{ "id": 4278709, "name": "IN THE MATTER OF APPLICATION BY TOWN OF SMITHFIELD FOR APPROVAL OF AGREEMENT BETWEEN ELECTRIC SUPPLIERS WITH CAROLINA POWER & LIGHT COMPANY d/b/a PROGRESS ENERGY CAROLINAS, INC.", "name_abbreviation": "In re Town of Smithfield for Approval of Agreement between Electric Suppliers with Carolina Power & Light Co.", "decision_date": "2013-11-05", "docket_number": "No. COA13-435", "first_page": "252", "last_page": "259", "citations": [ { "type": "official", "cite": "230 N.C. App. 252" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "668 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642203 ], "year": 2008, "pin_cites": [ { "page": "363", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/668/0357-01" ] }, { "cite": "373 S.E.2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2561986, 2562628, 2563237, 2560818, 2561075 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0364-03", "/nc/323/0364-04", "/nc/323/0364-01", "/nc/323/0364-05", "/nc/323/0364-02" ] }, { "cite": "370 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "56" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 755", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526167 ], "pin_cites": [ { "page": "758" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0755-01" ] }, { "cite": "567 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "133", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511299 ], "year": 2002, "pin_cites": [ { "page": "127", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0123-01" ] }, { "cite": "678 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "363 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151595 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/nc/363/0352-01" ] }, { "cite": "193 N.C. App. 629", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162174 ], "year": 2008, "pin_cites": [ { "page": "637", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0629-01" ] }, { "cite": "276 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "411" } ], "opinion_index": 0 }, { "cite": "302 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567436 ], "year": 1981, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0458-01" ] }, { "cite": "59 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "203" } ], "opinion_index": 0 }, { "cite": "232 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595202 ], "year": 1950, "pin_cites": [ { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/nc/232/0077-01" ] }, { "cite": "584 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "780", "parenthetical": "citation, quotation marks, brackets, and emphasis omitted" } ], "opinion_index": 0 }, { "cite": "357 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491499 ], "year": 2003, "pin_cites": [ { "page": "324", "parenthetical": "citation, quotation marks, brackets, and emphasis omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0316-01" ] }, { "cite": "553 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138531, 138505, 138350, 138362, 138367 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0219-04", "/nc/354/0219-03", "/nc/354/0219-05", "/nc/354/0219-01", "/nc/354/0219-02" ] }, { "cite": "547 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135825, 135887, 135583 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0378-01", "/nc/353/0378-03", "/nc/353/0378-02" ] }, { "cite": "537 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "262", "parenthetical": "citation, quotation marks, and brackets omitted" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12128021 ], "year": 2000, "pin_cites": [ { "page": "410", "parenthetical": "citation, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0390-01" ] }, { "cite": "716 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "372" }, { "page": "372", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 62", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 62-94", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)(4)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 714, "char_count": 17349, "ocr_confidence": 0.73, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14360953090315304 }, "sha256": "512142710ba667512a5560526b0754110af8c78ed86b120cf5041f3002c02278", "simhash": "1:da8f05fe6d5d3c43", "word_count": 2753 }, "last_updated": "2023-07-14T21:27:10.360096+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and GEER concur." ], "parties": [ "IN THE MATTER OF APPLICATION BY TOWN OF SMITHFIELD FOR APPROVAL OF AGREEMENT BETWEEN ELECTRIC SUPPLIERS WITH CAROLINA POWER & LIGHT COMPANY d/b/a PROGRESS ENERGY CAROLINAS, INC." ], "opinions": [ { "text": "STROUD, Judge.