Judge: Decision on power line rests with county

Judge: Decision on power line rests with county By: David Lias
Plain Talk A circuit court judge decided Monday that the Clay County Commission, and not the court system, should have a say as the city attempts to gain permission to build a new looped power line. City administrators, anxious to begin work on a project they claim will eventually save money for Vermillion�??s electric customers, found themselves essentially back at square one after the judge�??s ruling. Vermillion city leaders want to link the community to a new power source �?? the electricity generated at the Spirit Mound substation north of town. To do that, the city proposed this spring to construct its own looped 115 kilovolt (kV) power line from the Spirit Mound station south to Vermillion, with lines leading back north from the city limits to the Spirit Mound power source. For that to occur, however, the city needed permission from the Clay County Commission to place power poles for the new transmission lines along the right-of-way of several county roads. After hearing from both city officials and people who live in the vicinity of where the proposed line would be located, commissioners decided in April to deny the city�??s request. The county�??s decision eventually lead to a day-long civil hearing before Circuit Court Judge Steven Jensen Wednesday, Aug. 13, in Vermillion. On Monday, in a verbal ruling from the bench in the Clay County Courtroom, Jensen said the county acted arbitrarily last April when it denied the city�??s application to place 70-foot high power poles in the right-of-way of county roads. Many of Jensen�??s findings were favorable to the city. He said Monday that the proposed looped power line is consistent with regulations, safety concerns and other issues. He added, however, that he didn�??t feel �??it is appropriate for this court to make the decision whether the power lines should be placed at this point,�?� he said. Instead, the judge said the court believes it is appropriate to remand to the county commission to make the full determination (of whether the right-of-ways should be granted) based on evidence rather than basing their decision on questions or concerns. He said the county should consider the evidence that was presented in court last Wednesday, and also consider any other relevant information that either citizens or the city of Vermillion wants to present. City Attorney James McCulloch asked Jensen whether �??findings of fact�?� that were presented at last Wednesday�??s hearing by the city would be binding upon the county commission. �??I�??m just trying to avoid the same kind of situation that occurred in the first hearing,�?� McCulloch said, �??where some new things may come up that may be a little bit unexpected �?� I�??m concerned about the parameters the county commission may have.�?� Jensen said his view is based on the lack of the commission basing its decision on any evidence as opposed to a decision based on having a lot of questions. �??I think, in my view, the county needs to make its own findings �?� and I think my decision is limited to whether they have considered all of the evidence,�?� the judge said. �??If there�??s other evidence presented and the commission finds that it is valid, I guess you�??re asking me what I�??ll do the next time around, and I don�??t know,�?� Jensen told McCulloch. �??My biggest concern on this is I don�??t think the county commission had enough information to make a decision and this is something that obviously would affect citizens who rely on both government entities. �??I think the commission �?? it kind of fell on them in the last second, and they were asked to make a decision and get it through and be done �?? and I just don�??t think they gave it enough consideration to make a determination. �??I think they ultimately are the ones that have to make that determination,�?� he said. Jensen said that in determining whether the county commission�??s actions are capricious, the Supreme Court has stated that it must be considered whether the actions are based on personal, selfish, �?� false information, and are characterized by a lack of relevance and competent evidence. He added that �??the court does not believe that there was any irrelevant, incompetent evidence before the commission on April 8.�?� Jensen admitted that the outcome of the April commission meeting was difficult to review, because essentially there was no decision made by the county. �??It really wasn�??t a decision based on information, particularly not the information that came before the court in the hearing last week,�?� he said. Jensen said the minutes of the commission�??s April 8 meeting are the best evidence of the reason for denial by the county. �??The reason stated is there were too many unanswered questions,�?� he said. �??However, commissioners did testify that they were concerned about safety issues, and the maintenance of the roads with the utility poles in the right of way.�?� Jensen said the South Dakota Supreme Court has ruled in earlier cases that the Circuit Court is not to sit as a one-person review commission in general county appeals, but rather is to determine whether a county�??s decisions are arbitrary and capricious and an abuse of discretion. Jensen said state statutes give counties discretion in terms of deciding whether to grant a right-of-way. The judged noted that there are several utilities that run in the right-of-ways of many county roads, including the roads in the route of the city's proposed 115 Kv loop. Although the county commission minutes don�??t precisely give a clear statement of why the city�??s application was denied, Jensen said there was testimony that some of the information presented to the commission by opponents of the proposal was not accurate. �??Most concerning was the pole placement �?� in terms of safety issues, drainage issues, snow issues, and there�??s no evidence either before the commission or before this court that shows that these poles would ever be placed in the bottom of ditches or in the lowest point of the ditches,�?� Jensen said. �??It appears that much of the information in that regard was based on speculation rather than any substantive evidence that would have been appropriate for the commission to decide.�?� The official record of the April meeting doesn�??t discuss pole placement, but the testimony of county commissioners last Wednesday demonstrated it was one of their major concerns, he said. Jensen said it is the county commission�??s responsibility to review an application and make a decision in terms of �??here is the evidence and here are the factors we are denying this on, rather than saying we have a lot of questions so we are just going to deny it. That doesn�??t seem to be a legitimate, valid basis on which to deny the right-of-way request.

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