Central Maine Power Co. v. Waterville Urban Renewal Authority

• Decision Date: 09 September 1971
• Citation: 281 A.2d 233
• Court: Maine Supreme Court
• Parties: , 91 P.U.R.3d 132, 1 Envtl. L. Rep. 20,594 CENTRAL MAINE POWER COMPANY v. WATERVILLE URBAN RENEWAL AUTHORITY.

Page 233

281 A.2d 233

3 ERC 1107, 91 P.U.R.3d 132, 1 Envtl.

L. Rep. 20,594

CENTRAL MAINE POWER COMPANY v. WATERVILLE URBAN RENEWAL AUTHORITY.

Supreme Judicial Court of Maine.

Sept. 9, 1971.

Weeks, Hutchins, Frye & Welch, by Bradford H. Hutchins, Waterville, William M. Finn, Augusta, for Central Maine Power Co. Jolovitz & Niehoff, by Lester Jolovitz, William P. Niehoff, Waterville, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY and WERNICK, JJ.

DUFRESNE, Chief Justice.

The instant case is before us on report. This Court is asked to render such decision as the rights of the parties require based upon the complaint, answer, an agreed statement of facts and on so much of the evidence presented to the Court below, including testimony and exhibits, as is legally admissible. 4 M.R.S.A. § 57, M.R.C.P., Rule 72(a), (b).

The defendant, Waterville Urban Renewal Authority, hereinafter termed the Authority, under the provisions of 30 M.R.S.A. §§ 4801 et seq., recommended for approval to the municipal officers of the City of Waterville the Urban Renewal Plan for the Charles Street Urban Renewal Project. By resolution duly enacted the reference plan was approved by the municipal authorities on February 5, 1963. In turn, the Authority duly and lawfully adopted it by formal resolution of February 26, 1963. In accordance with the terms of the plan and project, the City of Waterville discontinued certain public streets and ways in the urban renewal project area and established a new public street or way therein known as Appleton Street Extension. Parking areas and access ways were also established. All these public streets, ways, parking areas and access ways have or will eventually become the property of the City of Waterville for such purposes. On September 20, 1966 the Authority, pursuant to the approved plan, requested the plaintiff, Central Maine Power Company, hereinafter termed Central Maine Power or the utility, to remove all overhead poles and wires in the urban renewal area (excepting certain designated ones not here pertinent), 'necessary replacements for such removals to be installed underground.' To implement its request, the Authority entered into a contract with Central Maine Power whereby the latter agreed to make all proper underground installations for the necessary transmission of electric energy to comply with the projected underground distribution system to and across the urban renewal area and the Authority promised to pay to the company the excess cost which the installation of the underground system would entail over and above the cost of supplying the same service with aboveground poles and wires. The Authority's obligation was expressly conditioned, as follows: 'provided that under the constitution, common law and statutes of the State of Maine the Company could not be legally compelled to install such cables and wires underground at its own expense.' It is stipulated that the additional cost of the underground installations is in the amount of $35,973.97.

The question at issue is: Can Central Maine Power Company be legally required to bear the additional cost incurred by virtue of such underground installations in excess of the cost of an overhead electric system? We answer in the affirmative.

In an analogous situation, our Court has ruled that public service corporations have no right to reimbursement for relocation of their facilities in public ways from a like public authority without express legislative sanction. In The First National Bank of Boston v. Maine Turnpike Authority, to be referred to hereinafter as Maine Turnpike Authority, 1957, 153 Me. 131, at pages 159, 160, 161, 136 A.2d 699, at pages 715, 716, this Court used the following pertinent language:

'The Authority takes its powers immediately from the legislature and the enabling act delegates police power of considered precedence as to utility facilities located in public streets or ways in its route.

Because of the state of the law authoritatively expressed, without an affirmative grant from the legislature, the defendant utilities when submitting to the police power had no right to reimbursement for relocation of their facilities installed in the public ways or for abandonment of them. Conversely the Authority had no right to reimburse the utilities without such legislative sanction.

