ML20211F577
| ML20211F577 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/18/1987 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Harbour J, Hoyt H, Wolfe S Atomic Safety and Licensing Board Panel |
| References | |
| CON-#187-2583 OL, NUDOCS 8702250137 | |
| Download: ML20211F577 (121) | |
Text
{{#Wiki_filter:puu a 2583 8(ELATED CORRESPuttDL. h Vn DOCMCT U"""7 PR OD & UTIL. FAC... .O,'I m .. N'dd ROPES & GRAY 22S FRANKLIN STREET BOSTON, MASSACHUSETTS O2110 IN PROviOENCE IN WASHINGTON 30 RENNEDY PLAZA TELEX NUMSER 940519 ROPGRALOR SSN 1001 twtNfy.5 ECONO STREET, N W PROVIDENCE, R f. 02903 TELgx NyusER 95i973 ROPES GRAY e5N wA S HI N G TO N, CL C. 2 O O 37 (401) 521-6400 T E L ECO PI E R S: (617) 423-2377 (617) 423-764 (202) 429-1600 TELECOPIER:(400 $21-0910 I NT E R N ATIO NAL. (6171423-6905 TELECOPIER (202) 429-1629 February 18, 1987 oc - Administrative Judge Helen Hoyt p $ Chairperson Atomic Safety and Licensing Board Panel u U.S. Nuclear Regulatory Commission g ,, Washington, DC 20555 o-Administrative Judge Sheldon J. 3 Wolfe, Esquire, Chairman 6 Atomic Safety and Licensing Board Panel 4 U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Jerry Harbour Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Emmeth A. Luebke Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Judge Gustave A. Linenberger, Jr. Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Re: New Hampshire Superior Court Decision Concerning Siren Poles
Dear Administrative Judges:
Reference is made to my letter to you of January 23, 1987, in which I advised you of the decision of the New Hampshire Superior Court concerning the siren poles in the Towns of Rye and Hampton Falls. G7022bO137 PDR ADOCK 05000443 G70210 G PDH d 1
I i L Rocco & GRAY Administrative Judge Helen Hoyt February 18, 1987 Chairperson For your information I enclose herewith a copy of the Notice of Appeal filed with the New Hampshire Supreme Court by New Hampshire counsel for Public Service Company of New Hampshire under date of February 13, 1987. Very truly yours, Thomas G. Dignan, Jr. TGDJr/kdr Enclosure cc: Service List Appeal Board Members NRC Commissioners
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- w. . -a THE STATE OF NEW HAMPSHIRE SUPREME COURT 1987 TERM FEBRUARY SESSION No. 87-Town of Rye and Town of Hampton Falls v.
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Public Service Company of New Hampshire and State of New Hampshire Department of Transportation NOTICE OF APPEAL FROM LOWER COURT DECISION ON THE MERITS Public Service Company of New Hampshire, Appellant Martin L. Gross, Esquire sulloway Hollis & Soden 9 Capitol Street concord, New Hampshire 03301-1256 (603) 224-2341
F O > SUPREME COURT NO. 87-NOTICE OF APPEAL (Rule 7) l Within thirty days from the date on the clerk's written notice of a decision on the merits, unless otherwise { provided by law and except as otherwise provided by Rule 7 in criminal and probate appeals, the moving party i shau fue (a) 1 copy of thb notice of appeal and of the httachments to it with each of the other parties. and with ' the attorney general in a criminal case; (b) either 2 or 3 copies with the clerk of the lower court depending upon whether a judge or master and judge decided the case; and (c) the original and 15 copies with the clerk of the I supreme court. The moving party shall pay the filing fee simultaneously with the fulns of the notice of appeal. CASE TITLE (Full name) APPEALFROMM4mh= rr+y % COURT
'Ibwn of Rye ard Town of Har:pton Falls " rauw or soumer. and name et sowo
- v. Date of Public Se2.vice Canpany of New Hapshire (a) clerk's notice: January 22, 1987 and New !!mpshire Depart:nent of (b) sentencing (criminal):
Tr tier. If MINAL case, please fill out the following: (c) probate court fUing: Is defendant in jail or prison? .g.r ial Judge; Yes No Walter L. Murphy, J. What is the sentence? Court Reporter or Machine Operator: l Docket No. below: 8G-E-34 Whereis defendant incarcerated? Trial Counsel below: For Plaintiff =memmar Were you appoinW Town of Rye J. P. Nadeau or privatelyretained? Town of Hanpton Falls: Robert A. Backus For Defendant: Will the appellate defender be handling the appeal? .Public Service Co_._ of N.H. _ Margaret _ H. ruu==u. v . muls, g ggn.a if party is a corporstlos or association, give names and addresses of parent. subsidiaries. and affuistes (to estent known): Name Address Telephone MOVING PARTY'S COUNSEL Martin L. Gross 9 Capitol St. (603) 224-2341 IN SUPREME COURT: Sulloway Hollis I, Soden Concord, NH 03301-1256 OPPOSING PARTY'S COUNSEL J. P. Nadeau i IN SUPREME COURT: Robert A. Backus Number of days of trial: 1 - Oral argument waived by moving party and by opposing party Specify whether you and other counsel wul probably stipulate withierten days from the date of this notice of ap. j peal concerning the facts or the it ues or both: No i I Specify the parts of the proceeding you would dealsnate the court reporter to transcribe: All trial proceedings (one day hearing) ! p YtNs N2EtN def e $ts 1 _ _ - _ _ _ _ _ _ _ _ _ . _ _ _ . _ _ _ _ -
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. BRIEF DESCRIPTION OF NATURE OF CASE AND RESULT:
l See Attachment STATUTE ON WHICH CASE WAS BASED: RSA 231:159, et seq.; 1981 N. H. Laws 549:1 (Uncodified) (Texts set out in appendix) SPECIFIC QUESTIONS TO BE RAISED ON APPEAL. EXPRESSED IN TERMS AND CIRCUMSTANCES OF THE CASE. BUT WITHOUT UNNECESSARY DETAIL. STATE EACH QUESTION IN A SEPARATELY NUMBERED PARAGRAPH. See attachment 2 rvva
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, LIST OF CASES SUPPORTING MOVING PARTY'S POSITION: (Underline case relied on most.)
See Attachment Title of cases with similar or identical issues pending, or expected to be entered, l'n the supreme court (to extent known): None known. PHOTOCOPu.S OF DOCUMENTS TO BE ATTACHED TO THIS. FORM: See Appendix (Converted to letter siae paper) E (1) Decision, order, or opinion, including findings and rulings E (2) Pleadings E (3) Portinent test of constitutions, statutes, ordinances, resulations, insurance policies, contracts or other documents that case involves. If more than 5 pages, you may use a separate appendix and file only 8 copies (Rule 7(6)). j O (4) Motion to set aside verdict and for new trial, with rulins thereon j E ($) Memoranda of law in support of, and in opposition to, motion to dismiss, motion to set aside ver. dict, or any other pertinent motion. l l O (s) Parises' requests for findiass and rulinss with marginal note as to whether granted or denied or not i ruled upon (Rule 6(5)). ( O (7) Other: l l i I n--,----,,,-.n-_..n
TRANSCRIPT INFORMATION Counsel for the moving party shall complete the transcript information, making sure that all questions are answered for processing by the clerk's office. This form is a part of the notice of appeal and should not be sent directly to the stenographer. Appeal from Rockincham County Suoerior Court TrialJudge: Honorable Walter L. Murphy ' Court Reporter (s): Michelle Henschke Reporter (s) Estimate: 80 No. of Pages S3.50 Cost /per page 60 No. of Days to Prepare 1 No. of Days of Trial Docket No. Below: An-E-1A I Date of hearing: November 13,"1986 ' Moving Party: Plaintiff Defendant X l Appointed Retained X Coensel for Moving Party Martin L. Gross .
- 1. I have requested an estimate for a transcript of: -
before trial proceedings opening statements X trial proceedings arguments jury charge after trial proceedings other (specify) Number of copies required: one original, four copies.
- 2. I have not requested an estimate and shall not request an estimate for a transcript for the following reasons:
Reason:
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F Town of Rye, et al v. PSCO, et al Attachment to Notice of Appeal Brief Description Of Nature Of Case And Result. The plaintiff, Town of Rye (Rye) sought declaratory and injunctive relief in support of its purported revocation of t certain utility pole licenses it had issued to defendant Public Service Company of New Hampshire (PSNH), under RSA 231:159 et. sea. The licenses authorized the erection of utility poles on highways maintained by Rye. Plaintiff Town of Hampton Falls (Hampton Falls) intervened, seeking the removal of utility poles erected on state-maintained highways within Hampton Falls pursuant to permission granted by the defendant New Hampshire Department of Transportation (State) under the same statutory procedure. PSNH is one of the Joint Owners of the Seabrook Nuclear Generating Station (Seabrook Station). Seabrook Station has been constructed pursuant to a certificate of Site and Facility issued by the State under RSA 162-F. A division of PSNH, New Hampshire Yankee, is actively engaged in implementing a Radiological Emergency Response Plan required by federal regulations in connection with an operating license for Seabrcok Station and recognized as essential by l N. H. Laws 1981, 549:1. The utility poles in question are used to support warning sirens which are required to 4 5 l
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< - q s meet public notification requirements of the Radiological Emergency Response Plan specified in federal licensing regulations.
The Selectmen of Rye, after having granted licenses for , -
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the poles in question, then purported to revoke the licenses J[~ .
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and ordered the poles to be removed, asserting that the Selectmen had not known the true purpose of the poles at the time the licenses were granted, and further asserting that the Selectmen did not wish to allow such poles within , the Town, PSNH declined to remove the poles, asserting ., that the licenses were and remained valid, and that the reasons given by the Selectmen for the purported revocation were insufficient as a matter of law. This action followed. ] After the action was commenced, Hampton Falls was permitted to intervene to challenge the validity of permission given by the State of New Hampshire to install similar poles located on state highways within Hampton Falls. Hampton Falls asserted that the State had no authority to give such permission in light of a vote of the Town prohibiting any cooperation with the Seabrook Radiological Emergency Response ! Plan. The matter was tried to the court (Murphy, J.). Subsequently, the Trial Court ordered the State to be joined as a defendant - and to file responsive pleadings. Thereafter, the Trial Court ruled that the poles in question were not within the class of installations authorized by RSA 231:160 and that therefore, l the licenses for the poles had been issued without statutory authority. The Court found for the plaintiffs on this 1 6 l
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ground al6ne and ordered PSNH to remove the poles. Theopera[ihestatute,RSA 231:160, reads as follows:
" Authority)/to Erect. Telegraph, television, teleptione, electric light and electric power poles and ctructures and underground conduits 3" ,
and cables / with.their respective attachments and appurtenances may be erected, installed,
^ and maintained in any public highways and the necessary and. proper wires and cables may be a supported on such poles and structures or carried across or placed under any such highway lur any person, copartnership, corporation as provided in this subdivision and not otherwise."
In ruling for the plaintiffs, the Trial Court held that the sfpoles in question were not " telegraph, television, telephone, electric light and power poles" within the meaning of the statute. The Trial Court construed this list as exclusive and further ruled that even if it were not, the statute impliedly required any pole to provide "some direct service to the homeowner," although the Trial Court apparently conceded that " electric light 1 l poles" would not fulfill such a function. The Trial Court did not account for or give any effect to additional language in the statute referring to " structures and appurtenances." The Trial Court gave no effect to the State's longstanding practical administration of the statute. Thus, the Trial Court's determination rested entirely on a partial and highly restrictive interpretation of the statutory language authorizing the placement of utility installations in public highways, thereby presenting a pure and clear issue of law for this Court to determine in this appeal. c. r s t^g ^* 4 7
Specific Questions Raised On Appeal. I. Are utility poles carrying sirens, which are part of a warning system required by federal regulation for Seabrook Station, within the class of electric poles, structures, and appurtenances entitled to placement in public ways under RSA 231:160?
*II. May selectmen revoke or refuse to issue permits for utility installations under RSA 231:159 et. seq. merely i because they do not want such installations in the town or because they oppose the project with which the installations are associated?-
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*III. Does a vote of a town forbidding cooperation with Radiological Emergency Response planning for Seabrook Station
, prohibit the State from permitting associated utility installations
[, in state highways within the town? 4 l I
- These questions address the legal sufficiency of contentions raised by the appellees at trial, but not reached by the"rrial Court in disposing of the case.
L The questions are included here to afford the Supreme Court an opportunity to rule upon them in the context of this i appeal, so that.the rulings may guide the Trial Court and the parties in any remand and avoid the need for a second appeal at a later time. 8
II List of Cases Supporting Moving Party's Position (underlined cases relied on most) Construction of the pole licensing statutes Innie v. W & R, Inc., 116 N.H.-319 (1976); King v. Town of Lyme, 126 N.H. 279 (1985). Scope of plaintiff's authority under the pole statute: Dugan v. Town of Conway, 125 N.H. 125 (1984); PMC Realty Trust v. Town of Derry, 125 N.H. 126 (1984); PSNH v. Town of Hampton, 120 N.H. 68 (1980); Parker-Young Co. v. State, 83 N.H. 551 (1929); Vernet v. Town of Exeter, 127 N.H. , No. 86-118 (December 30, 1986); Wasserman v. City of Lebanon, 124 N.H. 538 (1984). l l l l 9
F CERTIFICATE I certify that every issue specifically raised in the foregoing Notice of Appeal has been presented to the Trial Court and was properly preserved for appellate review by contemporaneous objection where appropriate. However, since this appeal is from a ruling made by the Trial Court in its final Order on the merits, there was no opportunity for contemporaneous objection, and none is thought to be necessary. I further certify that copies of this Notice of Appeal have been served on all parties and have been filed with the Clerk of the Rockingham County Superior Court as required by Rule 26(2) and (3). Public Service Company of New Hampshire By Its Attorneys SULLOWAY HOLLIS SO l /, By I February 13, 1987 a tin L. os 9 Capitol reet Concord, New Hampshire 03301-1256 (603) 224-2341 9-a
I Appendix To Notice of Appeal Contents , Relevant Statutes RSA 231:159-182 Laws 1981, 549:1 Pleadings and Orders Petition of Town of Rye Motion of Town of Hampton Falls To Join Petition Response of PSNH to Motion of Town of Hampton Falls Answer of PSNH to Petition Answer of PSNH to Allegations Set Forth In Motion of Hampton Falls To Join Petition Order granting Motion To Intervene of Hampton Falls Rye Trial Brief Hampton Falls' Memorandum of Law PSNH Memorandum of Law Order Joining State of New Hampshire As A Party Answer of State of New Hampshire, Department of Transportation Memorandum of Law of State of New Hampshire PSNH Supplemental Memorandum of Law Order Finding and Ruling for Plaintiffs 10
231:159 Applicability of Subdivision. The provisions of this sub-division apply to all cities and towns now or herer.'ter incorporated, except such provisions thereof as may have been or art hereafter specifically amended or repealed in the act of incorporation. 231:160 Authority to Erect. Telegraph, television, telephone, electric light and electric power poles and structures and underground conduits and cables, with their respective attachments and appurtenances may be erected, installed and maintained in any public highways and the necessary and proper wires and cables may be supported on such poles and structures or carried across~or place *d under any such highway by any person, copartnersh.p or corporation as provide'd in this subdivision and not otherwise. 231:161 Procedure. Any such person, copartnership or corporation desiring to erect or install any such poles, structures, conduits, cables or wires in, under or across any such highway, shall secure a permit or license therefor in accordance with the following procedure: I. JURISDICTION. (a) Town Maintained Highways. Petitions for such permits or licenses concerning town maintained highways shall be addressed to the selectmen of the town in which such highway is located; and they are hereby authorized to delegate all or any part of the powers conferred upon them by the provisions of this section to such agents as they may duly appoint. (b) City Maintained Highways. Petitions for such permits or licenses concerning city maintained highways shall be addressed to the board of
- mayor and aldermen or board of mayor and council of the city in which such highway is located and they shall exercise the powers and duties prescribed in this part for selectmen; and they are hereby authorized to delegate all or any part of the powers conferred upon them by the i
provisions of this section to such agents as they may duly appoint. (c) State Maintained Highways. Petitions for such permits or licenses concerning all class I and class III highways and state maintained portions of class H highways shall be addressad to the commissioner of transporta-tion who shall have exclusive jurisdiction of the disposition of such petitions to the same effect as is provided for selectmen in other cases, and also shall have like jurisdiction for changmg the terms of any such license or for
======ing damages as provided herein. The commissioner shall also have the same authority as conferred upon the selectmen by RSA 231:163 to revoke or change the terms and conditions of any such license. The com-missioner is hereby authorized to delegate all or any part of the powers conferred upon him by the provisions of this section to such agent or agents as he may duly appoint in writing; he shall cause such appointments to be recorded in the ofBee of the secretary of state, who shall keep a record thereof. [ Amended 1985,402: 6, I(b) (3).] ,
(d) The word " selectmen" as used in the following paragr'aphs of this section shall be construed to include all those having jurisdiction over the issuance of permits or licenses under paragraph I hereof. II. PERMITS. The petitioner may petition such selectmen to grant a permit for such poles, structures, conduits, cables or wires. If the public good requires, the selectmen shall grant a permit for erecting or installing and maintaining such poles, structures, conduits, cables or wires. Such permit shall designate and define in a general way the location of the poles, structures, conduits, cables or wires described in the petition 11
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, s 231:161 Procedure.
