Justia Utilities Law Opinion Summaries

Petitioners, the Towns of Chester and Hudson (collectively, Towns), appealed a Board of Tax and Land Appeals (BTLA) order granting respondent Public Service Company of New Hampshire d/b/a Eversource Energy (PSNH) abatements of taxes assessed against its property located in Chester for tax years 2014 and 2016 and in Hudson for tax years 2014, 2015, and 2016. PSNH submitted an appraisal report prepared by its expert, Concentric Energy Advisors, Inc., setting forth the expert’s opinion of the aggregate fair market value of PSNH’s taxable property located in each municipality for each tax year. Two appraisers employed by the Towns’ expert, George E. Sansoucy, P.E., LLC (GES), used a substantially similar methodology in appraising the fair market value of the land interests. The BTLA compared the equalized market value to the aggregate assessed value for each municipality for each tax year. The BTLA concluded that an assessment was unreasonable and granted an abatement when it determined that the difference between the equalized market value and the aggregate assessed value was greater than five percent. The Towns argued that because both GES and Concentric relied upon the assessed value of PSNH’s land interests in reaching their opinions of fair market value, the values that the BTLA incorporated into its analysis “were already proportionate” and “should not have had the equalization ratio[s] applied to them.” The BTLA denied the Towns’ motion for reconsideration, noting that it based its calculations upon values that “were supplied by the [Towns] themselves in the stipulations agreed to by them” and adopting the arguments PSNH raised in its objection. Finding no reversible error in the BTLA's order, the New Hampshire Supreme Court affirmed. View "Appeal of Town of Chester et al." on Justia Law

A reverse validation action was brought by petitioners Bonnie Wolstoncroft, William Unkel, and Michael Wilkes against the County of Yolo (County) to challenge the County’s plan to continue water service to 95 residences within the North Davis Meadows County Service Area (County Service Area) by replacing two aging groundwater wells with the City of Davis’s (City) water supply. Under this plan, North Davis Meadows residents would pay substantially higher water rates to pay for the project. The County considered the increased water rates to be property-related fees and noticed a Proposition 218 (as approved by voters, Gen. Elec. (Nov. 5, 1996)) hearing. More than five months after the County adopted its resolution, but before the deadline contemplated by the parties’ tolling agreement, petitioners filed their action in superior court. The trial court rejected petitioners’ argument that the increased levy constituted an assessment for which majority approval was required by Proposition 218. The trial court also rejected petitioners’ contentions that the County wrongfully rejected protest votes it claimed not to have received or received in an untimely manner. After review of petitioners' arguments on appeal, the Court of Appeal concluded the trial court correctly determined that the levy constituted a property-related fee under Proposition 218. "The fact that maintaining adequate water supply requires switching water sources does not turn the fee into an assessment. Thus, the County properly employed the majority protest procedure under article XIII D, section 6." Further, the Court concluded that even if the trial court erred in denying petitioners’ motion to augment the record with declarations regarding two mailed protest votes, petitioners’ evidence would not prove timely compliance with the protest procedure. Without the protest votes for which only evidence of mailing was tendered, the protest lacked a majority. Accordingly, the trial court's judgment was affirmed. View "Wolstoncroft v. County of Yolo" on Justia Law

Under the Natural Gas Act, to build an interstate pipeline, a natural gas company must obtain from the Federal Energy Regulatory Commission (FERC) a certificate of "public convenience and necessity,” 15 U.S.C. 717f(e). A 1947 amendment, section 717f(h), authorized certificate holders to exercise the federal eminent domain power. FERC granted PennEast a certificate of public convenience and necessity for a 116-mile pipeline from Pennsylvania to New Jersey. Challenges to that authorization remain pending. PennEast sought to exercise the federal eminent domain power to obtain rights-of-way along the pipeline route, including land in which New Jersey asserts a property interest. New Jersey asserted sovereign immunity. The Third Circuit concluded that PennEast was not authorized to condemn New Jersey’s property.The Supreme Court reversed, first holding that New Jersey’s appeal is not a collateral attack on the FERC order. Section 717f(h) authorizes FERC certificate holders to condemn all necessary rights-of-way, whether owned by private parties or states, and is consistent with established federal government practice for the construction of infrastructure, whether by government or through a private company.States may be sued only in limited circumstances: where the state expressly consents; where Congress clearly abrogates the state’s immunity under the Fourteenth Amendment; or if it has implicitly agreed to suit in “the structure of the original Constitution.” The states implicitly consented to private condemnation suits when they ratified the Constitution, including the eminent domain power, which is inextricably intertwined with condemnation authority. Separating the two would diminish the federal eminent domain power, which the states may not do. View "PennEast Pipeline Co. v. New Jersey" on Justia Law

