ML20148M001

Forwards 880329 Decision of Supreme Court of Nh in Town of Rye & Town of Hampton Falls Vs Util & State of Nh,Dept of Transportation,Rockingham 87-062,upholding Licensee Right to Install & Maintain Siren Poles & Sirens in Towns

ML20148M001
Person / Time
Site:	Seabrook
Issue date:	03/30/1988
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP), Atomic Safety and Licensing Board Panel, NRC COMMISSION (OCM)
References
CON-#288-5998 OL, OL-1, NUDOCS 8804050089
Download: ML20148M001 (6)

Text

___ _ _

If Y l *

' 3' 00LKETE0 WRC 18 Nm 30 A8 :47 Memorandum F)C*Lia -

t

uv M a1 To:

The Commiss'oners, Board Members of the Atomic Safety and Licensing Appeal Board and the' Atomic Fafety and Licensing Boards and the Parties in the matter of Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), Docket Nos. 50-443-OL, 50-444-OL, 50-443-OL-1 and 50-444-OL-1 From:

Thomas G.

Dignan, Jr.

In accordance with our duty to advise the Commission and Boards of events that may affect the ongoing licensing proceedings, we enclose the decision of the Supreme Court of New Hampshire in Town of Rye and Town of Hanoton Falls v.

Public Service Comoany of New Hamoshire and the State of New Hamoshire. Department of Transoortation, March 29, 1988, Rockingham No.87-062, in which the Supreme Court upheld the right of Public Service Company of New Hampshire to install and maintain siren polns and sirens in the towns of Rye and Hampton Falls.

5 eg8*olB8818?8Sjl:3 G

)> 5'

's 1

MAR 3 0. sea i

8 NOTICE:

This Opinion is subject to Motions for Rehearing under Rule l

22 as well as formal revision before publication in the New Hampshire Repor s.

Readers are requested to notify tne Clerk / Reporter, Supreme Court of New Hampshire, supreme Court Building, Concord, New Hampshire 03301, of any errors in order that THE corrections may be made before the opinion goes to press.

ON CONTENTS OF THIS OPINION MAY LE DISCLOSED AT OR AFTER 8:00 A.M.

THE DATE THE OPINION BEARS.

IF THE OPINION IS RECEIVED BEFORE THAT TIME AND DATE, ITS CONTENTS SHOULD BE KEPT CONFIDENTIAL.

TH'i SUPREME COURT OF NEW HAMPSHIRE Rockingham No.87-062 TOWN OF RYE and TOWN OF HAMPTON FALLS v.

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE and THE STATE OF NEW RAMPSHIRE, DEPARTMENT OF TRANSPORTATION March 29, 1988 Nadeau Professional Offices, of Portsmouth (J.P. Nadeau on the brief and orally), for the plaintiff Town of Rye.

Iackus, Mever & Solomon, of Manchester (Bartram C.

Branch, Jr.

on the brief and orally), fo: the plaintiff Town of Hampton Falls.

Sullowav. Hollis & Soden, of Concord (Marcare H. Nelson on the brief and orally), for the defendant Public Service Company of New Hampshire.

Stechen E. Merrill, attorney general (Michael J.

Walls, assistant at:c ney general, on the brief and orally), fo: the 5: ate Department of Transpo::atica.

4

JOHNSON, J.

The defendan Public Service Company of New of Hampshire (PSNH), joined by :ne New Hampshire Department

y-

'4 9

1 (Murchv, appeals an order of the Trial Court Transportation (DCT),

permitting the Town of Rye to revoke the licenses which the town siren poles on town-maintained J.)

had granted PSNH to erectof'an evacua: ion plan for the Seabrook Nuclear rights-of-way as part directed PSNH to remove those siren poles, The court in Rye and Power Station.

as well as other siren poles which PSNH had erected We resers?.

Hampton Falls on State-maintained highways.

PSNH is the major owner of the Seabrook Nuclear Power Station.

is required by the federal Nuclear Regulatory Commission to develop a Radiological Emergency Response Plan (RERP),

The plant in order to be prepared for a (NRC) which includes an_ evacuation plan, at Seabrook S:ation.