therefor. Such permit shall be effective for such term as they may l l determine, but not exceeding one year from the date thereof, and may, ' upon petition, be extended for a further term not exceeding one year. A permit shall not be granted to replace an existing utility pole on any public highway unless such replacement pole is erected at least 20 feet ' from the surfaced edge or the edge of public easement therein, provided, however, that for good cause shown the selectmen may waive the 20-foot requirement. III. EFFECT or PEamT. Except as otherwise provided herein, the holder of such permit shall during the term thereof be entitled to have and exercise all the rights, privileges and immunities and shall be subject to all the duties and liabilities granted or imposed hereby upon the holder of a license hereunder. IV. LICENSES. The petitioner may petition such selectmen to grant a license for such poles, structures, conduits, cables or wires. If the public good requires, the selectmen shall grant a license for erecting and installing or maintaining the poles, structures, conduits. cables or wires described in the petition. V. PaovistoN or LICENSES. The selectmen in such license - shall designate and define the maximum and minimum length of poles, the maximum and minimum height of structures, the approximate location of such poles and structures and the minimum distance of wires above and of > conduits and cables below the surface of the highway, and in their discretion the approximate distance of such poles from the edge of the traveled roadway or of the sidewalk, and may include reasonable requirements concerning the placement of reflectors thereon. Such designation and definition of location may be by reference to a map or plan filed with or attached to the petition or license. VI. EFFECT OF LK;EN8B. Al'. licen54s granted under the provisions hereof shall be retroactive to the date the petition therefor is filed. The word " license" as hereinafter used herein, except in RSA 231:164 shall be construed to include the word ' permit". The holder of such a license, hereinafter referred to as licensee, shall thereupon and thereafter be entitled to exercise the same and to erect or install and maintain any such poles, structures, conduits, cables, and wires in approximately the location designated by such license and to place upon suoh poles and structures the necessary and proper guys. cross-arms, fixtures, trar.sformers and other attachments and appurtenances which are required in the reasonable and proper operation of the business carried on by such licensee, together l with as many wires and cables of proper size and description as such poles , and structures are reasonably capable of supporting during their continuance in service; and to place in such underground conduits such number of ducts, wires and cables as they are designed to accommodate, and to supply and install in connection with such underground conduits and cables the necessary and proper mannoles, drains, transformers and other accessories which may reasonably be required. 231:162 Confirming Locations. Similar proceedings may be had for locating and licensing poles and structures and underground conduits and cables already constructed with or without license, or for changing the location of any such property constructed with or without license; but nothing contained in this section or this subdivision shall affect the validity of locations heretofore granted. 12
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231:163 Ch2nges. Any such liesnsee er any person whtse rights or interests are affected by any such license may petition the selectmen for changes iri the terms thereof: and after notice to the parties and hearing, ' the selectmen may make such alterations therein as the public good I requires. The selectmen, after notice to any such licensee and hearing. may from time to time revoke or change the terms and conditions of any i such license. whenever the public good requires.
- 231: 164 Return and Record. The selectmen or the board of mayor and aldermen or other board having authority to locate poles and wires in
, cities, or the commissioner of transportation, within 6 months after any petition authorized by this subdivision has been presented for action, shall make a return of ineir proceedings and their decision thereon; provided,.
. however, that if a permit is granted upon petition therefor, return and decision upon the petition for license presented in connection with such petitior. for permit shall be made on or before the expiration of such per-mit. They shall cause the petition for license and their return to b. recorded by the clerk of the city or tr.wn in which the poles, structures, conduits, -
cables or wires arelocated. 231:165 Services and Fees. I. If the proprietors of the line are the petitioners, they shall pay the-town clerk for his services and fees. II. If a landowner is the petitioner he shall advance the payment for such services and fees, and if his petition is sustained he may recover the same from the proprietors of the line. III. The .own clerk shall be entitled to a fee of $5, which shall be remitted when the license is recorded. 231: 166 Petition to Court. If the selectmen or the board of mayor and alderman or other board having authority to locate poles and wtres in cities, or the commiazioner of transportation, shall neglect or refuse to do. cide and make return of their proceedings upon any petition authorised hereby within the times limited by RSA 231:164, or if any party whose interests are afected by their decision on any such petition or in granting a license, changing the terms thereof, or revoking the same, is dissatisfied therewith, the petitioner or party so ManaHs6ed may apply to the superior court for alief within 60 days after the expiration of the times limited by RSA 281:164 or after such decision; and like ;-@ shall there-upon be had as in the case of appeals from the laying out of highways by selectman. l 231:167 Damages. If any person shall be damaged in his estate by the erection of any such poles or other structures, or by the installation of any such underground conduits or cables or by installing or placing any wire, cable, guy, cross-arm, fixtures, transformers. manhole. drain, or other apparatus in or under the highway by authority of any such license, he may apply to the selectmen to assess his damages. Such proceedings shall thereupon be had as are provided in the case of assessment of damages in laying out highways by the selectmen, and such damages, if any, may be awarded as shall be legally and justly due. 13
I 231: 168 Interference with Travel. The location of poles and structures and of underground conduits and embles by the selectmen shall be made so far as reasonably possible so that the same and the cttachments and cypur. tenances thereto will not interfere with the asfe, free and convenient use for public travel of the highway or of any private way leading therefrom to adjoining premises or with the use of such premises or of any other similar property of ancther lie ===aa The location of any such pole or struc-ture or underground conduit or cable, when designated by the selectmen pursuant to the provisions of thb subdivision shall be conclusive as to the right of the licensee to construct and maintain the same in the place located without liability to others except as is expressly provided in RSA 281: 175 and 281: 176. In no event shall any town or city or any of5cial or employee thereof or of the department of transportation be under liability by reason of the death of or damages sustained by any person or to any property occasioned by or resulting from the location, construction, or maintenance of any pole, structure, conduit, cable, wire, or other apparatus in any high-way, pursuant to the provisions of this subdivision. 231:169 Joint Licenses. Joint licenses for erecting or installing and maintaining any jointly owned poles, structures conduits, cables and wires may be granted under the provisions hereof to 2 or more petitioners. 231:170 Trr,nsfer of License. In connection with the transfer of all or any interest in any poles, structures, conduits, cables, or wires, the transferor may by appropriate assignment transfer his or its license to maintain the same and the transferee shall be entitled to have and exercise such license to the extent necessary for his or its use of the transferred property, upon recording such assignment with the clerk of the town in which said property is situated. 231:171 - Renewal and Replacement. Any pole or structure or underground conduit or cable installed under license as provided herein may be renewed or replaced as occasion requires in approximately the location originally designated therefor: and any variation in location which is reasonably necessary in making such renewal or replacement in the usual or customary manner, shall not affect the rights of the licensee as defined herein. 231:172 Cutting Trees. No such licensee shall have the right to cut, mutilate or injure any shade or ornamental tree, for the purpose of erecting or maintaining poles or structures or installing wires or other attachments or appurtenances thereto. without obtaining the consent of the owner of the land on which such tree grows or the payment or tender in full of damages therefor determined as provided in this section. If the consent of such owner cannot be obtained, the selectmen, upon petition, after notice to and hearing, shall determine whether the cutting or mutilation is necessary and if determined to be necessary, they shall assess the damages that will be occasioned to the owner thereby. underground 231:173 Un conduit or cable}icensed. If any such pole, or structure. or. or any placed or maintained in any highway without valid license therefor, it shall be removed upon demand by the authority having jurisdiction'to issue licenses pursuant to this subdivision at the place where such pole. or structure, or underground conduit or cable, or any attachment or appurtenance thereto islocated. 14
f I 231:174 No Prescriptive Right. No enjoyment by a person. co-partnership, or corporation for any length of time of the privilege of having or maintaining wires and their supports and appurtenances in, upon, over, or attached to any building or land of other persons, shall create an easement or raise any presumption of a grant thereof. 231:175 To Indemnify Town. The proprietors of every line of wire strung in a highway shall indemnify the town against all damages costs and expenses to which it may be subjected by reason of any insufficiency or defect in the highway occasioned by the presence of the wires and their supports therein. 231:176 To Party Injured. Any party receiving injury in his person or estate from any pole, or structure, or underground conduit er cable, or any attachment or appurtenance thereto within the highway limits may maintain an action for damages against the proprietor of the object causing such injury if such injury has been caused by the location of the object so as.to interfere with the safe, free and convenient use of the highway, or by the negligent construction, operation or maintenance of such objert; provided, however, thtt where a pole is unlicensed, the burden of proving that the object causing injury did not interfere with the safe free and convenient use of the highway, or that such object was not negligently constructed, operated or maintained shall be upon the proprietor of such object. The provisions of this section shall not apply to actions for damages based upon injuries occurring prior to the effective date hereof. l 231: 177 Removal of Wires and Poles by the State or Town After Notice. Poles used by telephone, telegraph or other public utilities including rail-roads and street railways may be removed after 10 days' notice in writing of the intention to remove the same has been given by the commissioner of hwd tion or the highway agent of any city or town. 331: 178 Servlee of Notice. Such notice may be served by any agent [' of the department of transportation or by the highway agent of any city
-{or town on such utility or any agent or odicer thereof.
231:179 Notice; Contents: Record. The notice of removal of any such pole shall designate the location in the highway to which the same shall be removed and such notice, together with affidavit or acceptance of
- service thereof, shall be recorded in the office of the clerk of the city or
. town in which such pole is located. The notice shall take effect when the
' same, with such affidavit or acceptance of service endorsed thereon, shall
' be thus recorded, and the 10 days shall run from the date of such reccrd. 15
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' 231:180 De6ning Imcation. The location defined in such rotice of any together with the wires thereon, shall be of the same pole validity so removed,de as if ma under a permit by the commissioner of transportation in case of state maintained highways or selectmen or mayor and aldermen in case of other highways.
231:181 Time of Removal. All such poles shall be removed within the time designated, and, if not removed by the date stated in such notice, , may be forthwith removed by the agency giving notice at the expense of l the owner. 231:182 Temporary Removal. Whenever it shall be necessary for any lawful purpose temporarily to displace, remove, or sever any wire, pole, or structure lawfully maintained in any highway and the proprietor thereof shall neglect or refuse to take such action within 24 hours after request therefor, the person desiring such action may apply to the selectmen for an order requiring such action to be taken by such proprietor. Thereupon the selectmen shall appoint a hearing to be held within 6 days after such petition has been presented to them and shall give such proprietor at least 3 days' notice thereof. After hearing, the selectmen may by order require the proprietor to take the action requested, if in their judgment said action is reasonably necessary, and fix the time within which it shall be completed and specify whether the petitioner shall pay all or any part of the expense thereof: and it shall be the duty of such nroprietor to comply with such order within the time stated therein and he shall thereupon be entitled to reimbursement from the petitioner in accordance with said order, within 6 days after demand therefor by the proprietor stating the amount. Such proprietor shall be entitled to recover Crom the petitioner in an action of debt the petitioner's part of the expense determined in said order. In case such proprietor shall fail to comply with such order. he shall forfeit to the petitioner a sum equivalent to $10 for each day while such default continues. CHAPTER 549 (HB 464) .
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AN ACT PROVIDING FUNDING FORDEVELOPMENT. TESTING AND IMPLEMENTATION OF THE RADIOI4GICAL ~ EMERGENCY RESPONSE PLAN. Be it Enacted by the Sencte and House of Representatives in General Coart convened: 549:1 Statement of Purpose.The lert'slature finds that in order to protect the health and welfare of the citizens of this state, particularly those in close proximity to nuclear electric generating facilities, it is essential to initiate a program to provide for the formulation of radiological emergency prepared. ness plans and procedures and for the implementation of those plans in conformance with Nuclear Regulatory Commission regulation Title 10, Code of Federal Regulations, Part 50. The legislature further finds it appropriate that the utilities operating these facilities bear the costs associated with preparing and implementing plans to deal with the effect of nuclear incidents or accidents. The legislature, therefore, hereby establishes a procedure for the initiation, formulation, and implementation of a nuclear planning and response program and for the assessment of the costof the program against each utility operating a nuclear electric generating facility. 16
l l THE STATE OF NEW HAMPSHIRE ! l ROCKINGHAM, SS. SUPERIOR COURT TOWN of RYE, NEW HAMPSHIRE ' vs. l PUBLIC SERVICE COMPANY of NEW HAMPSHIRE l 1 PETITION FOR DECLARATORY JUDGEMENT WITE PRAYERS FOR SPECIFIC PERFORMANCE NOW COMES the Petitioner, Town of Rye, a municipal corporation under the laws of the State of New Hampshire, with a principle business address of 10 central Road, Rye, New Hampshire, and complains against the Defendant, Public Service Company of New Hampshire, a utility company organized under the laws of the State of New Hampshire with a principle place of business at 1000 Elm Street, Manchester, New Hampshire, and states as follows:
- 1. On or about November 7, 1983, the Defendant initiated contact with the Petitioner, relative to the Defendant's proposal to install a public alerting system within the Petitioner's municipality the Defendant's proposal requiring
.the installation of certain poles for the sole purpose of having attached to them unspecified alerting sirens.
- 2. That such alerting sirens within the Petitioner's municipality are not needed for public safety relative to any naturally occuring disasters in the Seacoast area, such as hurricanes, and the admitted principal motivation of the Defendant for the installation of same is the possibility of a nuclear disaster
.=inating from the Defendant's nuclear power facility at Seabrook, New Hampshire.
- 3. Neither the need for, nor the effectiveness of, such sirens, in the event of a nuclear disaster at Seabrook, New Hampshire have been determined, and in any event, such determinations presently would be premature, since the Petitioner has no nuclear emergency evacuation capability'.
4. That from the Defendant's said initial contact with the Petitioner in November 1983, to the present, the Petitioner, through its various Boards of Selectmen during that period of time, has consistently and unanimanaly opposed the installation of the so-called alerting system,.its poles and siren. 5. That from the Defendant's said initial contact with the Petitioner in November 1983, to the present, the Defendant has maintained that it s.eeds no approval from the Petitioner to install said or sirens poles on State right-of-ways within the Petitioner's municipality.
- 6. That on or about September 10, 1984, the Petitioner signed a pole license application submitted by the Defendant for the Defendant's installation of three poles on land owned by the Petitioner, not recognizing the purpose of said application
' which the Defendant semits was submitted without cover letter or explanation of purpose, and further admits was submitted to the Petitioner's Town Clerk and not to the Petitioner's Board of Selectmen.
17
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7. That on or about November 7, 1985, the Defendant began installing poles for the said alerting system on State right-of-ways within the Petitioner's muni-cipality, and also, pursuant to the said permit erroneously issued by the Petitioner, began installing three such poles on land solely under the control of the Petitioner.
- 8. That on or about November 7,1985, the Petitioner issued a cease and desist order to the Defendant, revoking the September 10, 1984 permit that was erroneously issued under circumstances for which the Defendant is culpable and further advising the Defendant that the installation of any poles for the purpose of attaching siren continued to be unacceptable to the Petitioner.
I
- 9. Thereafter, the Petitioner in a good faith effort to see if the issues being presented herein could be resolved without litigation, met with and communicate d with representatives of the Defendant.
- 10. The results of those meetings and communications with the Defendant's representatives are as follows:
a.) The Defendant maintains that under the provisions of R.S.A. 231:60, it has the right, without any approval of the Petitioner, to install poles for alerting sirens on State right-of-ways within the Petitioner's municipality. The Petitioner maintains that such poles and sirens are not covered by the provisions of RSA 231:60 and that in any event, the installation of same requirea the approval of the Petitioner; b.) The Defendant maintains that under the permit signed by the Petitioner September 10, 1984 it should have the right to complete the installation of the three poles covered by that permit and should not be required to remove those they have installed pursuant to same. The Petitioner maintains said permit was erronously issued under circumstances for w.tich the Defendant is culpable, and in any event, since it was subsequently revoked the Defendant should be obligated to remove any poles installed pursuant to same. WHEREFORE the petitioner prays that this Honorable Court enter the following declaratory judgements and specifics orders of relief: 1
- 1. Public Service Company of New Hampshire's installation of poles for the attachment of alerting sirens anywhere w'ithin the Town of Rye, is not authorized under the provisions of New Hampshire Revised Statues Annotated Chapter 231 Section 160.
- 2. Public Service Company of New Hampshire's installation of any so-called alerting device sirens anywhere within the Town of Rye, requires the approval of that Town, no provision of New Hampshire Revised Stetues Annotated Chapter 231 pre-empting the Town of Rye's local authority relative to same.
0
- 3. Public Service Company of New Hampshire is ordered to remove all poles it installed in the Town of Rye on or about November 7, 1985 the specific purpose for which was the attachment of any alerting device sirens.
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- 4. Public Service Company of New Hampshire is ordered to remove all alerting device sirens it has installed, or has allowed to be installed, in the Town of Rye.
- 5. That the petitioner be awarded its costs and attorneys fees incurren nerein.
- 6. For such other and further relief as this honorable court may deem just.
