*1 STATES POWER NORTHERN
COMPANY, Appellant, OAKDALE, Respondent.
CITY OF
No. C3-98-867. Appeals of Minnesota.
Court 2, 1999.
Feb. *2 Ludcke, Berens, P.A., Kelly & George requested 0. that the lines be installed under- MN; Bagley, ground. and Harold Minneapolis, J. tariff NSP’s 5.3A in rel- Attorney, Department, part: Law Senior Northern evant Company, Minneapolis, MN
States customer, requested by group When (for appellant). customers, developer, *3 municipality Strommen, provide types of in James M. Daniel J. Green- service result an Graven, Chtd., expenditure sweig, Kennedy & in Company Minne- excess des- (for respondent). ignated apolis, provided service MN installation as un- 5.1, der Section STANDARD INSTALLA- Hatch, Attorney General, Michael A. Me- * * * TION, requesting municipality Hertzler, Aiders, gan D. J. Dennis Assistant responsible will be expen- for such excess (for General, Paul, Attorneys St. MN amicus diture. Minnesota Public Utilities Commis- curiae sion). agreed NSP to construct the new lines un- derground city if agree pay would Anderson, D. Christopher Minnesota Pow- additional costs underground- associated with (for er, Inc., Duluth, MN amicus curiae ing. undergrounding NSP estimated that Inc.). Power, Minnesota $338,000, would cost an additional over and LeVander, Jr., Simon, Maun Harold & $190,000 above the cost of construc- overhead (for PLC, Paul, St. MN amicus Rural curiae tion. Association). Electric July city passed In an ordinance Cities, Heyl, League of Carla J. Minnesota any installation of electric dis- (for Paul, League St. MN amicus curiae systems 15,000 tribution of less than volts be Cities). Minnesota Oakdale, placed underground. Minn.Code of 1997). §§ (July Ordinances 23-40 and 23-41 HALBROOKS, Considered decided ANDERSON, Presiding Judge, Judge, and granted was permit NSP then from HOLTAN, Judge. authorizing completion MnDOT pro-
ject using overhead lines. NSP informed the O PINION city that was not to obtain a permit city from the because MnDOT had * HOLTAN, Judge. A. HARVEY highway exclusive over trunk state (NSP) Company Northern States Power right-of-ways under Minn.Stat. appeals grant from the district court’s (1998). NSP offered to its amend franchise summary judgment in favor of city so that the additional costs of (the city) involving Oakdale in a case undergrounding paid could requiring underground electric dis- ratepayers franchise fee collected from NSP tribution affirm. lines. We city. in city The declined the offer. began construction of the overhead FACTS construction, day lines. On the first In spring Corporation Imation Department Oakdale Police notified the NSP requested provide that NSP additional ser- crew that the construction was in violation of facility vice to its located ordinance, and crew members would be subsequently Oakdale. NSP informed the they if arrested did not cease construction. city of its intent construct new overhead brought seeking NSP then this action a de- along high- electric distribution lines state claratory judgment the ordinance was ways 5 and 120. NSP’s General Rules and seeking enjoin invalid and enforcement (tariff) Regulations 5.1A the ordinance. Company right “[t]he desig- reserves the type nate the city facilities to be installed subsequently agreed The to allow NSP city either or underground.” go overhead forward with the overhead construe- * Const, court, judge VI, serving Retired pointment pursuant of the district to Minn. art. judge Appeals ap- of the Minnesota Court of any city genuine the ordinance tion. The later amended issues fact material exist and highways trunk from the whether the district court applying to exclude state erred in Oakdale, Barnett, the law. Wartnick v. undergrounding requirement. Moss & (Minn.1992). (October In making MinmCode of Ordinances determinations, 1997). “the court must city view the evi brought a motion to then light dence in the most complaint favorable to the dismiss NSP’s for mootness. NSP nonmoving party.” State Beaulieu v. summary brought judg- a cross motion for View, (Minn. Mounds validity ment on the ordinance. NSP of 1994). given No deference need be detailing with its motion an included affidavit district application court’s of the law. Frost- projects future that would be Benco Elec. Ass’n v. Minnesota Pub. Utils. pro- affected the ordinance. One of the Comm’n, (Minn.1984). jects January begin was scheduled to *4 Statutory interpretation presents question a and