Agenda - Planning Commission - 07/12/2012

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Zoning Bulletin May 25, 2012 I Volume 6 I No. 10 Citation: Conservation Com'n of Brockton v. Department of Environmental Protection, 81 Mass. App. Ct. 601, 2012 WL 1320214 (2012) MASSACHUSETTS (04/19/12)—This case addressed the issue of whether public service corporations (e.g., utility companies) can request local zoning exemption from the Department of Public Utilities (as provided by Mas- sachusetts statutory law) prior to filing a notice of intent required under the state's Wetlands Protection Act. In other words, does a utility company's ap- plication for exemption from local zoning under Mass. Gen. L. c. 40A, § 3 satisfy the state Wetlands Protection Act requirement that applicants seek all obtainable local permits and approvals when filing a notice of intent with the local conservation commission? The Background/Facts: Brockton Power Company, LLC ("Brockton Power") proposed to construct a 350 megawatt power plant (the "plant"). The plant was to be located in the city of Brockton (the "City"). Part of the plant was to be within 100 feet of vegetated wetlands bordering the Salisbury Plain River. The state Wetlands Protection Act ("WPA") prohibits certain activities that would alter wetlands in the absence of a wetlands permit. (Mass. Gen. L. c. 131, § 40.) The WPA provides that a person desiring to perform "work" within the 100-foot area surrounding wetlands (the "buffer zone") that would alter the wetlands may be required to file a notice of intent ("NOI") with the local conservation commission and obtain a permit, known as an order of conditions. (Mass. Gen. L. c. 131, § 40; 310 Code Mass. Regs. § 10.02(2)(b).) Because part of Brockton Power's project would fall within a buffer zone, Brockton Power filed an NOI with Brockton's Conservation Commission (the "Comrission").Brockton Power also applied to the state Department of Pub- lic Utilities ("DPU") for an exemption from the City's relevant zoning restric- tions, pursuant to Massachusetts statutory law —Mass. Gen. L. c. 40A, § 3. That statute provides that public service corporations may seek and obtain from the DPU exemption from the zoning ordinance or by-law "reasonably necessary for the convenience or welfare of the public." The Commission, in addressing Brockton Power's NOI, denied Brockton Power's request for approval of the project. Among other things, the Commis- sion found that Brockton Power failed to apply for local zoning approvals as required by state regulations-310 Code Mass. Regs. § 10.05(4)(e)-(f). Those regulations provide that, prior to filing an NOI, an applicant must apply for "all permits, variances and approvals required by local bylaw with respect to the proposed activity" that are "feasible to obtain." Brockton Power appealed the Commission's decision to the state Depart- ment of Environmental Protection's ("DEP") Bureau of Resource Protection ("BRP"). The BRP overruled the Commission's decision and issued a super- seding order of conditions. The Commission again appealed under DEP adjudicatory procedures. The DEP upheld the superseding order of conditions. Among other things, the DEP found that Brockton Power was not required to apply for or obtain site plan approval from the local boards before filing an NOI with the Commission. The DEP determined that Brockton Power's application for exemption from ©2012 Thomson Reuters 3