Town of East Greenwich v. O'NEIL

617 A.2d 104, 1992 R.I. LEXIS 209, 1992 WL 356412
CourtSupreme Court of Rhode Island
DecidedDecember 4, 1992
Docket91-477-A
StatusPublished
Cited by53 cases

This text of 617 A.2d 104 (Town of East Greenwich v. O'NEIL) 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. O'NEIL, 617 A.2d 104, 1992 R.I. LEXIS 209, 1992 WL 356412 (R.I. 1992).

Opinion

OPINION

FAY, Chief Justice.

This case comes before this court on appeal by both the plaintiffs and the defendants from a Superior Court judgment. The trial justice granted the plaintiffs partial relief and enjoined the State of Rhode Island Public Utilities Commission (PUC or the commission) from conducting certain proceedings but ruled in favor of the defendants regarding the constitutionality of an ordinance. For the reasons stated herein, we affirm in part and reverse in part the trial justice’s decision.

The plaintiffs are the town of East Greenwich (the town) and the president and the members of the East Greenwich Town Council, individually and in their capacity as town council members, and Morris Roth (the town council). The defendants are the Attorney General for the State of Rhode Island (the Attorney General), in his official capacity, the PUC, the members of the PUC, individually and in their capacity as members of the commission, and the Narragansett Electric Company (Narragansett Electric). The principal defendant, Narragansett Electric, is a public utility that provides electrical power to most of the state.

Narragansett Electric proposed to construct 345-kilovolt (kV) and 115-kV high-voltage transmission lines along existing rights of way in East Greenwich. The 115— kV transmission line would run from Warwick to North Kingstown. The 345-kV line would span forty-four miles, from Bur-rillville to Warwick, 3.3 miles of which would run through the town.

The citizens of East Greenwich expressed concern about the possible harmful effects of electromagnetic fields that emanate from power lines. On October 9, 1990, the town adopted Ordinance No. 553 (the ordinance) which created a moratorium period of three years on the construction of electric transmission lines exceeding sixty kilovolts. 1 Narragansett Electric is thus prohibited from constructing its planned high-voltage transmission lines through the town of East Greenwich.

On October 17, 1990, Narragansett Electric filed a petition with the PUC for review of the town’s ordinance pursuant to G.L. 1956 (1990 Reenactment) § 39-1-30, docket No. 194. Section 39-1-30 requires an appeal to the PUC from issues affecting electric utility companies. City of East Provi *107 dence v. Public Utilities Commission, 566 A.2d 1305, 1306 (R.I.1989). Hearings on the petition before the PUC were scheduled for February 1991 but were deferred pending the outcome of this matter.

The town commenced this action in Superior Court, seeking a declaration that § 39-1-30 violated the United States and Rhode Island Constitutions. Considering the questions presented, the trial justice permitted the Attorney General to intervene. Narragansett Electric filed a counterclaim challenging the legality of the ordinance on the grounds that because the PUC has exclusive jurisdiction to regulate public utilities, the ordinance constituted an impermissible attempt by the town to regulate Narragansett Electric. The town filed a motion to dismiss Narragansett Electric’s counterclaim, contending it was barred by the election of remedies doctrine. The court denied the town’s motion to dismiss Narragansett Electric’s counterclaim.

On May 20, 1991, the Superior Court issued a decision based upon the parties’ cross-motions for summary judgment. The trial justice found § 39-1-30 to be a constitutional enactment. However, the court ruled that the PUC lacked jurisdiction under § 39-1-30 to determine the validity of the ordinance and enjoined the PUC from conducting proceedings on Narragansett Electric’s petition for review. The trial justice also ruled that the ordinance was an unlawful exercise of the town’s home rule powers and was beyond the authority with which plaintiffs could act because the statutory scheme establishing the PUC preempted the ordinance. The trial justice -granted the town’s motion for a stay, postponing any construction of electric transmission lines until the parties’ appeals were heard by this court.

I

ELECTION OF REMEDIES

The plaintiffs argue that by previously filing a petition for review of the ordinance under § 39-1-30, Narragansett Electric waived its right to have the Superi- or Court consider its counterclaim because it had elected another forum. The trial justice decided that the election of remedies doctrine did not bar Narragansett Electric’s counterclaim and denied plaintiffs’ motion to dismiss it. See Wellington Hotel Associates v. Miner, 543 A.2d 656, 659 (R.I.1988); Easton’s Point Association v. Coastal Resources Management Council, 522 A.2d 199, 201-02 (R.I.1987). We agree with the trial justice because defendants were responding to the town’s suit and were not challenging the enabling act of the PUC. We find that the election of remedies doctrine is inapposite.

II

SEPARATION OF POWERS

The trial justice agreed with plaintiffs' contention that the challenged statute, § 39-1-30, violates the separation of powers doctrine because it permits the executive branch, through an administrative agency, to review an enactment of the town’s legislative branch. We disagree. The trial court misapplied the law.

The separation of powers doctrine prohibits the usurpation of the power of one branch of government by a coordinate branch of government. We recently stated that a 'constitutional violation of separation of powers [is] an assumption by one branch of powers that are central or essential to the operation of a coordinate branch.’ ” In re Advisory Opinion to the Governor (Ethics Commission), 612 A.2d 1, 18 (R.I.1992). The PUC is an agency of the executive branch of the State of Rhode Island. The town council, however, is not a coordinate branch of the state government. The town is a creature of the state. See Lynch v. King, 120 R.I. 868, 876-77, 391 A.2d 117, 122 (1978); R.I. Const, art. XIII, § 4. Its conflicting or overreaching legislative enactments are subordinate to those promulgated by a branch of state government. Accordingly the PUC’s review of the ordinance does not involve a coordinate branch of government exercising powers in violation of the separation of powers doctrine.

*108 III

CONSTRUCTION OF STATUTE

In her decision the trial justice ruled that Narragansett Electric erroneously brought the matter regarding the validity of the ordinance before the commission. The court ruled that § 39-1-30 empowers the commission only to review municipal actions that are administrative in nature or are zoning board decisions. On appeal the parties agree that the trial court erred in construing § 39-1-30 to exclude town council ordinances from review. 2

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Bluebook (online)
617 A.2d 104, 1992 R.I. LEXIS 209, 1992 WL 356412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-east-greenwich-v-oneil-ri-1992.