Section 3.3.2 of
the Zoning Ordinance and that no other zoning relief will be required for the Project. However,
the construction of the New Control House could constitute a new essential services use
The Canal Street Substation is located at 57 Canal Street(the"Canal Street Property")and the Salem Harbor
Substation is located off Fort Avenue(the"Salem Harbor Property")in Salem,Massachusetts(collectively,the
"Substation Properties")-
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BOWDITCH&DEWEY,LLP 311 MAIN STREET PO BOX 15156 WORCESTER,MA 01615-0156
T5087913511 F5087567636 w w.bowditch.com Boston Framingham Worcester
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F . ,
Thomas St. Pierre,Inspectional Services Director
August 22,2013
Page 2
requiring a special permit granted by the Salem Board of Appeals(the"ZBA")pursuant to the
Use Table of the City of Salem Zoning Ordinance(the"Zoning Ordinance"),rather than a
special permit for a Section 6 finding under Section 3.3.2 for an extension of a pre-existing
nonconforming use. Therefore,NEP will seek a grant by the Z13A of both special permits.
During the 2013 Meeting,we indicated that while NEP will petition the Department of
Public Utilities("D.P.U.")and the Energy Facilities Siting Board for authority to construct the
Project,NEP did not intend to petition the D.P.U. for individual and comprehensive exemptions
from the applicable provisions of the City's Zoning Ordinance in accordance with
M.G.L. c. 40A, § 3 in lieu of obtaining the local zoning approvals from the ZBA. However, as
indicated in the e-mail I sent to you on August 22, 2013, due to time constraints of the Project,
the risk of NEP's petition for grant of special permits being appealed or denied by the ZBA and
the difficulty of ascertaining the extent and nature of relief required given the unique project use
and facilities, in addition to seeking zoning relief directly from the City of Salem,NEP has now
determined that it will also petition the D.P.U. for individual and comprehensive exemptions
from the applicable provisions of the Zoning Ordinance in accordance with M.G.L. c. 40A, § 3
to achieve clear, consistent and efficient regulation of the Project and ensure efficient
adjudication of the relief required to allow the Project to proceed in a timely manner.
If this letter does not accurately reflect what we discussed at the 2013 Meeting,the e-mail
sent to you on August 22, 2013 or your interpretation of the Zoning Ordinance as applied to the
Project,please contact me as soon as possible. NEP intends to file its application for special
permits in late summer or early fall of 2013 and commence construction towards the latter end of
2014. NEP looks forward to making these important system improvements in furtherance of
continued reliable electric service to the City of Salem and surrounding areas.
Thank you.
Very truly yours,
Joshua Smith
JLS/RCS/jmb
Enclosures
s
cc: Lauren Peloquin, National Grid Associate Counsel
George DeLoureiro,National Grid Project Manager ,
Eamon Kerrigan,National Grid Civil Engineer
Robert C. Sudmyer,Esq.
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3
Bowditch
&Dewey
ATTORNEYS
Robert C.Sudmyer
Direct telephone: (508)926-3436
Direct Cacsirrale: (508)929-3051
Email: rs_udmvenr4bowditch corn
September 16,2011
By First Class Mail and E-Mail(tstpierre@salem.com)
I
City of Salem Inspectional Services
120 Washington Street, 3`d Floor
Salem, MA 01970
Attn: Thomas St. Pierre, Inspectional Services Director
Re: City of Salem,National Grid Underground Transmission Line
and Substation Improvement Project
Dear Mr. St. Pierre:
We appreciate the time you took on August 19, 2011 to meet with me, my colleague,
Joshua Lee Smith, and George DeLoureiro and John S.Reed of New England Power Company
d/b/a National Grid ("NEP"). The purpose of this letter is to summarize and confirm the
conversations we had at our meeting with respect to NEP's underground transmission line work
(the "Replacement Lines Work")and associated improvements at its existing substations
(collectively,the "Substation Improvements")known as the Canal Street Substation at 57 Canal
Street(the"Canal Street Property")and the Salem Harbor Substation located off Fort Avenue
(the "Salem Harbor Property")in Salem,Massachusetts(collectively, the "Substation
'Properties"). The Replacement Lines Work and the Substation Improvements are, together,
herein referred to as the"Project".
The Replacement Lines Work involves the replacement of two I I5kV underground
transmission lines (the "Existing Lines")with replacement lines(the "Replacement Transmission
Lines") within various public streets in the City of Salem between the Canal Street Substation
and the Salem Harbor Substation. You confirmed that zoning regulations in the City of Salem
are not applicable to transmission lines installed within public ways; therefore,unless
specifically stated otherwise,references to the Replacement Lines Work in this letter shall mean
those portions of the Replacement Transmission Lines to be located at the Substation Properties
and not the portion of the Replacement Transmission Lines located in public ways. The
Substation Improvements include the following primary components:
1. Installation of a 20 x 14 foot control house at the Canal Street Substation(the
"New Control House");
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BOWDITCH&DEWEY,LLP 311 MAIN STREET PO BOX 15156 WORCESTER,MA 01615-0156
T 50 8 797 3511 F 508 756 7636 www.bowditch.com Batton Framingham Peterborough Worcester '
Thomas St. Pierre, Inspectional Services Director
September 16, 2011
Page 2
I
2. Installation of electrical equipment, including,but not limited to, termination
risers, H-frame dead-end structures,disconnect switches, surge arresters and
associated concrete pads at both Substation Properties(collectively, the
"Substation Equipment');
i
3. Installation of bus support columns at the Canal Street Substation(the`Bus
Structures");
i
4. Replacement of an existing five(5) foot tall wooden retaining wall (the"Existing
Retaining Wall") with a seven(7) foot tall concrete retaining wall(the"New
Retaining Wall")at the Canal Street Substation;
5. Replacement and expansion of an eight(8) foot tall internal fence within the
Salem Harbor Substation fence (the"New Salem Harbor Fence");
w
6. Replacement of an entire eight(8) foot tall perimeter fence with a new eight(8)
foot tall fence (the"New Canal Street Fence") at the Canal Street Substation,
including increasing the grade of a fence section along a boundary line shared by
a residential abutter;
7. Expansion of the substation yards at both Substation Properties with grading and
filling of crushed rock;
8. Digging of cable trenches at both Substation Properties; and
i
9. Clearing of certain trees along Cedar Street.
The Salem Harbor Property is a portion of a lot(the"Dominion Property") owned in fee
by Dominion Energy Salem Harbor, LLC, and NEP has easement rights to operate and maintain
the Salem Harbor Substation thereon. The Salem Harbor Property and portion of the Dominion i•
Property that will contain the Replacement Transmission Lines are located within the Industrial
zoning district. The Canal Street Property is a split lot located in both Residential Two Family
(R2) and Business Wholesale and Automotive(134)zoning districts. Under the Salem Zoning 1.
Ordinance (the"Zoning Ordinance"),the majority of the Canal Street Property is also located
within the Entrance Corridor Overlay District(ECOD). The Substation Properties are not
located within the Wetlands and Flood Hazard Overlay District.
The public utility use at the Dominion Property and the Canal Street Substation is
permitted as an"essential service"by special permit in the Industrial,B4 and R2 zoning districts, f
and the construction of the Substations and Existing Lines in 1950 and 1951 did not predate the
initial adoption of zoning in 1925. However, you confirmed that for purposes of determining
whether a use or structure constitutes a pre-existing nonconforming use or structure, the city uses
August 27, 1965, the date of adoption of the 1965 zoning ordinance,rather than the first adoption
of zoning in 1925. Therefore, the proposed essential services use under the Project is a pre-
existing nonconforming use, and you confirmed that the Project does not constitute a change or
substantial extension of such use. However, you indicated that the New Control House at the
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I
Thomas St. Pierre, Inspectional Services Director
September 16, 2011
Page 3
Canal Street Substation will constitute an extension of the pre-existing nonconforming use and
will require a special permit for a Section 6 finding under Section 3.3.2 of the Zoning Ordinance.
Except for the New Control House, you confirmed that the Project constitutes maintenance and
repair activities and that zoning relief for use will not be required..
The underground portions of the Replacement Lines Work are not subject to dimensional
regulations. You confirmed that the lot lines that form the Dominion Property and not NEP's
easement boundary lines are the appropriate boundary lines from which front, side and rear lot
lines are to be measured. Except for the setbacks of the New Canal-Street Fence and the rear
yard setback for a portion of the New Retaining Wall at the Canal Street Substation, all of the
Substation Improvements will comply with dimensional requirements. You confirmed that the
New Retaining Wall and the New Canal Street Fence constitute maintenance and repair activities
and will not require zoning relief. You also confirmed that despite the maximum height
restriction for boundary fences of four(4) feet in the ECOD, the maximum height restriction for
such fences at properties used for commercial or industrial purposes is ten(10) feet from the
average grade, and,therefore,the New Canal Street Fence will comply with maximum height
restriction.