Respectfully Submitted Town of Rye By: A e
. P. Nk6 EAU Attorney for the Petitioner
~
1000 Washington Road Rye, New Hampshire 03870 ! 964-6112 ar 19
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.s She $ tate of Kefa Kampshire ROCKINGHAM COUNTY Superior Court
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. ~ , .W A Petition for Declarctory Judgement January 20,
.. ,19 86
.[1 .' Thberegoing"i.th,, Prayers for Specific Performance having been duly filed in s
,' I "it.is ordered that the Plaintiff give notice to the Defendant to appear at the Superior Court at Exeter,in
# ' "***h , A.D.,19 ,then said. County of Rockingham, on the first hesday of
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'and there to show cause,if any there be, why the prayers of said
< etition
' , . ,'[,,
' - should not be granted by causing a true copy of the foregoing -
and this order thereon to be given to the said Defendant or left at the abode of said Public Serv &ce Company of New Hampshire March E6 at least fourteen days prior to said first hesday of , A.D.,19 and that the service there ofbe by sheriff or deputy,if the residence of the Defendant is within the state, or by an officer authorized to serve similar process if without the state; and that service outside the state be evidenced by a return of the officer under oath accompanied by a certificate of his official character and authority. Itis further ordered that said Defendant each of them, file his answer with the Clerk of said Court and Nadeau Professional Offices , plaintiff's attorney, deh.ver to - a copy of said answer within thirty days after the return day otherwise said shall be taken as confessed. 44 M .... ,. ..c . Attest, RAYMOND W. TAYLOR, Clerk. The foregoing is a true copy of a petition for.., Declare.tary ;ndgement..xIth IrAY.grs...;.o.r.,
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- filed as aforesaid and of the order ofB6BWt6eEBnf Attest, RAYMOND W. TAYLOR, Clerk.
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ST T F EW HAMPSHIRE ROCKINGHAM, SS. J ANUARY -TER mag 3 ll07 g g Ja 23 g ,_ ,, E 1986 40CNN - TMFW"RW,"T NEW HAMPSHIRE S' ,, ).. ' - " ..~' ' p t,. H0. - p.y, y3 ,,
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PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE 86-E-34 MOTION OF TOWN OF HAMPTON FALLS TO JOIN PETITION FOR DECLARATORY JUDGMENT BROUGHT BY THE TOWN OF RYE AS A PLAINTIFF NOW COMES the Town of Hampton Falls, a New Hampshire municipal corporation, and moves that it be permitted to join the above-captioned matter as a party-plaintiff, and in support hereof states the following: 1 1. Petition of the Town of Rye in the above-captioned matter, entered l in this Court on January 20, 1986, raises the issue of whether or not the defendant, Public Service Company of New Hampshire, is legally entitled to erect sixty foot tall poles for the purposes of a siren warning system, contrary to the orders of duly appointed town authority. The Town of Hampton Falls has also had placed within its' municipal boundaries, and contrary to the direct orders of its selectmen, and the will of the legislative body of the Town as expressed in town meetings, certain poles for the purpose of a siren warning system. Therefore, the same issue raised by the Town of Rye is raised in the Town of Hampton Falls. 21
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- 2. The position of Town of Hampton Falls was made clear by a vote at a 1984 town meeting, March 13, 1984, when the following warrant article, Article XI, was passed by the voters:
"To see if the town will vote to prohibit the selectmen f rom allowing the installation of an emergency notification system within the Town until such time that an emergency response plan for the Town and the Seabrook Nuclear Project is approved by the town at town meet ing. On petition of Roberta C. Pevear and fifty-nine letters and fig'ures of other registered voters."
3. As a result of this vote, the defendant in the instant action, Public Service Company of New Hampshire, brought a Petition for Declartory Judgment against the Town of Hampton Falls, asserting "that the vote of the town meeting proporting to prohibit the selectmen from exercising authority vested in t hem BY RSA 231:166 and, as such, was improper and illegal." On November 20, 1985, Public Service Company took a " Voluntary Nonsuit" with regard to this action.
- 4. At about the time Public Service Company of New Hampshire elected to take this voluntary nonsult, its agents arrived in the Town of Hampton Falls to install poles and warning sirens. The full Hampton Falls Board of Selectmen advised the foremen of the job of the Hampton Falls' vote and the selectmen's determination tc enforce the terms of that vote. Although work at that time ceased, employees and, contractors of Public Service Company' subsequently appeared, in November 1985,'and erected warning poles I
i in the Town of Hampton Falls, contrary to the wishes of the town as expressed L in the 1984 town meeting vote, and contrary to the express order of the Hampton Falls selectmen.
- 5. Public Service Company of New Hampshire asserted that it was entitled to act in contravention of the town vote on the orders of the town selectmen because it had been given a form of permission for the 22
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erection of poles by employees of the New Hampshire Department of Public Works and Highways. i
- 6. As a result of the foregoing, there neither is nor could be any claim that the def endant, Public Service Company of New Hampshire, now has or ever had any permit of any sort from the Town of Hampton Falls for the erection of the poles for the purpose of a siren warning system.
WHEREFORE, the Town of Hampton Falls moves that
- 1) it be permitted to join in with the above-captioned matter as a plaintiff on the side of the Town of Rye,
- 2) that it be accorded relief prayed for by the Town of Rye, and
- 3) .for such other and further relief as may be just.
Respectfully submitted, TOWN OF HAMPTON FALLS By its attorney, BACKUS, MEYER & SOLOMON
. /r -
do be r t A. Bacirus P. O. Box 516 116 Lowell Street Manchester, N.H. 03105 Tel: (603) 668-7272 DATE: January 27, 1986 ff I h e r eby c e r t i f y t ha t a copy o f t he wi t h i n Mo t i on MOTION OF TOWN OF HAMPTOS FALLS TO JOIN PETITION FOR DECLARATORY JUDGMENT BROUGHT BY THE TOWN st OF A PLAINTIFF has been sent this date, firs t class, postage prepaid, to Marti l Gross, Esq., J. P. Nadeau, and Hampton Falls Selectmen. Y % Robert A. Backus 23
[ i , ,
, i THE STATE OF NEW HAMPSHIRE ROCKINGHAM, SS. SUPERIOR COURT JANUARY TERM, 1986
- Town of Rye, New Hampshire l I
v. Public Service Company of New Hampshire , i RESPONSE OF PUBLIC SERVICE COMPANY OF NEW ' HAMPSHIRE TO MOTION OF TOWN OF HAMPTON FALLS TO JOIN PETITION FOR DECLARATORY JUDGMENT I BROUGHT BY TOWN OF RYE AS A PLAINTIFF i i Public Service Company of New Hampshire ("PSNH") makes the following response to the Town of Hampton Falls' ("Hampton Falls") ! request to join this proceeding as a plaintiff:
- 1. In the interests of judicial economy, PSNH does not .
I oppose Hampton Falls' motion insofar as it requests the Court , to make a determination of Hampton Falls' legal rights with respect to the installation of electric utility poles on State right-of-ways or highways within Hampton Falls'. geographical limits. , t
- 2. 'PSNH disputes certain factual allegations made by '
Hampton Falls in its motion. Further, PSNH denies that Hampt'on Falls is entitled to the relief which it purports to seek in this ! pro'ceeding. .l
- 3. If the Court grants Hampton Falls' request to join this proceeding, it should afford PSNH an additicnal thirty days to respond, by answer or other appropriate pleading, to the factual !
i and legal allegations set forth in Hampton Falls' motion. . I 24
I i l WHEREFORE, PSNH prays that if Hampton Falls is permitted to join this proceeding, the Court: : A. i Grant PSNH thirty days in which to respond, by answer or other appropriate pleading, to Hampton Falls' motion, l and B. Grant such other relief as may be just and proper. Respectfully submitted Public Service Company of New Hampshire By Its Attorneys Sulloway Hollis & Soden i i By ~ Margaret H. Nelson 9 Capitol St., P. O. Box 1256. Concord, NH 03301 * (603) 224-2341 i Certificate of Service i I hereby certify that I have forwarded copies of this Respons via U. S. mail, first class, postage prepaid, to J. P. Nadeau, Esquire and Robert A. Backus, Esquire. i March 31, 1986 i Margaret H. Nelson ! I l
, I t
I 25 i
w I G. 1 1 I THE STATE OF NEW HAMPSHIRE I ROCKINGHAM, SS. SUPERIOR COURT JANUARY TERM, 1986 Town of Rye, New Hampshire v. Public Service Company of New Hampshire ANSWER TO PETITION FOR DECLARATORY JUDGMENT WITH PRAYERS FOR SPECIFIC PERFORMANCE Public Service Company of New Hampshire ("PSNH") , the defendant, hereby answers as follows:
- 1. The defendant responds to the allegations of paragraph 1 by stating that commencing in the fall of 1983, the defendant began to apprise the petitioner, along with the other municipalities in the affected area, concerning the development i
of the emergengy evacuation plan for the Seabrook Nuclear Generating Station, including an alerting system, consisting of poles with sirens attached thereto to be located in various municipalities. As part of that process, on or about November 7, 1983, Bruce Beckley, Manager of Nuclear Projects l for the defendant, appeared before the petitioner's board to discuss the alerting system. The defendant actively sought the cooperation of the petitioner in the formulation of the plan but Rye elected not to cooperate.
- 2. The defentant responds to the allegations of paragraph 2 by stating that the installation of an appropriate alerting system is required by federal law in order for Seabrook Station j
to receive an operating license and furthermore, is an integral part of the radiological emergency response plan formulated by The State of New Hampshire, in cooperation with local municipalities, pursuant to RSA c.107-B. 26
- c ii
- 3. The defendant denies the allegations of paragraph 3 i and further states that, as noted above, the installation of an alerting system is an integral part of the radiological emergency response plan mandated by federal and state law.
- 4. The defendant denies the allegations of paragraph 4.
- 5. The defendant admits that it takes the position that the petitioner has no authority to regulate the ~ installation I
of any electric utility poles, whether as part of an alerting system in connection with a radiological emergency response i plan or not, on State right-of-ways within the petitioner's municipality but denies that this issue is of any relevance to the current proceeding. l
- 6. The defendant states that on or about September 10, i
1984, the petitioner approved a pole license application which had been submitted by the defendant for the installation of three poles on land owned by the petitioner but denies the i remaining allegations of paragraph 6.
- 7. The defendant admits the allegations of paragraph 7 except that the defendant denies that the licenses granted by the petitioner had been granted erroneously.
- 8. The defendant admits that without any prior notice to the defendant, the petitioner's Board of Selectmen issued l
a letter dated November 7, 1985, purporting to direct the i defendant to cease and desist from further installations of , utility poles and to remove poles previously installed pursuant i I to pole licenses issued to the defendant by the Board dated September 10, 1984 and purporting to revoke those licenses. The defendant denies that the petitioner set forth any basis 27 i l
- ______ __ _ .- _ __. _ _ _ - _ ,_. _ _ _ _ _ _ _ . _ _ _ _ _ _ . _ - _ _ _ _ _ , . ~
9 l ' to support the revocation of the previously granted pole licenses under New Hampshire law and further denies that the petitioner's action complied with the procedural requirements of New Hampshire law with respect to the revocation of pole licenses !
- 9. The defendant responds to the allegations of ,
paragraph 9 by stating that its representatives undertook to appear before the petitioner's Board on November 21, 1985 in ' an effort to ascertain why the petitioner's Board had issued its letter of November 7, 1985 without notice or opportunity ; I to be heard by the defendant and that the petitioner's Board permitted the defendant to submit a written response which the defendant, through its counsel, did on December 2, 1985. By letter dated December 19, 1985, which was not received by f counsel for PSNH until January 2, 1986, the petitioner's Board purported to affirm the position taken in its letter of November 7, 1985 and requested the defendant to remove all its l poles with sirens located within the petitioner's municipality by January 15, 1986.
- 10. (a) The defendant admits the allegations of d
paragraph 10 (a) insofar as it accurately reflectsthe l defendant's position that the petitioner does not have authority to regulate the installation of electric utility poles, whether as an integrated part of a radiological emergency response i l plan or not, on State right-of-ways within the petitioner's municipality, but the defendant denies that this issue is of l any relevance to the current proceeding. < l i 28 ! l ; i . -
l (b)- The defendant admits that the allegations of paragraph 10(b) accurately state the position of the parties, but it denies that the petitioner has effectively revoked the licenses which it previously granted to the defendant in this matter. AND AS A FURTHER ANSWER, the defendant states as follows:
- 11. The defendant states that prior to its submission of an application for pole licenses for the installation of poles as part of the alerting system, the petitioner had been given numerous opportunities to understand the purpose of the alerting system and the suggested locations of any electric utility poles with sirens on property to the petitioner's jurisdiction.
12. The defendant submitted an application for pole licenses dated July 9, 1984 with respect to poles proposed to I be constructed on land owned - by the petitioner and further submitted a letter dated July 10, 1984, through the Town Clerk, explaining the location and purposes for said poles. 13. On September 10, 1984, the petitioner's Board approved I the applications for pole licenses. 14. The petitioner has installed electric utility poles
' with sirens in the petitioner's municipality acting in reliance upon the licenses granted by the petitioner's Board.
- 15. The defendant states that the petitioner has failed to set forth a claim for declaratory relief in this case because its petition does not set forth an adequate basis to support i revocation of the pole licenses which were previously granted.
I
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- 16. The defendant states that the petitioner has failed to comply with the procedural requirements of New Hampshire law l in its effort to revoke pole licenses which it had previously granted.
- 17. The actions of the petitioner in pursuing this litigation without a proper basis in law are vexatious and ,
harassing and have required the defendant to incur substantial costs, including legal fees, in order to protect rights which it has under New Hampshire law. WHEREFORE, the defendant prays that the Honorable Court: A. Dismiss the Petition for Declaratory Judgment with i Prayers for Specific Performance; B. Award the defendant its costs, including its reasonable attorneys fees and; C. Grant such other relief as may be just and proper. Respectfully submitted, PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE By Its Attorneys SULLOWAY HOLLIS & SODEN By: k ho4oYNOEL& - Margaskt H. Nelson CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer has been mailed, this date, via United States mail, first class, postage pre-paid to J.P. Nadeau, Esquire and Robert A. Backus, Esquire. Dated: March 31, 1986 By: M M oc.,W.k N h b Margaret >H. Nelson 30
.. .. l If STATE OF NEW HAMPSHIRE ROCKINGHAM, SS.
SUPERIOR COURT APRIL TERM, 1986 RYE AND HAMPTON FALLS v. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE 86-E-34 ANSWER OF PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE TO ALLEGATIONS SET FORTH IN MOTION OF HAMPTON FALLS TO JOIN I PETITION FOR DECLARATORY JUDGMENT BROUGHT BY TOWN OF RYE AS A PLAINTIFF l Public Service Company of New Hampshire (PSNR) hereby responds to the specific factual allegations of the Town of Hampton Falls' Motion dated January 27, 1986 as follows:
- 1. The defendant submits that the allegations of paragraph one set forth legal arguments to which no response is required. >
I
- 2. The defendant admits that on March 13, 1984 the T
own Meeting of Hampton Falls enacted warrant Article XI but d enies the remaining allegations of paragraph two. 3. The defendant admits the allegations of paragraph three. i 4. The defendant admits that it did seek to install p oles and warning sirens in Hampton Falls pursuant to p : ermission granted by The State of New Hampshire. When werk 31 l'
. s hl i
was commenced, its crew was confronted by a delegation of Town officials and the crew did not complete its task on that I day. . Subsequently, work was completed pursuant to the permission granted by the State.
- 5. The defendant responds to the allegations of paragraph five by stating that it had received permission from The State of New Hampshire to install the poles and
' sirens on State highways within the geographical boundaries of Hampton Falls pursuant to RSA 231:166 et. seq.
- 6. The defendant submits that it was not and is not required to obtain permits or licenses from Hampton Falls for the electric utility poles and sirens which it has erected on State Highways pursuant to' authority granted by the State.
AND BY WAY OF FURTHER ANSWER AND AS A STATEMENT OF AFFIRMATIVE DEFENSES,
- 7. The defendant previously sought a license from Hampton Falls to construct an electric utility pole and siren on property subject to the juris* diction of Hampton Falls.
- 8. The defendant complied with all the requirements of RSA 231:166 et. seq. but the Selectmen unlawfully refused to grant the defendant a license, purporting to rely on Article XI.
- 9. The defendant commenced a Petition for Declaratory Judgment against Hampton Falls in order to determinc whether Article XI could be construed to limit the Selectmen's authority under RSA 231:166 et. seq. to issue licenses for 32
i l i the erection of electric utility poles on property subject to i Hampton Falls' jurisdiction.
- 10. When the defendant was granted permission to install electric utility poles and sirens by the State, it deemed further litigation with Hampton Falls unnecessary and accordingly took a " Voluntary Nonsuit" in that action. When Hampton Falls became aware of the defendant's proposed course of action, it took no steps to resolve the legal issue which ,
it now seeks to raise and should now be estopped from raising any legal challenge to the installation of electric utility poles and sirens on State Highways.
- 11. No matter what the effect of Article XI it cannot be lawfully construced to limit The State of New Hampshire's authority under RSA 231:166 to issue licenses for the erection of electric utility poles and sirens on State property.
- 12. The actions of Hampton Falls in pursuing this litigation without a proper basis in law are vexatious and harassing and have required the* defendant to incur substantial costs, including legal fees, in order to protect rights which it has under New Hampshire law.
WHEREFORE, the defendant prays that the Honorable Court: A. Deny Hampton Falls the relief it purports to seek; B. Award the defendant its cost, including its reasonable attorneys' fees; and C. Grant such other relief as may be just and proper. 33
Respectfully submitted, PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
~~
- " BY ITS ATTORNEYS r SULLOWAY HOLLIS & SODEN Dated: 'I N By: dbOO k 4" Margaret H. Nelson
, CERTIFICATE OF SERVICE I hereby certify that a copy of the. foregoing Answer has been mailed, this date, to J.P. Nadeau, Esq., and Robert A. Backus, Esq.
Dated: [l2 # k N By: ,Sl.i c.te_g40k k Margaret H. Nelson e a e I l . l 34 H
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- THE STATE OF NEW HAMPSHIRE SUPERICR COURT TOWN Oh' RYE, NEW HAMPSHIRE vs.
