No one may excavate the surface of a public highway without written permission from the proper municipal official, and anyone who does excavate "shall restore such highway to a condition at least equal to the condition that was present before the excavation or disturbance." RSA 236:9 - :11. In the case of water and gas utilities, another statute also requires permission and provides that the utility "shall restore the highway or ground to as good condition as it was in before so doing, without unnecessary delay…." RSA 231:184 - :185. A common concern among municipal officials is that pavement patches after highway excavations, even when well done, typically reduce the useful life of the paved surface. The City of Concord adopted an ordinance that assesses certain street damage fees in connection with permits to excavate in a public street, including $5.00 per square foot on paved streets, $2.50 per square foot for sidewalks and green belts, and additional charges when excavation occurs within five years after a City pavement project.
National Grid, a gas utility, filed suit claiming that the roadway fee ordinance is invalid because it is impliedly preempted by the statutes that deal with highway excavation. A State regulatory statute impliedly "preempts," that is, prohibits, local regulation of the same subject either when (1) the comprehensiveness and detail of a State statutory scheme evinces legislative intent to supersede local regulation, or (2) State and local regulation actually conflict. National Grid argued that the word "condition" in the two statutes includes the life expectancy of the road and that the statutes assume that repaving the excavation adequately restores the surface to its previous condition. The City argued that its ordinance is consistent with the statutes because the pavement patches do not, in fact, restore the surface to its previous condition, and "its roadway fees are necessary to restore an excavated road to is former condition." The trial court agreed with National Grid and granted summary judgment to invalidate the ordinance.
On appeal, the Supreme Court reversed. The Court determined that there is nothing in the language of the statutes or their legislative history to support National Grid's interpretation. The Court remanded the case to the trial court to address the factual dispute "as to whether patching an excavated paved roadway with new pavement diminishes or restores its original life expectancy."