You confirmed that the electrical substation equipment to be installed for the Substation
Improvements does not constitute mechanical equipment as set forth under Section 8.2.3.2 of the
Zoning Ordinance, which requires screening and prohibits mechanical equipment areas within
the ECOD to be located in a front yard or within twenty-five(25) feet of the front lot line of the
side yard. Lot coverage applies only to buildings and does not apply to non-building structures.
Site plan review will not be required for the Substation Projects because the gross square foot
,thresholds set forth under Sections 9.5.2 and 8.2.7 of the Zoning Ordinance only apply to
buildings and do not apply to trenching or non-building structures. There are no landscaping
requirements applicable to the Substation Projects.
Off-street parking and off-street loading requirements of the Zoning Ordinance do not
apply to the Project. A sign permit will not be required for any warning signs that may be i
installed.
i
An earth removal permit will not be required because no earth material will be removed
from the Canal Street Property or the Dominion Property.
NEP will petition, as required, the Department of Public Utilities ("DPU')and the
Energy Facilities Siting Board("EFSB") for approval of the Project. The EFSB must determine
that the Project is necessary,will serve the public convenience and is consistent with the public
interest. The EFSB will hold a public hearing in the City of Salem,at which time you and the
citizens of Salem will have an opportunity to comment on the Project. Notice of this public
hearing will be sent to abutters to the Project, as well as city officials. NEP is not permitted to
construct the Project unless and until it receives this approval from the EFSB.
I
As we discussed at our meeting, while some local zoning relief would be required, it is
difficult to ascertain the extent and nature of relief required given the unique project use and
� ,t'iin i tic',.Kllri`.IJtr irr riili:ORr. -6r1317.;N?C5; ,
b
Thomas St. Pierre, Inspectional Services Director
September 16, 2011
Page 4
facilities. Accordingly, NEP intends to petition the DPU for individual and comprehensive
exemptions from the applicable provisions of the City of Salem Zoning Ordinance in accordance
with M.G.L. c. 40A, §3 to achieve clear, consistent and efficient regulation of the Project and
ensure efficient adjudication of the relief required to allow the Project to proceed in a timely
manner. The comprehensive exemption would allow the Project to go forward if a particular
provision originally interpreted as not applicable to the Project is later determined to be
applicable.
As was noted at the meeting,NEP will be required to obtain other municipal permits for
the Project, including any permits required by the General Ordinances, street crossing permits
from the City Council and orders of condition from the Conservation Commission. A trench
permit for the underground cables will be required for trenching that will occur outside of
Substation perimeter fencing. We will confirm with the City Engineer as to whether i trench
permit is required where trenching will occur within Substation perimeter fencing. NEP will
confirm with the City Engineer whether the re-grading to occur at the Substation Properties will
require a drainage plan.
Building permits (or a consolidated building permit)will be required for the New Control
House, the New Canal Street Fence and the Retaining Wall. You confirmed that a building
permit is not required for the New Salem Harbor Fence. As we mentioned to you at the meeting,
there is existing case law that addresses the applicability of the Massachusetts State Building
Code and municipal building codes and by-laws to electric utility structures and facilities. As a
follow up, I enclose a copy of Boston Edison Co. v. Town of Sudbury,356 Mass.406(1969). In
this case, the Court concluded that the town's building by-laws had no applicability to the
electric utility company's proposed transmission lines or to its constituent electrical transmission
structures (as opposed to buildings of a type usually subject to building codes). See page 420.
The Court interpreted the legislative intent behind M.G.L. c. 164, § 72 as placing full authority in I.
the Department of Public Utilities("DPU"), formerly DTE, for regulating the construction of j
transmission lines or its constituent electrical transmission structures to ensure uniformity in the
safety standards applicable to such lines. In addition,on October 31, 1989, the DPU issued an
Advisory Opinion confirming that the Court in Boston Edison had affirmatively granted
transmission safety regulation to the DPU. This Advisory Opinion was issued to clarify whether
a building permit should be required for substation equipment. I am enclosing the DPU
Advisory Opinion along with the letter from Mark E. Slade, the attorney for NEP,explaining the
company's position which was accepted by the DPU in its Advisory Opinion. Based on this
precedent,NEP typically obtains building permits for control houses,because they are buildings
of the type usually subject to building codes,but not for any other electrical equipment or
structures within a substation or a right-of-way, including underlying foundations. Accordingly,
the Substation Equipment and underlying foundations should not require a building permit in
connection with the Project.
If this letter does not accurately reflect what we discussed at our meeting or your
interpretation of the Zoning Ordinance as applied to the Project,please contact me as soon as
possible. NEP looks forward to making these system improvements, work on which is expected
I.
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'f.knt Iter Rf:;l'.I
Y
Thomas St. Pierre,Inspectional Services Director
September 16, 2011
Page 5
f
to commence in early 2014, in furtherance of continued reliable electric service to the City of
Salem and surrounding areas.
Thank you.
Very truly yours, �y !
• i����z31 ��2 i e
Robert C. Sudmyer
JLS/RCS/jmb
Enclosures
cc: Joshua Lee Smith,Esq. (w/o encls.)
Lauren Peloquin,National Grid Associate Counsel (w/encls.)
George DeLoureiro,National Grid Project Manager(w/encls.)
John S. Reed, National Grid Civil Engineer(w/encls.)
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Westlaw.
253 N.E.2d 850 Page 1
356 Mass.406,253 N.E.2d 850
(Cite as:356 Mass.406,253 N.E.2d 850)
C size of structure from existing line over an easement
Supreme Judicial Court of Massachusetts,Suffolk. which the company already controls. M.G.L.A. c.
BOSTON EDISON'COMPANY 164 4 72.
V.
TOWN OF SUDBURY et al.E jZ1 Electricity 145 X9(2)
FN I. The other parties to these proceedings, 145 Electricity
consolidated in the Superior Court, are the 1451<9 Transmission Facilities
towns of Wayland, Sherborn, and Framing- 145k9 2 k.Permit or Consent by Public Au-
ham,and the inspectors of buildings in Sud- thorities. Most Cited Cases
bury and Wayland. Statutes giving selectmen power to impose reason-
able regulations for erection of all lines for transmis-
Argued Nov.4, 1969. sion of electricity and providing that no ordinance or
Decided Nov.26, 1969. regulation will take effect until approved by depart-
ment of public utilities refer only to regulations of
Consolidated proceedings as to proposed electrical selectmen and are not intended to include a town .
transmission line with increased capacity. On reser- building by law adopted by•town in meeting.
vation and report by the Supreme Judicial Court of M.G.L.A.c. 166 S&25,27.
the County of Suffolk, Cutter, 1., the Supreme Judi-
cial Court, Cutter, J., held that under statute permit- J1 Electricity 145 X9(2)
ting an electric company to petition department of _
public utilities for authority to construct and use or to 145 Electricity -
continue to use a line for transmission of electricity, 145k9 Transmission Facilities
electric transmission company must obtain certificate 145k9(2) k. Permit or Consent by Public Au-
of public convenience and necessity for construction thorities.Most Cited Cases
of any transmission line or line greatly increased in Department of public utilities in granting certificate
capacity and in size of structure from existing line of public convenience for construction and use or
over an easement which the company already con- 'continuance of use of line for transmission of elec-
trols. tricity may properly consider aspects of safety such
as a town in a comprehensive building bylaw might
Case remanded. wish to apply to transmission lines. M.G.L.A.c. 164
2.
West Headnotes
11 Electricity 145 X9(2)
11 Electricity 145 X9(2) -
145 Electricity
145 Electricity145k9 Transmission Facilities -
145k9 Transmission Facilities 145k9(2) k. Permit or Consent by Public Au-
145k9(2)k. Permit or Consent by Public Au- thorities.Most Cited Cases
thorities. Most Cited Cases Statute authorizing building codes was not intended
Under statute permitting an electric company topeti- to provide authority for local regulation of construc-
tion department of public utilities for authority to.
tion of electrical transmission lines for which control j
construct and use or to continue to use a line for is largely entrusted to department of public utilities.
transmission of electricity, electric transmission M.G.L.A.c. 143 S 3;c. 164 4 72.
company must obtain certificate of public conven-
ience and necessity for construction of any transmis- ,151 Electricity 145 X9(2)
sion line or line greatly increased in capacity and in
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145 Electricity within authority, reasonably construed, granted by
I45k9 Transmission Facilities enabling statute.M.G.L.A.c. 166 S 22.
145k9(2) k. Permit or Consent by Public Au-
thorities.Most Cited Cases u Electricity 145 X9(2)
(Formerly 145k0(2)) -
Towns by their building codes could not regulate 145Electricity
proposed electrical transmission line or its constituent I450 Transmission Facilities
electrical transmission structures for which control IgSk9(21 k. Permit or Consent by Public Ao-
was by statute largely entrusted to department of pub- thorities.Most Cited Cases
tic utilities. M.G.L.A_c, 143 &3;c. 164 72. Despite prior grants by town selectmen to electric
transmission company as to.locations under or across
161 Electricity 145 X9(2) public ways for electrical transmission line,company
was required to obtain new grants of such locations
145 Electricity as to public ways for line of substantially increased.
I45k9 Transmission Facilities size over same areas covered by prior grants.
