2011-723, EnergyNorth Natural Gas, Inc. d/b/a National Grid NH v. City of Concord

McLane, Graf, Raulerson & Middleton, P.A.

ENERGYNORTH NATURAL GAS, INC. d/b/a NATIONAL GRID NH

No. 2011-723 Merrimack

National Grid NH (National Grid). The City argues that the trial court

, of Concord (James W. Kennedy

page is: http://www.courts.state.nh.us/supreme. City and granting it to the petitioner, EnergyNorth National Gas, Inc. d/b/a a.m. on the morning of their release. The direct address of the court's home order of the Superior Court (McNamara, J.) denying summary judgment to the reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 DALIANIS, C.J. The respondent, the City of Concord (City), appeals an

Pacik on the brief, and Mr. Kennedy orally), for the respondent. City Solicitor’s Office and Danielle L.

petitioner. Holmes and Katie Kiernan Marble on the brief, and Mr. Holmes orally), for the

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 II. Analysis

appeal followed.

roadway fees, it did not consider whether they are an unlawful tax. This

the trial court determined that State law preempted the City’s imposition of the Grid’s favor, deciding that State law preempted the City’s ordinance. Because filed cross-motions for summary judgment, the trial court ruled in National

denied National Grid’s request for a preliminary injunction. After the parties

fees are preempted by State law and/or are an unlawful tax. The trial court injunctive relief from the requirement to pay roadway fees, arguing that the In June 2010, National Grid filed a petition seeking declaratory and

reconstructed, rehabilitated, or overlaid roadway. charges when excavation occurs within five years after completion of a new, the greenbelt or sidewalk portions of the public right-of-way; and (3) additional

$2.50 per square foot of excavation occurring either on City property or within

portions of the public right-of-way; (2) an infrastructure damage charge of

square foot of excavation occurring either on City property or within the paved “roadway fees.” These fees include: (1) a street damage charge of $5.00 per the City has conditioned issuance of such a permit upon the payment of

in Concord, it must seek an excavation permit from the City. For over a year,

Before National Grid, or any other entity, can excavate a public roadway

maintain valves.

Transportation has required National Grid to test and replace steel pipes and

in the light most favorable to the non-moving party. Id

“We review de

summary judgment.” Id. (quotation omitted). bare steel gas mains. Additionally, the United States Department of entitled to judgment as a matter of law, then we will affirm the grant of from the New Hampshire Public Utilities Commission to replace cast iron and evidence discloses no genuine issue of material fact and if the moving party is pipes that deliver natural gas. National Grid is also currently under a directive. “If our review of that evidence presented in the record, and all inferences properly drawn therefrom, ___, ___ (decided April 20, 2012) (quotation omitted). We consider all of the its summary judgment ruling.” Brown v. Concord Group Ins. Co., 163 N.H.

Grid must, at times, excavate public roadways to install, maintain, and replace

provide safe and reliable service to its customers, as is its obligation, National related to underground gas distribution pipes throughout New Hampshire. To is a local gas distribution company that owns, maintains, and conducts work

The trial court found the following facts to be undisputed. National Grid reasonable results and effectuate legislative intent. See 3

p. 3 pipes] shall restore the highway or ground to as good condition as it was in dig up any highway or public ground [for the purpose of laying water or gas RSA 231:185 provides: “Every person and every corporation who shall

interpreted so that they do not contradict each other and so that they lead to

before so doing, without unnecessary delay, and shall take all necessary over the general statute. Ford v. N.H. Dep’t of Transp.

without deciding, that both statutes apply. with each other.” Id Co., 160 N.H. at 319. Accordingly, for the purposes of this appeal, we assume,

isolation. Id In this case, the parties agree that RSA 231:185 and RSA 236:11 can be