The Supreme Court denied a petition for writ of mandamus sought by Texas-New Mexico Power Co. (TNM) in this negligence action, holding that Plaintiffs' claim was not one within the Public Utility Commission's (PUC) exclusive original jurisdiction because it was not about TNM's operations and services as a utility.Plaintiffs, a larger number of homeowners near the Junemann Bayou and Las Marque, sued TNM, their electric utility, for damages due to flooding during Hurricane Harvey, alleging that TNM was negligent in not requiring its contractor to secure wooden mats to the ground during a construction project. The trial court denied TNM's motion to dismiss for lack of subject matter jurisdiction, and TNM petitioned for mandamus relief. The Supreme Court denied the petition, holding that the PUC's exclusive original jurisdiction did not extend to the issues underlying this tort claim. View "In re Texas-New Mexico Power Co." on Justia Law

The Supreme Court reversed the trial court's judgment determining Defendant's method of calculating a supplemental sewerage benefit assessment levied against certain of Plaintiff's real property, holding that the trial court incorrectly determined that Conn. Gen. Stat. 7-249 required Defendant to use the same method to calculate the supplemental assessment as was used to calculate the initial assessment.At issue was whether Defendant had authority to levy a supplemental assessment against Plaintiff's property and, if so, whether it used the correct methodology in calculating that assessment. A predecessor of Defendant levied a sewerage benefit assessment against the owners of the property. Later, the building was demolished and a new commercial office building was constructed in its place. No supplemental assessment was levied as a result of the construction. Plaintiff later purchased the property and converted it into a residential condominium community. Defendant then levied a supplemental assessment on the property. The trial court concluded that Defendant's supplemental assessment calculation violated section 7-249 because it should have been calculated on the basis of street frontage, as was the initial assessment. The Supreme Court reversed in part, holding (1) Defendant had authority to levy the supplemental assessment; and (2) the trial court erred in determining that Defendant incorrectly calculated the supplemental assessment. View "777 Residential, LLC v. Metropolitan District Commission" on Justia Law

The Supreme Court affirmed the circuit court's judgment in favor of the Empire District Electric Company and Westar Generating, Inc. (collectively, the Utilities) in this petition to quiet title against John Scorse, both individually and as a trustee, and his successors in interest concerning a tract of land in Newton County, holding that the circuit court did not err.After the circuit court entered its judgment, Scorse filed a motion to amend the judgment, arguing that the circuit court misapplied the law by failing to grant his adverse possession claim. The circuit court overruled the motion. The Supreme Court affirmed, holding that the facts, combined with the facts found by the circuit court in its final judgment after trial, were not such that Scorse was entitled to judgment as a matter of law on his claim of adverse possession. View "Empire District Electric Co. v. Scorse" on Justia Law

The Antelope Valley Groundwater Cases (AVGC) proceeding litigated whether the water supply from natural and imported sources was inadequate to meet the competing annual demands of water producers, thereby creating an overdraft condition. One of the competing parties, Appellant Tapia, individually and as trustee of a trust, claimed that he owned land overlying the aquifer. Settlement discussions ultimately produced an agreement among the vast majority of parties in which they settled their competing groundwater rights claims and agreed to support the contours of a proposed plan designed to bring the Antelope Valley Adjudication Area (AVAA) basin into hydrological balance. Tapia was not among the settling parties. Accordingly, before considering whether to approve the Physical Solution for the AVAA basin, the trial court conducted a separate trial on Tapia's unsettled claims and defenses.The Court of Appeal concluded that the Physical Solution's allocation of the "native safe yield" (NSY) does not violate California's water priorities; the allocations to correlative rights holders accord with California law; the Physical Solution's allocation of the NSY does not violate California's principles promoting the reasonable and beneficial use of water; and substantial evidence supports the judgment as to Tapia, and the Physical Solution is consistent with California law governing water priorities and the constitutional reasonable and beneficial use requirement. View "Los Angeles County Waterworks District No. 40 v. Tapia" on Justia Law

