NEW YORK CENTRAL RAILROAD COMPANY vs. DEPARTMENT OF PUBLIC UTILITIES & another.

CUTTER, J. This is an appeal under G. L. c. 25, Section 5, as amended, from a decision of the department denying (with two commissioners dissenting) the railroad's petition (filed August 26, 1963) for an exemption of certain land from the operation of the Framingham zoning by-law. See G. L. c. 40A, Section 10. [Note 1] The town has been permitted to intervene.

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The railroad desires to use the land for parking automobiles, prior to their distribution, after they have been unloaded from railroad cars. Adjacent land is now similarly used and is also used for automobile unloading facilities. A plan based upon exhibits in evidence appears below. The particular

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land (marked Fitts land and Temple land) for which exemption is sought (the locus) lies in an area zoned for general residence use between (1) a north-south boundary separating the residence zone from an industrial zone and (2) Hollis Street. The westerly boundary of the locus (near Hollis Street) and its northerly boundary (near Andrews Street) and its southerly boundary are shown on the annexed plan by a heavy black line. Certain land in the adjacent industrial zone to the east would also be used for automobile parking, if the exemption is granted, in addition to land in the industrial area now so used. All the proposed parking area and unloading facilities are owned by the railroad and lie to the west of the railroad's Milford branch, not far south of the junction of that branch with the main railroad line between Albany and Boston.

Hearings before the department were held in Boston and in Framingham. The commissioners took a view. The department on October 21, 1963, issued an order denying the railroad's petition in which the majority concluded that they were "not persuaded that the public generally will receive any benefit from . . . [the proposed] development." The majority found the following facts: "The railroad here seeks an exemption of . . . approximately ten acres of land now zoned for general residence. The land is bounded on the north by Andrews Street, on the west by Hollis Street and land along Hollis Street, and on the east by land of the railroad zoned for industry. The easterly boundary of the locus is 300 feet west of the Milford Branch of the railroad. Between the branch and the locus lies the railroad land which is zoned for industry. At the present time, part of the industrially zoned land is used as an unloading and storage point for automobiles hauled by rail into Framingham for further distribution over the highways to automobile dealers in the area." The majority then summarized certain railroad testimony in terms set out in the margin [Note 2]

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without otherwise making subsidiary findings of fact based upon that evidence. The majority went on to say, "The issue before us is whether the proposed use is reasonably necessary for the convenience or welfare of the public. The burden of proof is on the railroad to demonstrate that the public convenience or welfare will be served by the proposed use. We may not ignore the fact that . . . Framingham has zoned the locus as a general residence district, and an exemption should be granted only on the basis of a preponderance of evidence that the public convenience or welfare would be better served if the zoning by-law were not enforced . . .." The majority then came to the conclusion already quoted. [Note 3]

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1. This court has had slight occasion to discuss c. 40A, Section 10 (see fn. 1), except in limited respects in Wenham v. Department of Pub. Util. 333 Mass. 15, 17. There the department had granted to a gas company exemption from a town zoning by-law for a gatehouse. This was to contain apparatus reducing the pressure of gas to be taken from a high pressure pipe line for local distribution. This court said that in "determining whether a present or proposed situation is `reasonably necessary for the convenience or welfare of the public' it is immaterial whether the location has been acquired by eminent domain or by purchase," and also "that c. 40A, Section 10, does not require that the proposed situation be, in the opinion of the department, the best possible one but requires only that it be `reasonably necessary for the convenience or welfare of the public.'" This court also said "that the availability of other sites and the efforts made to secure them, in so far as . . . pertinent at all, are merely matters of fact bearing upon the main question." It was not necessary in the Wenham case to state the considerations which should guide the department in determining what is "reasonably necessary for the convenience or welfare of the public." Accordingly we must turn for guidance to cases interpreting comparable statutes.

