DE 97-226 hampton water works company Petition For Override Pursuant to RSA 674:30 and Order Permitting Location of Facilities in North Hampton, New Hampshire Order Deferring Ruling on North Hampton's Motion to Dismiss, Granting Stratham's Petition for Limited Intervenor Status and Directing the Parties and Staff to Participate in Alternative Dispute Resolution O R D E R N O. 22,812 December 31, 1997 I. PROCEDURAL HISTORY Hampton Water Works Company (Hampton) seeks to place supply wells on property in the Town of North Hampton, New Hampshire (North Hampton). Hampton has worked through the planning board process with North Hampton and has received conditional approval for the wells. Hampton, however, believes the conditions are inappropriate for a number of reasons and, on October 22, 1997, filed with the New Hampshire Public Utilities Commission (Commission) a Petition For Override Pursuant to RSA 674:30 and Order Permitting Location of Utility Facilities in North Hampton, New Hampshire (Petition). In response, North Hampton filed, on November 13, 1997, an answer to the Petition and a Motion to Dismiss, to which Hampton objected on November 20, 1997. In addition, the Town of Stratham (Stratham), on December 3, 1997, petitioned the Commission for limited intervenor status. Hampton opposed Stratham's request in a December 12, 1997 response. II. POSITIONS OF THE PARTIES North Hampton's pleading, though styled a Motion to Dismiss, is more in the nature of a motion to limit the scope of the proceeding. North Hampton argued that the Commission's jurisdiction is limited at this stage to a narrow set of considerations, and much of what Hampton may argue in the hearings on the Petition are beyond the Commission's jurisdiction. According to North Hampton, the Commission should only consider whether Hampton should obtain an exemption from local zoning standards pursuant to RSA 374:30,III. The Commission should not consider: 1) whether the North Hampton Planning Board has authority to impose the conditions it did in the Hampton approval; 2) whether state statutes preempt local zoning ordinances; or, 3) how the North Hampton zoning ordinances should properly be interpreted. These issues, according to North Hampton, are within the province of the Superior Court where a parallel action is now pending. Should the Commission find the Board had authority to impose its own zoning standards, then the Commission would also consider whether the conditions imposed are reasonable. Hampton responded that it was premature at this stage to limit the arguments and evidence to be advanced. Hampton anticipated that the Commission would have to evaluate the questions of exemption in the context of the zoning ordinance itself, which by its nature would require some interpretation of the ordinances. Regarding the Stratham filing, Stratham notes that it recently approved construction of supply wells for Hampton after a lengthy process before town authorities and the Commission. Stratham argues that the public interest the Commission must apply will include the public interest of those persons situated outside the boundaries of North Hampton who are affected by Hampton's proposal. Stratham similarly participated in the proceedings before the North Hampton Planning Board. In addition, Stratham alleges that Hampton's Petition seeks to be exempt from some conditions which are modeled on conditions imposed in the Stratham well approvals. Finally, Stratham notes that although the wells at issue are located within the municipal bounds of Hampton (albeit by 400 feet at one point), the wells themselves fall within a broader Department of Environmental Services Sanitary Protection Radius that crosses municipal bounds into Stratham. Hampton opposed Stratham's intervention request, arguing, among other things, that the wells are not located within Stratham's boundaries, the regional nature of groundwater protection is appropriately under the jurisdiction of the State and the Hampton wells are at least 1500 feet from the nearest Stratham well. Hampton did not object to Stratham obtaining copies of discovery materials and making an unsworn statement at the start of the hearings on the merits. III. COMMISSION ANALYSIS At the outset, we will grant Stratham's petition for intervention. Because Stratham did not define the extent of the role it wished to play in this docket, for the present we will limit it to placement on the service list for discovery materials as well as pleadings, testimony, etc. In the event Stratham seeks specific expanded participation, we will address an appropriate motion at the proper time. We will defer ruling on the Motion to Dismiss at this time. We do not think it beneficial to set limits on the scope of the proceeding before the issues have been developed. We generally grant broad leeway in the discovery phase of our proceedings and see no reason to sharply curtail the issues in this case though we may well reach the same conclusions urged by North Hampton at a later stage in this docket. There is no question the Commission has authority to exempt a utility from some zoning ordinances. The Commission also has authority to impose reasonable conditions on a utility as part of the permitting process, as the Supreme Court made clear in Appeal of Milford Water Works, 126 NH 127 (1985). We anticipate that both of these Commission powers may be utilized before this case has reached its conclusion. Another reason not to limit the scope of the proceeding at this point is that we believe this is a dispute that might benefit from an alternative dispute resolution process. We direct our Executive Director to pursue alternative dispute resolution and report the results to the Commission. The timetable within which he structures such an effort we leave to him, with consultation of the parties and Staff. If such an effort is unsuccessful, we will revisit North Hampton's Motion to Dismiss. Based upon the foregoing, it is hereby ORDERED, that the Town of Stratham is granted intervention; and it is FURTHER ORDERED, that the Town of North Hampton's Motion to Dismiss is deferred for ruling at a later date; and it is FURTHER ORDERED, that the Executive Director is directed to pursue alternative dispute resolution with the parties and Staff and report his conclusions to the Commission. By order of the Public Utilities Commission of New Hampshire this thirty-first day of December, 1997. Douglas L. Patch Bruce B. Ellsworth Susan S. Geiger Chairman Commissioner Commissioner Attested by: Thomas B. Getz Executive Director and Secretary