Proceeding in this Court
H. Sweat and Tyler J. Berg, Attorneys for Petitioner
D. Reyes and Brent A. Burnett, Attorneys for Respondent
Utility Facility Review Board D. Matthew Moscon, R. Jeff
Richards, Heidi K. Gordon, Attorneys for Respondent Rocky
David N. Mortensen authored this Opinion, in which Judges
Gregory K. Orme and Ryan M. Harris concurred.
Rocky Mountain Power sought a conditional use permit from
Wasatch County, which the County denied. The Utility Facility
Review Board thereafter ordered the County to issue the
permit. Because in doing so the Review Board disregarded
Wasatch County's statutory authority, we set aside the
Review Board's ruling.
Rocky Mountain obtained an easement over property owned by
Promontory Investments LLC (the Property). The Property sits
in both Summit and Wasatch counties. Rocky Mountain's
current transmission line runs through a portion of the
Property that is located in Summit County.
Rocky Mountain supplies power to one of the fastest growing
regions of Utah, of which Summit and Wasatch counties are
part. Because of the region's past and projected growth,
Rocky Mountain has undertaken a project to increase
transmission capacity and create alternative transmission
pathways (the Project). Part of the Project requires
upgrading a sixty-seven-mile portion of transmission line.
Only 0.26 miles of the proposed line would sit in Wasatch
County, on Promontory's land.
The changed location-from where the current transmission line
sits in Summit County to where the proposed line would sit in
Wasatch County-resulted from a request by Promontory when
Rocky Mountain approached it about upgrading the current
transmission line to a higher capacity line. Promontory asked
Rocky Mountain "to consider alternative siting locations
on" the Property. It is Rocky Mountain's practice to
accommodate such a request from landowners, provided the
landowner pays the cost of relocation and the new location is
acceptable to Rocky Mountain. Accordingly, Rocky Mountain and
Promontory considered five alternative locations for the
transmission line. Promontory agreed to grant a new easement
and pay additional costs associated with constructing the new
line in Promontory's preferred location along the south
and east perimeters of the Property-including the 0.26 miles
of Wasatch County land. The agreement reached between
Promontory and Rocky Mountain included a provision that if
Rocky Mountain were unable to obtain necessary permits, it
could terminate the agreement and leave the transmission line
in its current location.
In its quest to obtain authorization for the construction of
the segment of the transmission line that would be located in
Wasatch County (the Segment), Rocky Mountain was in frequent
contact with Wasatch County officials, planning staff, and
nearby property owners. Wasatch County was concerned about
the Segment's compliance with existing ordinances aimed
at limiting structures that protrude above the visual
ridgeline. In its application for a conditional use permit,
Rocky Mountain "included four options for the proposed
alignment of the transmission line in Wasatch County."
The Wasatch County Planning Commission denied the permit,
concluding that none of the four options were acceptable, as
"there was no way to mitigate the impacts of [the
Segment] on neighboring properties."
Rocky Mountain appealed the denial of the permit to the
Wasatch County Board of Adjustment, which agreed with the
Planning Commission and concluded that the proposed
transmission upgrade violated Wasatch County's ridgeline
ordinance and likewise denied the permit.
Rocky Mountain then appealed to the Utility Facility Review
Board. The Review Board determined that the Segment was
"needed to provide safe, reliable, adequate, and
efficient service" to Rocky Mountain customers and
ordered Wasatch County to issue the permit within sixty days.
Wasatch County now seeks judicial review of that order.
Wasatch County challenges the Review Board's order in
several respects, but we are persuaded by its specific
contention that "[e]ven when the facility is
needed a local government can impose any conditions
they like as long as the requirements do not impair
the safe, reliable, and adequate provision of service, and
the local government pays for any resulting increased
costs." (Emphases in original.) (Citing Utah Code Ann.
§ 54-14-201 (LexisNexis 2010).) "In other words,
" the County contends, "when two alternative sites
allow a public utility to provide equally safe, reliable,
adequate, and efficient service, " the Review Board must
"defer to local governments, not public utilities."
This contention rests on a challenge to the Review
Board's interpretation of section 54-14-201 and related
statutes, which we review for correctness. See Utah
Dep't of Transp. v. FPA West Point, LLC, 2012 UT 79,
¶ 9, 304 P.3d 810.
To the extent relevant in this case, the Utility Facility
Review Board Act (the Act) regulates disputes between public
utilities and local governments. See Utah Code Ann.
§§ 54-14-101 to -308 (LexisNexis 2010 & Supp.
2017). Under the Act, a public utility may seek board review
when "a local government has prohibited construction of
a facility which is needed to provide safe, reliable,
adequate, and efficient service to the customers of the
public utility." Id. § 54-14-303(1)(d)
(Supp. 2017). Rocky Mountain filed its petition with the
Review Board under this subsection. The Review Board agreed
that "[t]his dispute arises under Utah Code Ann. §
54-14-303(1)(d) because the County denied [Rocky
Mountain's] request for a [conditional use permit] to
construct [the Segment]." Thus, the Review Board's
order focused almost exclusively on this discrete ...