Electric Co-op Files Lawsuit Against El Paso County for Encroaching on Property Rights
March 18, 2019, Falcon, CO – Mountain View Electric Association, Inc. (MVEA), a member-owned electric cooperative, today filed a lawsuit to halt El Paso County government’s unlawful attempts to undermine MVEA’s property rights and shift costs onto electric cooperative ratepayers. The Complaint for Declaratory Judgment against the El Paso County Board of County Commissioners and the County Planning and Community Development Department is focused on the County’s incorrect interpretation of its Land Development Code governing “Site Selection and Construction of Major Facilities of a Public Utility.”
“Mountain View Electric believes that El Paso County’s interpretation of the Land Development Code grossly oversteps its authority provided in state statute to regulate utilities,” said Jim Herron, CEO of MVEA. “If allowed, the County’s interpretation will jeopardize our existing property rights and hurt our members—residents, businesses and schools in El Paso and seven other counties—through rate increases to pay for this unlawful government overreach.”
The County seeks wider rights of way along future arterial roadways in areas of eastern El Paso County served by MVEA. The wider right of ways are on private property outside of MVEA’s existing easements—vested property rights recorded with the County that are utilized for overhead and buried distribution lines. In many cases, the County’s new right of way measurement would force MVEA to move electric distribution lines into backyards and through existing residential and commercial buildings—taking away MVEA’s current easements and disrupting entire communities, at a cost that would impact all MVEA members including those outside El Paso County.
“Driving through eastern El Paso County, along Stapleton or Meridian roads for example, anyone can see that moving MVEA’s facilities into people’s backyards isn’t feasible,” Herron said. “Based on the County’s interpretation of the Land Development Code, MVEA would have to move its facilities outside of its easements or get a permit from the County to upgrade or make repairs to existing lines. That process is costly, burdensome and time consuming. It’s just not practical and, more importantly, the County doesn’t have the right to regulate MVEA’s distribution lines under state law.”
The County seeks to regulate MVEA’s distribution lines by using its powerful 1041 Permitting Process—defined and limited in state statute to the regulation of electric transmission lines. Transmission lines, according to MVEA, are defined by state law and PUC regulation. Transmission lines typically run from a substation directly to another substation and do not supply services to homes or businesses in between. The distribution lines on the MVEA system provide electricity to homes and businesses from the lines that extend out from the substations.
At issue are MVEA’s distribution lines, lower voltage facilities that run through neighborhoods and provide electricity directly to homes and businesses. In El Paso County, MVEA’s distribution lines often follow roadways and are typically installed in 20-foot easements just outside the current right of way. Most of these easements were created as part of the County’s development approval process and were negotiated with the landowner, providing MVEA access to that property to operate and maintain its distribution lines.
In order to sidestep the state’s definitions, El Paso County is attempting to redefine MVEA’s distribution lines as “minor transmission facilities.” MVEA believes there is no legal precedent to create this new classification, and it’s clearly an unlawful attempt to shift the costs of moving lines onto MVEA’s members, many of whom do not live or conduct business in El Paso County.
MVEA’s filing in El Paso County District Court asks for one of two actions:
- A finding that the County has “no lawful basis … to control the siting of Mountain View’s electric distribution lines,” or
- If the court decides that the County can regulate distribution lines, “then Mountain View is instead entitled to … just compensation for the County’s regulatory taking of Mountain View’s vested property rights.”
By seeking this judgment, MVEA is protecting the interests of all its members. As a cooperative, MVEA’s customers are members and owners, voting for its governance and sharing in the costs to operate, maintain and upgrade the system. MVEA’s members pay for the cost of complying with government regulations, including El Paso County’s unlawful interpretation of its permitting powers, which increases electric bills for hard-working families, small businesses, rural school districts and nonprofits—in El Paso County and Arapahoe, Crowley, Douglas, Elbert, Lincoln, Pueblo and Washington counties.
MVEA has tried to work with the County to explain why the County’s interpretation of its permitting powers is contrary to law. Unfortunately, according to Herron, the County has not responded to our concerns—and then brought in its lawyers, forcing this to become a legal issue. MVEA did not want this to happen, but now MVEA needs the court’s opinion on this matter.
“MVEA is concerned about the County overstepping its permitting powers. If the County is allowed to regulate MVEA’s distribution lines by misclassifying those lines as transmission lines, this will no doubt increase electric bills for all MVEA members, unfairly impact our members outside of El Paso County, put further pressure on rural schools, and possibly hinder economic development in the County,” Herron concluded. “We can’t just let that happen. Providing affordable and reliable electricity has been our mission for more than 75 years, and we will fight to protect members and to continue that vital mission.”