Friday, August 2, 2019

Mountain View Electric sues El Paso County over land-use code requirements

Posted By on Fri, Aug 2, 2019 at 12:10 PM

  • Photo by Todd Aarnes on Unsplash
El Paso County is flexing muscle it doesn't have by trying to require Mountain View Electric Association to move infrastructure to accommodate roads, according to a lawsuit filed by Mountain View in March.

All that could cost Mountain View tens of millions of dollars, the lawsuit says.

Mountain View sued the county and its planning department, alleging its Land Use Development Code illegally controls where utility lines are located and constitutes a "taking" of property owned by Mountain View.

The lawsuit seeks an order from a judge saying either the Land Use Development Code can't be enforced regarding siting of certain utility lines, or that the code essentially constitutes a "taking" of its property for which the county must compensate Mountain View.

The Land Use Development Code, adopted in 2013 and amended in 2015, includes a chapter that addresses "site selection and construction of major facilities of a public utility," the lawsuit says. Code provisions bar electric transmission lines and pipelines from being built, relocated, enlarged or upgraded within 105 feet of the centerline of any county road that's currently or proposed to be classified as an arterial or expressway.

Without that section in force, utilities can build infrastructure closer to the road and, if the road is ever expanded in the future, the county bears the cost of moving the utilities.

By adopting the new code, the lawsuit contends, "the County is attempting to place these relocation costs on the utilities [costs that are in turn paid by utilities' rate payers in the form of higher rates] by forcing the utilities to incur the cost of relocating certain infrastructure that they might seek to rebuild or upgrade."

In many cases, Mountain View says, this part of the code means it would have to acquire right of way "across and/or through existing buildings and other improvements" that might have to be moved to make way for utility lines at some undetermined time in the future to accommodate a wider road.

Much to Mountain View's chagrin, the county's Major Transportation Corridors Plan classifies dozens of roads as current or proposed arterials or expressways, many within Mountain View's service area. That area lies north, east and southeast of Colorado Springs and covers 5,000 square miles.

Most of the utility easements were obtained prior to adopting of the new code, Mountain View says.

In mid-2017, county officials told Mountain View they interpret the new standards as applying both to high voltage transmission lines and low voltage end-user distribution lines.

Amid efforts in 2018 to clarify what the county would or wouldn't allow, the county told Mountain View it planned to "dramatically increase" the number of roads covered by the regulations by including areas 45 feet from the centerline of roads classified as current or proposed "collector" streets, which handle traffic volumes lower than arterials and expressways.

Mountain View contends the county is illegally regulating the utility's siting of distribution lines. (Mountain View acknowledges the county has powers through 10-41 permits to review transmission lines.)

The dispute, Mountain View says in the lawsuit, has created "a cloud of uncertainty" over its rights and planned projects, which could impact "tens of millions of dollars in investment."

In answer to the lawsuit, the county states, "The Board of County Commissioners complied with the correctly and reasonably applied applicable statutes, case law, its land use regulations and the applicable El Paso county Master Plan elements including its policy plan and applicable small area plans."

The county declined to comment when contacted by the Independent.

A case management meeting is set for Aug. 22.

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