Somerville Mass Code of Ordinances Ch 7 Art V 1989
BOSTON GAS COMPANY vs. City OF SOMERVILLE.
420 Mass. 702
May 2, 1995 - June 28, 1995
Suffolk County
Present: LIACOS, C.J., LYNCH, O'CONNOR, & GREANEY, JJ.
A municipal ordinance that attempted to regulate street earthworks past public utilities was invalid under the Home Rule Amendment (art. 89, Department half-dozen, of the Amendments to the Massachusetts Constitution), equally it conflicted with and was therefore inconsistent with G. 50. c. 164, the comprehensive public utility regulatory scheme that was intended to preempt local legislation in that expanse. [703-706]
Civil Activity commenced in the Superior Court Section on Feb 4, 1994.
The case was heard past Margaret R. Hinkle, J., on motions for summary judgment.
The Supreme Judicial Court granted an application for direct appellate review.
Steven W. Phillips for the plaintiff.
Charles F. Haverty, Three, Assistant Metropolis Solicitor, for the defendant.
The following submitted briefs for amici curiae:
Scott Harshbarger, Attorney General, Edmund J. Sullivan, Banana Attorney General, & Dorian C. Mead, for Department of Public Utilities.
Patrick Westward. Hanifin & Stephen South. Ostrach, for New England Legal Foundation.
Paul K. Connolly, Jr., & Eileen M. Fava, for Massachusetts Natural Gas Council.
LYNCH, J. The plaintiff's complaint for declaratory relief pursuant to G. L. c. 231A (1992 ed.), challenges the constitutionality
Page 703
of Section 12-20 of the Somerville Code of Ordinances (ordinance). [Annotation 1] After a guess in the Superior Courtroom denied the plaintiff's request for a preliminary injunction prohibiting enforcement of the ordinance, the parties filed cantankerous motions for summary judgment. The judge allowed the urban center of Somerville's (defendant'due south) movement for summary judgment, and the plaintiff appealed. A single justice of the Appeals Court, pursuant to 1000. L. c. 231, Section 118 (1992 ed.), enjoined the defendant from enforcing the ordinance pending appeal. We granted the plaintiff's application for direct appellate review.
The plaintiff contends that the ordinance is invalid under Section 6 of art. 89 of the Amendments to the Massachusetts Constitution (Abode Dominion Subpoena), because it is inconsistent with G. L. c. 164 (1992 ed.), the State'southward regulatory scheme for public utilities. [Notation 2] We hold. Municipalities may not adopt by-laws or ordinances that are inconsistent with State laws. See American Motorcyclist Ass'due north v. Park Comm'northward of Brockton, 412 Mass. 753 , 756 (1992) (invalidating local regulation banning use of motorcycles because regulation inconsistent with statute giving person right to operate motor vehicle); New England Tel. & Tel. Co. v. Lowell, 369 Mass. 831 , 834-835 (1976) (invalidating ordinance requiring registered land
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surveyors and professional engineers contrary to statute exempting engineers subject to Department of Public Utilities regulations from registration requirements); Del Duca v. Town Adm'r of Methuen, 368 Mass. ane , 9 (1975) (holding ordinance facially inconsistent with statute and therefore void). See also art. 89, Section 6; G. L. c. 43B, Section 13 (1992 ed.). To determine whether a local ordinance is inconsistent with a statute, this courtroom has looked to see whether there was either an express legislative intent to forbid local activeness on the same subject or whether the local regulation would somehow frustrate the purpose of the statute so as to warrant an inference that the Legislature intended to preempt the subject. Bloom v. Worcester, 363 Mass. 136 , 155-156 (1973). Moreover, in some circumstances we tin can infer that the Legislature intended to preempt the field because legislation on the subject is and so comprehensive that whatever local enactment would frustrate the statute's purpose. Wendell v. Attorney Gen., 394 Mass. 518 , 527-528 (1985). Come across also New England Tel. & Tel. Co. 5. Lowell, supra (intent to preempt inferred from comprehensive legislative scheme).
The manufacture and sale of gas and electricity past public utilities is governed by Chiliad. 50. c. 164. Given the comprehensive nature of this statute, we conclude that the Legislature intended to preempt local entities from enacting legislation in this expanse. Run into Boston Edison Co. v. Boston, 390 Mass. 772 , 774 (1984) (recognizing comprehensiveness of G. 50. c. 164). Furthermore, the ordinance is inconsistent with detail provisions of the statute and the regulations of the Department of Public Utilities (section).