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE TRIAL BRIEF s t t 36 l
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f I STATEMENT OF FACTS l On or about November 7, 1983, the Public Service Company of New Hampshire (Respondent), a private electric utility company, contacted the Town of Rye (Petitioner) concerning the Respondent's proposal to install a public alerting system within the municipality as part.of an emergency evacuation plan for the i Seabrook Nuclear Generating Station. The Respondent proposed to install four poles with sirens attached on state right-of-ways within the municipality and three poles with sirens on municipality property. From the time of the Respondent's initial proposal to the present, the Petitioner consistently has opposed the Defendant's proposal to install the public alerting system within the municipality. The Respondent, subsequent to its initial proposal to the Petitioner, submitted an application for a pole license with the Petitioner's Town Clerk. The license application was submitted by the Respondent to the Town Clerk without a cover letter and without any explanation of the purpose behind the application. In September 1984 an official of the Petitioner signed the Respondent's pole license application. On November 7, 1985, the Respondent began installing four poles with attached sirens on state right-of-ways within the municipality and installed two of , the remaining three poles on the municipality's property. The ' Petitioner, on November 7, 1985, issued a cease and desist order against the Respondent's actions in installing the poles and 37
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, , 1
)
revoked the pole license which had been issued by the Petitioner j to the Respondent; the Petitioner also advised the Respondent that the installation of any poles for the purpose of attaching sirens to the poles was unacceptable to the Petitioner. After the Respondent refused to obey the cease and desist order issued by the Petitioner, the Petitioner instituted the : present proceeding for a declaratory judgment against the Respondent. ARGUMENT I. THE PETITIONER'S REFUSAL TO APPROVE THE INSTALLATION OF POLES AND SIRENS WITHIN THE MUNICIPALITY IS PERMISSIBLE UNDER FEDERAL LAW. Case law indicates that under federal law a locality f properly may refuse to participate in or cooperate with the formation and adoption of an emergency response plan for a nuclear power facility. The Petitioner, in refusing to approve the installation of poles and sirens within the municipality, is
- exercising this recognized right to withhold its support for such an emergency response plan. The Petitioner believes such a plan i
is completely unrealistic in its attempt to provide for the evacuation of residents of the municipality, particularly in light of the increased population during the vacation season. The adoption of such a plan, therefore, would be dangerous in
~
that it would create a false sense of security, misleading the inhabitants of the municipality into believing that they could be 38
1\
~4~ l safely evacuated in the event of a nuclear accident at the ' Seabrook Nuclear Generating Station. The only planned use for the poles and sirens is as part of an emergency response plan for the Seabrook Nuclear Generating Station. The municipality has more than adequate measures available for dealing with any naturally occurring disasters in the area.
i A New York federal district court, in two decisions involving the Shoreham Nuclear Power Facility on Long Island, enunciated the principle that, under federal law, localities properly may refuse to cooperate with or participate in the adoption of an emergency response plan for use in the event of a nuclear disaster. In citizens for An orderiv Enerav Policy. Inc.
- v. County of Suffolk, 604 F. Supp. 1084 (E.D.N.Y. 1985), the court considered a controversy involving the adoption of a resolution by the suffolk County legislature which stated that no emergency plan could be developed which could protect residents in the event of a nuclear accident and that, therefore, Suffolk County would not adopt a nuclear emergency response plan. The utility alleged that the county's refusal to adopt a plan could result in the denial by the Nuclear Regulatory Commission (NRC) of the federal license required for the plant to operate and that the county's actions, therefore, constituted an improper l
regulation of the area of radiological hazards and safety, reserved to the federal government under the. Atomic Energy Act, ! 42 U.S.C.A. 55 2011 et seq. (West 1973). l ! 39 l l l-
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The court held that the county resolution did not constitute an impermissible regulation or interference in the area of ; nuclear safety. 604 F. Supp. at 1094. The court found that the county was permitted to adopt a resolution which established the county's opposition to the nuclear power facility and indicated the county's refusal to cooperate in the development and_ implementation of radiological emergency response planning. Id. The application of this decision to the facts in the present case supports a finding that the Petitioner's refusal to cooperate in the implementation of an emergency response plan in the 4 municipality is entirely permissible under federal law. The Petitioner in the present case has opposed the installation of poles and sirens within the municipality on the same grounds . relied upon by Suffolk County in adopting its resolution: the l impossibility of implementing a plan which would adequately protect residents in the event of a nuclear accident. In a subsequent decision in Lona Island Liahtina Co. v. county of suffolk, 628 F. Supp. 654 (E.D.N.Y. 1986), the same federal district court considered the question of whether the Suffolk County legislature had acted impermissibly in enacting a statute which made it a crime to participate in an emergency planning involving the simulation of the roles of local county officials. The court held that the county statute impermissibility interfered in the area of r.adiological hazards and the off-site testing of an emergency response plan. Id at 40 1__,.___.___________
. i 665. The court specifically indicated that its decision was not inconsistent with its earlier decision in citizens for an orderiv Enarav Poliev. Inc. v. County of Suffolk, angIA. 628 F. Supp. at 666. The court explained that while local government cannot take action which will affirmatively interfere with the NRC's licensing procedures in evaluating emergency response plans, j localities may properly refuse, for any reason or for no reason, to cooperate in the development and implementation of an emergency response plan. Idm The fact situation in the present case is easily j
distinguishable from the circumstances existing.in Lona Island Liahtina Co. v. County of Suffolk, angIA. The refusal by the Petitioner in the present case constitutes a refusal to cooperate in the implementation of an emergency response plan and does not constitute an affirmative interference with the NRC's licensing i processes. The Petitioner is exercising only its right to refuse to participate in a nuclear emergency response plan, whereas the statute adopted by Suffolk County in Lena Island Liahtina Co. was aimed at preventing the implementation of any plan, by anybody, regardless of the county's involvement. II. THE PETITIONER IS NOT REQUIRED UNDER STATE IAW TO PARTICIPATE IN THE IMPLEMENTATION OF A NUCLEAR EMERGENCY RESPONSE PLAN. Under state law the Petitioner is not required to approve the installation of poles and sirens within the municipality as l 41
3 part of the implementation of a nuclear emergency response plan. The state civil defense agency, under N.H. Rev. Stat. Ann. $ 107-B:1 (Supp.1985), is directed to implement a nuclear emergency response plan "in cooperation" with local government units. The use of the language "in cooperation" in the statute manifests the legislature's intent that local governments would not be reauired
- to participate in the implementation of such a plan. Instead, l the statutory language leaves open the possibility that local government units might refuse to cooperate, and, as in the present case, refuse approval for structures to be erected within i
the municipality as part of the emergency response plan. Under the doctrine of preemption, local action is preempted i only when such action directly conflicts with a state statute or is contrary to the legislative intent underlying the state statute. Public Service Co. v. Town of Hamnton, 120 N.H. 68, 411 A.2d 164, 166 (1980); State by City of Rochester v. Driscoll, 118 N.H. 222, 385 A.2d 218, 220 (1978); Lavallem v. Britt, 118 N.H. 131, 383 A.2d 709, 712 (1978). In the present case the legislature, through the use of the language "in cooperation," l has indicated that it did not intend to preempt local action in
. the area of nuclear emergency response planning. Instead, the legislature left open the opportunity for action by local
! government. The Petitioner's refusal to participate in the emergency response plan, through its refusal.to approve the l installation of poles and sirens within the municipality, 42
. 1 1
therefore, does not conflict with N.H.R.S.A. 5 107-B:1 and is not contrary to the legislative intent underlying the statute. Furthermore, the Petitioner's refusal to approve the installation of poles and sirens as part of a nuclear emergency response plan is clearly valid as an exercise of the municipality's well-established police powern. Under N.H.R.S.A. 5 31:39 towns are given the authority to make by laws for a number of purposes, including for the carrying on of their f
" prudential affairs." This provision gives to towns and municipalities the authority to exercise police powers in the general areas of public health, safety, and welfare. Town of Freedom v. Gillascia, 120 N.H. 576, 419 A.2d 1090, 1091 (1980);
Pinar v. Meredith, 110 N.H. 291, 266 A.2d 103, 106 (1970); 31A13
- v. Zetterbera, 109 N.H. 126, 244 A.2d 188, 191 (1968). In the l
l exercise of its police powers, the Petitioner has the authority to determine whether the best interests of the municipality would be served by cooperating with the establishment of a nuclear emergency response plan. The Petitioner, however, has determined that the participation in such a plan would not advance the health and safety interests of its citizens in view of the ineffectiveness of any such plan. On the contrary, the Petitioner believes that to permit the poles and sirens to be erected within the municipality would give a false sense of security to its residents, allowing them to.believe falsely that such a plan would result in their safe evacuation in the event of 43
t a nuclear accident. In Town of Freeden v. ui .ascia, supra, 419 A.2d at 1091, 4 the New Hampshire Suptame Court upheld on the basis of the town's police powers a town ordinance requiring that septic tanks be f - constructed at least 125 feet from any body of water. The court stated that under its police powers a town has the authority to enact ordinances which promote the general health and welfare of its citizens. Id. Similarly, in state v. Zetterbera, aggra, 244 A.2d at 191, the court found that an ordinance enacted by the Town of Rye regulating surfing in the waters off the town's shore was a proper exercise of the town's police powers in the area of I. public health and safety. The court in Piner v. Meredith, supra, 266 A.2d at 108, in upholding a town ordinance regulating the height of buildings within the town, stated that a town's j exercise of its police powers must be upheld if such exercise is supported by any fair reason. l clearly, New Hampshire case law indicates that under its police powers a municipality has broad authority to take action in matters affecting the public health, welfare, and safety. In view of these established powers, the Petitioner's refusal to approve the installation of poles and sirens within the l municipality must be upheld as an appropriate exercise of this t power. See also Plane v. Town of Conway, 118 N.H. 883, 395 A.2d 517 (1978) (town ordinance restricting number.of street vendors in heavy traffic areas proper exercise of police powers); Town of 44
l
. ll l
?
- _10 Plainfield v. Hood, 108 N.H. 502, 240 A.2d 60, 64 (1968) j 1
(ordinance restricting number and locale of mobile homes within town valid as protecting public health, safety, and welfare); i Town of Deerina ex rel. Bittenbender v. Tibbetts, 105 N.H. 481, 202 A.2d 232, 235 (1964) (town ordinance restricting construction of buildings near town common valid exercise of police power in view of purpose of preserving historic buildings and protecting general welfare and prosperity of town). III. RESPONDENT DOES NOT HAVE THE RIGHT, UNDER N.H.R.S.A. 5 231:160, TO INSTALL POLES AND SIRENS WITHOUT THE PETITIONER'S APPROVAL ON STATE RIGHT-OF-WAYS WITHIN THE MUNICIPALITY. First, the poles at issue in the present casa do not even fall within the provision of N.H.R.S.A. 5 231:160 (1982), i authorizing the installation of poles. The statute specifically lists the types of structures included within its provisions. The list does not include the installation of poles to be used as part of a public muergency syaten. By specifically listing those ( structures covered by the statute (i.e. telegraph, television, telephone, electric light and electric power poles), and by not providing any catch-all category to cover poles such as those at
' issue in the present case, the legislature clearly intended that this list be exclusive. Since the poles and sirens in the f
present casa do not fall within this statute providing for the erection of poles on public highways, the Petitioner clearly has authority under its police powers to approve or disapprove the 45
4 erection of poles and sirens on the state right-of-ways within the municipality. Certainly this type of regulation falls within a municipality's powers to promote the public health, safety, and welfare. Town of Freedom v. Gillescia, supra, 419 A.2d at 1091; Pinar v. Meredith, Engra, 266 A.2d at 106; State v. Zetterbera, REDIA, 244 A.2d at 191. The municipality has a strong interest in ensuring that structuros are not installed within the municipality which pose a threat to the public health and safety. l l The Petitioner views these poles and sirens as such a threat. Even if, arguendo, the poles at issue in the present case could be considered as falling within the provisions of N.H.R.S.A. $ 231:160, the statute manifests no intent by the legislature to preempt a municipality from requiring its approval for the erection of these poles within its territory. Local action will not be considered as preempted where the local action i does not conflict with a state statute or run contrary to the i legislative intent underlying the statute. Public Service Co. v. Town of Hamnton, REEIA, 411 A.2d at 166; State by City of Rochester v. Driscoll, AgEIA, 385 A.2d at 220; Lavallee v. Britt, i AMBIA, 383 A.2d at 712. In the present case, the statute manifesta no intent to foreclose the municipality from approving i the erection of poles on state right-of-ways within the municipality. The state has not set up an exhaustive reviewing process and has made no provision for conside. ration of the local interest, thus indicating that local government still has a role 46 i
1 . . to play. The municipality,-as has already been discussed, has the authority under its police powers to withhold its approval of the installation of poles within the municipality. In the absence of clear legislative intent to preempt the municipality's i power in this area, the Town's authority to require its approval for the installation of these poles must be upheld. 4 ( IV. THE LICENSE ISSUED BY THE PETITIONER TO THE RESPONDENT FOR THE ERECTION OF POLES ON TOWN ! PROPERTY WAS ERRONEOUSLY ISSUED AND WAS SUBSEQUENTLY REVOKED BY THE PETITIONER. The license issued by the Petitioner to the Respondent was erroneously issued and thus was without force and effect as a valid license to the Respondent for erection of poles on town property. The Respondent, in submitting the license application,
- deliberately set out to mislead the Petitioner by concealing the fact that the pole license was being sought as part of the i implementation of a nuclear emergency response plan. The respondent failed to follow the requirement that such license applications are to be submitted to the Board of Selectmen.
Instead, the Respondent improperly submitted the application to the Town Clerk, thus preventing proper consideration from being given to the license application. Further, the Respondent submitted the pole license application without any cover letter j or explanation as to the purpose behind the application. Obviously, the Respondent intended to conceal its purpose in seeking the license. The issuance of this license, based as it 47
i was upon the Respondent's deceit, was without force and effect. Regardless of the validity of the license, the Petitioner subsequently revoked the license. If the license did have any valid effect, it was revoked at this time. The Petitioner's revocation of the license, based as it was upon the health and safety of its residents, was entirely proper. 64 c.J.S.,
" Municipal corporations" 5 1740(3) (1950). clearly, the municipality's police powers in the area of public health and safety take precedence over the Respondent's interests as a licensee. The predominance of the local health and safety over a utility's interest as a licensee is well illustrated by the l established rule that utilities with properly licensed facilities i (i.e. lines, poles, etc.) located on or beneath public property are required to relocate such facilities at their own expense
' when the public health and safety require. Manchester Gas Co. v. Griffin construction *Co., 119 N.H. 179, 399 A.2d 970, 971 (1979); Oninion of Justices, 101 N.H. 527, 132 A.2d 613, 614 (1957). In the present case, the Petitioner's actions in revoking the Respondent's license were based on the Petitioner's belief that the erection of such poles on town property as part of the implementation of a nuclear emergency response plan was not in the best interests of its residents. The municipality's interest in promoting the public health and safety clearly takes precedence over any interest the Respondent might have had as a licensee. Under the exercise of its police powers, thereforo, 48
' the Petitioner was empowered to revoke the Respondent's license. l 4 CONCLUSION The Petitioner's refusal to approve the installation of poles and sirens within the municipality as part of the implementation by the Respondent of a nuclear emergency response i plan is permissible under federal law. Case law indicates that local government may properly refuse to cooperate with or participate in the adoption of a nuclear emergency resoonse plan. . ! The Petitioner's refusal to approve the erection of the poles y l within the municipality, therefore, is permissible under federal ' law as an exercise of this right to refuse to cooperate in the 4 implementation of a nuclear emergency response plan. The Petitioner also is not required, under state law, to participate in the implementation of a nuclear emergency response plan. The language in N.H.R.S.A. I 107-B:1, which directs the state civil defense agency to implement a nuclear emergency response plan "in cooperation" with local government, leaves open i the opportunity for local decision-making and action in this ! area. The. language indicates that the legislature did not intend 1 to preempt local authority to approve such a plan. Furthermore, l the Petitioner's actions in refusing to approve the installation of the poles constituted a valid exercise of its police powers in the area of the public health and safety. . The Respondent does not have the power, under N.M.R.S.A. 5 i 49 L ,,-..-... ,. n -- ___ - , . , . - _ , - - - - - - - , - _ _ - - -
s 231:160, to install poles and sirens on state right-of-ways within the municipality without the Petitioner's approval. The poles at issue in,the present casa do not fall within the list of structures enumerated in 5 231:160. The Petitioner, therefore, has the right to approve or disapprove the installation of such poles on the state right-of-ways as a valid exercise of its police powers. Even if, arguendo, the court were to find that the poles did come within the provisions of 5 231:160, the statute indicates no intent to preempt the authority of local government to approve the installation of the poles. The license issued by the Petitioner to the Respondent for . the erection of poles on town property was erroneously issued by the Petitioner and thus was without force and effect. The Respondent misled the Petitioner into granting the license by deliberately concealing its purpose in applying for the license. In mny case, the Petitioner subsequently revoked the license as a valid exercise of its police powers. Clearly, the Petitioner's interest in protecting the health and safety of its residents takes precedence over the Respondent's interests as a licensee. Respectfully submitted, G W P'. Nadead" deau Professional Offices 00 Washington Road Rye, New Hampshire 03870 Attorney for Petitioner (603) 964-6112 50
STATE OF NEW HAMPSHIRE ROCKINGHAM, SS. SEPTEMBER TERM, 1986 SUPERIOR COURT 86-E-34 Town of Rye, New Hampshire VS Public Service Company of New Hampshire MEMORANDUM OF LAW ON BEHALF OF ! TOWN OF HAMPTON FALLS INTRODUCTION This Petition for Declaratory Judgment, instituted by the Town of Rye, presents the question of whether certain pole location permits granted by the State of New Hampshire Department of Public Works and Highway are valid. The undisputed facts in this case demonstrate the following:
- 1. The Town of Hampton Falls has voted at two consecutive meetings, 1983 and 1984, to disapprove the placement of poles for emergency warning sirens in the Town of Hampton Falls, unless and until the citizens of the town, acting through town meeting, have approved an overall evacuation plan 1n connection with the proposed Seabrook Nuclear Power Plant.