included 1.2 miles of within of law that appellate court reviews de city. Hibbing novo. Educ. Ass’n v. Public Em Following hearing, the district court de- Bd., ployment Relations 369 N.W.2d city’s nied the motion to dismiss for moot- (Minn.1985). ness, summary denied NSP’s motion for judgment, granted summary judgment I. city. on the in merits favor of the The court NSP that the district court commission-approved that concluded NSP’s erred when it determined that the commis general tariffs did not attain the status sion-approved tariffs failed to attain the sta law, state that the ordinance was not general tus of procedural state law due to by preempted or in conflict with the Minne- agree. deficiencies. We (MPUA), sota Public Utilities Act (1998), ch. 216B and that the ordinance was The commission granted has been city’s power. legislative authority valid exercise of the regulate public utili injunctive court accordingly, denied relief ties determine whether their rates are remaining (1998). portions com- NSP’s reasonable. See Minn.Stat. ch. 216B plaint Ratemaking were dismissed with quasi-legislative NSP’s assent. is a function. Peoples Natural Gas Co. Minnesota Pub. appeals grant NSP the district court’s Comm’n, (Minn. Utils. 369 N.W.2d summary judgment. alleges It that the dis- 1985). Utilities are to file schedules trict court concluding erred in that NSP’s rates, tolls, with “showing the commission all tariffs, filed with the Minnesota Public Utili- charges tariffs and which it has established (the commission), ties Commission did not * * 216B.05, *.” Minn.Stat. subd. 1 general assume the status of state law. It (1998). Filings by made with the commission alleges further court erred con- utilities in “continue force until amended cluding city’s ordinance was valid public utility changed by or until and not in preempted by conflict with or * * 216B.09, commission *.” Minn.Stat. approved MPUA and its tariffs. subd. 3 The commission’s decisions regard subject “command the same and are ISSUES to the same legis tests enactments of the I. Did the district court in err determin- Minneapolis Ry. lature.” St. v.Co. ing that filed tariffs did not assume the Minneapolis, 251 Minn. general status of state law? (1957) (citation omitted). II. Did the district court err in determin- The district court that: concluded valid, the ordinance was and not NSP Rules 5.1 and 5.3 never assumed the preempted by or in conflict with state law? general they status of law state because any adopted pursuant agency were not
ANALYSIS rulemaking proceeding. purpose Their appeal summary judg On from advising was limited to the MPUC ment, reviewing court determines in whether manner which this would treat all To file these resulting unjust, of its customers. “rules” unreason- able, protections discriminatory without benefit notice rates clear hearing convincing claim opportunity then evidence. they force and effect of have the Co., In re Request Interstate Power vastly overstating purpose state law is (Minn.App.1997) (quoting N.W.2d of these tariffs. and intent Hibbing Taconite Pub. Co. Minnesota Comm’n, (Minn.1980)). Serv. previously This court has held filed tariff Here, the commission could have reason- part of the lawful to be “an inherent rate ably concluded that would NSP Computer charged to consumers position best type determine what of in- Eng’g, Inc. v. Northern Tool & States Power stallation would be most and cost- feasible (Minn.App.1990) provide adequate, effective order to effi- (holding tariff valid and enforce- cient, and reasonable service at reasonable (Minn. 23, 1990). able), May review denied 216B.16, rates. Minn.Stat. subd. Computer Tool court concluded Given the deference to be accorded the com- “recognized tariff had been as a reasonable decision, mission delegation liability by agency limitation of exclusive- to NSP was not unreasonable. ly empowered to make this determination,” upon *5 based the tariffs sur- through changes.
vival
several contested rate
II.
analysis applies
The same
here. The
Id.
city
NSP asserts that
the
did not have
originally
tariffs at issue here were
filed with
legal authority to enact
the ordinance in
in
the commission
1984.
Since
time
question.
NSP further
that the ordi-
they
approved
have been reviewed and
in
nance is
conflict
preempted by
with and
through a
of commission ratemaking
series
the MPUA and commission-approved tariffs.
recently
most
in
proceedings,
1992. See
disagree.
We
No.