Lamont Bair Enterprises, Inc. (“LBE”) was an Idaho corporation based in Idaho Falls that owned residential rental units. One of LBE’s rental units was a four-plex rental property at 547 South Skyline Drive (“the Property”), served by municipal water lines owned and maintained by the City of Idaho Falls (“the City”). On December 28, 2015, a municipal water main broke, causing water to flow beneath the Property’s driveway, crack the concrete basement floor, and flood the basements of all four rental units. The City received an emergency call for assistance in shutting off the water. Believing the incident to be a service line leak (as opposed to a water main break), the City’s response crew first closed the water service line and waited for confirmation that the water flow had stopped. After the crew received notice that water continued to flow into the basement, they isolated the leak to the water main and began repairing the main line. The water was turned back on the following day, and the road and curb were filled back in. None of LBE’s rental units ever experienced flooding from the city’s water lines prior to this flooding incident at the Property. LBE contended the water main “ruptured” due to negligent care (that “the City neglected its water system to the point that literally miles of pipe became past their design life and in need of replacement”) thus failing to exercise reasonable care in maintaining the water supply system. The district court ruled the City was immune from liability under the Idaho Tort Claims Act’s discretionary function exception. The Idaho Supreme Court determined the district court did not err in holding that the City is immune from suit pursuant to the discretionary function exception set forth in Idaho Code section 6-904(1). The Court did not reach the merits of the other issues LBE raised on appeal. View "Lamont Bair Enterprises v. City of Idaho Falls" on Justia Law

Plaintiffs filed suit challenging two policies related to the provision of basic utility services from the City on the ground that the policies have a disproportionate impact on black and Hispanic residents.The Eleventh Circuit vacated the district court's dismissal of the complaint for failure to state a claim, holding that section 3604(b) of the Fair Housing Act is unambiguous and reaches certain post-acquisition conduct, including post-acquisition conduct related to the provision of services. The panel held that a service within the meaning of section 3604(b) must be a housing-related service that is directly connected to the sale or rental of a dwelling, and the water, gas, and electricity services at issue here fall within the scope of section 3604(b). Finally, the court rejected the City's argument that it is not a housing provider subject to section 3604(b), and held that section 3604(b) does not limit its applicability in such a manner and the court's case law has never held that only housing providers are subject to liability thereunder. Accordingly, the court remanded for further proceedings. View "Georgia State Conference of the NAACP v. City of LaGrange" on Justia Law

In 2013, a small business jet crashed into a Georgia Power Company transmission pole on Milliken & Company’s property near the Thomson-McDuffie Regional Airport in Thomson, Georgia. The two pilots were injured and the five passengers died. In the wake of the crash, the pilots and the families of the deceased passengers filed a total of seven lawsuits against multiple defendants, including Georgia Power and Milliken. The complaints in those seven suits alleged that a transmission pole located on Milliken’s property was negligently erected and maintained within the airport’s protected airspace. The record evidence showed Georgia Power constructed the transmission pole on Milliken’s property for the purpose of providing electricity to Milliken’s manufacturing-plant expansion, and that the pole was constructed pursuant to a 1989 Easement between Georgia Power and Milliken. In each of the seven suits, Milliken filed identical cross-claims against Georgia Power, alleging that Georgia Power was contractually obligated to indemnify Milliken “for all sums that Plaintiffs may recover from Milliken” under Paragraph 12 of the Easement. Georgia Power moved for summary judgment on the crossclaims, which were granted. The trial court reasoned Paragraph 12 of the Easement operated as a covenant not to sue, rather than as an indemnity agreement, because it “nowhere contains the word ‘indemnity’” and “it is not so comprehensive regarding protection from liability.” The Court of Appeals affirmed summary judgment to six cases. Rather than adopt the trial court’s reasoning, the appellate court held that the provision was an indemnity agreement and affirmed the trial court by applying Georgia’s anti-indemnity statute, OCGA 13-8-2 (b), to determine that Paragraph 12 of the Easement was “void as against public policy,” a theory argued before the trial court but argued or briefed before the Court of Appeals. The Georgia Supreme Court determined the Court of Appeals erred in its construction and application of OCGA 13-8-2(b), vacated the judgment and remanded for the lower court to consider whether, in the first instance, the trial court’s rationale for granting Georgia Power’s motions for summary judgment and any other arguments properly before the Court of Appeals. View "Milliken & Co. v. Georgia Power Co." on Justia Law