- 2. Notwithstanding the town's position, Public Service Company has erected four sixty foot high poles within the boundaries of the town. Each pole has the sole purpose of supporting an approximately six foot, 500 lb, warning siren, made necessary solely because of the attempt to license a nuclear power plant in Seabrook.
51
. . _ _ . _ _ =-- _- .- _ . _ ,
.. .. o
- 3. Both the owner of the f acilit ies in ques tion, Public Service Company of New Hampshire, and the State of New Hampshire were made aware of the opposition of the Town of Hampton Falls to the placement of these facilities within its borders. i The question presented for decision is whether or not, in light of these facts, the state had the authority pursuant to N.H. Rev.
Stat. Ann. 6231:160 to authorize the placement of these facilities within the right of way of state maintained highways. RELEVANT STATUTE The governing statute in this case provides as follows:
. Authority to Erect. " Telegraph, television, telephone, electric light and electric power poles and structures in underground conduits and cables, with their respective attachments and appurtenances may be erected, installed and maintained in any public highways and the necessary and proper wires and cables may be supported on such poles and structures or carried across or placed under any such highway by any person, co partnership or corporation as j provided in this subdivision and not otherwise."
. The following section, 231:161, provides that when "such poles, structures, conduits, cables or wires in, under or across any such highway," are to be erected a permit shall be obtained in accordance with the procedure set out in that section. Sect ion 161:I(c) provides that for state maintained highways, ," exclusive jurisdiction of the disposition of such petitions" shall be directed to the Commission of Transportation. ' The question presented, insofar as the Town of Hampton Falls
- in concerned, is simply whether the facilities in question fall within the statutory language of Section 160. If they do not, it is the position of the Town of Hampton Falls the town authority remains paramount. N.H. Rev. Stat. Ann 41 til.
52 - _ , . - . - . - -__.
O' O. ARGUMENT It is undisputed that the f acilities in question are not ordinary utility poles such as the type, as the testimony indicated, are
" routinely" permitted by town officials. These facilities are substantially higher than ordinary utility poles, and serve an entirely different purpose. In the Town of Hampton Falls, these poles have no part in the provision of utility service to the citizens of the community, or indeed to the citizens of surrounding communitles.
"It is an elementary and universally accepted rule of statutory interpretation that the expression of one thing in a statute implies the exclusion of another." Ma t t e r o f Gambl e , 118 NH 771 ( 1978 ) . -I f the general court had meant to vest authority exclusively in the Department of Transportatlon, formerly the Departmdnt of Publle Works and Highways, for all utility owned structures desired to be sited within state highway right of way, it could easily have said so.
However, the statute does not so provide. It is undisputed that the f acilities in question do not provide
" telegraph, television, telephone, electric light..." or " electric power...". -
Thus, although N.H. Rev. Stat. Ann. 231 6160 grants authority to erect these type of faellities, along with "their respective at tachments and appurtenances" it does not convey authority to erect the type of faellities in question, which are of a drastically different character than the normal utility poles and their
" respective attachments and appurtenances." This being the case, it follows that the legislature cannot be deemed to have conferred exclusive jurisdiction on the Commissioner of Transportation to 53
permit these facilities, and that authority is retained by the town I pursuant to N.H. Rev. Stat. Ann. 641:11 to determine whether or not l to permit these extraordinary structures. That this authority should remain with the town is particularly appropriate since the purpose of the f acilities is not the provision of service to the citizens of the town, or of neighboring towns, but ostensibly for the alerting, for safety purposes, of the citizens of this very community. The purpose being related to the well being of the citizens of the community, it certainly should be the responsibility and right of the community, through its democratic processes, to determine whether or not that purpose is being served by the facilities, or rather, as the testimony of the selectmen indicates, being disserved by these facilities. CONCLUSION For the reasons stated, the Petition for Declaratory Judgment should be allowed, and the Court should enter its judgments ruling that the proportive state permits for warning sirens and supporting poles are invalid and of no force and effect. Respectfully submitted, Town of Hampton Falls Fy its, attorney, BACKUS, MEYER & SOLOMON
~
fk@*x Robe rt A'; Backus P! O. Box 516 116 Lowell Street Manchester, N.H. 03105 Tel: (603) 668-7272 DATE: November 14, 1986 54 4
.- .. j, I hereby certify that a copy of the within Petition has been sent this date, f irst class, postage prepaid, to Margaret Nels .n n, Esq. and J. P. Nadeau, Esq. s.
, . j' fyn Robett A. Baekus h
' 55
r THE STATE OF NEW HAMPSHIRE ROCKINGHAM, SS. SUPERIOR COURT SEPTEMBER TERM, 198 .
,l l
TOWN OF RYE, NEW HAMPSHIRE, ET AL v. f l PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
! MEMORANDUM OF LAW OF PUBLIC SERVICE i COMPANY OF NEW HAMPSHIRE I. Procedural History The Town of Rye (" Rye") brought the present petition for declaratory judgment against Public Service Company of New Hampshire ("PSNH"). Rye seeks an order from this Court permitting it to revoke certain pole licenses which it had previously issued to PSNH and requiring PSNH to remove all poles bearing alerting sirens whether on Town roads or rights of way held by the State of New Hampshire ("the State") within the geographical boundaries of Rye.
Subsequently, the Town of Hampten Falls ("Hampton Falls") was allowed to intervene in this proceeding, alleging that PSNH should be required to remove certain poles with alerting sirens which had been inst'alled on State right of ways in Hampton Falls. PSNH takes the position that neither Rye nor Hampton
- Falls has established a proper basis under New Hampshire , law f to require the reaoval of PSNH poles in those communities which PSNH installed in reliance on approvals obtained from Rye or the State, as the case may be. Accordingly, the petitioners are not entitled to the relief they seek.
I 56
.* oo i! t II. Statement of Facts ly i;l PSNH is one of the Joint Owners of the Seabrook Nuclear Generating Station ("Seabrook Station"). As a part of the i I construction process, the federal Nuclear Regulatory g Commission licensing procedures require Seabrook Station to l t l ' have in place emergency plans to deal with emergency situations which might arise. In essence, the owners of Seabrook Station are required to prepare a plan to notify residents living in the emergency planning zone ("eps") of Seabrook Station of any radiological emergency which might occur in order that an evacuation or other appropelate protective actions can be taken. As part of its Seabrook Station radiological emergency response plan, Seabrook Station is providing a public notification system utilizing sirens placed on poles in 17 communities in New Hampshire and 6 communities in Massachusetts. PSNR retained a consulting firm, HMM Associates, Inc. ("RMM") of Co,ncord, Massachusetts, to assist in the preparation of the siren notification system. PSNR and its consultant RMM actively sought to inform the* various communities about the design and implementation of
'the siren notification system and solicit their input. In the vast majority of communities, NMM selected pole sites in conjunction with interested Town officials. Rye and Hampton 2-57 9
m
.: Falls chose not to participate in meetings held to keep the municipalities apprised of the design of the system nor to 3 assist in the selection of pole sites.
8 As part of this process, on November 7, 1983, Bruce B. j Beckley, Manager of Nuclear Projects for PSNH, met with $ Rye's Board of Selectmen to discuss the proposed siren notification system. Rye's Board acknowledged Mr. Beckley's visit in a letter dated December 5,1983 but indicated an unwillingness to cooperate in the installation of the system because of its lack of confidence in the effectiveness of an emergency preparedness plan. On July 9, 1984, PSNH submitted a pole license application for the installation of three poles on roads subject to the authority of Rye. This application was signed by Bruce Beckley, Manager of Nuclear Projects. Although PSNR provides electric service to Rye, it does not routinely submit pole license applications to Rye since its other poles in.that community are jointly owned by New England Telephone and Telegraph Company which handles such applications on behalf of both compa'nies. On July 10, 1984, Mr. Beckley sent a letter to the Rye Board of Selectmen describing the status of the siren notification system. Mr.
. 'Beckley went on to state ,
During the design process, we were unable to work in cooperation with the Town as we would have 58 ,,
preferred. Absent input from the Town, Mr. David ! Keast of HMM and I have selected the locations listed on-the attached summary which is an update of the design report information. We are reauesting by a separate letter to the Rye Town Clerk that New Hampshire licenses be issued for the poles along town streets on which sirens will be mounted. (emphasis supplied). Mr. Beckley closed his letter by encouraging the Board to contact him with any additional municipal requirements or l questions they may have. Attached to the letter was a l
' i <
summary of the proposed pole locations in Rye and diagrams l l of their locations. i i
;,j on September 10, 1984, the Board of Selectmen of Rye '
I llgrantedPSNNalicensetoconstructthepolesinaccordance with the plan which had been submitted with its application. I j The license was executed by all three Selectmen. In addition, on July 11, 1984, PSNH submitted pole
, permit applications to the State of New Hampshire for poles I
to be placed on State right of ways in various communities, including Rye and Hampton Falls. On September 20, 1984, the State gave PSNR permission to proceed to install the poles as requested in a letter of H.1(. McCrone'to Bruce Beckley dated September 20, 1984. PSNR proceeded to install the poles in accordance wi h the approvals it had received. Not until November 7, 1985 I did PSNR learn that Rye claimed to object to the ' installation of poles in that community. On that date, PSNH received a letter from the Board of Selectmen which purported to revoke the pole license which had been 59 '4- ' i
previously issued. The Board summarily ordered PSNH to cease and desist from any f arther installation of poles in Rye and to remove any poles which had already been installed. Subsequently, at PSNH's request, officials of New Hampshire Yankee, a division of PSNH responsible for O completing construction and operation of Seabrook Station, l
. appeared at a Board of Selectmen's meeting to present PSNH's position on the factual background of the case. PSNH's !
.. e counsel also submitted a letter setting forth PSNH's legal I
!l !
3
- j. position with respect to the purported revocation. The !
't l
'j Board took the matter under advisement. Thereafter, without notice to PSNH, the Board chose to hear argument on this 3
matter from Robert A. Backus, Esq. Mr. Backus who was not
}1 l acting as counsel to Rye appeared at a Board of Selectmen's ,
N' meeting to which no representative of PSNH had been invited. l l On December 19, 1985, the Board wrote to PSNH, purporting to l reaffirm the decision set forth in its letter of November 7, 1985. Rye subsequently commenced the present litigation. I In Hampton Falls, matters took a somewhat different course. As noted above, PSNH received permission from the State to place certain poles with alerting sirens on State' right of ways. In addition, PSNH also planned to place one pole on a Town road. However, when PSNH submitted its pole, license application, the Board of Selectmen denied it. PSNH appealed the Board's decision to this Court, (PSNH v. I 60 N t
.o ..
Hampton Falls, Rockingham County Superior Court Docket
#E-485-84). Thereafter, PSNH determined that the pole which
; it had planned to locate on a Town road could be relocated to the Town of Kensington. Accordingly, the litigation was
-l '
!' rendered moot and PSNH took a " Voluntary Nonsuit". At that I
l!i time PSNH counsel supplied counsel for Hampton Falls with a l il, copy,of the letter it had received f rom the State giving it i permission to place poles on State right of ways and informed counsel for Hampton Falls of PSNH's position that l l it was entitled to erect poles in Hampton Falls in accordance with the permission granted by the State.1 fHamptonFallstooknoactionwithrespecttothismatter until it sought to intervene in this litigation. III. Argument - Neither Rye Nor Hampton Falls Are Entitled '
' Under New Hampshire Law To Require Removal of Poles I Installed By PSNB In Reliance On Previous Approvals.
Neither Rye nor Hampton Falls are entitled to the relief they seek in these proceedings. With respect to Rye, M 1 A copy of the letter of PSNH counsel to counsel for - Hampton Falls is attached as Attachment A. 9 61 l , , li
r ,
.. . . ,3
. N r-
, . v ,
it is undisputed that Rye issued a pole license to PSNH for j .. . , the poles erected on Town roads. At the time itJi[ sued that license, Rye knew or should have known the purpose foi?Lhick - ['" the application was submitted. In any event, New Hampsh re lawgivesamunicipalityonlylimitedauthoritywith' respect [ to issuance of pole licenses. Selectmen may reject or , revoke such applications only where thepoles would present a safety hazard to safe use of the highways. Therefore, Rye ', l had no proper basis under New Hampshire law to revoke the -
,y license more than a year after it had been issued. ,
.J Furthermore, Rye's purported revocation was procedurally ,
defective in many important aspects. Neither Rye nor Hampton Falls can properly impinge upon the authority of the State to permit the construction of poles on State right of ways. Moreover, Hampton Falls must be precluded from I raising this issue at this point because it took no steps to litigate this question until long after it had been made , aware of PSNH's position. A. RSA 231:159 et. seq. Provides A Comprehensive Statutory Scheme Governing Approvals.of Placement of Utility Poles Which Pre-empts Other Authority In That Field. RSA 231:160 provides as follows: Authority to Erect. Telegraph, television, telephone, electric light and electric power poles and structures and underground conduits and cables, with their respective attachments and 62
- l -
, 1
/?
. t,
- NI.s d
a
\
'- appurtenances may be erected, installed and maintained in any public highways and the
- n necessary and proper wires and cables may be 1 I
supported on such poles and structures or carried
- y
,f
- { -
across or placed under any such highway by any et- ;f, person, copartnership or corporation as provided ' in this subdivision and not otherwise. rl j j.; . e - h The statute's purpose is to effectuate the legislative g
,/
l c declaration that the erection of utility facilities is a
!I t
ll proper use of the public highways. ,Kinc v. Town of Lyme, 126 l l 7 ld N.H. 279 (1985). L6 Applications for pole permits or licenses are to be a > made to the Selectmen for Town maintained highways or the State Commissioner of Public Works and Highways for State maintained highways. RSA 231:161, I (a) and (c).2 7, determining if the public good requires the granting of such
$ 's applications, Selectmen are given only limited authority.
The Selectmen in such license shall designate and i .' ' define the maximum and minimum length of poles, the maximum height of structures, the approximate location of such poles and structures and the
- minimum distance of wires above and of conduits and cables below the surface of the highway, and in their discretion and approximate distance of such poles from the edge of the traveled roadway or of the sidewalk gnd may include reasonable requirements concerning the placement of e
f reflectors thereon... RSA 231:161 IV, V. 2 The State Commissioner's authority is the same as that which will be described for the Selectmen. .
% e n
l 63 j
0 l While pole permits may only be granted for a period of a year with a one year renewal, there are no time .
" }
si constraints on licenses. RSA 231:161, II and VI. The l' I holder of a license may proceed to install such poles and l other structures and supply them with the necessary I I appurtenances required during their continuance in service. i RSA 231:161, VI. I The Selectmen may revoke or change the i terms or conditions of any license only upon notice to the h L licensee and a hearing. RSA 231:163. { i It is a settled principle of New Hampshire law that I cities and towns have only those powers granted to them by l the legislature.
) Ducas v. Town of Conway, 125 N.H. 175 f (1984); PMC Realty Trust v. Town of Derry , 125 N.H. 126 I (1984); Wasserman v. City of Lebanon, 124 N.H. 538 (1984);
i PSNH v. Town of Hampton, 120 N.B. 68 (1980). When the State ; establishes a comprehensive statutory scheme for the i regulation of certain property, that statute pre-empts other F authority in that field.
