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
Hampshire
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
I. PROCEDURAL HISTORY
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.
II. POSITIONS OF THE PARTIES
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
reasonable.
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.
III. COMMISSION ANALYSIS
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
Dismiss.
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
is
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