As part of its RERP, PSNH potential accideninstalled a public notification system consisting of sirens placedincluding communities, on poles located in several seacoas:The poles are approximately six;y feet in height and Hampton Falls.

have attached to them siren /public address systems each weighing approximately 500 pounds.

PSNH submitted to the Rye Town Clerk an On July 9,

1984, to be erected on application for licenses for three poles, Subsequen:ly, on July 11, 1984, town-maintained highways in Rye.

PSNH submit;ed to the DOT a separate application in order to obtain licenses for siren poles to be placed on State-maintained highways in Rye and Hampton Falls.

On September 10, 1984, the Rye Boa:d of Selectmen, pu:suant to RSA 231:161. I(a), granted the licenses sought by the company.

On September 20, 1984, the DOT gave PSNH On abou permission to begin installing One siren poles.PSNH commenced installing fou poles in Rye November 7,

1985, on State rights-of-way and two poles on town-maintained highways.

the Rye. Board of Selectmen issued a the same date, order agains; PSNH and revoked the pole licenses On or abou:

cease and desist 1984.

Af;e: PSNH refused to l

which it had issued on September 10, order, Rye instituted a "Petition For l

obey the cease and desistWith Prayers For Specific Performance" against i

Declaratory Judgment the previously granted pole licenses PSNH, seeking (1) a ruling that p:operly at horized and (2) on State and town highways were not orders fo: thei: removal.

19 Hampton Falls was permitted to intervene in Rye's action, order to seek the removal of siren poles which had been erected on town pursuant to State State-maintained highways in tha:Hampton Falls claimed the poles had been placed con::ary to two consecutive town mee:ing votes which had expressly authorization.

prohibited the installation of the siren poles unless and until the evacuation plan for citizens of Hampton Falls approved an overall erected any siren p0les on j

Seabrook Station.

PSNH had not in Hamp;on Falls because One Hampton Falls l

town-maintained highways the :

Board of Selectmen had denied licenses on the ground na:

ne inadequate to warn and protec:

proposed emergency plan was of a nuclear accident.

town's residents in the even:

t 2.

~

s 9

i on November 26, 1986, a hearing was held on the petition of Rye and Hampton Falls, after which the : ial cour; de: ermined that the action and ordered the DOT was a necessary party to the towns' agency to file responsive pleadings.

On January 20, 1987, the trial court ordered :he removal of all poles and siren /public address systems within tne two towns at PSNH's expense within thirty days, whether located on State or This decision was based on the conclusion that municipal highways.

utility facilities, installations or the poles and sirens were not 231:160.

The court determined s::uctures within the meaning of RSA licenses which Rye and the DOT had granted for the erection that the been granted withou; statutory authority and were of siren poles had

herefere null and void.

PSNH appeals the trial court's order.

PSNH argues tha: the ::ial court erred in ruling that RSA of a does not apply to siren poles installed as par:

Seabrook Station.

231:160 federally-manda:ed public no:ification system fo:

the trial court's construe: ion of RSA We agree with PSNH that 231:160 is unduly restrictive.

RSA 231:160 states:

l "Telegraph, television, telephone, electric light and l

electric power poles and s::uctures and underground conduits and cables, with thei: respective attachments and appur:enances may be erected, installed and maintained in any p?tlic highways and the necessary and l

proper wires and cables may be supper:ed on such poles and s::uctures or carried across or placed under any l

copartnership or such hignway by any person, corpo:ation as provided in this subdivision and not i

I otherwise."

[

the legislature did not in:end to t

The ::ial cour; determined tha:

poles for the purpose of warning allow utility companies to erect but only fo: the ::ansmission of citizens of a nuclear emergency, television and telephone signals and electric ligh; an power.

Hence, the trial court found that the licenses which had telegraph, been granted to PSNH by Rye and the DOT for the erection of siren statutory authority and were void.

poles had been g: anted without We begin our analysis with an interpretation of the applicable the In any case involving the construe:icn of a statute, be the language itself, and plain and s a utes.

Theresa's v.

Sue': c' starting poin mus:

unambiguous language will be given ef"ec:.