14Sk9(21 k. Permit or Consent by Public Au- M.G.L.A.c. 166 H 21.22 L7,28.
thorities.Most Cited Cases
Locations granted by selectmen under statute provid- 1101 Electricity 145 C:�9(2)
ing for order granting location under or across public
way for electric transmission line are granted in rela- 145Electricity
tion to and refer to substantially particular type and I45k9 Transmission Facilities
magnitude of transmission line and of construction I45k9 2 k. Permit or Consent by Public Au-
discussed when application is made to selectmen and thorities.Most Cited Cases
Au-
though a location may be interpreted as permitting Under statute permitting department of public utili-
reasonable variations from and replacements of par- tics to grant electric transmission company a location
titular structures proposed or in contemplation at the under or across public way on refusal of town se-
time,the grant does not include authority for substan- lectmen if locations have been granted in two cities
tial changes. M.G.L.A.c. 166 8&21,22 27 28. or in an adjoining city and town or by majority of
towns, department's jurisdiction when substantially ;
In Electricity 145 C '9(2) increased line is contemplated depends on towns'
actions in relation to the increased line as well as the
145 Electricity original,line.M.G.L.A.c. 166 5 28.
I45k9 Transmission Facilities
145k9(2) k. Permit or Consent by Public Au- LI I Electricity 145 X9(2)
thorities.Most Cited Cases
Any doubt concerning locations granted by selectmen ]45 Electricity
to electric transmission company for location under I45k9 Transmission Facilities
or across a public way for transmission line should be jg5k k. Permit it Consent by Public Au-
resolved in favor of public and against grantee and j
against any implication of relinquishment of public - thorities.Most Cited Cases
rights. any i A.c.is do &b re 22,27,me Despite dispute as to whether town complied with
procedural requirements for obtaining road and
whether it adequately acquired land for the road,
JE Electricity 145 X9(2) electric transmission company could properly obtain
locations across or under road by compliance with
145 Electricity statutes providing for grants by town selectmen as to i-
145k9 Transmission Facilities such locations.M.G.L.A.c. 166 &&21,22 27,28.
145k9(2) k. Permit or Consent by Public Au-
thorities. Most Cited Cases 1121 Electricity 145 X9(2)
Grants of locations or licenses in public ways by se- �.
lectmen acting as agents of Commonwealth must be
145 Electricity
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14509 Transmission Facilities ties.355 Mass. 138.244 N.E.2d 281.
145k9(2) It.Permit or Consent by Public Au-
thorities.Most Cited Cases •408 The general location of the proposed and cer-
Fact that electric transmission company had not ob- tain related lines is shown on the attached sketch map
tained grants by town selectmen as to locations for (which does not purport**853 to be drawn to scale).
lines across or under roads would not prevent contin- The proposed line is to be on steel towers and is to
ued construction of proposed line elsewhere in those run about seventeen miles over an existing route 250
towns until such rights were granted, but company feet wide, over which Edison has maintained one or
was prohibited from transmitting electricity over any more overhead transmission lines.The Department of
Ind, right-of-way or other easement taken by emi- Public Utilities (D.P.U.) has made various past de- -
nent domain until rights in town ways were obtained. terminations of public convenience and necessity,
M.G.L.A.c 164 F 72;c. 166 SF 21,22. *409 affecting the route or parts of it, and various
*407 **851 James M. Carroll, Donald R. Grant and authorizations to make eminent domain takings of
John J. Desmond, III, Boston,Mass., for Boston Edi- easements. Edison concedes, however, that these 'do
son Co. not include a specific authorization under * * *(G_L.
c. 164.s 72 as amended)to construct the * * * (pro-
Philip B. Buzzell and Joseph P. Warner, Boston, posed) 230 KV line.' The D.P.U. has specifically
Mass., for the towns of Sherbom, Sudbury and Way- exempted the lands within the strip 250 feet wide and
land; Theodore Chase, Town Counsel, for the Town the proposed structures from the operation of the zon.
of Sherborn; John M. Kahn, Town Counsel, for the ing by-laws of Medway, Sherbom, Framingham,
**852 Town of Framingham; C. Peter R. Gossels, Wayland,and Sudbury,to the extent that they may be
Town Counsel,for the Town of Wayland;and Earl F. used for the transmission lines described before the
Nauss,Jr.,Town Counsel,for the Town of Sudbury. D.P.U. in its opinion (D.P.U. 15192, March 29,
1967).¢u See the Framingham case. 355 Mass. 138,
Robert H. Quinn, Any. Gen., and William E. Sear- 140-143. 145-148.244N.E1d281.
son, III, Asst. Arty.Gen., for the Department of Pub-
lic Utilities,amicus curiae. - FN2. The D.P.U. in that decision described
the purposes of the proposed 230 KV line as
Before *406 SPALDING, CUTTER, KIRK, 'to relieve an anticipated deficiency in the
SPIEGEL and REARDON,JJ. transmission capacity * * 4 needed to meet
the aggregate electrical loads in * * * Sud-
CUTTER,Justice. bury, Wayland, Waltham, Lexington, and
Woburn,to strengthen the western side of*
The (laintiff Edison)P P to construct an over-ro oses * * (Edison's)transmission ring,and to pro- I:
P vide* * * Edison * * * with a connection to
head line for the transmission of electricity at * **the New England Grid.'Three 345 KV
230,000 volts (230 KV) between an existing Edison
substation in Medway and one in Sudbury.Questions lines(see sketch map)connect the Grid with
Edison's Medway substation. From there
concerning this or related transmission lines have
Edison plans to transmit power (230 KV)
been before this court in Town of Sudbury Y. De- -
partment of Pub. Util., 343 Mass, 428, 179 N.E.2dover the proposed line to Sudbury. From
Sudbury; Edison hopes to transmit power
263 (the first Sudbury case), and 351 Mass. 214.218 (115'KV) to Waltham over a line already
N.E.2d 415 (the second Sudbury case); in Boston constructed(see sketch plan).
Edison Co. v. Board of Selectmen of Concord. 355
Mass. i-
79.242 N.E.2d 868(the Concord case);and in
Town of Framingham V. Department of Pub. Utili-.
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253 N.E.2d 850 Page 4 -
356 Mass.406,253 N.E.2d 850
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towns respectively. He denied applications of these
In the summer of 1969, Edison brought in the Supe- towns for preliminary injunctive relief against further
rior Court declaratory proceedings against the build- construction by Edison.
ing inspectors of Sudbury and of Wayland. The
towns of Sudbury,Wayland,Sherbom,and Framing- On August 6, 1969,acting under G.L.c•214,s 22,as
ham (the towns and the building inspectors of two of amended by SLI948, c. 309, a single justice of this
them are, for convenience,collectively referred to as court, in the county court, enjoined further construc.
the towns)brought bills in the Superior Court against tion of any part of the proposed line. The full court
Edison for declaratory and other relief. This litiga- on October 3, 1969, denied Edison's petition to dis-
tion,consolidated in the Superior Court(fn. 1),raises salve this order. Another •410 justice of this court
the issues discussed below. A Superior Court judge then entered an order(October 6, 1969) transferring
• enjoined the building inspectors of Wayland and of to.the county court all the cases mentioned above
Sudbury from enforcing the building codes of these then pending in the Superior Court. See G.L.c.211.s -
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4A, inserted by St.1962,c.722,s 2.The parties, act- 72,as most recently amended,before Edison
ing with great expedition, have submitted a consoli- ' * *(may)construct the(proposed)line* *
dated statement of agreed facts.The cases have been * on an easement or right of way already
reserved, without decision, for the determination of owned or controlled by it;(2)the applicabil-
the full court. ity * • • of the (Sudbury and Wayland)
building codes ' * * to the construction of
Portions of the right of way between Medway and - the(proposed)230 KV line' ** (3)the suf-
Sudbury are already used for transmission lines(13.8 ficiency of Edison's rights, if any,under* *
KV and 115 KV)supported on wood poles,described *G.L. c. 166 ss 21,22, and 28, as most re-
by the D.P.U. as 'from 65 to 80 feet' in height 'de- cently amended,to " * *construct the wires -
pending on the terrain.' The contemplated construc- * * *across various public ways which lie in
tion, on the other hand (see the Framingham case the path of its easement * * * and (4)
355 Mass. 138. 140-141,244 N.E.2d 281)is to be on whether " * " Stock Farm Road in
'two circuit, wide base, lattice type, steel towers - Sudbury is a'public way' within " * * G.L.
varying in height from 110 to 125 feet,except at cer- c. 166.ss 21,22,and 28.'
tain substations where the towers would be 160 feet
in height. The structures would be spaced * * * 1. On the first controversy, the towns contend that
(about) 1,000 feet apart. Clearance above the ground - Edison must obtain from the D.P.U. a determination
of the wires suspended from such structures would be of public convenience and necessity under G.L. c.
not less than twenty-five feet,and over highways not 164 s 72, as amended (see fn. 4). Edison, however,
less than twenty-eight feet.' The towns greatly fear - points out (a) that so much of the proposed route as
the line's 'deteriorating effect on aesthetic and prop- lies within Sherbom (as was not already controlled -
erty values as well as safety considerations.' by Edison) was acquired by Edison in 1941 under
D.P.U. orders of May 13 and July 29, 1941, and(b)
**854 Edison in 1967 began to build the proposed that portions of the route in Framingham, Wayland,
line in Medway, Holliston, Sherbom; and Natick. and Sudbury, not then owned or controlled by Edi- .
