DE 97-226
                        hampton water works company
          Petition For Override Pursuant to RSA 674:30 and Order
          Permitting Location of Facilities in North Hampton, New
            Order Deferring Ruling on North Hampton's Motion to
             Dismiss, Granting Stratham's Petition for Limited
           Intervenor Status and Directing the Parties and Staff
             to Participate in Alternative Dispute Resolution
                         O R D E R   N O.  22,812
                             December 31, 1997
         Hampton Water Works Company (Hampton) seeks to place
     supply wells on property in the Town of North Hampton, New
     Hampshire (North Hampton).  Hampton has worked through the
     planning board process with North Hampton and has received
     conditional approval for the wells.  Hampton, however, believes
     the conditions are inappropriate for a number of reasons and, on
     October 22, 1997, filed with the New Hampshire Public Utilities
     Commission (Commission) a Petition For Override Pursuant to RSA
     674:30 and Order Permitting Location of Utility Facilities in
     North Hampton, New Hampshire (Petition).
         In response, North Hampton filed, on November 13, 1997,
     an answer to the Petition and a Motion to Dismiss, to which
     Hampton objected on November 20, 1997.  In addition, the Town of
     Stratham (Stratham), on December 3, 1997, petitioned the
     Commission for limited intervenor status.  Hampton opposed
     Stratham's request in a December 12, 1997 response.  
         North Hampton's pleading, though styled a Motion to
     Dismiss, is more in the nature of a motion to limit the scope of
     the proceeding.  North Hampton argued that the Commission's
     jurisdiction is limited at this stage to a narrow set of
     considerations, and much of what Hampton may argue in the
     hearings on the Petition are beyond the Commission's
     jurisdiction.  According to North Hampton, the Commission should
     only consider whether Hampton should obtain an exemption from
     local zoning standards pursuant to RSA 374:30,III.  The
     Commission should not consider:  1) whether the North Hampton
     Planning Board has authority to impose the conditions it did in
     the Hampton approval; 2) whether state statutes preempt local
     zoning ordinances; or, 3) how the North Hampton zoning ordinances
     should properly be interpreted.  These issues, according to North
     Hampton, are within the province of the Superior Court where a
     parallel action is now pending.  Should the Commission find the
     Board had authority to impose its own zoning standards, then the
     Commission would also consider whether the conditions imposed are
         Hampton responded that it was premature at this stage
     to limit the arguments and evidence to be advanced.  Hampton
     anticipated that the Commission would have to evaluate the
     questions of exemption in the context of the zoning ordinance
     itself, which by its nature would require some interpretation of
     the ordinances.
         Regarding the Stratham filing, Stratham notes that it
     recently approved construction of supply wells for Hampton after
     a lengthy process before town authorities and the Commission. 
     Stratham argues that the public interest the Commission must
     apply will include the public interest of those persons situated
     outside the boundaries of North Hampton who are affected by
     Hampton's proposal.  Stratham similarly participated in the
     proceedings before the North Hampton Planning Board.  In
     addition, Stratham alleges that Hampton's Petition seeks to be
     exempt from some conditions which are modeled on conditions
     imposed in the Stratham well approvals.  Finally, Stratham notes
     that although the wells at issue are located within the municipal
     bounds of Hampton (albeit by 400 feet at one point), the wells
     themselves fall within a broader Department of Environmental
     Services Sanitary Protection Radius that crosses municipal bounds
     into Stratham.  
         Hampton opposed Stratham's intervention request,
     arguing, among other things, that the wells are not located
     within Stratham's boundaries, the regional nature of groundwater
     protection is appropriately under the jurisdiction of the State
     and the Hampton wells are at least 1500 feet from the nearest
     Stratham well. Hampton did not object to Stratham obtaining
     copies of discovery materials and making an unsworn statement at
     the start of the hearings on the merits. 
         At the outset, we will grant Stratham's petition for
     intervention.  Because Stratham did not define the extent of the
     role it wished to play in this docket, for the present we will
     limit it to placement on the service list for discovery materials
     as well as pleadings, testimony, etc.  In the event Stratham
     seeks specific expanded participation, we will address an
     appropriate motion at the proper time.    
         We will defer ruling on the Motion to Dismiss at this
     time.  We do not think it beneficial to set limits on the scope
     of the proceeding before the issues have been developed.  We
     generally grant broad leeway in the discovery phase of our
     proceedings and see no reason to sharply curtail the issues in
     this case though we may well reach the same conclusions urged by
     North Hampton at a later stage in this docket.
         There is no question the Commission has authority to
     exempt a utility from some zoning ordinances.  The Commission
     also has authority to impose reasonable conditions on a utility
     as part of the permitting process, as the Supreme Court made
     clear in Appeal of Milford Water Works, 126 NH 127 (1985).  We
     anticipate that both of these Commission powers may be utilized
     before this case has reached its conclusion.
         Another reason not to limit the scope of the proceeding
     at this point is that we believe this is a dispute that might
     benefit from an alternative dispute resolution process.  We
     direct our Executive Director to pursue alternative dispute
     resolution and report the results to the Commission.  The
     timetable within which he structures such an effort we leave to
     him, with consultation of the parties and Staff.  If such an
     effort is unsuccessful, we will revisit North Hampton's Motion to
         Based upon the foregoing, it is hereby
         ORDERED, that the Town of Stratham is granted
     intervention; and it is 
         FURTHER ORDERED, that the Town of North Hampton's
     Motion to Dismiss is deferred for ruling at a later date; and it
         FURTHER ORDERED, that the Executive Director is
     directed to pursue alternative dispute resolution with the
     parties and Staff and report his conclusions to the Commission. By order of the Public Utilities Commission of New
     Hampshire this thirty-first day of December, 1997.
        Douglas L. Patch    Bruce B. Ellsworth        Susan S. Geiger
            Chairman           Commissioner            Commissioner
     Attested by:
     Thomas B. Getz
     Executive Director and Secretary