20140623_4387.pdf

DECISION MEMORANDUM 1
DECISION MEMORANDUM

TO: COMMISSIONER KJELLANDER
COMMISSIONER REDFORD
COMMISSIONER SMITH
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL

FROM: KARL T. KLEIN
DEPUTY ATTORNEY GENERAL

DATE: JUNE 13, 2014

SUBJECT: IDAHO POWER’S PETITION FOR DECLARATORY RULING
REGARDING OFF-STREET LIGHTING OBLIGATIONS; CASE NO. IPC-E-
14-10

On May 20, 2014, Idaho Power Company petitioned the Commission for a “declaratory
ruling determining Idaho Power’s rights and obligations specific to its duty to provide off-street
lighting under I.P.U.C. No. 29, Tariff No. 101, Schedule 15, Dusk to Dawn Customer Lighting
("Schedule 15”) and specifically, whether Idaho Power has a duty to find a technology to provide
off-street lighting under Schedule 15 in a manner that does not allow for light to shine on another's
property.” Petition at 1-2. The Company filed the Petition in response to an ongoing lawsuit in
which the plaintiff/homeowner claims the Company is providing off-street lighting to one customer
in a manner that sheds nuisance-levels of light on the plaintiff/homeowner’s property. The Court has
indicated that if the homeowner proves the Company’s light is a nuisance, the Court may order the
Company to abate the nuisance. The sole issue at this decision meeting is whether the Commission
would like to accept or decline jurisdiction over the Company’s Petition.
BACKGROUND
The Company provides Dusk to Dawn, off-street lighting service to residential customers
under Schedule 15. The Company currently provides that service to a Boise customer through a
pole-mounted streetlight in the alley between the customer’s and plaintiff/homeowner’s homes. The
plaintiff/homeowner has sued the Company in court because the light shines in his backyard at night.
He asks the Court to rule that the light is a nuisance that must be abated. See Complaint (Attachment
A to Petition).
In response, the Company argues that the light has operated since 1988, no one but the
plaintiff/homeowner has complained about it, and even the homeowner didn’t complain until 2012.
DECISION MEMORANDUM 2
Further, the Company has attempted to address the homeowner’s complaint by shielding the light,
painting it black, directing it downward, decreasing the wattage by half, and installing a dark-sky
fixture. Nevertheless, the homeowner remains unsatisfied. See Petition at 3-6.
The Company also moved the Court to dismiss the homeowner’s lawsuit on the grounds
that the Company’s conduct is not a nuisance because the Idaho Public Utility Law authorizes that
conduct to occur. In summary, the Company argued that the law requires it to serve customers and
empowers the Commission to regulate that service. Further, the Commission has regulated the
service by approving Company Schedule 15—Dusk to Dawn Lighting—which specifies that “those
services are provided by luminaries mounted on poles owned [or approved] by Idaho Power” and that
the “facilities for supplying the lighting are supplied, installed, owned and maintained by Idaho
Power in accordance with its standards and specifications.” Id. at 5. Despite these arguments, the
Court denied the Company’s motion and set the case for trial.
At the hearing where it denied the motion, the Court made some comments that worry the
Company. Specifically, the Court said that if the homeowner proves his nuisance claim at trial, the
Court would not order the Company to shut the light off; but the Court might order the Company to
fix the light so it does not unreasonably shine in the homeowner’s yard. Id. at 6. The Company says
it knows of no currently available lighting fixture that would solve the issue of which the homeowner
complains. Id. at 9, fn 1. The Company has thus petitioned this Commission to rule that “Idaho
Power has a legal duty to provide [off-street lighting] services under Schedule 15” but “does not
have a duty under Schedule 15 to find a technology to provide off-street lighting in a manner that
prevents light from shining on another's property.” Petition at 3 and 9.
COMMISSION DECISION
Would the Commission like to accept or decline jurisdiction over the Petition? If the
Commission accepts jurisdiction, then it can issue a notice of petition setting an appropriate comment
period. The trial initially was scheduled for July 7, 2014, but it has been rescheduled to August 27,
2014 (with an August 20, 2014 pre-trial conference).
M:IPC-E-14-10_kk