These four towns did not appeal from the D.P.U.'s son,were acquired by eminent domain either in 1953, -
decision which resulted in the Framingham case.355 pursuant to an order of the D.P.U. of November 30,
Mass. 138.244 N.E2d 281.By December, 1968,the 1951, or in 1955, pursuant to D.P.U. orders of July
proposed line had been constructed between the 28, 1955. See.Cole v. Boston Edison Co.. 338 Mass.
661. 157 N.E.2d 209. Edison then argues, in effect, -�
Medway substation and the Natick-Framingham 8 '
boundary.After the decision in the Framingham case, that, because it already controls some easement over
Edison started to build parts of the proposed line in all the proposed route(except across certain streets or
Sudbury. There has been no further construction roads; see parts 3 and 4 of this opinion), there is no
since the injunction issued by the single justice on occasion for it to obtain from the D.P.U. any deter-
August 6, 1969. No wires, forming part of the pro- mination of public convenience and necessity under
posed line, have been installed over or under any c. 164. s 72. In practical effect, Edison contends that
public ways (mentioned later in part 3 of this opin- s 72 does not require a transmission company to ob-
ion) in Framingham and Wayland as to which Edison Iain any cerificate of public convenience and neces-
has no presently existing rights of record under G.L.. sity for construction of any transmission line(or of a
c. 166.ss 21,22,or 28, or over or under Stock Farm line greatly increased in capacity and in size of strut- .
Road in Sudbury(see part 4 of this opinion). ture from an existing line) over an easement which
the company already controls. Edison (as indicated
*411 The parties have agreed that there are four prin- above)has agreed that,as to'the line from the Med-
cipal controversies presented by the present re- way substation to the Sudbury substation' now pro-
cord.r"r These are discussed separately below. _ posed, 'Edison has never obtained any specific ap-
proval of any *412 part of * * (the) line by the
FN3. The consolidated statement of agreed
D.P.U.' under s 72, and contends that no such ap-
facts says these are: '(1) whether a further proval is now required.
determination of public convenience and ne-
cessity is required under* * * G.L. c. 164.s The first controversy requires ree xammation of G.L.
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c. 164, s 72 (as amended throllSt.1965, c. 457), scribed in the order of the department. The
which is set out in the margin.l . There have been department shall transmit a certified copy of
inserted **855 in the text of s 72 in brackets various its order to the company and the clerk of
capital letters for the purpose of convenient refer- each such town. The company may at any
encu to the portions of the section immediately time before such hearing,change or modify
following these letters,respectively. the whole or a part of the route of said line+
(E) If the department dismisses the pe-
FN4. Section 72, as amended, reads: `(A) tition at any stage in said proceedings, no
An electric company may petition the de- further action shall be taken thereon,but the
partment for authority to construct and use company may file a new petition after the
or to continue to use as constructed or with expiration of a year from such dis-
altered construction a line for the transmis-. '" missal. (F) When a taking under this section
sion of electricity for distribution in some is effected, the company may forthwith, ex-
definite area or for supplying electricity to cept as hereinafter provided, proceed to
itself or to another electric company or'to a erect, maintain and operate thereon said j
municipal lighting plant + ` * and shall rep- line. " * * (G) No lands or rights of way or I
resent that such line will or does serve the - other easements therein shall be taken by
public convenience and is consistent with eminent domain under + * * this section in
the public interest. (A-1)The company shall any public way, public place, park or reser-
forward at the time of filing such petition a vation * * * and(H) no electricity shall be
copy thereof to each city and town within transmitted over any land, right of way or
such area. (See fn. 5, infra.) The company other easement taken by eminent domain **
shall file with such petition a general de- ` until the electric company shall have ac-
scription of such * + ' line and a map * * + quired from the * * * selectmen • * + all
showing the towns through which the line necessary rights in the public ways or public
will * * * pass and its general location. The places in the town or towns, or in any park -
company shall also furnish an estimate or reservation,through which the line will or
showing * * • the cost of the line and such does pass.'
_ additional * * * information as the depart- '
ment requires. The department, after notice FNS. To avoid
Pq P possible confusion, the
and a public hearing in one or more of the bracketed letters have not been changed
towns affected,may determine that said line from those used in 1962 in reproducing s 72
is necessary for the purpose alleged,and will in the first Sudbury case, 343 Mass. 428.
serve the public convenience and is consis- 430, 179 N.E.2d 263 In. 2, except that im-
tent with the public interest. (B) If the mediately following the new bracketed (A-
company(C)shall file with the department a 1) is a sentence later inserted by St.1965,c.
map * * * showing (D) the towns through 457.
which * " * (the line) will * * * pass, the
public ways, railroads * * * (and)navigable *413 The earliest predecessor of s 72 is found in
streams * • • in the town(s) + * * which it St.1914,c.742,s 128.The section,revised in various
will cross, and the extent to which it will be respects thereafter, was initially considered in detail
located upon private land or upon, under or by this court in the first Sudbury case.343 Mass.428,
along public ways and places, the depart- 179 N.E.2d 263. There we had to decide whether an
ment, after * • + notice " ' ` shall give a appeal under G.L. c. 25 s 5 (as amended through
public hearing + + • in one or more of the St.1956,c. 190),by the town of Sudbury from D.P.U. I
towns through which the line " ` + is in- action under the first sentence of s 72 was 'from the
tended to pass and may by order authorize final decision of the (d)epartment.' There was thus
the company to take by eminent domain un- occasion to ascertain what the Legislature had con- �.
der* * * (c.79) * * • such rights of way or templated as the D.P.U.'s procedure under the 'not
widenings thereof,. or other easements wholly clear' language ( 343 Mass. 428, 431. 179
therein necessary for the construction and N.E.2d 263.2661 of s 72. We interpreted the section
use * • * of such line along the route pre-
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as follows: '(1) Initially,a company wishing to build refusals to grant locations across public
a transmission line must file with the department a ways, the department is in each instance ex-
petition(see point(A))for`authority to construct and ercising a separate function as to which, in
. use * * * a(transmission) line.' The appropriate de- the light of the competent evidence before it,
partmental action upon such a petition, if * * * ap- it must make a determination.* * * (E)ach
proved* * * is a determination that* * * (the)line is stage * * * is a separate proceeding' in
necessary* * *will serve the public convenience and which 'all relevant questions of the public
is consistent with the public interest. (2) If the com- convenience and necessity must be consid-
pany cannot acquire the necessary right of way by Bred'(emphasis supplied):
negotiation, the company (see portion of s 72 be-
tween points(B)and(E))may file detailed plans with In the first Sudbury case.343 Mass.428, 179 N.E.2d
the department, which then * * * may 'by order 263 Edison planned to apply later for the power to
**856 authorize the company to take' by eminent take easements by eminent domain. Such an applica-
domain * * * the necessary * * * rights of way over tion was in fact made in the second Sudbury case,
privately owned land. The company may file a sepa- 351 Mass. 214, 215-216, 218 N.E.2d 415. Each of
rate petition for this authority to take land by eminent these two cases, therefore, involved either later or
domain. If there is no occasion for an eminent do- immediate eminent domain proceedings. Neverthe-
main taking (as, for example, because all necessary less, the language of the first Sudbury case, already
land can be acquired by negotiation), then the com quoted(see In. 6 and related text of this opinion)did
pany need file no such second petition.After such an not limit the first sentence of s 72 to cases involving
order for an eminent domain taking(see point(F)),or some eminent domain action.
without such an order if no eminent domain taking is
necessary, the company 'may forthwith, except as In the Framingham case, 355 Mass. 138. 141-143,
hereinafter provided, proceed to erect, maintain and 244 N.E.2d 281 Edison contended that s 72 had no
operate* * *(the)line."—ne
The interpretation of s 72 application whatever unless a transmission company
in the first Sudbury*414 case was quoted with ap- must have resort to eminent domain proceedings.
proval in the second Sudbury case. 351 Mass. 214. This issue we then declined to consider for reasons
217. 218 N.E.2d 415. See Town of Hamilton v. De- there stated.We held merely that'a proceeding under
partment of Pub. Utilities, 346 Mass. 130. 144-146. c. 40A, s 10' (for exemption of the line from local
190 N.E.2d 545. zoning bylaws) 'may goforward independently of a
proceeding under s 72.' In the present case, we must
FN6. Discussion of further portions of s 72 deal with Edison's contention that the first two Sud-
in the.first Sudbury case need not be quoted bury cases resulted in an unduly broad application of -
at length. We pointed out( 343 Mass. 428 s 72.See 9 Ann.Surv.Mass.Law,s 15.2-.