A.3d 436, 445 (2012). ordinary meaning. Id, 163 N.H. ___, ___, 37 that which a State statute prohibits or vice versa.” Id itself, and, if possible, construe that language according to its plain and omitted). To the extent two statutes conflict, the more specific statute controls purposes, “[a] conflict exists when a municipal ordinance or regulation permits results and effectuate the legislative purpose of the statute.” Id. (quotation or (2) when State and local regulation actually conflict). For preemption statute considered as a whole. Appeal of Union Tel. Co. they do not contradict each other, and so that they will lead to reasonable statutes which deal with similar subject matter, we will construe them so that

“Where reasonably possible, statutes should be construed as consistent construction.” Town of Lyndeborough v. Boisvert Properties

.

interpret statutes in the context of the overall statutory scheme and not in ambiguous, we need not look to legislative intent. Id when it frustrates the statute’s purpose. Id. Furthermore, we

(2010). In interpreting a statute, we first look to the language of the statute

State statutory scheme evinces legislative intent to supersede local regulation; the final arbiter of the intent of the legislature as expressed in the words of a novo. ATV Watch v. N.H. Dep’t of Transp., 161 N.H. 746, 752 (2011). We are 817 (2004). Statutory interpretation is a question of law that we review de the ordinance and statutes actually conflict. See, 150 N.H. 814, Preemption “is essentially a matter of statutory interpretation and

ordinance does not expressly conflict with a State statute, it will be preempted

preemption may be found either: (1) when comprehensiveness and detail of Town of Bethlehem, 150 N.H. 606, 611 (2004) (explaining that implied

and RSA 236:11 impliedly preempt the City’s roadway fee ordinance because National Grid argues, and the trial court determined, that RSA 231:185 whether patching an excavated paved roadway with new pavement diminishes p. 4 We are left, therefore, with a factual dispute between the parties as to

this analysis was error.

that the trial court’s grant of summary judgment to National Grid based upon

history suggests that the legislature had this in mind. We conclude, therefore, expectancy. Nothing in the language of the statutes or in their legislative repaving a paved excavated roadway restored the roadway’s original life

issue, it made any assumption or finding, implied or otherwise, as to whether We are not persuaded that when the legislature enacted the statutes at

excavated road to its former condition.

Accordingly, the City maintains, its roadway fees are necessary to restore an

life will occur ‘no matter how well the . . . [excavated] areas are restored.’”

roadway life is reduced.’” The City argues that “[t]his reduction in pavement condition of the existing paved roadway structure and thus the overall paved with new pavement, the restored/patched paved roadway is not of the same

“evidence show[ing] that ‘when a paved roadway is excavated and then patched

the condition that existed prior to the excavation.” The City relies upon has been initially patched, which [are] used to restore the excavated roadway to statutes because they “cover[ ] maintenance costs to repair the roadway after it “condition” as used in RSA 231:185 and RSA 236:11 is correct. assume, without deciding, that National Grid’s construction of the word

The City argues that its roadway fees are consistent with the pertinent

offered a contrary interpretation. In light of the parties’ arguments, we conflicts with the assumption underlying the statutes. See the ordinance is preempted because the assumption underlying the ordinance

excavated street to its former condition “is all but impossible.” Boston Gas Co.

National Grid asserts that the word “condition” as used in RSA 231:185 682 N.E.2d at 1339. National Grid asserts, and the trial court decided, that

condition,” while the ordinance assumes, by imposing a fee, that restoring an statutes “assume[ ] that a street can and should be restored to its former travel of any highway shall restore such highway to a condition at least equal 1336 (Mass. 1997), National Grid argues, and the trial court found, that the disturbs the shoulders, ditches, embankments, or the surface improved for, 682 N.E.2d

(Emphasis added.) to the condition that was present before the excavation or disturbance.”

RSA 236:11 provides: “Any person, entity, or corporation who excavates or precautions to protect the public from injury by their acts.” (Emphasis added.) p. 5 5

HICKS and LYNN, JJ., concurred.

Reversed and remanded

material fact, we remand for further proceedings consistent with this opinion. or restores its original life expectancy. Because of this genuine issue of