DE 97-226
Hampton Water Works, Inc.
Petition to Override Municipal Zoning Ordinance
Order Approving Settlement Agreement Exempting Hampton Water
Works from Certain Provisions of the Zoning Ordinances of the
Town of North Hampton
O R D E R N O. 23,114
January 26, 1999
APPEARANCES: Ransmeier and Spellman by Timothy E.
Britain, Esq, on behalf of Hampton Water Works Company, John J.
Ryan, Esq. on behalf of the Town of North Hampton and the Town of
North Hampton Planning Board; and Eugene F. Sullivan III, Esq.
for the Staff of the New Hampshire Public Utilities Commission.
I. PROCEDURAL HISTORY
On October 22, 1997, Hampton Water Works Company, Inc.
(HWW) filed with the New Hampshire Public Utilities Commission
(Commission) a petition to override certain zoning ordinances and
other municipal regulations of the Town of North Hampton, (Town)
pursuant to RSA 674:30 and for an order permitting the location
of utility facilities in the Town. The exemption was sought to
allow for the construction, operation and maintenance of three
(3) bedrock production wells identified as Well Nos. 17, 18 and
19 (Production Wells) and associated transmission and
distribution pipelines, electric utilities and appurtenant
facilities (collectively, the Project). On November 13, 1997,
the Town moved to dismiss the petition.
On December 31, 1997, the Commission issued Order No.
22,812 which, inter alia, denied the motion to dismiss without
prejudice, asserted the Commission's jurisdiction over the issues
in dispute and set the matter for mediation.
On October 16, 1998, HWW filed a settlement agreement
(Agreement) with the Commission executed by HWW, the Town and the
Town of North Hampton Planning Board (Planning Board) which
required HWW to undertake certain monitoring and mitigation
commitments. Based on those undertakings, the Agreement allowed
for the construction of the proposed facilities provided the
Commission exempted HWW from certain municipal ordinances and
regulations. On December 15, 1998, the Commission heard evidence
from the parties in support of the Agreement and a public
statement from Timothy J. Harned. On December 24, 1998 the
Commission received a letter from Ralph Littlefield regarding the
Agreement.
II. POSITIONS OF THE PARTIES
A. Settlement Agreement
The Agreement, executed among HWW, the Town and Staff
requests that the Commission find the construction of the
Production Wells by HWW in the Town of North Hampton on land
owned by HWW is for the public good. It further requests that,
pursuant to RSA 674:30, the Commission exempt HWW from conditions
placed upon the Project by the Planning Board and all other
requirements of the Town of North Hampton Zoning Ordinances, Site
Plan Review Regulations and other municipal regulations of the
Town pertaining to the Project, subject to the following
conditions:
1. HWW shall implement and maintain a Well Owner Response
Policy as set forth as Exhibit B to the Agreement
(Response Policy), which provides a level of protection
to private residential wells in the area of the
Production Wells. The Response Policy shall remain in
effect for as long as the Production Wells are operated
(and any recovery period following the termination of
operation) subject to the provisions for amendment or
termination set forth therein.
2. HWW shall implement and maintain the Wetlands and
Winnicut River Monitoring Program as set forth as
Exhibit C to the Agreement (Monitoring Programs), to
ensure the wells to not negatively impact the wetlands
or the Winnicut River.
B. Timothy J. Harned
Mr. Harned is a homeowner served by an "eligible well"
in the vicinity of the Production Wells. Although Mr. Harned
stated he did not want to stand in the way of the Agreement he
gave a public statement indicating that he objected to the
Response Policy because it did not guarantee that residential
wells would maintain the same level of productivity achieved
prior to the operation of the Production Wells.
III. COMMISSION ANALYSIS
The underlying issue for our consideration is whether
we should override certain zoning ordinances and other municipal
regulations of the Town thereby allowing HWW to construct
production wells on land that it owns in the Town. Pursuant to
RSA 674:30, the Commission may exempt a utility from the
provisions of local zoning ordinances if it finds that such an
exemption is necessary for the convenience or welfare of the
public. RSA 674:30 III (1997). Cf., RSA 674:30 III (1998).