MUPC Docket
E-002/GR-92-1185
“[Municipalities
no
have
inherent
commission,
by
approved
As
powers
possess only
powers
such
as are
product
tariffs at
not invalid as
issue are
”
* * *
expressly
conferred
statute
or
procedural
of a
defect.
necessarily implied therefrom. Northern
Falls,
States Power Co. v.
Granite
city
asserts that even if the
(Minn.App.1990),
review
invalid,
proeedurally
tariffs are not
tariff sec
(Minn.
24, 1991);
denied
Jan. 14 &
see also
represents
improper
tion 5.1
delegation of
Minneapolis
Ry.
St.
v.Co.
Minne
authority from the commission to NSP. The
apolis,
502, 507,
40 city
Ry.
cites Northern Pac.
Co. v. State of
(1949)
(examining powers possessed by
Duluth,
Minn. ex rel.
208 U.S.
city).
341, 345-46,
(1908),
S.Ct.
When the
acts in a legisla-
[commission]
license,
required to obtain
permit, right
capacity
allocations,
tive
as in rate increase
terms,
or
in
franchise
with
accordance
balancing both cost
conditions,
and noncost factors
regulatory
and limitations of
making
among public policy
choices
municipality, including
acts of
plac-
alternatives,
upheld
will
decision
be
un-
ing of distribution lines and facilities un-
* * *
licenses,
less shown to
in
statutory
be
excess of
derground.
existing
All
rights
ac-
see also
Roswell v. Mountain
franchises and other
States
permits,
(10th
Tel.
78 F.2d
by any public utility municipality
& Tel.
Cir.
or
quired
1935)
pay-
(distinguishing franchises from
ex
April
including the
prior to
police power
over
fees,
ercise
use
streets
existing
not be
franchise
shall
ment of
alleys
generally
accomplished
which
any respect
or
in
impaired
affected
resolutions). Thus,
ordinances
chapter, except
of this
with re-
passage
question
the first
be addressed is whether
regula-
spect to matters of rate and service
* *
Minn.Stat.
216B.36 confers the
*.
tion
require undergrounding
as a
(1998)
with
222.37
also deals
merely
power.
a franchise
municipal
placement
part:
of a
municipality
*
* * *
require underground placement of
may
Any
power company
long
police
lines has
been
pow
considered
purpose
roads for
of con-
use
See, e.g.,
er.
Northwestern Tel. Exch.
v.Co.
structing, using, operating, and maintain-
*
**
149-50,
City Minneapolis,
Minn.
business, but such
for their
lines
83 N.W.
The Northwestern
way
so
shall be
located as in no
Tel. court
stated
and convenience
interfere
same;
city
it is not to be doubted that
ordinary
along
council
travel
or over the
and,
plenary
has
sub-
extend the
in the construction and maintenance
* * *
wherever,
line,
surface district
the exercise
shall
company
of such
discretion,
a fair
it
in-
decides that
subject
regulations
to all
im-
reasonable
terests
to be
any
done.
posed
governing body
coun-
ty,
road
town
which such
addition,
specifi
Id. In
may be.
cally subjects
to a municipality’s
utilities
rea
respect
placement
sonable
with
in Minn.
language
NSP contends that the
*6
Furthermore,
right-of-way.
of lines in the
§
placing
Stat.
216B.36 about
distribution
plain language of
the
Minn.Stat.
216B.36
underground
only
municipal
lines
refers
to a
utility “may
a
that
to
be
ability
franchise,
ity’s
grant
essentially
to
a
a
license, permit, right
obtain a
or franchise
contract,
requiring undergrounding.
See
* *
Minneapolis
Ry.,
*.”
229
See
St.
Minn.
