Northern States Power Co. v. City of Oakdale

HALBROOKS, Judge

(concurring in part, dissenting in part).

While I agree with the majority that NSP’s rate tariff sections 5.1 and 5.3 have the force of state law, I conclude that Oak-dale’s ordinance is too broad to be either reasonably related to a legitimate municipal objective or authorized by Minn.Stat. § 216B.36. Therefore, I respectfully dissent.

Oakdale’s ordinance is extraordinarily broad. It does not discriminate based on location of power lines or their proximity to public traffic. The ordinance imposes the requirement of underground installation for all electric distribution lines of 15,000 volts or less without regard to any safety or public welfare concerns in a given installation. Further, Oakdale made no findings that underground installation of electric lines would serve the stated public interests. See U.S. *544West Communications v. City of Longmont, 948 P.2d 509, 521-22 (Colo.1997) (listing factors relevant to its determination of the reasonableness of municipal ordinance requiring relocation of utility lines underground). Although it may be true that overhead electric lines present a hazard in some places, the record before us is not developed on this issue. In fact, NSP has argued that underground lines are significantly more difficult to repair, especially in the winter months when the ground is frozen.

In spite of the fact that the ordinance cites public safety and general welfare as its objectives, see Oakdale, Minn.Code of Ordinances § 23-40 (1997), it is not tailored to meet those objectives. Even assuming overhead electric lines present the hazards mentioned by the majority, this ordinance is overly broad. Under Oakdale’s ordinance, a distribution line to a commercial building, traveling across private property and not in any way near a public road or activity, must be installed underground. This bears no relationship to public health, safety and general welfare. The ordinance goes beyond what is necessary to protect the public. See Village of Blaine v. Independent Sch. Dist. No. 12, 272 Minn. 343, 353, 138 N.W.2d 32, 39 (1965) (holding that utilities are subject to municipalities’ reasonable exercise of police power to protect the consumer and the public). Indeed, it seems to me the only conceivable purpose for a regulation this broad is aesthetic, and I agree with the majority that municipalities have no authority to regulate utilities for aesthetic ends.

Even assuming overhead lines are generally hazardous, this ordinance exceeds Oak-dale’s statutory authority. See Northern States Power Co. v. City of Granite Falls, 463 N.W.2d 541, 543 (Minn.App.1990) (holding municipalities have only the powers granted them by statute), review denied (Minn. Jan. 14, 1991). To interpret the municipal power to require utility line un-dergrounding as broadly as the city does requires us to ignore the commission’s statutory authority to regulate utilities. See Minn.Stat. ch. 216B (1996 & Supp.1997); see also Computer Tool & Eng’g, Inc. v. Northern States Power Co., 453 N.W.2d 569, 572 (Minn.App.1990), review denied (Minn. May 23, 1990).

Agency powers must be construed in light of the purpose for which they were granted. State ex rel. Waste Management Board v. Bruesehoff, 343 N.W.2d 292, 295 (Minn.App.1984). The commission is charged with the responsibility of balancing the public need for adequate, efficient and reasonable service against the utility’s need to meet the cost of providing the service and earn a fair profit. Minn.Stat. § 216B.16, subd. 6 (1996); Computer Tool, 453 N.W.2d at 573. The stated purpose of the chapter is to provide

adequate and reliable services at reasonable rates, consistent with the financial and economic requirements of public utilities and their need to construct facilities to provide such services * * *.

Minn.Stat. § 216B.01 (1996). To interpret Minn.Stat. § 216B.36 as granting a broad new power to require undergrounding conflicts with the chapter’s general purpose of localizing regulatory powers in the commission. Minn.Stat. § 216B.01 (1996); see also Minn.Stat. § 645.16 (1996) (asserting that legislative intent may be determined by the occasion and necessity for the law, and the object to be attained); Minn.Stat. § 216B.66 (1996) (declaring that the MPUA is complete in itself, and that other statutes are inapplicable to the regulation of public utilities by the commission).

