20090417Comments.pdf

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Davis F. VanderVelde, ISB #7314
Matthew A. Johnson, ISB #7789
WHITE PETERSON GIGRA Y ROSSMAN NYE & NICHOLS, P.A.
5700 East Franlin Road, Suite 200
Nampa, Idaho 83687
Offce: [phone]
Fax: [phone]
mjohnsonêwhitepeterson.com
Attorneys for Intervenor: City of Nampa
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION OF )
IDAHO POWER COMPANY FOR AUTHORITY )
TO MODIFY ITS RULE H LINE EXTENSION )
TARIFF RELATED TO NEW SERVICE )
ATTACHMENTS AND DISTRIBUTION LINE )INSTALLATIONS )
)
CASE NO. IPC-E-08-22
COMMENTS OF
INTERVENOR CITY OF
NAMPA
The CITY OF NAMPA ("Nampa") hereby submits the following comments in the above-
captioned matter pursuant to the Idaho Public Utilities Commission's ("IPUC") January 21,2009
Notice of Modifed Procedure, Notice of Scheduling, Order No. 30719, and March 11, 2009
Notice of Extension of Comment Deadline, Order No. 30746.
I. The IPUc does not have Jurisdiction to Authorize Proposed Section 10.
Municipalities have the power and responsibility to supervise and control city highways.
Idaho Code § 50-313, § 50-314. Cities with city highway systems are responsible for the
construction, reconstruction, and maintênance of highways in their system. Idaho Code § 40-
COMMENTS OF CITY OF NAMPA - 1
1333. It is the municipality that has exclusive jurisdiction for controllng encroachments,
obstacles, and traffc upon city streets and sidewalks. Idaho Code § 50-314. This includes broad
authority to remove and prevent obstacles and encroachments interfering with municipal streets.
Boise City By and Through Amyx v. Fails, 94 Idaho 840, 499 P.2d 326 (1972). Municipalities
are also vested with the jurisdiction and the power to regulate utility transmission systems upon
lands owned or controlled by the municipality. Idaho Code § 50-328.
Idaho Power's use of municipal property for its utility lines is permissive, as granted by
the municipality and governed by franchise agreements. Idaho Code § 62-705 gives power
companies authority to use public roads and streets, but specifically excepts out such right within
municipal limits. Municipalities hold such land in trust for the public and must protect the public
use. Rich v. Idaho Power Co., 81 Idaho 487,346 P.2d 596 (1959). As such, municipalities have
the exclusive authority to determine that relocation of utility facilities is necessary so as not to
incommode public use. i This includes the power to require relocation at the utilty's cost.
The jurisdiction of the IPUC is limited to that expressly granted by the legislature.
Washington Water Power Co. v. Kootenai Environmental Allance, 99 Idaho 875, 591 P.2d 122
(1979). The IPUC is not granted authority to determine what mayor may not incommode the
public use as it pertains to municipal land and highways. It is the function and duty of a
municipality to determine whether the public use and safety is protected by such actions as road-
widening, sidewalk development, or installation of a turning lane. The Public Utilties Act "does
not contain any provision diminishing or transferring any of the powers and duties of the
municipality to control and maintain its streets and alleys." Vilage of Lapwai v. Allgier, 78
Idaho 124, 129,299 P.2d 475,478 (1956). The Lapwai case found that authority over municipal
i For background on pennissive use and the public trst see State of Idaho v. Idaho Power Co., 81 Idaho 487, 346
P.2d 596 (1959).
COMMENTS OF CITY OF NAMPA - 2
lands remains with the municipality and that the IPUC has no authority in regard to a
municipality requiring utility relocation. Lapwai also held that IPUC consent to such relocation
is not required. The IPUC is not given authority to regulate utility relocation or to take on the
role of determining when utility system location may, or may not, impair the public use.
The IPUC does not have authority to approve Idaho Power's proposed Rule H - Section
10. The proposed terms would place the IPUC in the position of having to determine what does
or does not constitute a general public benefit versus a third party benefit versus a shared benefit.