City
Paul
S. St.
v. Northern
Power
States
of
512-13,
(construing
at
540 utility Ct.App.1967) (holding requiring its construction of
dinance relocate County utility Denver v. underground); City prohibited be un- facilities cannot or of Co., & Tel. 754 P.2d Mountain States Tel. reasonably regulated by municipality where (Colo.1988) 1172, (requiring utility to 1176 such with facilities are constructed accord relocate its lines due the construction of of standards and meet the standards lines); City Geneseo v. Illinois new sewer statute); Duquesne Light the hot wires Co. Co., 26, N. Utils. 378 Ill. 39 N.E.2d 323, Upper v. Township, Pa. St. Clair 377 (Ill.1941) utility (requiring expired 30 with (1954) 329, 287, utility (holding 105 A.2d 290 inoperational power franchise to its remove subject township regulation was not re- lines); Co. v. Detroit Edison Southeastern garding location and construction of trans- Auth., 28, Michigan Transp. Mich.App. lines) added); (emphasis mission Vandehei (re 295, (Mich.Ct.App.1987) Comm’n, Developers v. P.2d Public Serv. quiring utility to its relocate facilities within 1282, (Wyo.1990) (holding Public Ser- projected “people upon route of mover” vice Commission order con- controlled over transportation authority); order of board; flicting county county order of did Portland, City Northwest Natural Gas utilities). regulate have (Or.1985) Or. 711 P.2d that we should focus on the (requiring utility its to relocate lines to ac provision pro- of Minn.Stat. 216B.36 that light commodate construction rail transit vides: system); Sys., Vermont Gas licenses, All existing permits, franchises Burlington, 153 Vt. A.2d acquired by any (Vt.1989) rights other (requiring gas utility to its relocate municipality prior April lines due to the construction new storm existing lines); including payment and sewer Edmonds v. Gener fees, impaired shall not franchise Wash.App. Tel. 584 P.2d al any respect by passage affected (Wash.Ct.App.1978) (upholding municipal except chapter, respect this with to matters place its lines n underground expense); rate and at its own service but see Crestwood, jurisdiction are Elec. vested in the the com Union Co. * * *1 (Mo.1973) (holding chapter. mission S.W.2d that mu this nicipal requiring undergrounding added.) However, (Emphasis invalid; regu exceeded was [Wjhen general provision in a is in law *7 latory power had been vested Public the provision conflict with a special same Commission); Service Public Serv. Co. v. law, construed, or two shall another be 68, Hampton, Town 120 N.H. 411 A.2d possible, may if given so that effect be 164, (N.H.1980) (municipal power over pro both. If conflict between the two preempted by transmission statute irreconcilable, special provi visions be placing powers regulatory agency) those prevail sion shall and shall be construed (emphasis added); In re Public Serv. Elec. & exception general an provision * * *. to the 358, 233, Gas 35 N.J. 173 A.2d (N.J.1961) (holding that ordinance 645.26, (1998); § undergrounding Minn.Stat. subd. 1 also of electric see transmission Olson, County lines was Itasca invalid as Bd. Comm’rs v. scope outside the Of (where municipal 804, power) added); (emphasis (Minn.App.1985) N.W.2d Cleve Painesville, possible, land Elec. Ilium. give Co. v. a court must effect to all relat- (Ohio App.2d 145,148 10 Ohio statutory 226 N.E.2d provisions). legisla- ed Here the 216B.02, (1998). 1. Rate § is defined as is Minn.Stat. subd. 5 Service fare, every toll, tariff, compensation, charge, defined as classification, natural, them, any rental gas and or de- or mixed elec- manufactured manded, observed, charged, installation, removal, or collected tricity; repair of or any rules, public any any for service and equipment delivering or for or meas- facilities practices, affecting any or contracts such com- uring gas electricity. such fare, toll, rental, tariff, pensation, charge, or 216B.02, § Minn.Stat. subd. 6 classification. granted municipalities specifically legitimate objective. ture related to a We dis- power require utility agree. un- distribution line Moreover, dergrounding. provision re- municipal pre A ordinance is upon by clearly only applies
