EnergyNorth Natural Gas, Inc. v. City of Concord
164 N.H. 14
| N.H. | 2012Background
- National Grid, a gas distributor, must excavate public roadways in Concord to install/maintain pipes and comply with directives to replace certain mains.
- Concord issues excavation permits conditioned on paying roadway fees: $5.00 per sq ft street-damage fee, $2.50 per sq ft infrastructure-damage fee, and additional charges within five years after roadway projects.
- National Grid filed for declaratory and injunctive relief challenging fees as preempted by state law or unlawful taxes; the trial court denied injunction and later granted summary judgment to National Grid.
- The trial court held RSA 231:185 and RSA 236:11 impliedly preempt the City’s ordinance, and did not reach the unlawful tax issue.
- The court assumed, for purposes of this appeal, that RSA 231:185 and RSA 236:11 apply and that the term “condition” could include road life expectancy, but found a material factual dispute about whether patching restores life expectancy and remanded.
- The opinion reverses the prior grant of summary judgment to National Grid and remands for further proceedings on preemption and the life expectancy issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do RSA 231:185 and RSA 236:11 preempt the City’s roadway-fee ordinance? | National Grid argues implied preemption due to statute-scHEME conflict. | City contends fees cover maintenance and restoration to prior condition. | Preemption not decided; remand for factual development. |
| Does the word ‘condition’ in RSA 231:185 and RSA 236:11 include road life expectancy? | National Grid construction that ‘condition’ includes life expectancy. | Assumed for the appeal but remains a factual dispute; remand. |
Key Cases Cited
- Boston Gas Co. v. City of Newton, 682 N.E.2d 1336 (Mass. 1997) (implied preemption issues; street restoration vs fees context)
- N. Country Envtl. Servs. v. Town of Bethlehem, 150 N.H. 606 (N.H. 2004) (implied preemption; conflict or comprehensive statutory scheme)
- Town of Lyndeborough v. Boisvert Properties, 150 N.H. 814 (N.H. 2004) (statutory interpretation; harmonization of statutes)
- ATVWatch v. N.H. Dep’t of Transp., 161 N.H. 746 (N.H. 2011) (statutory interpretation; de novo review of law)
- Appeal of Union Tel. Co., 160 N.H. 309 (N.H. 2010) (interpret statutes in context of overall scheme; avoid conflicts)