\nThe Town of Smithfleld (\u201cSmithfleld\u201d), a municipality and electric provider, appeals an order entered by the Utilities Commission on or about 27 December 2012 denying approval to an agreement between it and Carolina Power & Light Company, d/b/a Progress Energy Carolinas, Inc. (\u201cProgress\u201d) that allocated rights to serve certain areas within the Town of Smithfleld. For the following reasons, we affirm.\nI. Background\nSmithfleld and Progress are primary and secondary electric providers, respectively, within the corporate limits of the Town of Smithfleld. In 2010, SmitMeld\u2019s staff reviewed the location of its electric facilities and decided that Progress did not have the right to serve some of the customers that it was then serving. Progress disagreed.\nTo resolve the dispute, Progress and Smithfleld entered into an \u201cAgreement Between Electric Suppliers\u201d (\u201cAgreement\u201d) on 10 January 2012. In the Agreement, Smithfleld was allocated the exclusive right to serve all premises in the Smithfleld Crossing area, the Smithfleld Business Park, and Lot 7 on North Equity Drive. Smithfleld also acquired the exclusive right to serve all premises not currently requiring electric service which might tap into the Fieldcrest Feeder, an area designated area \u201cD\u201d on the map accompanying the agreement. Progress was allocated the right to serve all premises in the North Equity Drive and South Equity Drive areas other than Lot 7.\nSmithfleld and Progress filed an application for approval of their agreement with the Utilities Commission on 31 January 2012. Theron McLamb and Partners Equity Group (\u201cPartners Equity\u201d) then filed separate complaints seeking to intervene. The Commission granted complainants\u2019 request to intervene.\nComplainants are property owners in the area covered by the agreement. Partners Equity Group (\u201cPartners Equity\u201d) owns Lot 7 on North Equity Drive, though it was under contract to sell the property at the time of the hearing. Lot 7 was vacant at the time of the hearing and had no premises requiring electric service other than a Smithfleld sewer lift station. Theron McLamb purchased land in the Venture Drive area of Smithfleld in 1998, 2005, and 2006. Like the Partners Equity property, there are no premises on Mr. McLamb\u2019s property requiring electric service, though Mr. McLamb intends to eventually create a commercial development on the property.\nThe Commission held a hearing on 18 July 2012 and denied the application by order on 27 December 2012 wherein it made a number of findings of fact and detailed conclusions of law explaining its reasoning. Smithfleld filed written notice of appeal on 25 January 2013. Progress does not appeal.\nn. Standard of Review\nThe procedure for appeals from final orders or decisions of the Utilities Commission is established by N.C. Gen. Stat. 62-94, et seq. The Court may reverse the Commission\u2019s decision if the appellants\u2019 rights have been prejudiced because the decision was affected by an error of law. N.C. Gen. Stat. \u00a7 62-94(b)(4). Questions of law axe reviewed de novo. N.C. Gen. Stat. \u00a7 62~94(b) (\u201cthe court shall decide all relevant questions of law [and] interpret constitutional and statutory provisions\u201d).\nState ex rel. Utilities Com\u2019n v. Environmental Defense Fund, _ N.C. App. _, _, 716 S.E.2d 370, 372 (2011).\nIII. Analysis\nSmithfield argues that the Utilities Commission erred in its interpretation of N.C. Gen. Stat. \u00a7 160A-331.2(a). Specifically, it contends that the Commission engrafted additional requirements not found in the statute onto agreements entered into pursuant to that statute. This case is one of first impression under N.C. Gen. Stat. \u00a7 160A-331.2. For the following reasons, we affirm.\nA. Statutory Construction\nWhen construing a statute, the court looks first to its plain meaning, reading words that are not defined by the statute according to their plain meaning as long as it is reasonable to do so. The court must give effect to the plain meaning as long as the statute is clear and unambiguous.\nEnvironmental Defense Fund,_N.C. App. at_, 716 S.E.2d at 372 (citations omitted).