lied NSP constitutional; sumed the burden is on the licenses, “existing permits, franchises and party attacking validity the ordinance’s * * * rights acquired prior April other prove an ordinance or unreasonable that § By plain 1974.” Minn.Stat. 216B.36. requisite involved, interest statute, language of the re- consequently that the ordinance does not authority of municipalities served the to re- police power come within city. of the quire undergrounding. distribution line Dalsin, St. Paul v. 245 Minn. Finally, if prove N.W.2d To grants police powers, then it unreasonable, ordinance is a complaining granting would be to collect party must show that it “has no substantial permits fees health, licenses relationship safety, mor —effective- so, ly an provision regard- excise tax. If general als Hyland, welfare.” State v. the collection of an tax excise near the (Minn.App.1988) N.W.2d (quoting meaningless. County Claussen, end the statute would be Freeborn 295 Minn. Further, 96, 100, (1972)). general would conflict with the “[I]f principle city’s police powers do not of an reasonableness ordinance is debata ble, power include the the courts will not raise revenue. See interfere with the Joe, legislative Country Eagan, (quoting discretion.” Id. State v. (Minn.1997) Makers, Inc., Modern Box (holding 686-87 (1944)). city’s generate when real motive is to reve- nue, recouping rather than the administra- The requires issue under- of regulation, illegal tive costs the fee is an grounding any permanent extension or tax). replacement 15,000 of distribution lines of Oakdale, volts or less. Minn.Code Ordi- argument NSP’s here assumes that 1997). (July pur- nances 23-41 The stated the statute cannot be read to reserve both pose for the ordinance is to power franchise police powers. and some promote preserve welfare, portion involving of the statute collection orderly development city, assure the of fees states: provide for the and convenience license, permit, right, Under the or fran- of its inhabitants *. chise, utility may obligated by any Oakdale, Minn.Code of Ordinances municipality pay municipality fees (October 1997). defray to raise revenue or increased mu- police asserts al- nicipal accruing costs as a result of regulate lows it to in the interest operations, or both. general prosperity, including convenience Clearly, 216B.36. the statute *8 County aesthetic considerations. See Pine of can be read to revenue-generat- allow for a Resources, Dep’t v. Natural State 280 of ing fee from a separate franchise and a fee (Minn.1979) (holding N.W.2d the permit for a defray to costs. administrative Kettle River Wild Scenic Rivers Ordi- 645.17(1) (1998) See Minn.Stat. (stating a police power nance was valid of exercise that interpreted statutes to are be with the where it had as its basis aesthetic consider- presumption legislature that the not does zoning ations as well as other traditional unreasonable). intend a result that is objectives, safety including public and limit-
Having that determined ing pollution); Naegele Outdoor Adver. v.Co. city Minnetonka, 492, 499, with the statuto Village Minn. of ry authority require utility (1968) to line under- (holding 162 N.W.2d that the grounding, inquiry validity our as to the of fact that the billboard at issue yet is complete. ordinance not a NSP reflected desire to achieve aesthetic ends contends that reasonably the ordinance is not not does invalidate an otherwise valid ordi-
nance);
Adver.,
Naegele
City
of
grounding,
Outdoor
we do not reach the issue
(4th Cir.1988)
Durham,
Mangold
844 F.2d
preemption.
Midwest Co.
See
of
(holding that
Richfield,
aesthetic considerations are
Village
of
(1966)
valid basis for
of
exercise
(defining preemption
N.W.2d
billboards).
field”).
zoning regulation
over
of
While
concept
“occupation of
as the
of
position
these cases do reflect the
that aesth
Similarly,
legislature specifically
when the
etic
will not
oth
considerations
invalidate an
grants authority municipalities,
the exer-
ordinance,
erwise valid
none stand for the
authority
logically
of that
cannot
be seen
cise
city may
proposition
regulate
public
that a
to conflict with
Northern
state law. See
utility solely
purposes
of convenience and
Falls,
City
States Power Co.
Granite
of
We decline
invitation to
aesthetic value.
gener-
(stating
at 544-45
there is
respect
municipal
law with
extend the
ally
merely
no conflict
ordinance is
where the
utilities,
public
ap
of
and instead
complimentary
or in
additional and
aid and
ply
public
the more traditional
interest tests
statute).
furtherance
health,
safety,
general
welfare.
Clearly the ordinance and the tariffs con-
Exch., Minn.
See Northwestern Tel.
at
city
flict. But
claim
both the
and NSP
au-
530;
83 N.W. at
Holt v.
Sauk
thority
in the
“The
MPUA.
does
Rapids,
(Minn.App.
absurd, impossible
not
that
intend result
(Minn.
1997),
24, 1997);
Apr.
review denied
execution,
or unreasonable.” Minn.Stat.
Hyland,
Since
81 Idaho
P.2d
we have determined that the
(Id.1959);
explicitly granted municipal
has
New York
Tunnel Auth. v.
York,
require
distribution
New
line under- Consolidated Edison Co.
(N.Y.1946);
requested
or
special
N.E.2d
Where
facilities are
N.Y.