)
In the present case, RSA 231':159 et. seq. provides a comprehensive and exclusive scheme for the regulation of the- . placement of utility poles and other structures on public highways. Parker-Younc Co. v. State, 83 N.H. 551 (1929) ' defines the authority of the Selectmen to determine the . , . 4-u- 64 R
\
, t :+
requirements of the public good under the statute. The case ll involved an appeal f rom a Public Service Commission ("PSC") decision granting one utility the right to service a 1 particular town while denying such authority to a prior petitioner. The overriding basis for the PSC's decision was the promise of the Town Selectmen that they would not grant i pole licenses to the prior utility. In remanding the l decision, the Court found that PSC had given undue deference , to the announced intention of the Selectmen to exercise powers which they did not rightfully hold. Whatever implied ll i i rights the Selectmen originally possessed to determine which utility may obtain pole licenses and service the Town was supplanted by the subsequent passage of the Public Service Commission Act. Laws 1911, c. 164 (codified as amended at i RSA 363:1, et. seq.). That act vested the Public Service Commission with exclusive authority, subject only to appeal, I to determine whether the public good required a petitioning utility to be permitted to service a particular town. This grant of power included the exclusive authority to determine which of the two competing utilities would best serve the l public good, and any corresponding powers conferred upon the Selectmen under the pole statute were implicitly if not explicitly superseded. l The Court set forth its rationale and the limited powers left to the Selectmen to define the public good under the pole statute. 65 <
- "I ,
l i 1
v n It is inconceivable that the legislature could have intended that the Commission's permission to a public utility to do business in a given territory could be annulled by obstructive action
- by a local board of any one of the several towns y through which the utility has been authorized to extend its lines. Such a result would defeat the .
d apparent purpose of the legislature to provide
, l for uniform treatment and control through a g
single state tribunal of utilities operating in l several municipalilties. It by no means follows, however, that the duties of the Selectmen are rendered perfunctory by transferring from them to the Commission such incidental powers as they may formerly have possessed to determine the question whether a given utility may do business in their town or what particular utility can best serve the public. It is their function to so regulate and control the use made of highways by any utility. which may be permitted to occupy them that such use will not unduly interfere with other public - uses. To the accomplishment of this end, by the proper location of the route and appliances, the powers of the Selectmen remain supreme, subject only to appeal to the Superior Court by any party aggrieved. 83 N.B. at 557. Thus, RSA 231:159 et. seq. sets out the procedures and standards governing the placement of utility poles on public highways. The Selectmen's authority under this statute is limited to matters which directly affect the safe use of the highways. The Selectmen may not use this statute as a vehicle to express other public policy concerns, no matter how sincere. Nor does the statute permit a Selectmen to j
-interfere with the authority granted to the State with respect to State maintained highways.
i 66 - l
B. Rye Cannot Establish A Basis To Revoke The License Which It Granted PSNH Or To Require Removal Of Poles Placed On State Right Of Ways. Viewed in the context of the statutory framework laid out above, Rye's claim must fail. It is undisputed that Rye issued a license to PSNH to install the poles on Town highways. The evidence does not support Rye's claim that it was unaware of the purpose to which these poles would be put. The subject of the emergency notification system had been fully publicized in the various communities in the epz. Mr. Beckley of PSNH had attended a meeting of the Selectmen in November, 1983 in order to brief them on the system. The pole license application was signed by Mr. Beckley in his capacity as Manager of Nuclear Projects. Indeed, Mr. Beckley wrote to the Board advising them that an application for poles to be used as part of the siren notification system was being submitted. Moreover, PSNH would not have submitted an application for a pole license with respect to a utility pole to be used for electrical distribution in Rye because such an application would routinely have.been submitted by New England Telephone and Telegraph Company. All of these facts demonstrate that at the time Rye issued the license in September, 1984, it knew or should have known that the poles were part of the emergency notification system. Any suggestion that PSNH ever sought to mislead the 67 . , 1.. - - _ . _ . _ _
Selectmen on this issue is simply incredible. If anything, the record shows that PSNH went out of its way to fully y inform Rye of its planned activities in the community. Rye may belatedly claim that these poles do not fall t within the embrace of RSA 231:160. Rye's action in approving PSNH's pole license application under this statute ! I belies any such assertion. Contrary to Rye's assertions, i these poles are utility poles, albeit somewhat taller than a i l typical distribution pole. In any event, the statutory
! l
! language covers not only poles for the transmission of I
electrical power but also " structures" and other I
" appurtenances" which are " required in the reasonable and proper operation of the business carried on by such !
licensee..." RSA 231:161, VI. Innie v. W & R, Inc., 116 N.H. 315 (1976) provides a useful analogy. There the Supreme Court held that a 1 i statutory mechani:s lien covering "a house or other building
- or appurtenance", would include appurtenances to the land l
l such as a paved road as well as. appurtenances to the buildings. The issue was controversial because the statute under consideration was enacted at a time when modern land development, requiring the construction of roads as well as j b'uildings, was unknown. Applying the rule of interpretation that: "In statutory construction, it is not improper to take into account changes in conditions which have occurred in intervening years," the Court found that "by use of the generic term ' appurtenance' ... a legislative intent can be
, 68 _ 13 _
i l
l l discerned to include all structures, whether of the type ! which were constructed at the time the statute was written,
!i H or modern types of appurtenances such as the present roadways." Id., 116 N.H. at 317-318. Of greatest j l]'
' significance was that application of the statute to ;
incorporate modern circumstances would fulfill the legislative intent of giving the contractor a lien on the permanent improvements to the realty he had helped to construct. ; The analogy to the instant matter is patent. Although the need for public warning sirens in conjunction with the generation and distribution of electricity by nuclear power was not anticipated in 1881, such structures are required by law in the modern operation of PSNH's business. By I providing that the pole licensing act would apply to other l
" appurtenances which are required in the reasonable and proper operation" of that business, the legislature ;
l evidenced its intent not to limit the types of appliances encompassed. by the statute to ,tdue technology of the 1880's. Most significantly, interpreting the statute to apply to the poles in question will effectuate the legislative intent of allowing the public streets to be used for the location of
. these utility facilities while causing no greater ,
interference with the other uses of the street than that created by a telephone pole or transmission line. Rye had no proper basis under New Hampshire law to
. revoke PSNE's license in November,1985. PSNE, acting in 69 '! )
l
reliance on this license, had proceeded to install its
. poles. Its rights had vested. See, Appeal of PSNH, 122 t
N.H. 1062 (1982). Rye made no claim of any issues af fecting
!l the safe use of the streets in its purported revocation. To
" i' the contrary, Rye made it plain that its revocation was i
based on its continuing opposition to implementation of an l emergency response plan for Seabrook Station. The Rye
'l Selectmen have no more authority under the pole license statute to determine whether the public interest warrants l
the construction of the public notification system in the Town than the Selectmen in the Parker-Young Co. case had to penalize their utility by denial of poles licenses. The New Hampshire legislature has mandated that a radiological emergency response plan be developed for the State. RSA 107-B: 1. A public notification system is an integral part of such a radiological emergency response plan. See, 10 C.F.R. 50.47, Appendix E, Nuclear Regulatory Commission Reg. 654, and Federal Emergency Management Administration Regulation 43. The determinat, ion made a higher state authority that a public warning system is required in the public interest cannot be annulled by the Selectmen's contrary deermination under the pole statute. The only .
' power which the Selectmen have under the pole statute is to ,
regulate the location and height of these structures so as not to interfere with other uses to which the highways are dedicated. 70 .
The safety concerns raised by Rye to support its purported revocation do not fall within the scope of its authority under RSA 231:161, V to issue appropriate regulations governing the height of poles, the location of wires and setback requirements. Indeed, Rye has made no claim that the disputed poles in anyway affect the safe use of public highways. To the contrary, Rye's apparent safety concerns relate only.to its vociferous objection to any public notification system for Seabrook Station. In particular, Rye's claim that the fact that some of the poles have been vandalized somehow provides it with an ultimate basis to
~
revoke its license is patently absurd. Any property could con-ceivably be the subject of criminal attack. Yet, that fact alone cannot preclude an owner who has complied with all applicable law , from obtaining appropriate permits or licenses. Indeed, PSNH
- would respectfully suggest that if Rye is concerned about possible vandalization of these poles within its community, the appropri-ate course would be to exercise its police powers to prevent or apprehend those individuals who commit such criminal acts.
Nothing in RSA 231:159 et.. seq. permits the Selectmen to j interfere with the authority of the State to permit installation of poles along State maintained highways. Authority over installation of poles on State right of ways has been exclusively given to the State under RSA 231:161. While a municipality may have the right to express an opinion about the State's perfor-mance of its statutorily mandated functions, it cannot exercise veto power over the State's actions. PSNH v. Hampton, supra; see also, decision of the Hon. Joseph Nadeau in Vernet et at v. 71
. . - - - . . ~ . _ m. sr_ n-I i
Exeter, Rockingham County Superior Court Docket #86-E-06. In f Vernet, Judge Nadeau ruled that a vote at town meeting could not bar the Selectmen from refusing to cooperate with the State's exercise of its authroity under RSA 107-B to formulate and implement a radiological emergency response plan. Judge Nadeau relied on Parker-Young Co. v. State for the proposition that a local unit of government, either by vote of the Selectmen or vote of the town meeting, cannot defeat the c3 ear purpose of legislation. This matter is currently on appeal to the New Hampshire Supreme Court, Docket No. 86-118. Yet, such veto' power is precisely what Rye seeks in this case by pur-porting to require the removal of the poles installed on State . right of ways. Furthermore, Rye's purported revocation was procedurally defective. Rye issued its letter of revocation without any notice of hearing as required by RSA 231:161. At a minimum, due process requires meaningful notice and an opportunity to.be heard by an unbiased tribunal. City of Claremont v. Truell, 126 N.H. 30 (1985) ; Appeal of Portsmouth Savings Bank,123 N.H. 1 (1983). While Rye subsequently gave PSNH an opportunity to be heard on the revocation, Rye also chose to rely on ex parte arguments made by Attorney Backus in reaching its decision to revoke the PSNH license. PSNH was not informed that the Board intended to solicit Mr. Backus' comn.ents and was not given an , opportunity to respond to them. The minutes of the Board's meeting of December 16, 1985 amply demonstrate that the Selectmen relied, at least in part, on Mr. Backus' rebuttal of PSNH's position to justify its decision to revoke the license. Since 72 a primary purpose of the due process right to a hearing is the right to. confront and respond to opposing evidence, Appeal of Portsmouth Trust Co., 120 N.H. at 758, the fact that PSNH was
' allowed to speak first on the validity of the pole license does
'l' not address the denial of an opportunity to provide input on Mr.
E
' Backus' comments. A quasi-judicial administraive panel's l l reliance on such ex parte communication is a denial of the right
?to confrontation and violates the basic fairness of the hearing. \
Il See, Appeal of PSNH, supra at 1075. Furthermore, the terms of the notice provided by the -
. Selectmen' lead to the conclusion that even before the hearing f It I:the Selectmen had predetermined the dispositive issues in the ;
I case. The Selectmen's letter of November 7, 1985 expressly l states that the Selectmen have consistently opposed the installa-I To determine whether a party; lp tion of such sirens within the Town. ! {I has received a fair hearing before an unbiased tribunal, this 4 I l j Court must distinguish between declarations indicating a pre- ! i ' conceived point of view on policy issues and those indicating Appeal of prejudgment of a factual issue in a particular case. l 262 (1982). Jn the present case, the evidence Lathrop, 122 N.H. indicates that the Selectmen had determined, prior to any hearing, that these particular poles were not. warranted in the public interest. Such prejudgment constitutes a denial of due process. , C. Hampton Falls Cannot Compel Removal Of PSNH Poles On . State Right Of Wavs. Hampton Falls claims that PSNH's installation of poles pursuant to State appro, val violated a town vote forbidding the i [ l I 73 l !
. - - , - - - - , , . . - . . , ~ , - - . - - - - . - - _ = - . . - , , , , , , , , , , - , , .
q Il . I i Selectmen to permit the installation of an emergency notificationl system in the Town until the Town had approved an emergency response plan this argument is specious. PSNH complied with the express directive of RSA 231:161 by seeking approval from the State to install these poles. Hampton Falls has not con- - tested that the State does not have authority over State maintained highways. Indeed, in a letter of its counsel to the Commissioner of Public Works and Highways dated November 12, 1985, Hampton Falls conceded that under RSA 231:161, the State's authority over State maintained highways is exclusive. Hampton Falls-merely requested the State to defer to the Town's e opposition to the emergency response plan. A copy of this letter is attached hereto as Attachment B. As noted above, RSA 231:159 does govern poles such as the ones in question in this litigation. Accordingly, the State's authority over the placement of these poles on State highways is, as Hampton Falls conceded, " exclusive". As with Rye, Hampton Falls is not raising any questions as to the safe use of the highways as a result of these poles. To the contrary, Hampton Falls' sole purpose of this litigation is to attempt to impose its policy determinations on the State. Indeed, it is not PSNH with whom Hampton Falls would appear to have a quarrel in this matter but rather with the State which authorized PSNH to proceed to install the poles. Yet, like Rye, Hampton Falls cannot impinge upon the State's authority in this field. See, Vernet v. Exeter, supra. i Furthermore, Hampton Fhlis must be estopped from raising this issue at this point in time. It was aware of PSNH's proposed 74
4 n when the earlier litigt on between :ne parties course of ac was discontinued. It took no steps to present its arguments to this Court then. Hampton Falls must not now be permitted to interfere with PSNH's vested rights in the poles which it has installed in reliance on State approvals. F I; D. Because The Actions Of Rye And Hampton Falls In i Pursuing This Litigation Are Vexatious and Harassing, j PSNH Is Entitled to Costs and Attorney Fees. , I While litigants usually bear their own costs, New Hampshire ; i law recognizes exception "where litigation is instituted or l l unnecessarily prolonged through a party's oppressive, vexatious, i a t I arbitrary, or bad faith conduct", St. Germain v. Adams, 117 N.H. l 687 (1977); Harkeem v. Adams, 117 N.H. 687 (1977). In the present case, it appears that both Rye and'Hampton Falls, despitej i protests to the contrary, have become involved in this litigationt j, as part of their ongoing refusal to cooperate with the emergency ,i 11 i response plan for Seabrook Station. Their actions would seem to i!
! be designed to present yet another roadblock in an already long l t i
and arduous process. Their claims have no basis-in New i Hampshire law. Therefore, PSNH, is entitled to be reimbursed l for its costs, including reasonable attorney's fees. IV. Conclusion For all the above stated
- reasons, the claims of Rye and Hampton Falls must be dismissed. ,
i Respectfully submitted, PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE , By Its Attorneys SULLOMAY HOLLIS & SODEN
/I)/Y d 441UM .
Dated: / Margaret H. Nelson 9 Capitol Street ( Concord, NH 03301 . (603) 224-2341 - l i l g}0-
-4
. . . . j CERTIFICATE OF SERVICE I hereby certify that I have this date, mailed a copy of the foregoing Memorandum to J.P. Nadeau, Esq. and Robert A.
" Backus, Esq.
Dated: l'[/'/((I By: A-( fdd O Margaret H. Nelson I l l l I i
'l h
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Robert A. Backus, Esquire Backus, Meyer & Solomon 116 Lowell Street P. O. Box 516 . Manchester, New Hampshire 03105 _ Re: Public Service Company of Nek Hampshire - Hampton Falls - Placement of Poles for Seabrook Notification Svstem Daar Bob: Following up your request during our recent telephone conversation, transmitted herewith is a copy of a letter to Bruce Bockley of PSNH from H. R. McCrone, Jr., Division Engineer for the Nsw Hampshire Department of Public Works and Highways, granting pole permit requests for the Seabrook public notification system in several towns, including four locations in Hampton Falls. Also included are the as-approved pole location plans for the four [ poles in Hampton Falls, license numbers NH,F-1 through 4. ; t As I indicated to you over the telephone, PSNH takes the position that it is entitled to erect poles in accordance with the parmits, pursuant to RSA 231:160 and 161. I believe this responds to your request for information about the basis on which the Company has erected the peles in Hampton Falls. I
/
Yours/very trulv_,
/ /
=
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Ilt ( - MLG/bw Martin L. Gross Enclosure bec: Karen Emery I 77 . 4
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bi ATE OF N EW llA311'SillllE
,3 .'l DEPARTMENT OF PCDLIC WORKS AND !!!GilWAYS e J0llN 0. WORTON BUILDING
*- CONCORD. N.II. 03301 J0llN A. CLEMENT 3.F.C ,
com uassiou r" Maintenance Division Six P.O. Box 740 Durham, N.H. 03824 . Tel. (603) 868-1133 September 20, 1984 i Mr. Bruce B. Beckley 1000 Elm Street P.O. Box 330 Manchester, N.H. 03105 .
Dear Sir:
The many locations where poles are proposed along the State Highway System for sirens have been reviewed. . Enclosed is an index sheet of the list of poles and in-dividual sheets for each pole. The index sheet and individual sheets are marked in red with the approved pole locations. These poles are all individual standing poles and are not dependent on a line of poles for their location. Therefore, the poles are to be located as far from the highway pavement as possible. If you have any questions please call or write this office. Very truly yours, 1
/uA1 Lte4 9
' ' c
. . R. McCrone, r., P.E.
Division Engineer HRMcC:jg . Encl. , 78 As
- c. ..
New Hampshire Department of Public Works and Highways
SUMMARY
OF POLE PERMIT REQUESTS FOR PUBLIC NUTIFICATION SYSTEM TOWN ROUTE NUMBER- PERMIT NUMBER
, s. .
M rentwood 111A 4a. 44 NER-2 101 [N[e[ -r ka'2/c'c &W"7 'I# NSR-5
- 4. East Kingston 107 C4J et/45</ NEK-1 -f--
107A w sJ 'AWCdorl NEK-3 f W h ~ f M & "I 108 e : .e 64//# NEK-4 , FExeter 11'1 42 ' - b NEX-8 . 85 / 3 '-8' /'d ~f '*' #M NEX-9 NHA-2, NHA-4[/aud *M b 1
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) o 7 tfhfr ScI hw b@ NSB-6 S tracham ,
101 'y'f'h I'~' NST-2, NST-5 '/S' E Rye 1A[Itt./ y NRY-1, NRY-3 [ 'C ' , /
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Joba Chandler. Commissieser Fablis thrks and Eighampo - Joba O. Elsetan astIding Essen Delts Osseard. Et 53381 - mest gr., Chandler . This effice 1.s representing the Town of Ramptem Falls with ragard
.<4ergemey pissaf ag fasses surrosadf ag the Seahreek Beclear Peerer
. . 4t. ascently, I had eecasion to be Im ====ncleatten with 8tr.
umgae abent plass en the part ef Pabtte Seevice Campany te erett eertalm poles for the purpose of a strea warntag system ta the Tourn of t[septos Falls, apperantty w!this the right-of-emy of state higismars withta the town, psettenlarly Roates $4 and ts, nts is te make tea aspara ttat the'Tema of Kassitaa pattir has through the tese meettag takun a stear posities with regard to energemey plaanlag procedeces meesssary before the operaties of the Seabeook Flant. The Tema has voted set to a . the approval of the Toum meettag.ppreve any plan that does met meetBasleally the Town to take all etapa meessesty to ensure that it allt kave the centroitlag votes la esteestal whether any plaa. If lapissuested, can assure :' .