433, 179 N.E.2d 263.267)that no'construc-
tion across public ways can be undertaken, Edison refers to the long, ambiguous legislative his-
until such permission is given by the appro- tory of s 72, argued and considered in the fust
priate local authorities.See G.L.c. 166.s 21 Sudbury case. 343 Mass 428, 431, 179 N.E.2d 263
(as amended through St.1951,c. 476,s 1); s Edison's position,in summary, is that St.1914,c.742,
22 (as amended through St.1948,. c. 550, s s 128,was necessary(see Comiskey v.City of Lynn.
36); and s 25 (as amended through St.1951, 226 Mass 210 213-214, 115 N.E. 312)to permit any
c. 476, s 2). If such permission is not eminent domain takings for transmission lines, and
granted, Edison may then have resort to ap- that to provide for *415 such takings (under the su-
propriate proceedings under G.L. c. 166, s pervision of a public predecessor of the D.P.U.) was
28 (as amended through St.1961, c. 466).' the sole objective of the 1914 enactment which came
We also said, `In considering (a) whether a as a part of a comprehensive consolidation of statutes
transmission line shall be authorized at all, relating to the distribution of gas and electricity.LM -
upon an initial petition under s 72; (b)
whether eminent domain takings, if neces-
sary, will be authorized by order; or (c) FN7. The 1914 act was preceded by various
whether to exercise its authority, under G.L. attempts to obtain legislation. See Res.
c. 166. s 28, as amended, to overrule local 1910,c. 55 (which called upon the D.P.U.'s
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predecessor `to investigate the circum- I
stances affecting the transmission of elec- PNB. See Board of Gas and Elec. Light
tricity' and to examine the laws relating to Commrs.32d Ann.Rep.pp.2-3,which reads
the location of transmission lines and the au-
in part: 'When the laws relating to the* • * '
thority of local and certain State officials distribution * * ' (of)electricity were codi-
with respect thereto); 1911 House Doc. No. fled and extended in • • * (St-1914, c. 742)
1185, pp. 1822; Res. 1912, c. 51 (calling a new section(128)was introduced,giving a
upon the D.P.U.'s predecessor to make the limited power of eminent domain for the
investigation which resulted in the 1914 construction of(electric transmission) lines
consolidation); 1913 Pub.Doc. No. 35, pp. * * *, As a condition precedent to the exer-
14,376a; 1913 House Bill No. 1925,pp. 15-. cise of this power,it had first to appear,after
16; 1913 Senate Bill No. 581, pp. 42-45; a public hearing, that the company had ac-
1914 Senate Bills Nos. 129,575. quired rights in the public ways or over pri.
vate lands for more than three-fourths of its
**857 Section 128 of the 1914 act appeared under a length in the * * * town * * * and that the
heading `Taking land for Transmission Lines.' Its line was necessary and will serve the public
text,however,was more broadly expressed.The first, convenience and be consistent with the pub-
second, and third sentences were phrased in terms lic interest. Experience ' * * has developed
closely similar to the first,third,and fourth sentences a serious embarrassment in that a company
of s 72 (see fn. 4, at point (A)). The-balance of the has no occasion or even right to invoke the
first paragraph of s 128,however,varied from s 72.It Board's authority until it has purchased or
provided that'if it appears(to the D.P.U.'s predeces- optioned not less than three-fourths of the
sor board) that the petitioner has rights in the public length of the line in each ' • * town
ways or lanes of such • * * town, or over private and is held up by a few landowners with
lands * * * for not less than three fourths of the whom it cannot trade at all or upon reason-
length of its * * * line in * * * (that)town,and if in able terms. At this stage the Board is called
the(board's)opinion* * * said line is necessary * * * upon to pass for the first time upon the ques- -
and will serve the public convenience and is consis- tions which are fundamental to a proper ex-
tent with the public interest, the board may by order ercise of eminent domain * * * (T)here
authorize the company to wnstruct or to continue to should,in the Board's opinion,be first a pre-
use such line.' The second paragraph,without provi- liminary hearing and decision upon the
sion for further hearing,authorized the company after broad question of the public convenience
such an order to make eminent domain takings upon and necessity to be served by the line.If this
terms which need not be stated.The requirement that is decided affirmatively,and the company is
a specific portion of the right of way be acquired in unable subsequently to acquire rights
advance of any determination of public convenience further hearings and decisions in the same
and necessity somewhat points to that determination way as at present provided may then be had
as being preliminary and related to the permission to looking directly to the exercise of eminent
use eminent domain later granted by the section.This domain
indication may have been modified, however, by
St.1917, c. 141 (entitled 'An Act Relative to the Con- [�] It is possible, as Edison argues, to view the Ian- !
struction of Lines for the Transmission of Electric-
. guage of both the 1914 and the 1917 as(and of the
ity'). Section 128 was amended to provide for at least board's recommendation, in. 8),as requiring petitions
a two stage proceeding,*416 following a recommen- only with respect to situations where eminent domain
dation of the D.P.U.'s predecessor board (see 1917 later was thought like) to be **858 necessary.
House Doc.No.139, pp. 2-3)r=" which permitted firs[ Doubtless, a principal purpose of including s 128 in
a preliminary hearing and order on public conven- the 1914 consolidation was to provide a procedure
ience and necessity, without any showing of acquisi- under which eminent domain takings for transmission j
tion of any part of the right of way,and later a second lines could be made.The language of s 128,however,
hearing and order directed to the exercise of eminent may also be given a broader significance,particularly
domain upon such a showing upon terms somewhat after the 1917 amendment.The early part(and espe-
modified from the 1914 version.-
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cially the first sentence)of what is now s 72 permits view on this issue stated by him in the Framingham
the interpretation that there shall be a determination case. 355 Mass. 138 142, 244 N.E.2d 281)that Edi- 4I4
of public convenience and necessity (for which an son must obtain D.P.U.approval of the proposed line
electric company is given permission to apply)as a under the first sentence of s 72.
condition precedent to any new or substantially
changed transmission tine. This determination*417 FN9. Statutory changes in s 72 between
would be a natural requirement for the Legislature to 1917 and our 1962 decision in the first Sud-
impose upon any public utility with respect to pro- bury case do not help materially in interpret-
posals to build substantial,potentially dangerous,,and Ing the statute. See 343 Mass.428.431, 179
costly transmission lines and structures which may be N.E.2d 263-and fn.3.
seriously damaging to communities in the Common-
wealth through which the lines are to pass. 2. It is far from clear that either the Sudbury building
code or the Wayland building code by its own terms
Our interpretation of the first part of s 72 in the first has any substantial application to electric transmis-
Sudbury case is consistent with that for which the sion lines. We assume,however,without so deciding,
towns contend,although the language of the decision that the language of one code or the other does have �.
could now be limited to situations requiring eminent some relevance to the proposed line.Neither building
domain. Following the 1962 first Sudbury case, how- code has been approved by the D.P.U. under G.L.c.
ever, the Legislature (which must be taken to have 166. s 27, quoted later. Edison has never applied for I
known of the 1962 decision;see Doherty v.Commis- any permit under either code.
sioner of Insurance. 328 Mass 161 164, 102 N.E.2d
496), enacted St.1965, c. 457 (entitled, 'An Act Re- Building codes are authorized by G.L. c. 143, s 3 (as
quiring Certain Public Service Corporations which amended through St.1968, c. 499, s 1). This statute
Petition the Department of Public Utilities for had its origin in St.1872, c. 243 (see Enos v. City of
Transmission Rights in an Area to Forward a Copy of Brockton. 354 Mass. 278, 280, 236 N.E.2d 919)
Said Petition to each City and Town in said Area'). which was enacted,of course,long prior**859 to the
This inserted(see fns.4, 5,supra,at point(A-1))the era of modem electric transmission lines.Edison con-
present second sentence of s 72 without making any tends not only that c. 143. s 3, was not intended to
clarifying change in the first sentence. Upon this en- permit town regulation of transmission lines,but also
en-
actment, the Attorney General (in behalf of the that Wayland and Sudbury under their town building
D.P.U.), in a helpful brief as amicus curiae, relies in
asking us to adhere to our views in the first Sudbury codes cannot regulate such lines under c. 143. s 3,in
the face of the large body of general State regulation
case. of such lines and the companies which maintain -
11 them R''-10
The legislative history is not conclusive." Even if
what is now s 72 was intended originally only to have j
4,sup See e.g.G.L. c. 164.ss. 8 72(see fn.
the limited effect for which Edison contends, in its I
4,supra),ands 76. See also c. 81,s 7D(in-
present form o is susceptible of the broader seed r a serted by St.1948, c. 449); c. 92, s 13 (as
ration.We recognize that the 1914 act was passed at amended through St.]950, c. 518,,s 2), as
time when there was less regulation of public utilities 43-47 (as amended); c. 132, s 34A (as
and land use,and prior to any modem zoning regula- amended through ed); 0, c.2, s c. (a
tion. To adopt the limited construction, however, s3 (as amended through St.1964, c.365);c.
would deny in some instances to the D.P.U. (apart 164. s 73 (as amended by St.1926, c. 257.G.L. . . ).
