Agenda - Planning Commission - 07/12/2012

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May 25, 2012 Volume 6 1 No. 10 Zoning Bulletin local zoning under Mass. Gen. L. c. 40A, § 3, satisfied the WPA's require- ment that applicants seek all obtainable local perrnits and approvals when fil- ing a NOI with the local conservation commission (Mass. Gen. L. c. 131, § 40). The Commission appealed to superior court. The superior court judge af- firmed the DEP's decision. The judge found that the exemption process under Mass. Gen. L. c. 40A, § 3, relieved Brockton Power of the WPA obligation to apply for or obtain local zoning approval. The Commission again appealed. DECISION: Affirmed. The Appeals Court of Massachusetts held that public service corporations can request local zoning exemption from the DPU prior to filing a NOI under the WPA. In other words, a utility company's application for exemption from local zoning under Mass. Gen. L. c. 40A, § 3 satisfies the WPA's requirement that applicants seek all obtainable local permits and approvals when filing a notice of intent with the local conservation commission. The Commission had argued that allowing the filing of an NOI before a utility had sought all possible local zoning approvals effectively eliminated any role for local conservation commissions in the over-all approval process. The court disagreed. The court found that DEP's decision "harmonized" and "reconcile[d]" the two statutes (Mass. Gen. L. c. 40A, § 3 and Mass. Gen. L. c. 131, § 40) and "fulfil[led] the statutory purpose of both." The court said that under that interpretation, the exemption process would go forward at the DPU, while the local conservation commission acted on the NOI. Otherwise, found the court, the purpose of the exemption for public service corpora- tions —"to assure utilities' ability to carry out their obligations to serve the public when [that] duty conflicts with local interest" would be frustrated if public service corporations were required to apply for site plan approval at the same time they sought an exemption from it. See also: New England Legal Foundation v. City of Boston, 423 Mass. 602, 670 N.E.2d 152 (1996). Case Note: The Commission had also denied approval of Brockton Power's project because they found the NOI contained insufficient information in that Brockton Power did not de- scribe the impact of the project's use of the Brockton advanced waste water reclama- tion facility ("Brockton Water'). The court determined that Brockton Power was not required to include in its NOI an accounting of water purchased from Brockton Water since Brockton Power's purchase of water was not "work" pursuant to the WPA. Rather, Brockton Water's sale of the water, not Brockton Power's purchase of the wa- ter, was the "work" that had the potential to affect the wetland. 4 © 2012 Thomson Reuters