Edmonds,
by
payment
this would NSP should not be surcharge taking approval fails two obtain trate an unconstitutional time munic- each First, ipality special reasons. is drawn requires “[i]f installation. NSP prevent public, broadly de position. duty harm to cites no for this fined, goal, able to achieve this duty. seems avoid rate discrimination is NSP’s taking not occurred.” Zeman v. §§ then has See Minn.Stat. 216B.06-.07. The commis- City Minneapolis, approved sion has tariff section 5.3E and (Minn.1996) Keystone (citing Bituminous NSP is bound it. DeBenedictis, Coal Ass’n v. 480 U.S. 488-93, 1243-46, D E 94 L.Ed.2d C I I N S.Ct. S O 472, (1987)). Second, remedy has a NSP court The district erred when deter- may commission. utilities NSP NSP’s mined that rate tariffs at issue did not request ad that the commission allocate the attain law the status state due to undergrounding ap ditional costs of However, procedural deficiencies. the dis- ratepayers. propriate group of correctly trict court determined the ordi- question that a in was municipality
NSP further contends nance authorized statute. may underground placement reasonably not of The ordinance is related to its compensation objective electric of protecting public lines without because stated requirement such a creates a with preempted by conflict and is in neither nor conflict duty statutory not to NSP’s discriminate as with state law. §§ forth in Minn.Stat.
set
216B.06-.07
Affirmed modified.
that, by
conferring a
NSP
citizens,
special
placement of
benefit on its
HALBROOKS, Judge (concurring
part,
in
power
underground,
paying
lines
without
dissenting
part).
improvement,
requires
NSP for this
agree
majority
While I
with
costs of
improve-
NSP to collect the
those
NSP’s
tariff sections
rate
5.1 and 5.3 have
ratepayers
ments from
across the state.
law,
Thus,
of state
I
that Oak-
force
conclude
ratepayers
all
outside the
of Oak-
dale’s ordinance is too
paying discriminatory
dale
broad to be either
are
rate.
reasonably
legitimate municipal
related to a
not
While we need
decide whether
objective
or
authorized
city’s
will
ordinance
result
unreason
Therefore,
respectfully
216B.36.
I
dissent.
able rate discrimination under Minn.Stat.
extraordinarily
(1998),
§§
Oakdale’s ordinance
.07
216B.03 and
we do note
broad.
It
on
does
discriminate based
statutory remedy
NSP has a
allows
concerns,
proximity
location of
discriminatory
lines
their
to address
if
rate
imposes
any,
interfering
traffic. The
city’s duly-
with
without
requirement
underground
may
installation for
request
enacted ordinance. NSP
15,000
all
commission
additional
com
electric distribution
volts or
allocate
costs of
regard
plying
any safety
with
less
ratepayers
the ordinance
without
benefiting
given
in a
installation.
from the service. See Minn.Stat. welfare concerns
Further,
approach
specifically
findings
216B.16. This
out
no
that un-
Oakdale made
5.3E,
in tariff
which
derground
lined
section
installation of
lines would
electric
*10
part:
public
relevant
See U.S.
serve the stated
interests.
Longmont,
(Minn.App.1990),
v.
review denied
West Communications
of
(Colo.1997)
(Minn.
1990).
(listing
May
fac-
521-22
948 P.2d
tors
to its determination
the rea-
relevant
Agency powers
light
must be construed
municipal
ordinance
sonableness of
they
purpose
granted.
for which
were
underground).
lines
Al-
relocation
Management
ex rel.
Board v.
State
Waste
may
though it
be true
overhead electric
Bruesehoff,
(Minn.App.
343 N.W.2d
present
places,
a hazard in some
lines
1984).
charged
commission is
with the
developed
us is not
on this
record before
responsibility
balancing
public
need for
fact,
argued
In
has
that under-
issue.
adequate,
efficient
reasonable service
significantly
ground
more difficult
lines are
against
utility’s
to
cost of
need meet the
especially in
months
repair,
to
the winter
providing
profit.
a fair
service
earn
ground is
when the
frozen.
