Public Service Co. v. Town of Hampton

• Decision Date: 31 January 1980
• Docket Number: No. 79-322,79-322
• Citation: Public Service Co. v. Town of Hampton, 411 A.2d 164, 120 N.H. 68 (N.H. 1980)
• Parties: PUBLIC SERVICE COMPANY of New Hampshire v. TOWN OF HAMPTON et al.
• Court: New Hampshire Supreme Court

Page 164

411 A.2d 164

120 N.H. 68

PUBLIC SERVICE COMPANY of New Hampshire v. TOWN OF HAMPTON et al.

No. 79-322.

Supreme Court of New Hampshire.

Jan. 31, 1980.

Sulloway, Hollis & Soden, Concord (Dorothy M. Bickford and Martin L. Gross, Concord, orally), for plaintiff.

Upton, Sanders & Upton, Concord (Richard F. Upton, Concord, orally), for defendants.

PER CURIAM.

The issue we decide in this interlocutory transfer is whether the defendant towns may require the plaintiff to use underground transmission lines after the public utilities commission has issued to the plaintiff a certificate of site and facility authorizing above-ground transmission lines for the Seabrook Nuclear Electric Generating Station, in compliance with RSA ch. 162-F. We hold that the towns lack power to require underground transmission lines.

In this petition for declaratory judgment and injunctive relief brought by the Public Service Company of New Hampshire against the town of Hampton and other towns, the plaintiff seeks an order declaring void, as applied to it, certain votes of the towns purporting to require underground construction of electric transmission lines above a rated capacity of 69 kilovolts. The Seabrook transmission lines have a rated capacity of 345 kilovolts. The Court (Goode, J.) transferred, without ruling, the following questions of law in advance of trial:

1. Do the votes purportedly adopted by the defendant towns endow them with any legal authority to interfere with the construction of overhead transmission lines associated with the Seabrook Project, in light of RSA 162-F, the Certificate and the other permits held by the plaintiff?

2. Do the votes purportedly adopted by the defendant towns endow them with any legal authority to interfere with the construction of overheard transmission lines by the plaintiff in connection with the Seabrook Project, in light of the requirements of the Zoning Enabling Act (RSA 31:60 et seq.) or other provisions of law relating to actions taken by Town Meetings?

The plaintiff holds a certificate of "site and facility" authorizing the construction of the Seabrook Nuclear Power Plant and the necessary transmission lines. This certificate, issued by the pubic utilities commission (PUC) on January 29, 1974, after compliance with RSA ch. 162-F, specifically authorizes the erection of overhead transmission lines within the boundaries of the defendant towns. Incorporated into the certificate are permits issued by the water resources board, and by the department of public works and highways authorizing the erection of overhead transmission lines within the defendant towns.

The plaintiff also holds a construction permit from the United States Nuclear Regulatory Commission authorizing the construction of the Seabrook Nuclear Station with associated overhead transmission lines within the defendant towns. The plaintiff claims to have already invested over two million dollars in preparing for the construction of overhead lines in accordance with the certificate and permits.

In March 1979, the defendant towns voted to adopt certain ordinances requiring all electric transmission lines over 69,000 volts to be buried underground. The plaintiff's lines have a capacity much in excess of this voltage.

Enacted in 1971, the declared purpose of RSA ch. 162-F is to provide a resolution, in an "integrated fashion," of all issues involving the selection of sites and routing of associated transmission lines. RSA 162-F:1. It establishes a site evaluation committee composed of certain officials from specified State agencies. RSA 162-F:3. The committee is required to review all plans for the siting and construction of bulk power plants and the routing of transmission lines as defined in the statute. The statute requires joint public hearings to be held by the committee, the PUC and such other agencies as have jurisdiction over the subject matter. The initial hearing and every fourth hearing thereafter must be held in the county where the facility is to be located. RSA 162-F:7 I. It provides that no additional application shall be required to satisfy the requirements of individual agencies and departments. RSA 162-F:7 IV. The committee is required to give due consideration to the views of municipal and regional planning commissions and municipal legislative bodies in determining the effect of such a project on esthetics, historic sites, air and water quality, the natural environment and the public health and safety. RSA 162-F:8 I. It is provided that the findings of the committee shall be conclusive on all questions of siting, land use, air and water quality. RSA 162-F:8 II.

In the instant case, the site evaluation committee followed all the procedural and substantive requirements of RSA ch. 162-F. After thirty-two days of hearings lasting almost a year, the committee approved the plaintiff's application for a certificate of site and facility on July 27, 1973. During the hearings, the committee considered both overhead and underground transmission lines and heard evidence regarding both methods. In its report, the committee approved overhead lines over specific routes. Incorporating the report of the committee, the PUC issued a "certificate of site and facility" on January 29, 1974. After rehearings were denied, an appeal was brought to this court. On April 23, 1975, we upheld the decision of the committee. Society for Protection of N. H. Forests v. Site Evaluation Commission, 115 N.H. 163, 337 A.2d 778 (1975).

A fair reading of RSA ch. 162-F reveals a legislative intent to achieve comprehensive review of power plants and facilities site selection. The statutory scheme envisions that all interests be considered and all regulatory agencies combine for the twin purposes of avoiding undue delay and resolving all issues "in an integrated fashion." By specifically requiring consideration of the views of municipal planning commissions and legislative bodies, the legislature assured that their concerns would be considered in the comprehensive site evaluation. Thus, the committee protects the "public health and safety" of the residents of the various towns with respect to the siting of power plants and transmission lines...