.ths safety of its e timens,
.ta aseerdatee with tble pelley, the' Town has mise passed the toltoelag '.
vote at the 1984 town mestlage - 2.;Nh'ArtleteII. To see if the towe hh! vote te prehlbli the
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satifleattom system sittia the town until seen tLane that an *
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~ ..:. prejoet to approped by the vote of the toes at the toma saettag."
The artiale nas passed. " I est amare that vunder ESA 231:151, your jarlsdiettee ever state
- 2alatatsed higtuuys la eselmstee. Bewever. la aaerolslag that "meledlettoa, I thee6kt you weeld esat te be wegatsamt of the pelley, . .
af the teams, and we weeld mege that that pe! ley be gives due deforesee. .
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I w 4 ' [ i Ka addit twa, I would matesthet there appear.s te h witkis the daf tatties of permitted potes peevided ta 334,121:184. i That televis' eestles lee, telaphone mesma eteetrie to liasit the authority tight sad steetrie to eteet poles to "tetsgraph, i i !
'. strustates and modsegr,esad eoudatts and oahtsa... .* pesar petas med !
apt elear that the pelos la questleswaald fatt within this tt isdettaittoay eartalat i . i 6astty, I thlak peu abeeld know that a petitles has beam flted kr ! Publie Servles Company agslast the Tome la t&ls matter, sad to pendlag agalast the Teen la Reetlaghes Ceaaty Sweerler coe *
; might. utsh to delet sativa sa this matter, even if it seestados that . .
the pelos la questfem of the,tare wttkta the statatory langenge quoted above est11 . the estoams aatten. Fary traly years, t 4. Bastae BRE/Isb . . des
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pr - THE STATE OF NEW HAMPSHIRE ROCKINGHAM, SS: SUPERIOR COURT (M.H.) TOWN OF RYE, et al )
)
V. ) Docket No: 86-E-34
)
PUBLIC SERVICE COMPANY OF ) NEW HAMPSHIRE ) ORDER The plaintiff, Town of Rye, seeks declaratory relief allowing it to revoke
- certain pole licenses previously granted by the town's selectmen to the defendant to install poles on town-maintained rights of way; and further, seeking the removal of poles installed within town limits on State-maintained highways, which were placed by the defendant pursuant to licenses issued by the State.
The Town of Hampton Falls has intervened as party plaintiff likewise seeking removal of poles located within the town on State-maintained highways.
. The defendant is the controlling partner in the construction of the Seabrook Nuclear Power Station.
As such, it is required by the Nuclear Regulatory 87
r
-2 Commission to develop a means of evacuation and response to potential catastrophes at the plant.
As part of its plan for evacuation and response, the defendant has installed a system for public notification consisting of a series of sirens placed on poles located in several New Hampshire communities, including the plaintiffs. The poles are approximately 60 feet in height (as opposed to usual utility poles, 35 feet in height) and attached to the top of the poles is a 500 pound siren /public address system. In November of 1985, the defendant, through its Manager of Nuclear Projects, notified the Board of Selectmen of its intent to install these poles and sirens in different areas of the town. The selectmen made it clear by appropriate responses that it was their intention i to resist any such attempt. Notwithstanding their insistence-that they would not cooperate by permitting the poles to be installed for these purposes, the Selectmen, on September 10, 1984, f pursuant to RSA 231:161 I(a), granted applications for pole permits submitted by the defendant to the Town Clerk i on 7/9/84 for this purpose. It is the contention of the l l 88 i
V ? town selectmen that they were not aware that these poles were to be used for anything other than transmission of l electric power despite the fact that the defendant's agent had indicated to the selectmen that they would be seeking pole licenses for this purpose. Pursuant to the licenses, the defendant installed the poles and, in addition, installed a number of poles with like sirens on State-maintained highways located in,the Town of Rye pursuant to licenses granted by the State pursuant to RSA 231:161 I(c). 'The defendant has likewise installed a series of poles on State-maintained highways located in the Town of Hampton Falls pursuant to licenses obtained from the State. The ultimate issue to be determined is whether RSA 231:160, et seq., authorizes the town and/or State i to issue pole licenses for purposes related to this siren warning system. . Because the resolution of this petition for ! declaratory judgment necessarily involves judicial i.nterpretation of those statutes, under the authority of which the State Department of Transportation purported to ! act in permitting the placement of the poles in the State- - 89 f 4 7 ,,-r,-- - . -
,,._p,
controlled rights of way, it is found that the State is a necessary party to these proceedings. To decide the issue as it pertains to the authority of the town selectmen to issue such licenses without giving the State an opportunity to be heard, thereon, could have the effect of binding the town and not the State, which has the potential of leading to inconsistent results. Faulkner v. Keene, 85 NH 147 (1931). It is accordingly ordered that orders of notice issue to the State of New Hampshire Department of Transportation together with a copy of the petition for declaratory judgment and this order requiring the State to file a formal answer within 20 days from the date of the issuance thereof. It is further ordered that no further hearings on this matter will be held absent a specific request therefor by the State. The State shall have a period of 20 days from the date of the filing of their answers to submit such memoranda of law on the issues as it wishes the Court to consider for the resolution of this petition. DATED: b 2 dl,. / fZ d _/h Wal s W 3 Presiding Jushice l 90
p-
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THE STATE OF NEW HAMPSHIRE ROCKINGHAM COUNTY SUPERIOR COURT 86-E-345 November 26, 1986 Town of Rye, et al vs. Public Service Company of New Hampshire, et al The foregoing Petition for Declaratory Judgment and Order having been duly filed in the Office of the Clerk of said Court, at Exeter, in said County, IT IS ORDERED that the said New Hampshire Department of Transportation be served, by certified mail with a request for return receipt, forthwith, and IT IS "'JRTHER ORDERED that the New Hampshire Department of Transportation appear and file a formal answer within 20 days from November 26, 1986. ATTEST: , CLERK 9 I 91
f
^
THE STATE OF NEW HAMPSH* ROCKINGHAM, SS. SUPERIORCOURf I'n M ** 8t,t-BY - - - - TOWN of RYE, NEW HAMPSHIRE vs. M 'O
- C /. . i' l j,*. h PUBLIC SERVICE COMPANY of NEW HAMPSHIRFgg . GST FL M PETITION FOR DECLARATORY JUDGEMENT WITB PRAYERS FOR SPECIFIC PERFORMANCE NOW COMES the Petitioner, Town of Rye, a municipal corporation under the laws of the State of New Hampshire, with a principle business address of 10 Central Road, Rye, New Hampshire, and complains against the Defendant, Public Service Company of New Hampshire, a utility company organized under the laws of the State of New Hampshire with a principle place of business at 1000 Elm Street, Manchester, New Hampshire, and states as follows:
- 1. On or about November 7, 1983, the Defendant initiated contact with the Petitioner, relative to the Defendant's proposal to install a public slerting system within the Petitioner's municipality the Defendant's proposal requiring the installation of certain poles for the sole purpose of having attached to them unspecified alerting sirens.
- 2. That such alerting sirens within the Petitioner's municipality are not needed for.public safety relative to any naturally occuring disasters in the Seacoast area, such as hurricanes, and the admitted principal motivation of the Defendant for the installation of same is the possibility of a nuclear disaster eminating from the Defendant's nuclear power facility at Seabrook, New Hampshire.
- 3. Neither the need for, nor the effectiveness of, such sirens, in the erent of a nuclear disaster at Seabrook, New Hampshire have been determined, and in any event, such determinations presently would be premature, since the Petitioner has no nuclear emergency evacuation capability.
4 4. That from the Defendan't's saidni,itia) 1 err act with the Petitioner in November 1983, to the present, the Petition"Ar .hro gh its various Boards of Selectmen during that period of time, has congis wt'- and unanimously opposed the installation of the so-called alerting syssem, iv. poles and siren.
- 5. That froa the Defendant's said initial contact with the Petitioner in November 1983, to the present, the Defendant has maintained that it needs no approval from the Petitioner to install said or sirens poles on State right-of-ways within the Petitioner's municipality.
- 6. That on or about September 10, 1984, the Petitioner siened a pole license application submitted by the Defendant for the Defendant's installation of three poles on land owned by the Petitioner, not recognizing the purpose of said applicatic which the Defendant admits was submitted without cover letter or explanation of purpose, and further admits was submitted to the Petitioner's Town Clerk and not to the Petitioner's Board of Selectmen.
92 /
. 6 <, ,9 + = % ~'- = ,.c L receWp = 9L.d.6f .LL,+ nno -cn,;a.sra
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- 7. That on or about November 7, 1985, the Defendant began installing poles for the said alerting system on State right-of-ways within the Petitioner's muni-cipality, and also, pursuant to the said permit erroneously issued by the Petitioner, began installing three such poles on land solely under the control of the Petitioner.
- 8. That on or about November 7, 1985, the Petitioner issued a cease and desist order to the Defendant, revoking the September 10, 1984 permit that was erroneously issued under circumstances for which the Defendant is culpable and further advising the Defendant that the installation of any poles for the purpose of attaching siren continued to be unacceptable to the Petitioner.
- 9. Thereafter, the Petitioner in a good faith effort to see if the issues being presented herein could be resolved without litigation, met with and communicated with representatives of the Defendant.
~
- 10. The results of those meetings and communications with the Defendant's representatives are as follows:
a.) The Defendant maintains that under the provisions of R.S.A. 231:60, it has the right, without any approval of the Petitioner, to install poles for alerting sirens on State right-of-ways within the Petitioner's municipality. The Petitioner maintains that such poles and sirens are not cevered by the provisions of RSA 231:60 and that in any event, the installation of same requires the approval of the Petitioner; b.) The Defendant maintains that under the permit signed by the Petitioner September 10, 1984 it should have the right to complete the installation of the three poles covered by that permit and should not be required to remove those they have installed pursuant to same. The Petitioner maintains said permit was erronously issued under circumstances for which the Defendant is culpable, and in any event, since it was subsequently revoked the Defendant should be obligated to remove any poles installed pursuant to same. WHEREFORE the petitioner prays that this Honorable Court enter the following declaratory judgements and specifics orders of relief:
- 1. Public Service Company of New Hampshire's installation of poles for the attachment of alerting sirens anywhere.within the Town of Rye, is not authorized under the provisions of New Hampshire Revised Statues Annotated Chapter 231 Section 160.
- 2. Public Service Company of New Hampshire's installation of any so-called alerting device sirens anywhere within the Town of Rye, requires the approval of that Town, no provision of New Hampshire Revised Statues Annotated Chapter 231 pre-empting the Town of Rya's local authority relative to same.
- 3. Public Service Company of New Hampshire is ordered to remove all poles it installed in the Town of Rye on or about November 7, 1985 the specific purpose for which was the attachment of any alerting device sirens.
93
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4
- 4. Public Service Company of New Hampshire is ordered to remove all alerting device sirens it has installed, or has allowed to be installed, in the Town of Rye.
- 5. That the petitioner be awarded its costs and attorneys fees incurreo nerein.
- 6. For such other and further relief as this honorable court may deem just.
Respectfully Submitted Town of Rye By:
/
- e
. P. NADEAU Attorney for the Petitioner 1000 Washington Road Rye, New Hampshire 03870 964-6112 e
94 I l
.x _ s y -- 4 ._s--,_a z rue %L ,-+ - 3a y9 . % X+ nne . cn-m .sen
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El}e M af [efn [ampelire J ROCKINGHAM COUNTY Superior Court 86-E-34 Petition for Declaratory Judgement January 20,
'gg 86 The foregoingM.t-h P.K.M.9_rs __f 9 r Specific Performance having been duly filed in said court, it is ordered that the Plaintiff give notice to the Defendant to appear at the Superior Court at Exeter,in said County of Rockingham, on the first hesday of March , A.D.,19 86 , then and there to show cause,if any there be, why the prayers of said P.9Ai. tion
.. should not be granted by causing a true copy of the foregoing P e tit i,o p,,,,,,,
and this order thereon to be given to the said Defendant or left at the abode of said Public Service Company of New Hampshire March 86 at least fourteen days prior to said first hesday of ,A.D.,19 and that the service there of be by sheriff or deputy,if the residence of the Defendantis within the state, orby an officer authorized to serve similar process if without the state; and that service outside the state be evidenced by a return of the officer under oath accompanied by a certificate of his official character and authority. It is further ordered that said Defendant each of them, file his answer with the Clerk of said Court and deliver to Nadeau Professional Offices , plaintiff's attorney, a copy of said answer within thirty days after the return day Petition shall be taken,as confessed. otherwise said f ' Attest, % , Clerk. l J s101 95
I' 1 oe os THE STATE OF NEW HAMPSHIRE , i SUPERIOR COURT DECEMBER TERM, 1986 ! ROCKINGHAM, SS. l
\
TOWN OF RYE, NEW HAMPSHIRE l V. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE ANSWER OF STATE OF NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION l NOW COMES the State of New Hampshire Department of Transportation (hereinafter called the " DOT"), by its attorneys, and pursuant to the Court's Order of November 26, 1986, answers the Petition for Declaratory Judgement as follows:
- 1. The DOT is without knowledge of the facts alleged in paragraphs 1 through 6 and 8 through 10.
- 2. With respect to paragraph 7 of the Petition, the DOT admits that on or about November 7, 1985, the Public Service company began installing poles for an alerting system on State
- rights-of-way within the Petitioner's municipality and.
elsewhere. The DOT is without knowledge of the other facts alleged in paragraph 7. BY WAY OF FURTHER ANSWER, the DOT says: l - 96 l
- 3. Pursuant to the authority contained in RSA 231:160 et seg., the DOT gave preliminary approval to the Public Service Company of New Hampshire to erect certain utility poles for a public notification system to be located within the limits of State-maintained highways. It has been long-standing DOT practice to permit the installation of fire alarm boxes, police call boxes, and various other public service appurtenances on poles located within the State right-of-way. It is the DOT's .
position that the licenses which are the subject of this litigation are avecifically authorized by RSA 231:160 and that the applications therefor were properly reviewed and approved by the Department.
- 4. RSA 231:161, I.(c) provides, in part, that petitions for such permits or licenses concerning all class I and Class III highways and State-maintained portions of Class II highways shall be addressed to the Commissioner of Transportation, who shall have exclusive jurisdiction over the disposition of such petitions and over changing the t'erms of any license issued.
Additional approval by the municipality through which the State-maintained highway passes is not required.
- 5. The DOT will file a Memorandum of Law in accordance ,
1 with the Court's Order of November 26, 1986 and may rely on 97 , l l 1 f
P facts not already of record which will be provided to the Court by affidavit. Unless there is an objection to the receipt of the affidavits, the State does not request any further hearing on this matter. WHEREFORE, the State of New Hampshire Department of Transportation prays that the Honorable Court: A. Dismiss or deny the Petition for Declaratory . Judgement; and , B. Grant such other and further relief which may be just and proper. . Respectfully submitted, THE STATE OF NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION By its attorneys, Stephen E. Merrill torney Ge e al Date: l%$lL f)]l {, . 6 Michael J. Walls Assistant Attorney General Trangportation & Construction Bureau State House Annex - 25 Capitol Street Concord, New Hampshire 03301 i 98
1 CERTIFICATE OF SERVICE I hereby certify that on this date the foregoing Answer has been sent first class, postage prepaid, to J. P. Nadeau, Esquire, Robert A. Backus, Esquire, and Margaret H. Nelson, Esquire. il da 1 Michh41 J. Walls" e O 99 l l
"^* SuParior
" C* ss Etir state of Nem Eampsfire i c,_,,
APPEARANCE IWITHDRAWAL , a count OJURY Docket No. [fo-M-b Public Service Co. of N. H., et al. Town of Rye, et al. ,, OF: OF: Returnable on the nrst Tuesday of APPEARANCE WITHDRAWAL Please withdraw my appearance as: Please enter my appearance as: G counsel for: State of New Hamoshire O counsel for: Department of Transportation _ Notice of withcfrawal sent to my O Pro se clients on
' at the following address:
I hereby certify that duplicates of this notice were: O delivered to: E mailed J. P. Nadeau, Robert Backus, and Margaret Nels'on December 16, 1986 , on Signed AL b
- y Michael J. Walls, Assistant Attorney General Attorney General'!P'OLTfee State House Annex - 25 Capitol Street Addtm Concord, New Hampshire 03301 Telephone f6031271-3675 100 ,
s e . . ...
n'.- THE STATE OF NEW HAMPSHIRE SUPERIOR COURT JANUARY TERM, 1987 ROCKINGHAM, SS. ., No. 86-E-34 Town of Rye, New Hampshire, et al. v. Public Service Company of New Hampshire, et al. MEMORANDUM OF LAW OF STATE OF NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION In its Order of November 26, 1986, the Court determined that the State of New Hampshire Department of Transportation (hereinafter called the " DOT") was a necessary party to this case, and required the DOT to answer the Petition for Declaratory Judgment and to file a memorandum of law on the issues presented therein. The Court identified the ultimate issue to be determined as "whether RSA 231:160, et seq., authorizes the town and/or State to issue pole licenses for l purposes related to this siren system." It is the DOT's l position that RSA 231:160 does , authorize the Commissioner of i l Transportation or his agent to issue licenses to the Public Service Company of New Hampshire ("PSNH") to erect utility l poles for a public notification system to be located within the j
' limits of State-maintained highways.
l i 101
3 RSA 231:160 provides, in part, that: y Telegraph, television, telephone, electric
- light and electric power poles and
[; structures and underground conduits and cables, with their respective attachments
,1 and appurtenances may be erected, a installed and maintained in any public
- 3. highways ... . (Emphasis added.)