Dover Professional YDC, 126 N.H. 53, 55, 489 A.2d 592, 593 (1985):

Fire Officers Assoc.

v. City of Dover, 124 N.H. 165, 169, 470 A.2d Sta: Const. S 46.01 (4th ed. 19 &4 ).

866, 668 (1983): S3:herland be given :neir usual and common meaning Wo:ds and phrases will 3.

\\

, e a

t-unless the statute itself sugges:s otherwise.

Appeal of Public.

Serv. Co. of N.H._,

125 N.H. 46, 52, 480 A.2d 20, 24 (1984).

A subdivision of RSA chapter 231 provides for "Lines of 231:159 makes Teleg:aph and Other Companies in Highways," and RSA the provisions of that subdivision applicable to all cities and towns.

RSA 231:161, VI states that "[t]he holder of such a license poles (to erect poles), shall be entitled to erect and to place upon such poles and structurec (and) structures.

attachments and appurtenances which are required the necessary.

in the reasonable and proper operation of the business car:ied on by We conclude that sirens are "attachments" such licensee within the meaning of RSA 231:160 and RSA 231:161, VI.

licenses they The selectmen of Rye lack au:hority to revoke the three or to deny applications for licenses to erect granted to PSNH, siren poles on town-maintained highways for any reason other than a reason relating to "the safe, free and convenient use for public which is the criterion for the travel of the highway and no exercise of the selectmen's authority under the statute;

he revocation was articulated by the safety-based justification fo:

town.

RSA 231:168.

129 N.H. 34, 523 A.2d 48 (1986),

In Vernet v.

Town of Exeter,107-B requires tha; the State civil we concluded na: RSA chap;e defense agency "must enlis: the aid of the towns when preparing a (RJERP for each of the affected towns, so that input will be received from each of the affected areas.

This does not, however, (R]ERPs developed by the'S' tate give a town.

Veto power over civil defense acency."

Id. at 39, 523 A.2d 3: 51.

(Emphasis in original.)

Similarly, RSA 231:159 et seq. do not. give a town veto pursuant to a RERP.

Hampton i

power over the erection of siren poles,either cooperation by selectmen Falls lacked authority to prohibit with radiological emergency respcase planning for Seabrook Station, or construction by PSNH on State highways in Hampton Falls of any installations necessary for the implementation of a RERP.

Co. cf N.H.

v. Town of In a closely related case, Pu)]ic Serv.

W. Newbury, 835 F.2d 380 (1st. C::. 1987), PSNH's request for a preliminary injunction to allow its siren poles to remain in place was denied because PSNH failed to prove a likelihood of success in Massachuset:s statutes permit the erection of its argument tha siren poles fo: the Seabrook evacuation plan.

The key Massachusetts refers to the "::ansmission of 166, 5 21, statute in question, ch.various purposes and permits a co=pany incorpora:ef elect:icity" fo:

"lines for such ::ansmission for such ::ansmission to cons :ue:

Mass. Gen.

under and across the public ways upon, along, The New Hampshire statutes vary in two L.

ch. 166, S 21.

significant ways:

(1) RSA 231:160 does no refer to poles used,to to there is no Massachusetts counterpart

" :ansmit" power; and (2) the erection of poles "which are RSA 231:161, VI which allows fo:

required in the reasonable and proper operation of the business l

4.

\\

l I t i

The New Hampshire statute, carried on by such licensee has been amended from time o time like the Massachusetts statute, as new technology has developed.

However, we conclude that RSA 231:161, VI made it unnecessary for our legislature to amend the statute to specifically permit siren poles, since such poles are necessary for PSNH to carry out its business in supplying the electrical needs of its customers.

We hold that the trial court erred in ruling that the pole statutory authority and hence were licenses had been g: anted without in ordering PSNH to remove the poles and sirens null and void, and We which PSNH had erected and placed in Rye and Hampton Falls.

reverse the decision of the ::ial court.

Reversed.

BATCHELDER, J., dissented; the others concurred.

SATCHELDER, J.,

dissenting:

Recause I do no read RSA 221:160 and :161, VI as broadly as the majority, I would uphold the ::ial and therefore respectfully dissent.

court 0

5.

-.