The enabling act does not in the very words state that the Authority may or must pay the relocation costs in dispute here. Nor does the act imply that those costs may or must be so paid. The description and enumeration of costs and properties fall short of containment of payments for expense arising from damages without the invasion of legal right. The rights of utilities to enjoy installations in public streets or ways are positive and very respectable in the status of the law but they are subordinate to public travel and to the valid exercise of the police power. They have, as we have seen, supra, their delimitations. The terms, 'real property' 'interest or interests therein,' 'land,' 'rights,' 'easements' and 'franchises' as used in the enabling act prior to its last amendment (not pertinent here) are not sufficiently apt to support the claim of the defendant utilities.' (Emphasis added.)

It is undisputed that, prior to the approval and adoption of the Urban Renewal Plan by the municipal government of Waterville and the Authority in February, 1963, Central Maine Power had been permitted to install and maintain aboveground in the public streets of the urban renewal area its facilities for the transmission of light and power by electricity. Such installations had statutory validation, 35 M.R.S.A. § 2348, and we need not consider whether they otherwise derived legal legitimacy from charter power or other specific legislative authorization. In 1963, permits to place wires and cables and all conduits and other structures for conducting and maintaining such wires and cables 'under the surface of those streets and highways in which such companies are empowered to obtain locations for their * * * appurtenances, poles and wires, * * * subject to such rules and regulations as to location and construction as such municipal officers may designate in their permit,' were available under 35 M.R.S.A. § 2347. Such permits are subject to the condition that '(e)very such corporation shall so construct and maintain its poles, lines, fixtures and appliances in, along, over, under and across the roads and streets in which it may obtain locations * * * and along its route or routes, as not to incommode the use of such roads and streets for public travel * * *.' 35 M.R.S.A. § 2355.

In Maine Turnpike Authority, it was further stated (153 Me. 131 at page 151, 136 A.2d at page 711):

'Charters, franchises, statutory grants and permits affording the use of public ways to utility locations are subservient, expressly or by implication, in the exercise of governmental functions, to public travel and to the paramount police power and relocation of utility facilities in public streets or ways are at utility expense, a common law liability unless abrogated by the clear import of the language used in a particular instance.'

(at page 152, 136 A.2d at page 711)

'Without express authority from the legislature the state or municipality cannot pay a utility its expense for relocating an installation in a public street or way.'

'When to accomplish a legitimate, public, protective purpose by a reasonable and not arbitrary regulation, not violative of any constitutional limitation the atate invokes the police power obliging utilities to relocate their facilities installed in a public street or way, without compensation, there is no taking of private property but damnum absque injuria, damage without the invasion of legal right.'

The Waterville Urban Renewal Authority was created under 30 M.R.S.A. § 4802, by the municipality of Waterville under legislative authorization after the municipal officers adopted a resolution finding that:

'A. One or more slums or blighted areas exist in such municipality; and

B. The rehabilitation, conservation, redevelopment, or a combination thereof, of such area or areas is necessary in the interest of the public health, safety, morals or welfare of the residents of such municipality.'

The enabling legislation, 30 M.R.S.A. § 4804, empowers the Authority to

'exercise public and essential governmental functions'

and endows it with

'all the powers necessary to carry out and effectuate the purposes and provisions of this subchapter, including the following powers

2. To undertake and carry out urban renewal plans and urban renewal projects * * *.'

"Urban renewal project' (under 30 M.R.S.A. § 4801(13)) may include undertakings and activities of the authority in an urban renewal area for the elimination, and for the prevention of the development or spread, of slums and blight, and may involve slum clearance and redevelopment in an urban renewal area, or rehabilitation or conservation in an urban renewal area, or any combination or part thereof in accordance with an urban renewal plan. Such undertaking and activities may include:

C. Installation, construction or reconstruction of streets, utilities, parks, playgrounds and other improvements necessary for carrying out in the urban renewal area the urban renewal objectives of this subchapter in accordance with the urban renewal plan; * * *'

In 30 M.R.S.A. § 4806 the Authority's right to acquire real property is made subject to the approval of its proposed renewal plan through proper 'resolution' of the municipal officers of the municipality. Its specific urban renewal plan as recommended to the municipal officers must be a congruent part of a master plan for the development of the community already prepared 'in substance.'

'2. Urban renewal plan. The authority may itself prepare or cause to be prepared an urban renewal plan, or any person or agency, public or private, may submit...