\nThe present dispute focuses on the meaning of N.C. Gen. Stat. \u00a7 160A-331.2(a). That statute provides:\nThe General Assembly finds and determines that, in order to avoid the unnecessary duplication of electric facilities and to facilitate the settlement of disputes between cities that are primary suppliers and other electric suppliers, it is desirable for the State to authorize electric suppliers to enter into agreements pursuant to which the parties to the agreements allocate to each other the right to provide electric service to premises each would not have the right to serve under this Article but for the agreement, provided that no agreement between a city that is a primary supplier and another electric supplier shall be enforceable by or against an electric supplier that is subject to the territorial assignment jurisdiction of the North Carolina Utilities Commission until the agreement has been approved by the Commission. The Commission shall approve an agreement entered into pursuant to this section unless it finds that such agreement is not in the public interest. Such agreements may allocate the right to serve premises by reference to specific premises, geographical boundaries, or amounts of unspecified load to be served, but no agreement shall affect in any way the rights of other electric suppliers who are not parties to the relevant agreement. The provisions of this section apply to agreements relating to electric service inside and outside the corporate limits of a city.\nN.C. Gen. Stat. \u00a7 160A-331.2(a).\n\u201cThe general rule in statutory construction is that a statute must be construed as written.\u201d Norman v. Nash Johnson & Sons\u2019 Farms, Inc., 140 N.C. App. 390, 410, 537 S.E.2d 248, 262 (2000) (citation, quotation marks, and brackets omitted), disc. rev. on additional issues denied, 353 N.C. 378, 547 S.E.2d 14, app. withdrawn, 354 N.C. 219, 553 S.E.2d 684 (2001). \u201cWhere the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give it its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein.\u201d In re Miller, 357 N.C. 316, 324, 584 S.E.2d 772, 780 (2003) (citation, quotation marks, brackets, and emphasis omitted).\nNo party argues that the statute is ambiguous; they simply disagree on w;hat it \u201cplainly\u201d means. Smithfield contends that we should interpret the statute to permit agreements between electric suppliers regardless of the actual rights of each to serve the properties concerned because the purpose of this statute is to \u201cfacilitate the settlement of disputes between cities that are primary suppliers and other electric suppliers.\u201d\nWe hold that the Commission correctly interpreted N.C. Gen. Stat. \u00a7 160A-331.2(a) to plainly mean what it says: agreements authorized under this statute are those in \u201cwhich the parties to the agreements allocate to each other the right to provide electric service to premises each would not have the right to serve under this Article but for the agree7 ment.\u201d N.C. Gen. Stat. \u00a7 160A-331.2(a) (emphasis added).\nSmithfield argues that despite this \u201cbut for\u201d language, the actual rights of the parties to the agreement are immaterial. It reasons that the Commission\u2019s interpretation would render the statute useless because the disputes between primary and secondary electric providers usually focus on who has which rights to serve. Therefore, Smithfield says, the statute \u201cauthorizes electric suppliers to negotiate the allocation of territorial service rights between themselves to the extent they see fit.\u201d\n\u201cWe cannot accept this contention without giving to the statutory phraseology a distorted meaning at complete variance with the language used. This we are not permitted to do.\u201d State v. Welch, 232 N.C. 77, 82, 59 S.E.2d 199, 203 (1950). Even assuming that the types of disputes raised by Smithfield are those that the Legislature actually intended to resolve by agreement under this statute, \u201cwe are powerless to construe away the limitation just because we feel that the legislative purpose behind the requirement can be more fully achieved in its absence.\u201d Appeal of North Carolina Sav. and Loan League, 302 N.C. 458, 468, 276 S.E.2d 404, 411 (1981).\nIf the statute truly \u201cauthorize[d] electric suppliers to negotiate the allocation of territorial service rights between themselves to the extent they see fit,\u201d the Legislature could have left out the phrase \u201ceach would not have the right to serve under this Article but for the agreement\u201d and the statute would have the same meaning. They also could have left out the \u201cright to serve\u201d language and simply declared that parties to such agreements can acquire rights that each would not have otherwise (e.g., making a non-exclusive right exclusive). Instead, the Legislature restricted the agreements permitted under \u00a7 160A-331.2(a) to those wherein \u201cthe parties to the agreement[] allocate to each other the right to provide electric service to premises each would not [otherwise] have the right to serve under this Article.