).
j
from any other regulatory powers which it may pos- Other relevant sections include GLc85
sess; see fn. 10) control over transmission lines, i
,
which it must exercise in any event if eminent do- 8 9; c. 166 ss 21 22, 28,each as amended.
Cf G.L. c. 166. ss 22A-22N inserted by
main or disregard of local zoning will be necessary,a - St.1969, c. 884, s 1, from which transmis-
control which strongly *418 tends to ensure protea- sion (as opposed.to distribution) lines are
tion of the public interest and which is within the excluded. See s 22A e . See also s 21F, in-
statutory language. A majority of this court hold(al- serted by St.1969, c.882. It should be noted
though Mr. Justice Reardon adheres to the different that by G.L. c. 164. s 76C, inserted by
I,
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St.1969,c.645,the D.P.U.has recently been Mass. 130, 145, 190 N.E.2d 545,that among factors
given broad power to establishrules and to be included were 'the safety of overhead wires.'
regulations consistent with c. 164. The At- The elements to be considered, in our opinion, also
tomey General's brief indicates that the include other aspects of safety such as a town in a
D.P.U. has in preparation safety regulations comprehensive building by-law might wish to apply
affecting transmission lines. The record re- to transmission lines. Section 72 permits the *420
veals no D.P.U. regulations under s 76C, or D.P.U. in taking action thereunder to prescribe rea-
earlier provisions of law, which affect the sonable conditions for the protection of the public
present issues. safety. Similar considerations would lead to like con-
clusions with respect to D.P.U. action under G.L. c.
[2]No short answer is to be found in G.L. c. 166. s 40A,s 10,and c. 166.s 28,as amended.
27.Section 25(as amended through St.1951,c.476,s
2)gives selectmen power to impose reasonable regu- 4 5 General Laws c. 143, s 3, has been broadly
lations for the *419 erection of all lines 'for the construed. Exceptions to s **860 3 have been inter-
transmission of electricity' with an exception not here preted strictly. See Slack v. Inspector of Bldgs. of
pertinent.1t is expressly directed that in cities regula- Town of Wellesley. 262 Mass. 404 406.407 160
tions 'shall be made by ordinance.' Section 27 pro- N.E. 285. See also M. Spinelli & Sons Co. Inc. v.
vides, 'No ordinance or regulation of a city or town, City of Cambridee. 306 Mass. 342, 343, 28 N.E.2d
or regulation or restriction imposed in a grant of loca- 240.Nevertheless,we think that s 3 was not intended
tion, affecting the erection, maintenance or operation to provide authority for local regulation of[he con-
. of a line for the transmission of electricity for light, struction of transmission lines, control over which
heat or power extending or intended to extend from has been so largely entrusted to the D.P.U. Cf. how-
some point in one city or town through or to some ever, Board of Assessors of Holyoke v. Stare Tax
point in another city or town, shall take effect until Comm.. 355 Mass. 223. --. --. 244 N.E.2d 287 U'.It
approved by the department of public utilities' (em- is plainly desirable that there be some uniformity in
phasis supplied). Sections 25 and 27 originally ap- the safety standards applicable to such lines which
peared in one section as St.1914, c. 742, s 132. The pass through more than one town or city and are of
sections, without explanation, were separated in the general regional or Statewide interest. Such uniform-
1921 recodification of the General Laws. -We think ity can hardly be achieved if the standards are left
that the word 'ordinance' in the first line of s 27 in solely to local building codes.The nature of the pub-
the light of the language of s 25 (originally the first lic need thus sheds some light upon the probable leg-
sentence of the 1914 statute, s 132),can refer only to islative intention behind s 3. We conclude, upon the
action by a city under s 25, that 'regulation' in that basis of these considerations, that the building by-
line refers only to regulations of selectmen made un- laws of Sudbury and Wayland can have no applies- j
der s 25, and that the word 'regulation' and the word tion to the proposed line or to its constituent electrical
'ordinance' in s 27 are not broad enough to include a transmission structures(as opposed to buildings of a
town building by-law which must be adopted by the type usually subject to building codes).
town in meeting and not merely by the selectmen.
The omission in s 27 of any reference to town action FNa.Mass.Adv.Sh.(1969) 133, 145-150.
by by-law may have been a legislative inadvertence,
but we must apply the statute as it reads in the light 3. The third issue is whether Edison already has suf-
of its legislative history. ficient permits and easements to allow it to construct
the proposed line across public ways which lie in its _
]_] In various respects [see fn. 10],the general regu- route. See G.L. c. 166. ss 21. 22 and 38. In the
lation of transmission lines, on a reasonably compre- - Framineham case, 355 Mass. 138, 143-144. 244
hensive basis, has been placed in the D.P.U. (and in N.E.2d 281. 285, we said that the decision did 'not
particular instances in other State bodies especially relieve Edison from * •* procuring such permissions �-
where State property may be affected). The D.P.U., as may be required under G.L. c. 166 before con- I
in granting a certificate of public convenience under strutting the new line' (citing the Concord case 355
c. 164. s 72, is to consider all aspects of the public Mass.79,242 N.E.2d 868).
interest. We made note in the Hamilton case. 346
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Edison states in its brief that it has sought review by
the D.P.U. of the Framingham selectmen's denial of There has been some D.P.U. action or discussion
Edison's petition to cross Speen Street (point X on concerning grants of locations on the proposed route
attached sketch map) and Cochituate Road (point W and later increases in the size of transmission lines.
on sketch map) at *421 new points because of a tak- For example, Edison in 1952 obtained (D.P.U.
ing by the Massachusetts Turnpike Authority. A peti- 10047) on D.P.U. review of the Wayland selectmen
tion to cross two new public ways in Wayland under G.L.c. 166.s 28,a location across Stonebridge
(sketch map, points BB and CC) is pending before Road (point AA on sketch map). *422 This was not
the Wayland selectmen. It will be observed from the expressly limited as to size of structures buy only as
map that various other street or road crossings lie to number of wires. 10-1951, in proceedings concern-
along the proposed route. As to these (except Stock ing portions of the present route, the D.P.U. men-
Farm Road in Sudbury)Edison at times between July tioned that it was 'important to Edison • " that its
14, 1941, and January 6, 1953, obtained various or- plans ' ' • be sufficiently elastic to rovide for(a)
ders for grants of locations. All these appear to be second circuit at some(future)time'Qr
identical in form although issued by the selectmen of
six separate towns (Medway, Holliston, Sherborn, FN12. D.P.U. No. 15192 preceded the
Natick, Framingham, and Sudbury). The inference Framingham case, 355 Mass. 138 244
thus is permissible that Edison prepared [hese forms, N.E.2d 281. At p. 9. of its opinion, the
the granting portion of each of which is set out in the
r^�i D.P.U.said of the proposed line in Sudbury, i
margin. It is agreed that (a) when the several 'Obviously * * • an additional transmission
boards of selectmen had these locations under con- line with structures about 45 feet higher than
sideration, 'Edison proposed to construct on the those now oecu in- the right of way does
change the character
g y
easement * " ' lines for * • " transmission of elec-
tricity at' 13.8 KV on single wooden poles and 115 ter of the right of way.On
KV on H-framewood poles and had not developed the other hand, it is quite clear any ef-
plan for construction on that route of any 230 KV sect upon the area coincided with th tit* con-
any *_
struc[ion of the original line
line on steel towers or otherwise, and (b) that no There is no additional divisive effect upon
wires in the 230 KV line will have a diameter which the town and any alleged effect upon prop-
exceeds by more than one-half an inch 861 the erty values had its greatest impact when the
diameter of the largest wire now used on the route. original right of way was obtained and the
line constructed. We do not believe that it is
FN 11. 'Whereas " • Edison * * * has peti- unreasonable for a prudent individual to an-
tioned for permission to erect' ' • a line for ticipate that once the lines and right of way
the transmission of electricity * • ` under had been established additional lines could
and across the public* ' * ways * * ' here- well be constructed in the future'
inafter specified, and notice has been given
and a hearing held* * *. It is ordered that • „ The towns contend that the locations issued from
* •Edison" " "be* * "granted permission 1941 to 1953 were given in contemplation of the e
to erect * * * and a location for such a line 8 r pro
of twenty-four wires, under and across the of transmission lines then proposed and Aid not pro-
following public * * * ways * * * (list). All vide, by a sort of licensing 'blank check;iica-
of said wires, of which three (3) are to be tion for the much larger structures now being
g built.