When a general provision of law conflicts with a specific provision, the two should be construed, if possible, to give effect to both. Minn.Stat. § 645.26, subd. 1 (1996). In order to give all provisions of the statute meaning, section 216B.36 must be interpreted to only reserve pre-existing police powers of the municipality to require underground placement of utility lines as part of its authority to regulate the streets and public property. See Minn.Stat. § 222.37 (1996). The exercise of those powers is limited to that which is reasonably related to the public interests of public health, safety and general welfare. See State v. Hyland, 431 N.W.2d 868, 872 (Minn.App.1988). Since the ordinance here exceeds that authority, it should be declared invalid and its enforcement enjoined. The *545foreign authorities cited by the majority are not persuasive to the contrary.

Instances where courts have upheld local regulation of utility line placement have been limited to regulation incidental to major public works projects. See Detroit Edison Co. v. Southeastern Michigan Transp. Auth., 161 Mich.App. 28, 410 N.W.2d 295, 296-97 (Mich.Ct.App.1987); Vermont Gas Sys., Inc. v. City of Burlington, 153 Vt. 210, 571 A.2d 45, 46 (Vt.1989); City & County of Denver v. Mountain States Tel. & Tel. Co., 754 P.2d 1172, 1176 (Colo.1988); Northwest Natural Gas v. City of Portland, 300 Or. 291, 711 P.2d 119, 121 (Or.1985); Appalachian Power Co. v. City of Huntington, 158 W.Va. 240, 210 S.E.2d 471, 472 (W.Va.1974); City of Philadelphia v. Pennsylvania Pub. Util. Comm’n, 449 Pa. 402, 296 A.2d 804, 808-09 (Pa.1972); New York City Tunnel Auth. v. Consolidated Edison Co., 295 N.Y. 467, 68 N.E.2d 445, 447-48 (N.Y.1946); City of Edmonds v. General Tel. Co., Inc., 21 Wash.App. 218, 584 P.2d 458, 459 (Wash.Ct.App.1978). Were Oakdale’s ordinance related to a public works project, undertaken in the interest of public health and welfare, the issue before us would be significantly different. See New Orleans Gaslight Co. v. Drainage Comm’n, 197 U.S. 453, 460-61, 25 S.Ct. 471, 473, 49 L.Ed. 831 (1905) (holding imposition on gas company of the costs of relocating gas pipes to accommodate construction of municipal drainage system was an exercise of the police power essential to the health of the community).

Furthermore, the recent Colorado Supreme Court decision, City of Longmont, is both factually and legally distinguishable from the instant case. First, that case involved an ordinance requiring underground-ing of utility lines in conjunction with a public works project undertaken by the city-owned electric utility, undergrounding its own utility lines. City of Longmont, 948 P.2d at 513. Second, the ordinance only required under-grounding for those lines that shared utility poles with the city-owned lines. Id. Third, the city made specific findings as to how the undergrounding would further the health, safety, and welfare of city residents. Id. at 521. Fourth, the city agreed to excavate and back-fill the trench necessary for under-grounding. Id. Finally, the Colorado legislature had passed a statute expressly providing municipal regulation over the location of utility poles. Id. at 519; see also Colo.Rev.Stat. § 31-15-702 (1997).

Although there is no precedent for municipal regulation of utility line placement as broad as Oakdale assumes, many courts have invalidated local ordinances requiring utility line undergrounding. See Cleveland Elec. Illum. Co. v. City of Painesville, 10 Ohio App.2d 85, 226 N.E.2d 145, 149 (Ohio Ct.App.1967); Vandehei Developers v. Public Serv. Comm’n, 790 P.2d 1282, 1285-87 (Wyo.1990); Public Serv. Co. v. Town of Hampton, 120 N.H. 68, 411 A.2d 164, 166 (N.H.1980); Union Elec. Co. v. City of Crestwood, 499 S.W.2d 480, 483-84 (Mo.1973); In re Public Serv. Elec. & Gas Co., 35 N.J. 358, 173 A.2d 233, 239 (N.J.1961).

Oakdale’s ordinance does not reasonably relate to a legitimate municipal objective. The ordinance also exceeds Oakdale’s statutory authority. Therefore, I would reverse the trial court’s judgment.