Newton v. Department of Pub. Util. 339 Mass. 535, 546, dealt with the extent of the obligation of this same railroad to continue to provide service because of the "interests of public convenience." We there discussed the "standard of public convenience and necessity," which is closely similar to the standard for the department's action laid down in c. 4A, Section 10. Although there the department was called upon to take into account transportation considerations only, we held that the department in passing upon a curtailment of service in the light of "public convenience and necessity" was "entitled to consider any relevant aspects" (p. 547) of the transportation problem and to "weigh all the factors." It properly "could give attention to general transportation conditions on these and other Massachusetts railroads" (pp. 547-548). It was also ruled (p. 548) that "the department in determining public convenience is to

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act without giving controlling weight to `purely local considerations,' which, of course, must be considered." We think that an even wider inquiry by the department is called for in respect of an application for exemption under c. 40A, Section 10, because zoning as well as transportation problems are to be considered.

The power to exempt public utilities from local zoning bylaws was given by c. 40A, Section 10 (and by the statutory predecessors of Section 10), to a State department, not to a local board. This fact indicates that the Legislature intended a broad and balanced consideration of all aspects of the general public interest and welfare and not merely examination of the local and individual interests which might be affected. The department's powers are not restricted by any such language as that which limits the authority of a local board of appeals to grant a variance under c. 40A, Section 15, cl. 3, as amended through St. 1958, c. 381. We hold that in considering an application by a railroad for an exemption under Section 10, the department is empowered and required, not only to consider the effect of a new facility upon the local community and upon persons living near by, but also to weigh the public effects of the requested exemption in the State as a whole and upon the territory served by the applicant. In the present case the scope of proper inquiry includes (in respect of transportation considerations) a determination whether the proposed facility will provide useful and economical service and benefits to shippers, consumers, industries, and others and whether and to what extent it will enhance the ability of the railroad, financially and otherwise, to perform its various public functions.

2. The decision of the issue of public "convenience" is for the department. The scope of court review is only that stated in G. L. c. 25, Section 5 (as amended through St. 1956, c. 190), and in c. 30A, especially Section 14. Our principal concern, where constitutional and procedural questions are not presented, is under c. 30A, Section 14 (8), viz. to determine whether the department's decision is "(c) [b]ased upon an error of law; or . . . (e) [u]nsupported by substantial evidence;

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or . . . (g) [a]rbitrary or capricious." To make possible our determination of these issues of law, the department is required to comply with c. 30A, Section 11 (8). That section provides that the department's "decision shall be in writing" and "be accompanied by a statement of reasons for the decision, including determination of each issue of fact or law necessary to the decision." See Salisbury Water Supply Co. v. Department of Pub. Util. 344 Mass. 716, 718; Hamilton v. Department of Pub. Util. 346 Mass. 130, 137. See also Wannacomet Water Co. v. Department of Pub. Util. 346 Mass. 453, 470. Cf. Holyoke St. Ry. v. Department of Pub. Util., ante, 440, 449-450.

In the present case the findings of fact in the majority decision are inadequate although the evidence was sufficient to enable the department to make definite findings upon most of the relevant issues. [Note 4] The department's subsidiary findings should have dealt with each relevant issue. As it is, we have no way of knowing what facts the department found to exist and whether, in reaching its general conclusion, the department applied correct principles of law to the facts found by it. The case must be returned to the department for more complete subsidiary findings. We intend no intimation concerning what those findings should be.

3. Examination of the testimony before the department indicates to us that neither the railroad nor the town (perhaps

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because c. 40A, Section 10, had not previously been construed by this court in respects here relevant) presented evidence on as broad a basis as would have been appropriate, concerning the many relevant general aspects of the public interest. Also, over seven months have now elapsed since the department's decision. Accordingly, it may be desirable for the department to reopen the case for the taking of further testimony.

4. A final decree is to be entered vacating the department's decision and order and remanding the case to the department for further proceedings consistent with this opinion.

So ordered.