under and twenty-one (21) are to be above Edison argues (a) that such indefinitely exp phrased per-
ground, shall be located within a strip 250 mite must i taken to contemplate expansion of the
feet wide,the side lines of which are shown tyre of use immediately under discussion when the
implying
were issued;and(b)that there is no room for
on a plan made by_ _dated_ _ 19__on i �.
file with said petition. All such wires above mplying any restrictions not expressly imposed by a
r board of selectmen under c. 166. ss 21, 22and
ground shall be placed at a height of not less 27,'""or under s 28 by the D.P.U. ,
than twenty feet from the ground.' The fol-
" low the selectmen's signatures,a selectmen's FN 13. Chapter 166, s 22 (as amended
certificate of notice under G.L. c. 166. s 22,
and a certificate of the town clerk. through SL 1948, c. 550,s 36)provides that,
a e
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upon petition and after notice and hearing, construction at some time in the indefinite future of a
selectmen `may by order grant • * *a loca- 230 KV line on steel towers 110 to 160 feet high.No
tion(under or across a public way)for' * * doubt, a location, not expressed with precision, may
(a transmission) line, specifying where the be interpreted as permitting reasonable variations
poles, piers, or abutments * • • may be from, and replacements of, the particular structures
placed, and in respect to overhead lines may proposed or in contemplation at the time. The pro-
also specify the kind of poles, piers or abut- posed changes,however,seem to us to be substantial.
ments which may be used, the number of Any doubt concerning the locations we resolve in
wires or cables, which may be attached favor of the public and against the grantee and
thereto,and the height to which the wires or against any implication of relinquishment of public
cables may run.' Section 28 (as amended rights. See Rhyne,Municipal Law,509.The grants of
through St.19611 c. 466, provides that a locations, licenses in the public ways, by the select-
company 'desiring to construct a(transmis- men acting as agents of the Commonwealth (see -
sion) line * * * which will of necessity pass Carroll v.Cambridge Elec. Licht Co., 312 Mass 89
through one or more cities or towns " • " 93,43 N.E.2d 340)must be within the authority, rea-
whose petition for the location necessary for sonably construed,granted by L22, the enabling stat-
such line has been refused, or has not been ute (see.New England Tel. & Tel. Co. v. City of
granted " ' ' may apply to * " * (the Brockton. 332 Mass.662.664-665. 127 N E2d 301)
D.P.U.) for such location.' After notice and At least in the absence of a clear indication to the
hearing, the D.P.U. is given the following contrary in the order,exercise of that authority should �.
powers: 'If it appears' * *that the company be viewed in relation to the line under discussion
has already been granted and has accepted a • when the order was passed. See Jennison v. Walker,
location for such line in two cities or in two 1 I Gray,423,426427 See also Chandler v.Jamaica
towns, or in a city and town adjoining the Pond Aqueduct Corp., 125 Mass. 544 550. Cf.
city or town because of the refusal or neglect Marsh v. Haverhill Aqueduct Co.. 134 Mass 106.
of whose • * " selectmen to grant a location 108 (right to enlarge buried pipe 'to any reasonable
therefor the application is made, or if it ap- -extent which would not injure the (servient) land-
pears * * * that the company has already owners'); Naumkeag Steam Cotton Co. v. American
been granted and has accepted locations for Glue Co..244 Mass. 506.508-509, 139 N.E.296.Cf.
such line in a majority of the* * *towns* * also *424Randall v. Grant. 210 Mass 302, 304. 96
* through which such line will pass, and if N.G.672:Codman v. Wills.331 Mass. 154, 158. 118
the department deems the location necessary N.E.2d 94: Deacv v. Berberian. 344 Mass 321.327-
for public convenience,and in the public in- 328. 182 N.E.2d 514. The selectmen have opportu-
terest, it may by order grant a location for nity reasonably to consider, in the light of the sub-
such line * * * and shall have and exercise stantial changes in the line now proposed, whether t
relative thereto the same powers and author- using the location for the new line will surcharge the
ity conferred by " " " (LM upon the " * * easement and will `incommode' the public use of the
selectmen and in addition to the provisions ways which Edison proposes to cross. See the '
of law governing such company may impose Concord case. 355 Mass. 79, 87-93, 242 N.E.2d 868
such other terms,limitations and restrictions .See also Hewitt v. Perry, 309 Mass 100, 105. 34
as it deems public interest may require.; N.E.2d 489:Jasper v. Worcester Spinning & Finish-
ing Co., 318 Mass. 752. 761-762. 64 N.E.2d 89�
*423 r6lr7lr8l[91 Under the somewhat vague lan- Restatement: Property, ss 471, 482-484, Am. Law of -
guage of ss 21,22,27, and 28,we think that the loca- Property, s 8.66; Powell, Real Property,ss 407, 415.
tions therein mentioned are granted in relation to, We hold that, for the subtantially increased size of
and refer to substantially the particular type and line now proposed, Edison must obtain locations un-
magnitude of transmission line and of construction der,G.L.c. 166.ss 21,22,27,and 28,as amended.
discussed when application is made to the selectmen.
It cannot be inferred,**862 when selectmen consider 1`101 Under s 28 [as amended by St.1961,c.4661 giv-
and grant a request for a location of a 115 KV line on ing to the D.P.U. power, in specified circumstances, -
H-frame wood poles sixty-five feet to eighty feet to review the selectmen's actions in refusing a Iota-
high,that thereby they are granting a location for the tion for a line, the D.P.U.`s jurisdiction to act de-
i
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pends upon whether Edison has received locations in ing permits in Framingham and Wayland does not !
other communities for the proposed transmission line preclude all further construction in those lawns. We
in accordance with the provisions of that section agree with the contention that G.L. c. 166 ss 21 and
quoted above (fn. 13). Here Edison, for its existing 22, deal with construction upon, along, under, and
lines,has such locations to cross ways except as to a across public ways and not with construction else-
few ways concerning which special mention already where. The last clause of G.L.c. 164, s 72(see point
has been made. The question thus arises whether the H, fn. 4) prohibits merely transmission of electricity
D.P.U.'s jurisdiction under s 28 depends upon the over any land, right of way, or other easement taken
necessary number of local grants of locations for the by eminent domain until rights in town ways are ob.
new expanded structures as well as for the original tained. We bold that this does not prevent continued
line. We think that it does. If this makes construction construction of the proposed line until such rights are
impracticable in the circumstances, or if local au- granted. The injunction of August 6, 1969, is to be
thorities unreasonably put local considerations above dissolved. Construction may continue if Edison is
regional and Statewide needs for additional electric prepared to take the risks of later.disapprovals. See
power,then revision of s28 or other statutory change the second Sudbury case 351 Mass. 214, 224, 2l8
must be sought from the Legislature. The present N.E.2d 415,
statutes may well be inadequate to deal with the prob-
lems arising from the rapid development of transmis- 6. What has been said, we think, sufficiently deals
sion lines and from the conflicts between local inter- with•426 the issues presented by the reservation and
ests and broader public interests.The Legislature,if it report. It enables the parties to make appropriate de-
is disposed to do so, may increase the powers given terminations concerning future proceedings affecting
to the D.P.U.by s 28 to revise local action. the proposed line and the areas in which it will be
necessary or desirable to seek legislative clarification
`425 4. Stock Farm Road in Sudbury was laid out by or change of pertinent statutes.
the selectmen on February 20, '•863 and the town
voted to accept it as a town way on March 12, 1958. 7, The case is remanded to the county court for fur-
`There is no evidence of record ' " • that the(t)own ther proceedings consistent with this opinion.
owned . . . any . • • rights in Stock Farm Road on
March 12' or acquired any within thirty days after the So ordered.
end of the 1958 town meeting. The road 'has been - r
open for public use and used' • • for over fifty years
and has been kept in repair by the town for over Mass. 1969. [.
twenty-five years. Boston Edison Co.v.Town of Sudbury
356 Mass.406,253 N.E.2d 850
11 I It docs not affirmatively appear whether, in the
efforts to lay out Stock Farm Road, there was com- END OF DOCUMENT
pliance with the procedural requirements of G.L. c.
82.ss 21-23. See Suburban Land Co. v.Town of Bil-
lerica. 314 Mass. 184, 191-194, 49 N.E.2d 102, 147 -
A.L.R. 660. It also does not clearly appear whether it '
was 'necessary to acquire land for' this way under s
24 (as amended through St.1958, c. 240). Whatever -
may be the situation of the town in relation to owners
of land who may have been damaged by the laying
out of the road,or persons injured on the road assert-
ing rights under G.L.c. 84 ss 15 and 25,as amended,
we think that it,within the meaning of G.L. c. 166.ss - -
21,22 25, and 28,should be treated as a public way
on this record.
