20040629Eagle River Petition to Intervene.pdf

B. Newal Squyres (ISB No. 1621)
Mary V. York (ISB No. 5020)
HOLLAND & HART LLP
Suite 1400 , U. S. Bank Plaza
101 South Capitol Boulevard
Post Office Box 2527
Boise, Idaho 83701
Telephone: [phone]
Facsimile: [phone]
nsq u yres~ho llandhart. com
my 0 r k ~ h 011 an d h a~t . com
Attorneys for Eagle River, LLC
RECEIVED
FiLED
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2UOq JUN 29 Ari l: 58
I U Ii U F' U t3 L
UTILITiES COrtt1fSSION
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IDAHO POWER COMPANY
Complainant
vs.
CITY OF EAGLE, IDAHO
Respondent.
EAGLE RIVER, LLC
Applicant for Intervention.
Case No. IPC- E-04-
EAGLE RIVER, LLC'
PETITION FOR ORDER
GRANTING LEAVE TO
INTERVENE
INTRODUCTION
Idaho Power Company, through this action, is asking the Idaho Public Utilities
Commission to second-guess and effectively undermine the City of Eagle s Findings of
Fact and Conclusions of Law issued on May 11 , 2004. That decision resolved the very
issue presented to the Commission in the present action - whether Idaho Power may
EAGLE RIVER, LLC'S PETITION FOR ORDER GRANTING LEAVE TO
INTERVENE -
construct a 138 k V transmission line on one of two proposed routes through the City of
Eagle.
Eagle River, LLC seeks to intervene in Idaho Power s action because if the
proposed 138 kV transmission line is constructed along State Highway 44-one of the
proposed routes for the line-it will be located adjacent to Eagle River s commercial
development and cause significant and irreparable harm to both the company and its
development. Moreover, if Idaho Power obtains its requested relief, Eagle River will be
directly impacted by the assessment of a heightened surcharge if the transmission line is
required to be buried or relocated. Unless Eagle River is permitted to intervene, it will
be without adequate means to fully participate in this proceeding and protect its
interests in the determination of the location of the proposed transmission line and the
propriety and necessity for the assessment of a surcharge as requested by Idaho Power.
Eagle River s petition for intervention is timely; it will not broaden the issues
presented; and it will not otherwise delay these proceedings. As such, Eagle River
respectfully requests the Commission grant its petition and permit it to intervene in
these proceedings so that it may appear and participate in all matters as may be
necessary and appropriate, to present evidence, call and examine witnesses , cross-
examine witnesses, present argument and to otherwise fully participate in these
proceedings.
II.DISCUSSION
The Idaho Public Utilities Commission Rules of Procedure permit intervention
where the petition shows a "direct and substantial interest in any part of the subject
matter of a proceeding and does not unduly broaden the issues." IPUC Rules of
EAGLE RIVER, LLC'S PETITION FOR ORDER GRANTING LEAVE TO
INTERVENE - 2
Procedure , IDAP A 31.01.01.072. The subject matter of the current proceeding involves
Idaho Power s petition for authorization to construct a 138 kV transmission line along
one of two proposed routes through the City of Eagle. The first route is along State
Highway 44 from Edgewood Road to Ballantyne Road, and the second, along State
Street through downtown Eagle. Alternatively, Idaho Power requests authority to
establish a surcharge to the rates charged customers within the City of Eagle in the
event the Commission requires the transmission lines to be buried underground or sited
in alternate locations.
Eagle River s intervention in this proceeding is proper because it owns property
within the City of Eagle along one of the proposed routes for the 138 kV transmission
line and therefore has a direct and substantial interest in the location of transmission
line and in whether it will be assessed a heightened surcharge.
Eagle River Has A Direct And Substantial Interest In The Current Action
Because Idaho Power s Proposed Transmission Line Will Result In
Significant And Irreparable Injury to Eagle River.
Eagle River owns a unique commercial development located on the southeast
corner of Eagle Road and Highway 44 Alternate Route. The development is the result
of years of planning and thousands of hours of detailed coordination with the City of
Eagle in order to create a 100-acre mixed used planned community that promotes the
development objectives of the City. Consistent with and in reliance upon those
efforts-and as required by the City of Eagle-Eagle River made substantial
investments to create a commercial community center that protects the quality of life
and the natural aesthetics of the community and promotes the economic and job-
creation goals of the City. Examples of Eagle River s investments include the
EAGLE RIVER, LLC'S PETITION FOR ORDER GRANTING LEAVE
INTERVENE - 3
construction of fountains, ponds, and bike paths, the placement of extensive
landscaping and vintage street lighting, and the undergrounding of all utilities-most
particularly an Idaho Power utility line, which was buried along Eagle Road for the
specific purpose of protecting development plan for Eagle River. As a result of these
investments , the Eagle River Development has provided economic benefits for the
company and for the City of Eagle, in the form of increased business development, job
opportunities , employment rates and tax revenues.
