1986-1999-ZONING BY-LAWS (2) - Laserfiche WebLink

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l 1 � utility give written notice, a month in advance, obtain"certification," and comply with conditions, is inconsistent with expressed state policy to regulate such utilities uniformly. The state policy requiring uniform treatment of utilities has recently been upheld in two slightly different contexts in Boston Gas Company v. Somerville, 420 Mass. 702, 704 (1995), R; and Planning Board of Braintree v. Department of Public Utilities, 420 Mass. 22,27 (1995). Last summer the Supreme Judicial Court held that a Somerville ordinance --requiring utilities to comply with various local requirements before opening streets to make repairs --was preempted "because legislation on the subject is so comprehensive that any local enactment would frustrate the statute's [G.L. c. 164's] purpose." Boston Gas Co. v. City of Somerville; Bloom v. , Worcester, 363 Mass. 136, 155-60 (1973). The Court found that the ordinance was inconsistent , with"a`least-cost' strategy to repair the excavation site"under G.L. c. 164, § 70, determining r that c. 164 is a comprehensive whole. Somerville, 420 Mass. at 704-05. Allowing municipalities to prevent the repair of existing utility lines would frustrate a similarly clear state policy in the Wetlands Protection Act. Frustration of purpose must be examined on a case by case basis, depending on the nature of the statute in question and the powers sought to be exercised by the town. Bloom v. Worcester, 363 Mass. at 158: Here, Mashpee seeks to regulate exactly that which the statute allows utilities to do without regulation throughout Massachusetts. The statute allows utilities to repair existing utility facilities "without filing written notice .-. ..and without receiving and complying with an order of conditions." By contrast;Mashpee's proposed by-law would require "written notice . . . one month [in advance j and] written certification that the work conforms to performance standards . . . [which] j certification may include conditions." { Both the Commonwealth's basic public utility statutes, which Boston Gas determined to be comprehensive, and the basic Massachusetts zoning statute, G.L. c. 4OA, § 3, which allows public service corporations to obtain exemptions from the operation of a local zoning by-law `upon petition . . . [if] the department of public utilities shall . . . determine that the present or proposed use of the land or structure is reasonably necessary for the convenience or welfare of the public,"reinforce the expression of state purpose found in the Wetlands Protection Act. The Supreme Judicial Court found, in a review of c. 164,that the [municipality] cannot use its limited authority to enact an ordinance which has the practical effect of frustrating the fundamental State orm and efficient utility services to the public." Boston Gas, 420 Mass. at Policy of ensuring unif ' 706. In regard to the zoning exemption,the Supreme Judicial Court recently stated:"The zoning exemption available under G.L. c. 4OA, § 3, is intended to assure utilities' ability to carry out their obligation to serve the public when this duty conflicts with local interests." Planning Board of Braintree v Department of Public Utilities, 420 Mass. at 27.2 The language in G.L. c. 131, I� 2 Although the Legislature gives municipalities a limited role in regulating public service corporations in the zoning context, it does so only with a provision allowing for state i review and exemption from local regulation. The absence of such a provision for state oversight i i 3 b i I i 'I.