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Wasatch County v. Utility Facility Review Board

Court of Appeals of Utah

January 5, 2018

Wasatch County, Petitioner,
v.
Utility Facility Review Board and Rocky Mountain Power, Respondents.

         Original Proceeding in this Court

          Scott H. Sweat and Tyler J. Berg, Attorneys for Petitioner

          Sean 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 Mountain Power

          Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

          OPINION

          MORTENSEN, JUDGE

         ¶1 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.

         ¶2 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.

         ¶3 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.

         ¶4 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.

         ¶5 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, [1] 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."

         ¶6 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.

         ¶7 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.

         ¶8 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.

         ¶9 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 ...


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