The respondent, the City of Concord (City), appeals an order of the Superior Court (McNamara, J.) denying summary judgment
The trial court found the following facts to be undisputed. National Grid is a local gas distribution company that owns, maintains, and conducts work related to underground gas distribution pipes throughout New Hampshire. To provide safe and reliable service to its customers, as is its obligation, National Grid must, at times, excavate public roadways to install, maintain, and replace pipes that deliver natural gas. National Grid is also currently under a directive from the New Hampshire Public Utilities Commissiоn to replace cast iron and bare steel gas mains. Additionally, the United States Department of Transportation has required National Grid to test and replace steel pipes and maintain valves.
Before National Grid, or any other entity, can excavate a public roadway in Concord, it must seek an excavation permit from the City. For over a year, the City has conditioned issuance of such a permit upon the payment of “roadway fees.” These fees include: (1) a strеet damage charge of $5.00 per square foot of excavation occurring either on City property or within the paved portions of the public right-of-way; (2) an infrastructure damage charge of $2.50 per square foot of excavation occurring either on City property or within the greenbelt or sidewalk portions of the public right-of-way; and (3) additional charges when excavation occurs within five years after completion of a new, reconstructed, rehabilitated, or ovеrlaid roadway.
In June 2010, National Grid filed a petition seeking declaratory and injunctive relief from the requirement to pay roadway fees, arguing that the fees arе preempted by State law and/or are an unlawful tax. The trial court denied National Grid’s request for a preliminary injunction. After the parties filed cross-motions for summary judgment, the trial court ruled in National Grid’s favor, deciding that State law preempted the City’s ordinance. Because the trial court determined that State law preempted the City’s imposition of the roadway fees, it did not consider whether they are an unlawful tax. This appeal followed.
II. Analysis
“We review de novo the trial court’s application of the law to the facts in its summary judgment ruling.” Brown v. Concord Group Ins. Co.,
National Grid argues, and the trial court determined, that RSA 281:185 and RSA 236:11 impliedly preempt the City’s roadway fee ordinance because the ordinance and statutes аctually conflict. See N. Country Envtl. Servs. v. Town of Bethlehem,
Preemption “is essentially a matter of statutory interpretation and cоnstruction.” Town of Lyndeborough v. Boisvert Properties,
“Where reasonably possible, statutes should be construed as consistent with each other.” Id. at 319 (quotation omitted). ‘When interpreting twо statutes which deal with similar subject matter, we will construe them so that they do not contradict each other, and so that they will lead to reasonable results and effеctuate the legislative purpose of the statute.” Id. (quotation omitted). To the extent two statutes conflict, the more specific statute controls over thе general statute. Ford v. N.H. Dep’t of Transp.,
In this case, the parties agree that RSA 231:185 and RSA 236:11 can be interpreted so that they do not contradict each other and so that they lead to reasonable results and effectuate legislative intent. See Appeal of Union Tel. Co.,
National Grid asserts that the word “condition” as usеd in RSA 231:185 and RSA 236:11 includes the life expectancy of the road. The City has not offered a contrary interpretation. In light of the parties’ arguments, we assume, without deciding, that National Grid’s construction of the word “condition” as used in RSA 231:185 and RSA 236:11 is correct.
Relying primarily upon Boston Gas Co. v. City of Newton,
The City argues that its roadway fees are consistent with the pertinent statutes because they “cover[] maintenance costs to repair the roadway after it has been initially patched, which [are] used to restore the excavated roadway to the condition that existed prior to the excavatiоn.” The City relies upon “evidence showing] that ‘when a paved roadway is excavated and then patched with new pavement, the restored/patched paved roadway is not of the same condition of the existing paved roadway structure and thus the overall paved roadway life is reduced.’ ” The City argues that “[t]his reduction in pavement life will occur ‘no matter how well the . . . [excavated] areas are restored.’ ” Accordingly, the City maintains, its roadway fees are necessary to restore an excavated road to its former condition.
We are not persuaded that when the legislature enacted the statutes at issue, it made any assumption or finding, implied or otherwise, as to whether repaving a paved excavated roadway restored the roadway’s original life expectancy. Nothing in thе language of the statutes or in their legislative history suggests that the legislature had this in mind. We
We are left, therefore, with a factual dispute between the parties as to whether patching an excavated paved roadway with new pavement diminishes or restores its original life expectancy. Because of this genuine issue of material fact, we remand for further proceedings consistent with this opinion.
Reversed and remanded.