Such a determination is outside the expertise and role of the IPUC. Approving proposed Section
i 0 would cause the IPUC to act outside its jurisdiction and usurp the authority of municipalities
to govern the public use and safety of municipal lands and streets.
The issues contemplated by the proposed Section i 0 are more appropriately a matter for
negotiation as a part of a franchise agreement between Idaho Power and a municipality. Such an
approach, with agreement between a utility and a local governing body, has already been
accomplished in an agreement between Idaho Power and the Ada County Highway District. See
Comments of the Ada County Highway District, March 3, 2009, and ACHD Resolution 330.
Similarly the City of Nampa already has addressed this issue with Idaho Power via the franchise
agreement in City of Nampa Ordinance No. 3181. Such agreements are the appropriate
mechanism for addressing relocation costs and concerns.
As an additional note, Nampa is concerned about testimony provided by David Lowry on
behalf of Idaho Power and attached to the application. Mr. Lowry raises allegations of
"inappropriate cost shifting" including specific reference to a Nampa project with regards to the
Gateway Mall. This testimony ignores that local governing bodies must constantly work with
developers and on managing growth. Development often leads to accompanying municipal
COMMENTS OF CITY OF NAMPA - 3
projects. The City of Nampa, in the Gateway Mall situation, required relocation ofIdaho Power
facilities because such relocation was necessary for a project the City was focused on to provide
for public safety and so as to avoid interference with public use of the associated streets. The
proximity of the mall and the fact that the developer had previously submitted and withdrawr a
relocation request are irrelevant to whether the City was requesting relocation in the general
public interest and under the authority of the City over its own property. Idaho Power's use of
municipal land in this area was permissive, and the City was well within its authority to require
relocation at Idaho Power's expense. To the extent Idaho Power retains concerns about such
projects, the appropriate course for handling these is through improved communications with the
municipalities and discussion of the franchise agreements.
Nampa advises that the IPUC delete the proposed Section 10 and any other pars of the
proposed Rule H that attempt to regulate the relocation of utilities on municipal land. Such
relocation regulation is outside the jurisdiction of the IPUC.
II. Problems with the Definition and Treatment of Third Part Beneficiaries
Proposed Section 10, in trying to apportion relocation costs, focuses on the idea of third-
pary beneficiaries. The notion seems to be that some improvements are made for the general
public and other improvements are made only for the benefit of an identifiable "third party."
Section 10 does not clearly define what constitutes a third party beneficiary, providing only
examples: "private or public third parties such as real estate developers, local improvement
districts, or adjacent landowrers." This definition is problematic and potentially overly broad.
First, the definition allows a third party to be private or public. The inclusion of a
possibility of a public third party beneficiary is troublesome. Public governing bodies overlap.
Cities lie in counties. Cities border with other cities. Highway districts and state transportation
COMMENTS OF CITY OF NAMPA - 4
agencies control certain highways. Improvements by anyone of these political subdivisions on
their facilities may have benefits for other political subdivisions. For instance, a widening or
improvement project on a state highway may provide benefits to the municipality in which the
highway runs (i.e. by construction of sidewalks, curbs, and gutters). These improvements benefit
the municipality and the general public. However, under the proposed Section 10 the "third
pary beneficiary" language could be construed so that the municipality getting the benefit is
considered a "third party" and now is required to pay relocation costs to Idaho Power. This is in
direct conflct with the police power of the municipality to provide improvements and require
relocation at the utility's cost so as not to incommode the public use. Therefore Nampa requests
that the definition of "third party beneficiary" be amended to delete reference to public entities or
political subdivisions.
Additionally, the definition of third party beneficiaries includes local improvement
districts (LIDs). It is not clear whether this reference to local improvement districts is limited to
the current definition in Rule H or to local improvement districts in general? Regardless the
inclusion of local improvement districts as a third pary beneficiary contravenes the exclusive
authority of the municipality to require relocation of utilities to avoid incommoding the public
use. The legislature has given municipalities the authority to organize local improvement
districts as a funding mechanism for municipal improvements. These improvements do provide
certain local benefits, but the improvements also ultimately provide benefits to the general public
as a whole.