\u201d N.C. Gen. Stat. \u00a7 160A-331.2(a).\nUnder Smithfield\u2019s interpretation, the \u201cbut for\u201d and \u201cright to serve\u201d language is entirely superfluous. Such an interpretation would contravene the principle that \u201ca statute should not be interpreted in a manner which would render any of its words superfluous.\u201d State v. Ramos, 193 N.C. App. 629, 637, 668 S.E.2d 357, 363 (2008) (citation and quotation marks omitted), aff\u2019d, 363 N.C. 352, 678 S.E.2d 224 (2009). Instead, \u201c[w]e construe each word of a statute to have meaning, where reasonable and consistent with the entire statute, because it is always presumed that the legislature acted with care and deliberation.\u201d Id. (citation and quotation marks omitted).\nWe conclude that N.C. Gen. Stat. \u00a7 160A-331.2(a) only authorizes those agreements wherein the parties \u201callocate to each other the right to provide electric service to premises each would not have the right to serve under this Article but for the agreement.\u201d N.C. Gen. Stat. \u00a7 160A-331.2(a). Therefore, to determine whether the Commission erred in concluding that the agreement submitted by Smithfleld was not permitted under the statute, we must consider whether the rights to serve acquired by the parties to the Agreement are rights that each party would not have but for the agreement.\nWe do agree with Smithfleld that nothing in \u00a7 160A-331.2(a) restricts the agreements to exchanges of exclusive rights to serve. But we do not think that the Commission meant to restrict its interpretation in that way \u2014 it was simply noting that in this case, both parties have concurrent, non-exclusive rights to serve the future premises at issue and therefore neither party was acquiring rights to serve it did not already have. It is conceivable that a party could acquire a non-exclusive right through an agreement under this statute to serve premises that it would otherwise have no right to serve under Chapter 160A, whether inside or outside corporate limits.\nB. Application\nWe must now decide whether the Commission correctly concluded that the agreement submitted for approval by Smithfleld is not authorized by N.C. Gen. Stat. \u00a7 160A-331.2(a) because the parties to the Agreement are not acquiring rights to serve premises each would not have but for the agreement. To resolve this question, we must look to what rights each party to the Agreement already possessed apart from the agreement.\nUnder N.C. Gen. Stat. \u00a7 160A-332(a)(5) (2011),\nAny premises initially requiring electric service after the determination date which are located wholly or partially within 300 feet of the primary supplier\u2019s lines and are located wholly or partially within 300 feet of the secondary supplier\u2019s lines, as such suppliers\u2019 lines existed on the determination date, may be served by either the secondary supplier or the primary supplier, whichever the consumer chooses, and no other supplier shall thereafter furnish service to such premises, except with the written consent of the supplier then serving the premises.\nThe Commission found that on the determination date, 30 June 1994, \u201cLot 7 was wholly within 300 feet of a Progress line and was partially within 300 feet of a Smithfield line.\u201d The Commission further found that on the determination date, \u201cthe McLamb Properties were partially within 300 feet of a Progress line and partially within 300 feet of a Smithfield line.\u201d The Commission noted that no premises requiring electric service have been built on either property. Nevertheless, based on the dimensions of the property, which limit the possible locations of future structures, and the location of the lines, it concluded that, pursuant to N.C. Gen. Stat. \u00a7 160A-332(a)(5), \u201cboth Progress and Smithfield have an equal right to serve any premises hereafter built on Lot 7 or on the portions of the McLamb properties, that are partially within 300 feet of both\u201d suppliers\u2019 lines \u201cuntil the electricity consumer of any such future premises designates an electric supplier.