In determining whether such an exemption is necessary
for the convenience or welfare of the public the Commission must
also consider the interests of the public as a whole and may
"attach reasonable conditions in consideration of the interests
of local residents when it grants a utility's petition for
exemption from zoning ordinances . . . ." Appeal of Milford
Water Works, 126 N.H. 127, 133 (1985).
In its Petition, HWW objected to the conditions placed
upon the Production Wells by the Planning Board. Those
restrictions included monitoring the condition of the existing
residential wells by the Planning Board that would have required
HWW to effectively ensure that their yield remained unchanged
rather than ensuring a level necessary for residential
consumption.
The Agreement contains a Response Policy that protects
all of the residential wells in proximity to the production wells
but does not ensure that the capacity of the wells will remain at
their current levels. Rather, the Agreement stipulates that in
the event the Productions Wells have the effect of reducing the
yield of any well below standards set for residential dwellings
by the United States Department of Housing and Urban Development
(HUD), HWW is required to take various remedial actions to ensure
water service to the homeowner at minimum levels established by
HUD.
Mr. Harned stated that he objected to the Response
Policy because it neither identifies nor quantifies the current
yield of neighboring wells, nor prevents the potential reduction
in the yield of these wells unless they fall below current
minimum levels established by HUD. Mr. Bosung, HWW president,
testified however, that in his opinion the Production Wells will
have no effect on neighboring wells.
Balancing the interests of the potential effect on the
yield of certain residential wells located in proximity to the
Production Wells against the need established by HWW for
additional sources of water to serve its customers and potential
customers, we believe the need for water to the HWW customers
generally outweighs any potential effect on the above-standard
yield of certain wells. We also find that operation of the
Production wells is not likely to reduce yields on any nearby
wells. Further, the Agreement does not require neighbors to
waive any civil law rights they may have in the event their wells
are adversely affected by operation of the Production Wells.
Thus, we find the Agreement reasonably balances the
interests of both HWW customers and area residents, and provides
a resolution to a lengthy proceeding and thereby serves the
public convenience and welfare. Moreover, the agreement of the
Town Selectmen and Planning Board to the construction,
maintenance and operation of the wells, in conformance with the
conditions set forth in the Agreement, further supports the
finding that an exemption is for the public convenience and
welfare.
The Agreement is approved and HWW is granted the
requested exemption from the municipal ordinances, regulations
and conditions of the Planning Board of the Town on HWW's land in
the Town of North Hampton, thereby removing this impediment to
the construction of the Production Wells, appurtenances and such
other facilities necessary to transmit the water derived from the
Production Wells to its customers in its existing franchise
areas.
Based upon the foregoing, it is hereby
ORDERED, that the Agreement is APPROVED; and it is
FURTHER ORDERED, pursuant to the authority provided
this Commission under RSA 674:30, Hampton Water Works Company,
Inc. is EXEMPTED from any of the ordinances or regulations of the
Town of North Hampton upon the Project that are inconsistent with
the Agreement among HWW, the Town, the Planning Board and our
Staff dated October 14, 1998; and this Order approving the
Agreement; and it is
FURTHER ORDERED, that pursuant to the authority
provided this Commission under RSA 674:30 Hampton Water Works
Company, Inc. is EXEMPTED from any of the conditions placed upon
the Project by the Town of North Hampton Planning Board in its
decision dated September 24, 1997 approving HWW's site plan
approval application, that are inconsistent with the Agreement
among the HWW, the Town, the Planning Board and our Staff dated
October 14, 1998; and this order approving the Agreement.
By order of the Public Utilities Commission of New
Hampshire this twenty-sixth day of January, 1999.
Douglas L. Patch Susan S. Geiger Nancy Brockway
Chairman Commissioner Commissioner
Attested by:
Claire D. DiCicco
Assistant Secretary