It is apparent from the language of this statute that while the 4ypes of utilities authorized to erect facilities within public highways are limited to telegraph, television, telephone and electric utilities, the types of facilities to be erected are not delimited. By its terms, RSA 231:160 applies to a broad r.ange of utility-type facilities, including poles, structures,
. underground conduits and cables, and their respectiv'e attachments and appurtenances, along with any necessary and proper supporting wires and cables. The utility poles and
; appurtenant sirens which are the focus of this proceeding clearly are a type of a pole, structure, attachment or ,
appurtenance authorized to be erected, installed and maintained Ln any public highway by the broad language of RSA 231:160. I u .The general utility natur'e of the pole licensing statutes I is also indicated in the several Supreme Court cases which construe them. In Parker-Young Co. v. State, 83 N.H. 551 (d9 29 ) , the Supreme Court noted that the provisions: s were designed to regulate and control the 3 use made of highways for utility purposes so that such use may not unduly interfere a with the other public uses to which the a highways are dedicated. (Citation
. omitted.] It confers no express power 102
"T:, 1 1
l6? ** l l upon the selectmen to determine who may , and who may nor' occupy the highway-with poles and wires, not to choose'between two utilities competing for the right. Id. at 555-556. In King v. Town of Lyme, 126 N.H. 279 (1985), the Supreme Court affirmed a finding that utilities "of all kinds and descriptions" could be installed for the benefit of the defendant, and without payment of additional compensation to the plaintiff, either in the available public highway, under RSA 231:160, or in an easement which the defendant had obtained as a substitute for the public road. Thus, it is clear that RSA 231:160 et seg. is intended to coordinate and control the installation of utilities in general, so that the placement in the public highways does not conflict with other uses. Since the meaning of a statute is not to be determined by a construction of isolated words and phrases, but from its construction as a whole, the restrictive interpretation of the scope of RSA 231:160 as argued by the petitionert must fail. King, supra at 284. Because the types of f acilities authorized to be located l in public highways by RSA 231:160 are not specific but generic, I the DOT has accepted and processed the applications for siren pole licenses submitted by PSNH. The DOT considers the subject j poles to be utility poles not unlike any other poles for transmission lines, and upon which fire alarm boxes, police call boxes and various other public service type 103
m, , appurtenances are permitted to be installed within State-maintained highways.1 The court should recognize the appropriate expertise of the DOT in this determination, and, absent clear error of law, should be reluctant to substitute its judgment for that of the agency. Appeal of National Advertising company, 122 N.H. 1058, 1060 (1982). RSA 231:161-182 sets out a comprehensive regulatory scheme concerning the licensing of utility facilities located in public highways. RSA 231:161,I(c) provides, in part, that: Petitions for such permits or licenses concerning all class I and class III-highways and state maintained portions of class II highways shall be addressed to the commissioner of transportation who shall have exclusive durisdiction of the disposition of such petitions to the same effect as provided for selectmen in other cases, and also shall have like jurisdiction for changing the terms of any such licenses or for assessing damages as provided herein. (Emphasis added.) The statute also authorizes the selectmen of a town to issue licenses and permits on town-ma,intained highways and the appropriate city officials to issue l'icenses for city-maintained highways. RSA 231:161,I(a) and (b). There is a clear statutory division of responsibilities between State and local officials concerning the issuance of licenses 1The Town of Rye also considered the siren poles to be within the ambit of the utility licensing statute, at least initially,See because it, too, routinely approved PSNH's applications. Petition for Declaratory Judgment, para. 6. 104
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affecting highways under their respective jurisdictions. The statute does not contemplate any local input or approval authority with respect to the Commissioner of Transportation's licensing of utility facilities in State-maintained highways, nor does it authorize State review of town or city licenses. Thus, once a license is properly issued by the appropriate official, it is not subject to review or revocation by another jurisdiction.2 In summary, the siren poles which are the subject of this proceeding fall within the purview of RSA 231:160 and are thus authorized to be erected under license within public highways. The comprehensive regulatory scheme for licensing utility poles within public highways established in RSA 231:161 et seq. grants exclusive jurisdiction to the Commissioner of Transportation over the disposition of licenses for utility facilities to be located in State-maintained highways and does not contemplate any additional approval by the municipality through which the State-maintain,ed highway passes. 2I n light of the comprehensive nature of the utility licensing provisions contained in RSA 231:160-182, local action or ordinances independent of the statutory procedures would appear to be pre-empted. See Wasserman v. City of Lebanon, 124 N.H. 538 (1984); Stablex Corp. v. Town of Hooksett, 122 N.H. 1091 (1982). 105
Accordingly, the relief requested by the petitioners herein should be denied. Respectfully submitted, THE STATE OF NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION By its attorneys, Stephen E. Merrill Attorney General Dated: January 5, 1987 f Ll' I d Mi'chael J . Walli Assistant Attorney General State House Annex Concord, New Hampshire 03301 271-3675 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Memorandum has on this date been mailed, postage prepaid, to J. P. Madeau, Esquire, Robert Backus, Esquire and Margaret Nelson, Esquire, counsel of record.
)
1 i . h)J) \\$ Michael J. Wallst h 106
en . THE STATE OF NEW HAMPSHIRE SUPERIOR COURT JANUARY TERM, 1987 ROCKINGHAM, SS. No. 86-E-34 Town of Rye, New Hampshire, et al. v. Public Service Company of New Hampshire, et al. AFFIDAVIT I Henry R. McCrone, Jr., being duly sworn, depose and say as follows:
- 1. Until my retirement on December 31, 1986, I was employed by the State of New Hampshire, Department of Transportation as Highway Engineer for District Six,' which generally encompasses the Seacoast area, including the towns of Rye and Hampton Falls.
- 2. It was a part of my duties to review and approve applications for licenses to locate utility poles and appurtenances thereto within State highways in District Six.
- 3. In a letter to me dated July 11, 1984, the Public Service Company of New Hampshire transmitted pole permit applications for poles to be installed for sirens as a part of the Seabrook Station public Notification System. The proposed locations were reviewed and the Public Service Company was notified on September 20, 1984 of the approved pole locations.
107
.= _ _ _ . _ - - _ . . . . -. . - _ _ ... .
Formal licensing of the poles has not yet occurred, pending completion of engineering and field reviews of the installations.
- 4. In reviewing these applications, I considered the poles and sirens to be electric power poles or structures, with their respective attachments and appurtenances, within the scope of the utility pole licensing statutes. The poles are utility poles not unlike other poles for transmission lines which may have fire alarm boxes, police call boxes and other public service appurtenances located on them. It has been long-standing Department policy to allow installation of such appurtenan'ces on utility poles located within the State highways.
Dated: January 5, 1987 < J f/h M W WENRYRfMCCRONE,JR. z STATE OF NEW HAMPSHIRE MERRIMACK COUNTY Before me, this 5th day of January, 1987, personally appetred the above-naraed Henry R. McCrone, Jr., and made oath that the statements made by him above are' true and accurate to
.the best of his knowledge and belief.
li
i/b.:,i h!bJ///s,h YkW b M L Netety gibblie/ Justice of the/ Peace 108 l
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Tl!E STATE OF NEW llAMPSHIRE SUPERIOR COURT JANUARY TERM, 1987
-ROCKINGHAM, SS.
86-E-34 TOWN OF RYE, NEW HAMPSHIRE, ET AL. v. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE SUPPLEMENTAL MEMORANDUM OF LAW OF PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE Public Service Company of New Hampshire (PSNH) submits the fcilowing supplei.. ental memorandum of law to bring to the Court's attention the decision of the New Hampshire Supreme (186), Court in Vernet, et al. v. Exeter, 127 N.H. handed down on December 30, 1986. In its original Memorandum PSNH cited the trial court's decision in Vernet, et al v. of Law, Exeter in support of the proposition that a municipality cannot exercise veto power over the State's performance of its statutorily mandated functions. See, pages 16-17 of PSNH's Memorandum of Law. The Supreme Court has affirmed the Vernet trial court's decision. The Su'preme Court ruled that a town meeting vote attempting to prohibit town officials from implementing any nuclear emerge,ncy response plans not approved by the town meeting was in direct confilet with RSA 107:10(a) which provides that " local organization for civil defense shall perform civil defense functions within the town subject to The the direction and control of the (Board of) Selectmen." f Court ruled that the statute reserved no power for the town i i l 109 I
meeting in carrying out civil defense functions and so therefore, the town meeting vote had no effect. Furthermore, the Court ruled that the wording of RSA 107-B:1 which requires the civil defense agency to develop a nuclear emergency response plan "in cooperation with affected local units of government" did not give the town veto power over nuclear emergency response plans developed by the State. The Court found that the definition of "in cooperation with" is not synonymous with l " approved by." Accordingly, the Court ruled that the statute's purpose was fulfilled when the state civil defense agency { enlisted the aid of the towns in preparing a nuclear emergency , response plan for each of the affected communities. The principles laid out in Vernet, et.al. v. Exeter apply with equal force to the current situation. In this case, I Rye and Hampton Falls purport to exercise local authority to interfere with the statutory scheme of RSA 231:161 et. sea. In essence, Rye and Hampton Falls are seeking to exercise veto power over the development of a nuclear emergency response plan I by seeking to block installation
- of a, critical component of that plan, a public notification system. This action exceeds the scope of the towns' authority. See, Vernet, et al. v. Exeter, sunra.
l For the convenienco of the Court, a copy of the Supreme e 110
t' ** Court's decision in Vernet, et al. v. Exeter is attached. Respectfully submitted, PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE By Its Attorneys SULLOWAY HOLLIS & SODEN Dated:I \ 1 kh By: NMcAQA ')t NM- " Matgaret H. Nelson 9 Capitol Street Concord, NH 03301 (603) 224-2341 CERTIFICATE OF SERVICE I hereby certify that I have this date, mailed by United States Postal Service a copy of the foregoing to J.P. Nadeau, Esq., Robert A. Backus, Esq. and Michael Walls, Assistant Attorney General. Dated: diWO By: 4 }8 A c.u dt W
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Margaset KJelson m* e e 4 i l I 111 J
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TriE STATE OF NEW HAltPSilIRE SUPF;RIOR-.CQ1ST ROCKING 3Ali, SS b 2fM 'h7 riilCKingg4,y
- SUPERIOR COURT TOWN OF RYE, ET AL
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V.
* !!o 86-E-34 1
PUBLIC SERVICE COMPANY OF N.H. *
,OPGER The Plaintiff, Totm of Rye, brought this action for declaratory relief against the Defendant, Public Service Company of New Hampshire, seeking an order allowing it to revoke certain pole licenses it granted the Defendant to install poles on town-maintained rights-of-way and, further, seeking the removal of certain poles insta led within the town limits on state-maintained highwayr under licenses issued by the state. The Town of Hampton Falls has intervened likewise seeking the removal of poles located in the town on scate-maintained highways. On November 26, 1986, this Court determined that the State of New Hampshire Department of Transportation (DOT:, was a necessary party for the resolution of this dispute and ordered the DOT to file responsive pleadings.
The, Defendant, Public Service, is the controlling partner in the As such, it is construction of the Seabrook Huclear Power Station. required by the Muclear ReCulatory Commission to develop a means of evacuation and response to petential catastrophes at the plant. 112
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. Pog3 No. 2 Io As part of its plan for evacuation and response, the Defendant has installed a system for public notification consisting of a series of sirens placed on poles located in several New Hampshire seacoast communities, including the Plaintiff Towns. The poles are approximately 60 feet in height (as opposed to a standard utility pole 35 feet in height) and attached to the top of the poles is a 500 pound siren /public address system. This is the sole use of the pole; it is used for no other purpose.
In November of 1985, the Defendant, through its Manager of duelear Projects, notified the Board of Selectmen of the Town of Rye of its intent to place these poles and sirens in different areas of the town. The selectmen made it clear by appropriate response that it was their intention to resist any such attempt. Notwithstanding their insistence that they would not cooperate by permitting the poles for these purposes, the Selectmen, on September 10, 1984, pursuant to R.S.A. 231:161 I(a) , granted applications for pole permits submitted by the Defendant to the Town Clerk on July 9, 1984 for this purpose! It is the contention of the town selectman that they were not aware that these poles were to be used for anything other than the transmission of alsetric power despite the fact that the Defendant's agent had indicated to . the selectman that they would be seeking pole licenses for this purpose, 113
4 .. iia. 86-E-34 ;
. Pcgo No. 3 l i
Pursuant to these. licenses and licenses granted by the DOT 231:160 et seq.,.the l purportedly under the authority of R.S.A. Defendant has installed a number of poles with sirens throughout the Town of Rye on town-maintained highways and state-maintained , highways. The Defendant has likewise installed a series of poles I on state-maintained highways located in the Town of Hampton Falls pursuant to licenses obtained from the DOT. 231:160 The ultimate issue to be determined is whether R.S.A. I el seq., authorizes the towns and/or the State to issue pole licenses for the erection of poles for purposes related solely to this siren warning system. The Defendant and the DOT maintain that said statutes are to be interpreted to include this purpose while the Plaintiff and intervenor maintain that this use is not consistent ; f with the language or intent of the statute, The authority to erect poles on the highways of the State is t found in R.S.A. 231:160 which reads as follows: )
" Authority to Erect. Telegraph, television, telephone, electric light and electric pouer poles and structure, ,
l and underground conduits and cables, with their respective ' attachments and appurtenances may be erected, installed ! and maintained in any public highways and the necessary
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and proper wires and cable may be supported on such ; poles and structures or carried across or placed i under any such highway by any person, copartnership l or corporation as provided in this subdivision and - i not otherwise." Thus, any pole erected on the highways of the State must be used j
'within the parameters of this statute. Therefore, any license
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granted for the erection of a pole for the purpose outside of these parameters is null and void. 114 ;
No. 86-E-34 Pcgo No. 4 The legislature, through this statute, has listed those uses or purposes for which poles may be erected (the statute does not list the types of companies which may erect poles as the State contends). The list includes " telegraph, television, telephone, electric light and electric power poles . . ., a very specific and limited enumeration. It is a well-established principle of statutory construction that "the expression of one thing in a statute implies the exclusion of another" In Re Gamble, 113 H.H. 771, 777 (1978); See also Vaillancourt v. Concord General Mutual Insurance Company, 117 N.H. 48 (1977); 2A J. Sutherland, Statutes and Statutory construction, Section 47.23-24 (4th ed. C. Sands 1973). In this case, the legislature has provided a very specific and limited enumeration of uses for which poles may be erected on public highways. The statute contains no terms indicating the non-exclusivity of this list; such as "such as . . . , "like . . ." or
" including but not limited to . . ." Therefore, applying the above-stated principle of statutory construction, this Court must conclude 1
l that the legislature did not intend to allow the erection of poles { by utility companies for any purpose the company may see fit, but i . only for those purposes listed. Thus, the licenses granted the l ! Defendant by the Town of Rye and the State Department of Transporta' tion ! for the erection of poles for a system of public notification were ! granted without statutory authority and are, therefore, null and void. } 115 i l l
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- 30. 36-E-34 Pago No. 5 Accordingly, the poles erected pursuant to these licenses were erected without authority.
This position is further supported by the legislative history of R.S.A. 231:160. The statute has been amended a number of times since its passage in 1881 to accommodate technological innovations and the needs of society. These innovations include telephones, television, electric lights and electric power. Each time the legislature has specifically anended the statute to provide for these innovations and has specifically listed that particular innovation as a permissable use for utility poles. The legislature could have used broad language in providing for future innovations or societal needs but has chose, instead, to provide specifically I for each new use. Obviously, then, it is the role of the legisisture to accommodate these new uses and not the role of this Court. ! Even assuming arcuando, the list was not intended by the , legislature to be exclusive, these poles and the use to which they have been put are not within the general nature of the types of uses i designated in the statute. Excluding electr'ic light poles, the poles designated in the statute are all utility poles; that is, they are They all all employed to provide some direct service to the public. l transmit some service to the homeowner. The Defendant argues that l ' these poles do relate to the transmission of electricity. This l relationship, however, is far too attenuated. In fact, the purpose co which these poles are put is far too novel to have been l i contemplated by the legislature in this statute. 116
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-Page No. 6 Finally, these siren /public address systems can hardly be termed appurtenances. Webster defines an appurtenance as "a subordinate part of adjunct: accessory object," Webster's Collegiate l
I Dictionary (1974). It's obvious that the sole purposeuof these poles is the siren / pnblic address system. They are, therefore, not subordinate or adjunct parts, but the only feature of these poles. Defendant has cited in its Supplemental Memorandum of Law the case of Vernet, et al v. Exeter, 128 N.II. ,(decided December 30, 1986 for the proposition that municipalities cannot exercise veto power over the State's performance of its statutori1y mandated functions. It contends that, by challenging the applicability of RSA 231:160 et seq., the plaintiff Towns are, in effect, seeking to exercise local authority to prohibit the State from implementing a nuclear emergency response plan as it is obliged to do under RSA 107-A, et seo and RSA 107-B et seq. This argument is without merit, however, as,- in any event, it is not the State, but the defendant company which is taking the adtion ,the towns seek to enjoin. In short, the State is not, in authorizing the erection of the poles by the Defendant, exercising a function statutorily mandated. It is, rather, relying on the legislative authority of RSA 231:160 et sea, which, for the reasons given herein does not authorise the, erection of poles for this purpose. For the foregoing reason, the Defendant is ordered to cause the 117
.e 9 No. 86-E-34 Pcg3 No. 7 removal of these poles and the siren /public address systems at its
. sole expense within 30 days of the date hereof.
So Ordered. January 20, 1987 [ g ___ , _ WalterJ 4 C/Jttesiding f f Justice l 9 9 e 9 e 118}}