December 14- Preemption: Excavation Fee Ordinances

Speaker:  James Kennedy

Speaker will share valuable lessons learned from litigating issues arising from Concord, New Hampshire’s excavation fee ordinance. This presentation will also include a broader discussion of excavation fee ordinances as well as key insights and tips for cities wishing to implement similar ordinances. See description below.

After nearly 7 years of litigation, the New Hampshire Supreme Court issued an Order which found that Concord NH’s excavation fee ordinance, which charges utilities a fee to excavate paved roadways, is valid under New Hampshire law.  This is a significant victory for both Concord as well as other municipalities across the United States in their efforts to preserve paved roadways.      

By way of background, following years of research throughout the 1990s and 2000s, Concord observed deterioration to its paved roadways as a result of utility excavations.  In 2009, the Concord City Council adopted the excavation fee ordinance to protect Concord’s taxpayers from paying the long-term deterioration costs that occur when utilities excavate and patch paved roadways.    In July of 2010, Liberty Utilities (natural gas company) brought a lawsuit in Merrimack County Superior Court challenging Concord’s excavation fee ordinance as invalid.    Concord defended the validity of the ordinance, which included several proceedings in the trial court, including a 6-day bench trial, and two appeals to the New Hampshire Supreme Court.    Ultimately, the NH Supreme Court found in favor of Concord– the excavation fee ordinance was deemed valid, and therefore, Concord was entitled to retain all excavation fees collected and maintain its excavation fee ordinance.

Speaker: James Kennedy

Jim Kennedy serves as the City Solicitor for the City of Concord, New Hampshire. In this position, he is the head of the City’s Legal Department, consisting of a civil and criminal division. As City Solicitor, Jim provides counsel to the City Council, all City Departments, City Boards, Committees and Commissions. Jim also maintains a diverse municipal law practice and regularly appears in state and federal courts as well as in various state agencies.

Prior to his position with the City of Concord, Jim served an Assistant Attorney General within the Civil Bureau of the New Hampshire Attorney General’s Office. Jim specialized in general civil litigation in state and federal courts. Jim served as general counsel to New Hampshire’s Secretary of State and the Post-Secondary Education Commission. His practice also focused on New Hampshire’s Right-to-Know law and election law.

Jim served as a law clerk at the Merrimack County superior court and held externships in New Hampshire’s federal district court, the National Education Association and the New Hampshire public defender. In addition to his law degree, Jim holds BA in Political Science and a Master’s Degree in Education.

Jim is a member of the New Hampshire and American Bar Associations. He is admitted to practice in all New Hampshire State Courts, as well as the U.S. District Court-NH, U.S. Bankruptcy Court – NH, the U.S. Court of Appeals for the First and Second Circuit and the United States Supreme Court. Jim is also a member of the Ethics Committee for the New Hampshire Bar Association.

Jim lives in Concord with his wife Kristin and two daughters.