I
f 1215. Edison argues that the absence of street cross-
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a. '
✓' AS,
�a��.�ac�iu,.se��.�
�s1ia�p1&ew1 a1pJ'��u aic W X4eu
7a� U,a"4"�q, JlfBrl — X,9// :7',
(617)737-3900
October 31, 1989
Lawson Williams, Esq. - -
Gardner 6 Brown
42 West Main Street
P.O. Box 372
Ayer, .Massachusetts 01432
RE: Request for Advisory Opinion
Dear Mr. Williams:
I
Your letter of October 10, 1989, asks the Department of
Public Utilities ( "Department") to render an opinion whether the
Department's own engineering review of transmission lines and
related facilities under G.L. c. 164, sec. 72, '"may be deemed -
sufficient by the local building inspector so as to relieve him
of his obligations for technical inspection and building permit
responsibilities in a manner similar to the release that is
provided for under the certification provisions of" 780 C.M.R. -
108.5 and 111.2.1. We have also received a letter, dated
October 11, 1989, from Mark E. Slade, counsel to the New England
Power Service Company ( "NEPSCo"), arguing that building
inspectors do not have authority, to enforce building codes in i
the case of utility construction subject to Section 72. We
understand that your request stems from a dispute, currently
under litigation, between the building inspector of the Town of i
Ayer, which you represent as town counsel, and NEPSCo. This
dispute arose, we further understand, when the local building
inspector caused a summons and complaint to be served upon a
NEPSCO employee for commencing certain work without first
obtaining 'a building permit from the town.
Boston Edison Company v. Town of Sudbury, 356 Mass. 406, 420
(1969), cited in your letter, examines legislative intent
concerning the place, if any, for local regulation of
transmission lines and "conclude[s7 . .that the building
by-laws" of a town "can have no application" to electric
transmission lines- and their constituent structures, other than
buildings usually subject to building codes. in 1983, the Court
reaffirmed the conclusion of the Sudbury case in New England
r I.
Page 2
Power Company v. Hoard of Selectmen of 'Amesbury, 389 Mass. 69.
As we read these decisions, the Court views the General Court's
delegation to the Department of general regulatory authority
over transmission facilities as an exclusive grant.
You point out that the building codes at issue in the
Sudbury case were local codes, whereas the State building code
Ayer's inspector proposes to enforce is a statewide code and
thus not subject to the argument that its enforcement would lead
to the balkanization feared by the Sudbury court. In both
Sudbury and Amesbury, however, the Court discussed the ;
legislature's intent to grant affirmative transmission safety _
regulation to the Department, not merely its intent to prevent
proliferation of local, potentially inconsistent standards.
Sudbury, 356 Mass. at 419-420; Amesbury, 389 Mass. at 77-78.
Moreover, local inspection, even when based on a statewide code,
has a strong potential for inconsistent and conflicting
application. The Department's opinion is that, given the
Legislature's express grants of authority, it alone may
determine transmission safety concerns.
This opinion is consistent with its concurrence in the
exercise of inspection authority by local wiring inspectors
under G.L. c. 166, sec. 32. See, Petitions of the Inspector of
Wires of the Town of Amherst, D.P.U. 87-146/147 ( 1989). Joint -
enforcement authority over wiring arises from statute, and the
statutory scheme provides a crucial distinction from the claim -
at issue in your dispute with NEPSCo. Section 32 provides for
an appeal of a wiring inspector's decisions to the Department.
The Department's paramount role in supervising electric
distribution is thereby preserved. In the absence of a
statutory appellate mechanism at the administrative level, a
local building inspector's interpretation of the local or state
building codes would not be subject to Department review. An
electric company could well find itself subject to conflicting
requirements levied by the local building inspector and the
Department. This outcome would. clash with the Legislature's
intent as determined by the Court. -see also Opinion of the
Attorney General, April 13, 1979. I,
i
Effective January 1, 1978, the Department exercised its i.
authority over installation, maintenance, and safety of
transmission lines through 220 C.M.R. 125.00 and 126.00. While,
on their face, these rules do not purport to exercise the full
scope of the Department's authority in this area, see 220 C.M.R.
125.11, the rules nonetheless represent the extent to which the
Department, consistent with its means of enforcement, has
exercised its legislative grant of authority.
Page 3
We hope that this letter will be of service to you in
advising your client. Thank you for calling the matter to our
attention.
Since rskyyours',,'
Bernice K. McInty Chairman '
Robert N.
WYerlin, Commissioner
Susan F. Tiert I li Commissic r
cc: Mary Cottrell, Secretary
Mark E. Slade, Esq. , NEPSC -
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NewEngland Power Service °�„m.,,,u,�mgg
.. ret Roe)assam,
Mark E.Slade
' 9arila Aamrrty .
October 11, 1989
Ms. Nancy Brockway, Esq.
General Counsel
Department of Public Utilities
100 Cambridge .Street
Boston, MA 02202 '
Dear Nancy:. _
We spoke on the telephone last week regarding whether
building permits are needed for certain work in substations.
This issue is the subject of a dispute between New England
Power company and the Town of Ayer. When we spoke, you
indicated that the Ayer Town Counsel had requested an opinion
from you on this question and you agreed to provide me the
opportunity to explain our position prior to your rendering an
opinion. Our position and analysis is set -out below.
Under existing Massachusetts law, it has been our
understanding that construction of foundations and structures
to support electrical equipment for transmission lines or in
substations does not require local building permits under the
Massachusetts Building Code ("MHC," 780 CMR 100 et seg.) .
However, we do assume that construction of buildings, e.g.
control houses, storage buildings, etc. , that may be associated
with electrical transmission facilities, does require a local
building permit. Although there are several avenues of
analysis that lead to these conclusions, the overriding
consideration is that the Department of Public Utilities
("Department") has been legislatively provided comprehensive
authority over the construction and safety of transmission
lines and ancillary electrical facilities.
The existing case law leaves no doubt that local regulation ,
of the construction and safety of transmission lines is
prohibited. nes*on Edison Co. _v._ Sudh_nrv, 356 Mass. 406, 420,
New England Power Co v. Amesbury, 385 Mass. 609, 76-78.
Although the case law is not as well developed for substations,
there are several reasons to assume that the same broad
authority extends to substations. First, the Department's
broad authority to authorize and regulate the construction of
transmission lines rings hollow if local permitting authority
applies to substations. A transmission line is useless if it
A Nero England Ele is Syalem coffPUW
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4
can be deprived of its terminating substations that are
necessary to control and transform the electricity to voltages
suitable for distribution and consumption. unless the
Department's comprehensive authority extends to substations, it
cannot fulfill its role of insuring that transmission lines are
constructed so as to benefit the greater interest of the entire -
state, and not depend upon local preferences.
Further, the Department routinely handles petitions for
zoning exemptions for substation sites pursuant to M.G.L.
c. 40A § 3. This further demonstrates that the legislature
intended that the Department, not municipalities, have control
over the siting and construction of substations. In the past,
the Department has engaged in a broad review of all aspects of
a proposed project when hearing a petition for zoning
exemptions.. $P,E. e.g. Framingham v. DPD, 355 Mass- 138, 146-7.
The discretion afforded a municipality in the building permit
process could result in local decisions regarding construction
and placement of equipment which are inconsistent with a
Department order on the same project.
Second, the Department has promulgated regulations for the
construction of overhead transmission lines. [220 CMR 125 et
seq.] .while these regulations do not specifically address
substations, many of their provisions are fully applicable to ...
substation structures. including terminating structure strength,
foundations, etc. These regulations more closely address
questions of substation design and construction than the MBC
which contains no specific requirements for transmission line
or substation structures. -If a building permit was required for substation
construction, the lack of relevant standards in the MBC would
likely result in it being handled under the "Controlled
Construction' provisions of the MBC. Controlled Construction _ I_
basically looks to a Registered Professional Engineer's f
Certification for assurance that the project was properly
constructed. [780 CMR 127 et seg.] The purpose of this
provision is to accommodate construction of specialized
structures, which are outside the field of knowledge of the
local building inspector. As all our companies, transmission
and substation construction is carried out under the auspices -
of a registered professional engineer, it is unlikely that
handling transmission line and substation construction outside
of the MBC and the local inspection procedures will eliminate
any construction inspections that would otherwise take place, j
i
Finally, we note that the position that buildingpermits
are not necessary for foundations. and structures for electrical t
equipment is not inconsistent with the MBC. The Massachusetts
State Electric Code is expressly incorporated into.the MBC
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4
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in MHC § 100.5 and Appendix P. The Massachusetts State
Electrical Code clearly excludes 'Installations under the
exclusive control of electric utilities for the purpose of ,
. . . transformation, transmission and distribution of electric
energy . . '
For your reference, I am also enclosing a copy of a recent
New Hampshire Superior Court decision in which a similar
question was presented. in this decision, the court found that
the comprehensive state licensing process preempted local
requirements for building permits.
,
if I may be of further assistance in this matter, please do
not hesitate to contact me. -
Sincerely yours,,
r
bcc : ) .-Zcz Mark E. Slade
MES:hmg
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