Daily Development for Tuesday, October 5,
1999
By:
Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu
ZONING
AND PLANNING; FEDERAL PREEMPTION. Regional steamship authority (the
"Authority") established by the state legislature to provide
transportation from mainland to islands need not comply with local zoning
ordinance when it leases private property for parking.
Town of Bourne v. Plante, 708 N.E.2d 103
(Mass. 1999).
The Authority was created as a "public
instrumentality" which is to "provide adequate transportation of
persons and necessaries of life for the islands of Nantucket and Martha's
Vineyard." St.1960, c. 701, §§ 1,3. Due to sharp increases in summer
weekend traffic to Nantucket and Martha's Vineyard, the Authority required
additional parking for its passengers. The Authority entered into a lease with
Ernest A. Plante to use Plante's property, located in Bourne, Massachusetts,
for weekend overflow parking. The
Bourne building inspector ordered Plante to cease and desist from using his
property "for commuter parking (i.e. steamship parking)" because such
use was "in violation of the Bourne Zoning ByLaws." Plante did not
comply with the building inspector's cease and desist order and the Town of
Bourne (the "Town") filed a complaint in Superior Court alleging that
Plante had violated the Bourne zoning bylaw by leasing the site for an unlawful
use.
The Authority intervened in the case. The
Superior Court granted the Town a preliminary injunction enjoining the use of
the site for parking. The Authority filed a petition for relief from the
preliminary injunction with the Appeals Court. The Appeals Court vacated the
preliminary injunction.
The Town appealed to the Supreme Judicial
Court and the court vacated the preliminary injunction. The Supreme Court noted
prior case law which created immunity from local zoning bylaws for entities
created by the state legislature, provided the entity is performing an
essential governmental function or action reasonably related to that function.
The court concluded that the Authority's
decision to secure offsite parking is directly and inextricably linked to the
Authority's legislatively mandated mission because the Authority's enabling
legislation confers broad management power on the Authority, provides the
Authority permission to acquire real property and enter into contracts and agreements,
confers on the Authority the ability to "do all acts and things necessary
or convenient to carry out [its] powers", and provides that the powers
granted to the Authority be construed liberally. As a result, the Authority may
enter into a lease for overflow parking without complying with the municipal
zoning regulations.
Comment 1: The editor recalls vividly a conversation with the general counsel
of a major "federal instrumentality" about the organic legislation creating
his entity. The legislation contained similar language, to the effect that the
entity could "do all things necessary or convenient to carry out its
powers." The general counsel said that he had wondered whether the intent
of the legislation was to confer preemptive authority on this nongovernmental
"federal instrumentality," and he went to see the retired government
lawyer who had drafted the language. When asked what the language meant, the
drafter replied "It means anything that you can get it to mean. That was
my intent."
Comment 2: There is lots of authority
conferring implied preemptive powers upon governmental entities where the
legislature has not seen fit to confer such preemptive authority expressly. In light of the fact that legislatures,
including Congress, do include language conferring preemptive authority in many
pieces of legislation, is it really the province of the courts to conclude that
the legislative body just forgot to do so in those cases in which preemptive
authority is not conferred?
Granted, there are some cases where the
legislative mandate necessarily requires that there be preemptive authority. But
that certainly is not the case here. The court had to find the authority in the
legislative intent. Was it justified in doing so?
Readers are urged to respond, comment,
and argue with the daily development or the editor's comments about it.
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