Town of Rye v. Public Service Co. of New Hampshire., 87-062
| Decision Date | 29 March 1988 |
| Docket Number | No. 87-062,87-062 |
| Citation | 130 N.H. 365,540 A.2d 1233 |
| Parties | TOWN OF RYE and Town of Hampton Falls v. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE and the State of New Hampshire, Department of Transportation. |
| Court | New Hampshire Supreme Court |
Nadeau Professional Offices, Portsmouth (J.P. Nadeau, on the brief and orally), for plaintiff Town of Rye.
Backus, Meyer & Solomon, Manchester (Bartram C. Branch, Jr., on the brief and orally), for plaintiff Town of Hampton Falls.
Sulloway, Hollis & Soden, Concord (Margaret H. Nelson, on the brief and orally), for the defendant Public Service Co. of New Hampshire.
Stephen E. Merrill, Atty. Gen. (Michael J. Walls, Asst. Atty. Gen., on the brief and orally), for State Dept. of Transp.
The defendant Public Service Company of New Hampshire (PSNH), joined by the New Hampshire Department of Transportation (DOT), appeals an order of the Trial Court (Murphy, J.) permitting the Town of Rye to revoke the licenses which the town had granted PSNH to erect siren poles on town-maintained rights-of-way as part of an evacuation plan for the Seabrook Nuclear Power Station. The court directed PSNH to remove those siren poles, as well as other siren poles which PSNH had erected in Rye and Hampton Falls on State-maintained highways. We reverse.
PSNH is the major owner of the Seabrook Nuclear Power Station. The plant is required by the federal Nuclear Regulatory Commission (NRC) to develop a Radiological Emergency Response Plan (RERP), which includes an evacuation plan, in order to be prepared for a potential accident at Seabrook Station. As part of its RERP, PSNH installed a public notification system consisting of sirens placed on poles located in several seacoast communities, including Rye and Hampton Falls. The poles are approximately sixty feet in height and have attached to them siren/public address systems each weighing approximately 500 pounds.
On July 9, 1984, PSNH submitted to the Rye Town Clerk an application for licenses for three poles, to be erected on town-maintained highways in Rye. Subsequently, on July 11, 1984, PSNH submitted 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 Board of Selectmen, pursuant to RSA 231:161, I(a), granted the licenses sought by the company. On September 20, 1984, the DOT gave PSNH permission to begin installing the siren poles. On or about November 7, 1985, PSNH commenced installing four siren poles in Rye on State rights-of-way and two poles on town-maintained highways.
On or about the same date, the Rye Board of Selectmen issued a cease and desist order against PSNH and revoked the pole licenses which it had issued on September 10, 1984. After PSNH refused to obey the cease and desist order, Rye instituted a "Petition For Declaratory Judgment With Prayers For Specific Performance" against PSNH, seeking (1) a ruling that the previously granted pole licenses on State and town highways were not properly authorized and (2) orders for their removal.
Hampton Falls was permitted to intervene in Rye's action, in order to seek the removal of siren poles which had been erected on State-maintained highways in that town pursuant to State authorization. Hampton Falls claimed the poles had been placed contrary to two consecutive town meeting votes which had expressly prohibited the installation of the siren poles unless and until the citizens of Hampton Falls approved an overall evacuation plan for Seabrook Station. PSNH had not erected any siren poles on town-maintained highways in Hampton Falls because the Hampton Falls Board of Selectmen had denied licenses on the ground that the proposed emergency plan was inadequate to warn and protect the town's residents in the event of a nuclear accident.
On November 26, 1986, a hearing was held on the petition of Rye and Hampton Falls, after which the trial court determined that the DOT was a necessary party to the towns' action and ordered the agency to file responsive pleadings.
On January 20, 1987, the trial court ordered the removal of all poles and siren/public address systems within the two towns at PSNH's expense within thirty days, whether located on State or municipal highways. This decision was based on the conclusion that the poles and sirens were not utility facilities, installations or structures within the meaning of RSA 231:160. The court determined that the licenses which Rye and the DOT had granted for the erection of siren poles had been granted without statutory authority and were therefore null and void. PSNH appeals the trial court's order.
PSNH argues that the trial court erred in ruling that RSA 231:160 does not apply to siren poles installed as part of a federally-mandated public notification system for Seabrook Station. We agree with PSNH that the trial court's construction of RSA 231:160 is unduly restrictive.
The trial court determined that the legislature did not intend to allow utility companies to erect poles for the purpose of warning citizens of a nuclear emergency, but only for the transmission...
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New England Brickmaster, Inc. v. Town of Salem
...the meaning of a statute, we first look to see if the language used is clear and unambiguous. See Town of Rye v. Public Serv. Co. of N.H., 130 N.H. 365, 369, 540 A.2d 1233, 1235, cert. denied, 488 U.S. 981, 109 S.Ct. 529, 102 L.Ed.2d 561 (1988). Both the plaintiff and the defendant contend ......