When the plaintiff excavates a street to work on its underground gas distribution facilities or to provide gas service to the general public, the department mandates that the plaintiff utilize a "least-price" strategy to repair the earthworks site including the utilise of competitive behest procedures. Encounter D.P.U. 93-threescore at 232-233 (1993). Run across also D.P.U. 92-210 at 196 (1993). However, because of the ordinance the plaintiff must hire a "metropolis contract representative," selected by the defendant, to provide patching, paving, and repair services at
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specified rates which, the plaintiff contends, exceed the rates it previously obtained with competitive bidding. [Note 3] The ordinance also requires the plaintiff to use certain materials and paving techniques, such equally infrared paving methods. [Note iv] Moreover, under the ordinance, the plaintiff's responsibleness for the excavation site continues for three years across the final infrared handling, fifty-fifty though G. L. c. 164, Section lxx, does not crave the plaintiff to maintain the street afterwards the excavation site has been repaired. [Note 5] General Laws c. 164, Section 70, on the other hand, only requires the plaintiff to render an excavation site back to its original condition. See Wendell five. Attorney Gen., supra at 528 (holding past-constabulary inconsistent considering imposed conditions across those established by statute and exceeded boondocks board of health authority). Because the ordinance conflicts with the statutory scheme for regulating public utilities, we conclude that information technology is inconsistent with c. 164 and therefore invalid. Meet New England Tel. & Tel. Co. 5. Lowell, supra at 834 (discussing desirability of uniform utility regulation).
Finally, although the accused argues that G. Fifty. c. 164, Department 75, [Note half dozen] gives it the say-so to regulate in this area, we conclude
Page 706
that the defendant cannot use its limited authority to enact an ordinance which has the applied effect of frustrating the key State policy of ensuring uniform and efficient utility services to the public. See New England Tel. & Tel. Co. v. Lowell, supra at 833, 835 (belongings ordinance invalid despite city's statutory say-so to establish reasonable regulations for welfare of citizens).
The judgment of the Superior Court is vacated. The instance is remanded for the entry of a judgment declaring that Section 12-20 of the Somerville Code of Ordinances is invalid.
So ordered.
FOOTNOTES
[Note 1] This ordinance is entitled "Asphalt street and sidewalk openings" and governs all aspects of street excavations in Somerville including: (1) the applicable fees, deposits, performance bonds and fines required for each street opening permit granted; (2) the required highway department notification procedures; (3) the required procedures for excavating, backfilling, patching, paving and barricading of excavation sites; and (iv) the financial responsibilities and billing procedures required for permittees.
[Note 2] The Dwelling house Dominion Amendment states "[a]ny urban center or town may, past the adoption, amendment, or repeal of local ordinances or past-laws, exercise any ability or function which the general court has ability to confer upon it, which is not inconsistent with the constitution or police force enacted by the full general courtroom . . ." (emphasis added). Art. 89, Section 6, of the Amendments to the Massachusetts Constitution. The plaintiff also contends that this ordinance violates Section 7 of the Dwelling house Rule Amendment because it imposes a taxation on the plaintiff. However, this contention was non raised below and may not exist raised for the first time on entreatment. Guardianship of Doe, 411 Mass. 512 , 513 n.two, cert. denied sub nom. Doe v. Gross, 503 U.South. 950 (1992). Moreover, because nosotros conclude the ordinance to be invalid for other reasons, nosotros demand not address this argument.
[Note iii] It appears that, at the nowadays time, simply 1 paving contractor has the "qualifications" necessary to provide paving services nether the ordinance. It is also noteworthy that this same contractor was involved in drafting the ordinance.
[Note 4] Regardless, Section 8 of the ordinance states that, "[a]fter a proper settling menstruum, the excavating shall be infra-scarlet heat treated by the contract representative of the metropolis. This work shall be the financial obligation of the permittee." Moreover, Section 10 of the ordinance provides that "[a]ll street excavations shall be made permanent by the infra-ruddy rut process and will be the financial responsibility of the permittee."
[Notation 5] Full general Laws c. 164, Section 70, provides in pertinent part that "[a] gas company may, with the written consent of the aldermen or the selectmen, dig upwards and open up the footing in any of the streets, lanes and highways of a town. . . . Information technology shall put all such streets, lanes and highways in equally adept repair as they were in when opened." Nevertheless, Section eleven of the ordinance provides that "[t]he installation of permanent patch does not convalesce the permittee from the responsibleness for trench settlement for a menses of three (3) years from the date of the last infra-red permanent repair . . . ."
[Annotation six] General Laws c. 164, Section 75, provides: "The aldermen or selectmen may regulate, restrict and control all acts and doings of a corporation subject to this chapter which may in whatsoever manner bear upon the health, safety, convenience or property of the inhabitants of their towns."
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