\u201d\nThe Agreement purported to give Smithfield the exclusive right to serve all premises in the Smithfield Crossing area, the Smithfield Business Park, and Lot 7 on North Equity Drive. Progress was allocated the right to serve all premises in the North Equity Drive and South Equity Drive areas other than Lot 7. Both complainants\u2019 properties were assigned to Smithfield.\nSmithfield does not challenge any of the Commission\u2019s findings on this issue or even its conclusion that, absent the agreement, both Smithfield and Progress would likely have the right to serve any premises on the contested properties.\nBased on these uncontested findings, we hold that the Commission correctly concluded that the Agreement does not meet the requirements of N.C. Gen. Stat. \u00a7 160A-331.2(a). Specifically, the parties to the Agreement are not exchanging \u201cthe right to provide electric service to premises each would not have the right to serve under this Article but for the agreement\u201d because each party already had the right to serve those premises. N.C. Gen. Stat. \u00a7 160A-331.2(a). Since the agreement does not meet the requirements of the statute, we need not reach the parties\u2019 arguments about whether the Agreement is in the public interest or whether the Commission applied the correct burden of proof in making that determination.\nIV. Conclusion\nThe Commission correctlyinterpretedN.C. Gen. Stat. \u00a7 160A-331.2(a) to only authorize those agreements wherein the parties exchange rights to serve premises that each would not have the right to serve but for the agreement. Because both parties had rights to serve the premises they purported to exchange, the Agreement was not authorized by the statute. Therefore, we affirm the Commission\u2019s order denying approval of the agreement.\nAFFIRMED.\nChief Judge MARTIN and GEER concur.\n. We are skeptical of Smithfield\u2019s assertion that such disputes are the only, or even primary, disputes the Legislature intended to resolve through agreements under this statute. The territorial assignment provisions of \u201c[t]he Electric Act [were] intended to resolve the disputes of electric suppliers with limited litigation. The language of the Electric Act was carefully chosen to provide certainty with respect to service rights and to promote orderly competition among electric suppliers.\u201d City of New Bern v. Carteret-Craven Elec. Membership Corp., 356 N.C. 123, 127, 567 S.E.2d 131, 133 (2002) (citations omitted); see also Duke Power Co. v. City of Morganton, 90 N.C. App. 755, 758, 370 S.E.2d 54, 56 (observing that the Electric Act \u201ccarefully defined and established the rights of competing power suppliers according to lines that were in place on a set date \u2014 matters that can usually be ascertained without either difficulty or dispute; and it gave no effect whatever to subsequent events of any kind \u201d), disc. rev. denied, 323 N.C. 364, 373 S.E.2d 544 (1988).", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Poyner Spruill LLP by Michael S.. Colo, for applicant-appellant Town of Smithfleld.", "Hewett & Wood, PA. by Marcus C. Burrell, for intervenor-appellee Theron Lee McLamb; and Narron, O\u2019Hale & Whittington, P.A. by Jason W. Wenzel, for intervenor-appellee Partners Equity Group." ], "corrections": "", "head_matter": "IN THE MATTER OF APPLICATION BY TOWN OF SMITHFIELD FOR APPROVAL OF AGREEMENT BETWEEN ELECTRIC SUPPLIERS WITH CAROLINA POWER & LIGHT COMPANY d/b/a PROGRESS ENERGY CAROLINAS, INC.\nNo. COA13-435\nFiled 5 November 2013\nUtilities \u2014 agreement\u2014allocation of rights \u2014 not authorized by statute\nThe Utilities Commission did not err by denying approval of an agreement between the Town of Smithfleld and Carolina Power & Light Company, d/b/a Progress Energy Carolinas, Inc. (\u201cProgress\u201d) that allocated rights to serve certain areas within the town. N.C.G.S. \u00a7 160A-331.2(a) only authorizes those agreements wherein the parties exchange rights to serve premises that each would not have the right to serve but for the agreement. Because both parties had rights to serve the premises they purported to exchange, the agreement was not authorized by statute.\nAppeal by Town of Smithfleld from Order entered on or about 27 December 2012 by the North Carolina Utilities Commission. Heard in the Court of Appeals 9 September 2013.\nPoyner Spruill LLP by Michael S.. Colo, for applicant-appellant Town of Smithfleld.\nHewett & Wood, PA. by Marcus C. Burrell, for intervenor-appellee Theron Lee McLamb; and Narron, O\u2019Hale & Whittington, P.A. by Jason W. Wenzel, for intervenor-appellee Partners Equity Group." }, "file_name": "0252-01", "first_page_order": 262, "last_page_order": 269 }