2 Rule H defines a local improvement district as being under Idaho Code §50-2503, which provides for the
formation of such a district for distribution line installation or alteration. Rule H - Section 9 covering Local
Improvement Districts is also concerned only with §50-2503 LIDs. However municipalities are granted the power
to create local improvement districts for a variety of other purposes as well. See Idaho Code §50-l791 et seq.
Should Section lObe approved by the IPUC, Nampa urges that this portion be clarified so that local improvement
districts as third-party beneficiaries are limited only to the definition included in Rule H.
COMMENTS OF CITY OF NAMPA - 5
For example, a new subdivision or commercial development may receive certain benefits
from a new tum-out lane, but the general public benefits as the turn-out lane provides relief for
the general flow of traffc. Municipalities have been authorized to evaluate such benefits,
provide for local assessments or impact fees as a fuding mechanism, and determine whether
relocation is necessary so as not to incommode the public use. Utilties are not granted such
authority, nor is the IPUC authorized to make such determinations.
Therefore Nampa requests that local improvement districts be removed from the
definition of "third-party beneficiaries."
III: Constitutional Concerns
Nampa shares the concern of the Ada County Highway District that the proposed Section
1 0 may be unconstitutionaL. See ACHD Comment NO.2 in Comments of Ada County Highway
District, March 3, 2009. For this reason, Nampa also requests that the IPUC delete language in
the proposed Rule H Tariff attempting to regulate relocation of utilities in the public right-of-
way.
The City of Nampa appreciates the Commission's consideration of these comments and
urges in paricular the deletion of the proposed Section 10 for the reasons stated above.
Dated this 17~ day of April, 2009.
WHITE PETERSONBY:~~
Matthew A. Johnson ~
Attorneys for the City of Nampa
COMMENTS OF CITY OF NAMPA - 6
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on the 17th day of April, 2009, a true and correct
copy of the above and foregoing instrument was served upon the following by the method
indicated below:
Lisa D. Nordstrom
Barton L. Kline ~U.S. Mail
Scott Sparks _ Overnight Mail
Gregory W. Said _ Hand Delivery
IDAHO POWER COMPANY Facsimile:-
P. O. Box 70 X lnordstrom(fidahopower .com
Boise, ID 83707-0700 X bkline(fidahopower .com
X ssparks(fidahopower .com
X gsaid(fidahopower.com
Kristine A. Sasser
Deputy Attorney General ~U.S. Mail
IDAHO PUBLIC UTILITIES Overnight Mail
COMMISSION _ Hand Delivery
472 W. Washington (83702)Facsimile:-
P. O. Box 83720 X kris.sasser(fpuc.idaho. gov
Boise, ID 83720-0074
Michael C. Creamer
Given Pursley LLP ~U.S. Mail
601 W. BannOck St.Overnight Mail
Boise, ID 83702 _ Hand Delivery
for BUILDING CONTRACTORS Facsimile:-
ASSOCIATION OF X mcc(f givenspursley. com
SOUTHWESTERN IDAHO
Michael Kurtz, Esq.
Kurt J. Boehm, Esq.X U.S. Mail
Boehm, Kurtz & Lowry Overnight Mail
36 E. Seventh Street, Suite 1510 Hand Delivery
Cincinnati, OH 45202 Facsimile:-
for The Kroger Co.X mkurtz(fBKLlawfirm.com
X kboehm(fBKLlawfrm.com
Kevin Higgins ~U.S. Mail
Energy Strategies, LLC _ Overnight Mail
Parkside Towers Hand Delivery
COMMENTS OF CITY OF NAMPA - 7
~
215 S. State Street, Suite 200
Salt Lake City, UT 84111
for The Kroger Co.
Facsimile:
X khiggins(fenergystrat.com
~ø.~fo ITE PETERSON
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