216B.16,
(1996);
§
Minn.Stat.
subd. 6
Com
spite
In
fact that
of the
the ordinance cites
Tool,
puter
Even overhead lines are subd. 1 In order hazardous, ally this give provisions ordinance exceeds all meaning, Oak- of the statute statutory authority. dale’s Northern interpreted only See section 216B.36 must be Falls, States Power Co. pre-existing police powers Granite reserve of mu- (hold- (Minn.App.1990) nicipality underground placement ing municipalities only powers part have as of its statute), granted them regulate public property. review denied the streets and (Minn. 1991). Jan. To interpret See Minn.Stat. The exercise municipal power require utility powers line un- of those to that which is limited dergrounding broadly as reasonably does related to the interests of requires health, ignore us to the commission’s stat- welfare. utory authority to regulate Hyland, utilities. See See State (1996 Supp.1997); (Minn.App.1988). Minn.Stat. ch. 216B & Since here see Computer Eng’g, authority, also Tool & exceeds that it should be declared Northern enjoined. and its States invalid enforcement
545 majority foreign necessary are back-fill authorities cited the trench for under- contrary. persuasive grounding. Finally, legisla- Id. the Colorado passed expressly ture had providing statute upheld courts have local Instances where municipal regulation over the location of utili- utility placement of line have been 519; ty poles. Id. at see also Colo.Rev.Stat. major pub limited incidental § 31-15-702 projects. lic works See Detroit Edison Co. v. Although precedent there is no for munici Auth., Michigan Transp. Southeastern 161 pal regulation utility of placement line (Mich. 28, 295, Mich.App. 410 296-97 assumes, broad many as Oakdale courts have Ct.App.1987); Sys., City Vermont Gas invalidated local requiring utility ordinances 210, 45, Burlington, 153 Vt. A.2d 46 of undergrounding. See Elec. Cleveland (Vt.1989); City County & Denver v. of Painesville, City Illum. Co. v. 10 Ohio of Co., Mountain States Tel. & Tel. 754 P.2d (Ohio 85, 145, 149 App.2d 226 N.E.2d Ct.App. 1172, (Colo.1988); Northwest Natural 1967); Developers Vandehei v. Public Serv. Portland, 291, City v. Gas 300 Or. of Comm’n, 1282, (Wyo.1990); P.2d 1285-87 119, 121 (Or.1985); Appalachian P.2d Public Hampton, Serv. Co. v. Town 240, City Huntington, Co. v. 158 W.Va. 68, 164, (N.H.1980); N.H. 411 A.2d Un 471, (W.Va.1974); City S.E.2d Phila Crestwood, City ion Elec. v. Co. Comm’n, delphia Pennsylvania Pub. Util. 480, (Mo.1973); S.W.2d 483-84 In re Public (Pa.1972); 449 Pa. 296 A.2d 808-09 Co., Elec. Serv. & Gas 35 N.J. 173 A.2d New York Tunnel Auth. v. Consolidated (N.J.1961). 233, 239 Edison N.Y. 68 N.E.2d Oakdale’s reasonably ordinance does not (N.Y.1946); City Edmonds v. Gen legitimate municipal objective. relate to a Co., Inc., eral Tel. 21 Wash.App. The ordinance also exceeds Oakdale’s statu- (Wash.Ct.App.1978). P.2d Were tory authority. Therefore, I would reverse Oakdale’s ordinance related to a works judgment. the trial court’s project, undertaken the interest of welfare, health and the issue before us would significantly different. See New Orleans Comm’n,
Gaslight Drainage v.Co. 197 U.S.
453, 460-61,
25 S.Ct.
(1905) (holding imposition gas on company of relocating gas pipes
the costs of to accommo date construction municipal drainage sys K.R., Appellant, tem was an exercise of the community). essential health SANFORD, al., Defendants, Brandon et
Furthermore, the recent Colorado Su- decision, preme Longmont, Court Committee, Inc., First Avenue d/b/a factually both legally distinguishable Entry, Respondent. & 7th St. First, from the instant case. that case in- volved an underground- No. C2-98-1377. utility conjunction with a Appeals Court of Minnesota. project city-owned
works
undertaken
utility, undergrounding
electric
its own
3, 1999.
Feb.
Longmont,
lines.
poles city-owned Third, lines. Id. city specific findings made as to how the health,
undergrounding would further
safety, city and welfare of residents. Id. at Fourth,
521. agreed to excavate and