Town of East Greenwich v. Narragansett Electric Co.

651 A.2d 725, 1994 R.I. LEXIS 298, 1994 WL 712922
CourtSupreme Court of Rhode Island
DecidedDecember 19, 1994
Docket93-589-M.P.
StatusPublished
Cited by19 cases

This text of 651 A.2d 725 (Town of East Greenwich v. Narragansett Electric Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of East Greenwich v. Narragansett Electric Co., 651 A.2d 725, 1994 R.I. LEXIS 298, 1994 WL 712922 (R.I. 1994).

Opinion

OPINION

MURRAY, Justice.

This case came before us on the petition of the town of East Greenwich (the town) for writ of certiorari. The town requests this court quash an order of the Public Utilities Commission (the PUC) and deny and dismiss the Narragansett Electric Company’s (Narragansett) initial petition to the PUC. To the extent noted below, we decline to do so.

*727 Concerned about the possible harmful effects of the electromagnetic field (EMF) that emanates from high-voltage power lines, the East Greenwich Town Council unanimously approved five amendments to its comprehensive plan on July 13,1993. See Appendix. A town or a city’s comprehensive plan is a “statement (in text, maps, illustrations, or other media of communication) that is designed to provide a basis for rational decision making regarding the long term physical development of the municipality.” G.L.1956 (1991 Reenactment) § 45-22.2-6. Pursuant to the Comprehensive Planning and Land Use Act, all towns and cities are required to adopt, update, and amend a comprehensive plan, including implementation programs, in conformity with the provisions set forth in the act. G.L.1956 (1991 Reenactment) chapter 22.2 of title 45.

Seeking to invalidate these amendments, Narragansett filed a petition with the PUC on July 22, 1993. See G.L.1956 (1990 Reenactment) § 39-1-30. On October 27, 1993, the PUC issued a written report and order without the benefit of a hearing. After stating that it had jurisdiction to entertain Narragansett’s petition under § 39-1-30, the PUC rejected four of the five amendments, reasoning that they “interfere[ ] with Narragansett’s rights to construct and operate transmission facilities and other utility facilities in East Greenwich” and were therefore violative of this court’s decision in Town of East Greenwich v. O’Neil, 617 A.2d 104 (R.I.1992). The town’s addition to § 2.3.2 of its comprehensive plan was the only amendment not invalidated by the PUC. See Appendix. As a result of the order, the town filed a timely petition for writ of certiorari which we granted on November 3, 1993. The town now contends that the PUC was clearly wrong in issuing its order because the PUC was without jurisdiction to consider Narragansett’s petition, the petition was premature, and the amendments are consistent with the state regulatory scheme governing public utilities.

The town initially contends that the PUC lacked the statutory jurisdiction to render an order pertaining to the amendments. The relevant jurisdictional authority of the PUC is set forth in § 39-1-30, which states in part:

“Every ordinance enacted, or regulation promulgated by any town or city affecting the mode or manner of operation or the placing or maintenance of the plant and equipment of any company under the supervision of the commission, shall be subject to the right of appeal by any aggrieved party to the commission within ten (10) days from the enactment or promulgation.”

The town avers that the amendments to its comprehensive plan are neither ordinances nor regulations and have no impact on Narragansett’s ability to operate and construct transmission lines throughout East Greenwich. Instead, the town asserts that the comprehensive plan is simply a long-range statement of planning goals which is not self-executing in nature, but requires some further public action to implement it, such as zoning or other regulatory ordinances. Therefore, they reason that unless and until the town takes such action, the PUC was without authority to render an order pursuant to § 39-1-30.

In order to determine whether the PUC has jurisdiction under § 39-1-30, this court, like the PUC, must evaluate whether the enactments in question “affect the mode or manner of operation or the placing or maintenance of the plant and equipment of any company” under the PUC’s supervision. We are of the opinion that the amendments to the town’s comprehensive plan have such an effect. We believe a comprehensive plan is not simply the innocuous general-policy statement the town contends it is. Instead, the comprehensive plan, comprised of “text, maps, illustrations, or other media of communication,” establishes a binding framework or blueprint that dictates town and city promulgation of conforming zoning and planning ordinances. See G.L.1956 (1991 Reenactment) § 45-24-29(b)(2).

Under § 45-24-29(b)(2) the General Assembly has clearly instructed the state zoning enabling authority to require “each city and town to conform its zoning ordinance and zoning map to be consistent with its comprehensive plan * * (Emphasis add *728 ed.) As a consequence, the town is legally compelled to enact or to amend its zoning ordinance in conformity with these amendments. Id; see also § 45-24-34 (“[a] zoning ordinance * * * shall include a statement of consistency with the comprehensive plan”). Therefore, the town is required to enact a zoning ordinance which directs the construction of new power lines be accomplished in such a way as to “reduce EMF’s to the lowest possible level.” See amendments to §§ 2.3.4 and 6.1.1 and amendment 7.10. Specifically, the zoning ordinance could require that construction of new power lines be underground and away from “sensitive receptors such as residences, businesses, schools,” and so forth. See amendment 4.1.11.

The town counters by relying on an older line of cases for the proposition that a municipality’s master plan does not control its zoning and that a zoning ordinance need not conform to the master plan. See Mesolella v. City of Providence, 439 A.2d 1370 (R.I.1982); Sweetman v. Town of Cumberland, 117 R.I. 134, 364 A.2d 1277 (1976). The General Assembly, however, has since repealed G.L. 1956 (1970 Reenactment) § 45-24-3, the enabling act both Sweetman and Mesolella were interpreting. See § 45-24-3, repealed as of July 1, 1993 by P.L.1991, ch. 307, § 1. As we noted earlier, the Legislature has also recently enacted § 45-24-29(b)(2), specifically directing the state zoning enabling authority to require “each city and town to conform its zoning ordinance and zoning map to be consistent with its comprehensive plan” developed under the Comprehensive Planning and Land Use Regulation Act. This section was not in effect at the time of Sweetman and Mesolella. Furthermore, the cases relied upon by the town were decided long before the General Assembly enacted the Comprehensive Planning and Land Use Regulation Act which substantially rewrote and extended existing state law governing town and city land use regulation. See chapter 22.2 of title 45. Therefore, to the extent that Sweetman and Mesolella rely on § 45-24-3, they are no longer sound authority.

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Bluebook (online)
651 A.2d 725, 1994 R.I. LEXIS 298, 1994 WL 712922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-east-greenwich-v-narragansett-electric-co-ri-1994.