Eagle River s northern boundary is approximately one-mile in length, the entire
distance of which runs along State Highway 44. If the proposed transmission line is
constructed on the State Highway 44 route, Eagle River will suffer substantial economic
impacts as the result of its entire northern property line being obstructed by 70 to 90-
foot towers and criss-crossing overhead power lines. Because Eagle River
development focuses on the life-style and aesthetic goals that are central to the City of
Eagle s comprehensive plan, the eye-sore created by Idaho Power s transmission line
will cause substantial adverse economic impacts to Eagle River. Instead of the open
views, scenic vistas and natural aesthetics that are currently integrated into Eagle
River s development-again, as required by the City-the property will be fenced by a
mile of industrial 70 to 90 foot towers with metal cob-webbed lines that will obstruct
the landscape. As a result, the development, which is designed to focus on the outdoor
aesthetic , to attract pedestrian traffic , and to create a lifestyle commercial center with
outdoor-seating in cafes and restaurants , will be destroyed. Eagle River s investment in
its development will be substantially impaired, its property values lowered, its
development quality diminished, and the build-out of its development delayed.
EAGLE RIVER, LLC'S PETITION FOR ORDER GRANTING LEAVE TO
INTERVENE - 4
Moreover, Eagle River s substantial investments made in reliance upon the City of
Eagle s ordinances , comprehensive plan and planning objectives will have been utterly
undermined.
The significant and irreparable harm to Eagle River as the result of the proposed
transmission line gives it a direct and substantial interest in the present action.
Additionally, Eagle River Has A Substantial And Direct Interest In This
Action Because It May Be Subject To A Heightened Surcharge On Its Utility
Rates As a Result of Idaho Power s Complaint.
As an alternative remedy to the routing of its transmission lines along State
Highway 44 or State Street, Idaho Power requests authority from the Commission to file
tariffs to establish a surcharge to be added to the rates charged customers in Eagle in
the event the Commission requires the transmission line to be buried or relocated.
Idaho Power s rationale is that it believes that it should be entitled to recover the costs
of the alternative locations for the line. Eagle River disagrees with Idaho Power
premise and ultimate conclusion that it is entitled to discriminate against rate payers
like Eagle River through the assessment of a surcharge. In order to protect its interest
as against Idaho Power s position and because Eagle River is one of the rate payers who
may be assessed the heightened surcharge, it has direct and substantial interest in these
proceedings.
Unless It is Permitted To Intervene, Eagle River Will Be Unable To
Adequately Protect Its Interests In This Action.
Eagle River has made substantial investments in its development and will suffer
significant adverse affects as the result of the construction of the transmission line
along State Highway 44. Unless Eagle River is permitted to intervene in this action, it
will be without adequate means to fully participate and represent its interests in the
EAGLE RIVER, LLC'S PETITION FOR ORDER GRANTING LEAVE TO
INTERVENE - 5
determination of the location of the proposed transmission line and the propriety and
necessity for an additional surcharge.
Intervention is appropriate because Eagle River s petition for intervention is
timely; it will not broaden the issues presented; and it will not otherwise delay these
proceedings. Furthermore , because of the significant adverse effects that Eagle River
will suffer in the event that Idaho ~ower s requested relief is granted, Eagle River has a
sufficient direct and substantial interest in these proceedings and should be permitted to
intervene.
The Rules Of Procedure Of the Idaho Public Utilities Commission Requires
The Name And Address Of The Intervener And The Intervener
Rep resen ta tiv es.
As required by the Commission s Rules of Procedure , the name and the address
of Eagle River is:
Eagle River, LLC
c/o A. Ennis Dale
485 East Riverside Drive
Eagle , Idaho 83616
Eagle River will be represented in this action by:
B. Newal Squyres
Mary V. York
HOLLAND & HART LLP
Suite 1400 , U. S. Bank Plaza
101 South Capitol Boulevard
Post Office Box 2527
Boise, Idaho 83701
Telephone: [phone]
Facsimile: [phone]
EAGLE RIVER, LLC'S PETITION FOR ORDER GRANTING LEAVE TO
INTERVENE - 6
III.CONCLUSION
Due to Eagle River s proximity to the proposed transmission line route, the
significant detrimental impacts it will suffer as a result of the construction of the line
along State Highway 44 , and the possibility of a heightened surcharge assessment
Eagle River has a direct and substantial interest in these proceedings. To protect its
interests, Eagle River petitions the Commission to intervene in these proceedings so
that it may appear and participate in all matters as may be necessary and appropriate, to
present evidence, call and examine witnesses , cross-examine witnesses, present
argument and to otherwise fully participate in these proceedings. Eagle River
respectfully requests the Commission grant its petition for intervention and permit it to
intervene in this proceedings.
DATED this d1tIJ day of June 2004.
HOLLAND & HART LLP
Holland & Hart LLP
iver, LLC
EAGLE RIVER, LLC'S PETITION FOR ORDER GRANTING LEAVE TO
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CERTIFICATE OF SERVICE
I hereby certify that on this ~ay of June 2004, I caused to be served a true
and correct copy of the foregoing by the method indicated below , and addressed to the
following:
Donald L. Howell II , Director
Idaho Public Utilities Commission
472 West Washington Street
Boise , ID 83720-0074
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Barton L. Kline, Esq.
Monica B. Moen, Esq.
Idaho Power Company
1221 West Idaho
O. Box 70
Boise, ID 83707-0070
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Susan E. Buxton, Esq.
Bruce M. Smith, Esq.
Moore Smith Buxton & Turcke, Chtd.
225 North 9th Street, Suite 420
Boise, ID 83702
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3248667 5
EAGLE RIVER, LLC'S PETITION FOR ORDER GRANTING LEAVE TO
INTERVENE - 8