Bd. of Cnty. Comm'rs Indian River Cnty. v. Graham
| Decision Date | 19 May 2016 |
| Docket Number | Nos. SC15–504,SC15–505.,s. SC15–504 |
| Parties | BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, Florida, Appellant, v. Art GRAHAM, etc., et al., Appellees. Board of County Commissioners of Indian River County, Florida, Appellant, v. Art Graham, etc., et al., Appellees. |
| Court | Florida Supreme Court |
Floyd Robert Self of Berger Singerman LLP, Tallahassee, FL, and Dylan Todd Reingold, County Attorney, Vero Beach, FL, for Appellant.
Charles J. Beck, General Counsel, Samantha M. Cibula, Attorney Supervisor, and Kathryn Gale Winter Cowdery, Senior Attorney, Tallahassee, FL, for Appellee Florida Public Service Commission.
Robert Scheffel Wright and John Thomas LaVia, III of Gardner, Bist, Bowden, Bush, Dee, LaVia & Wright, P.A., Tallahassee, FL; and Wayne Ross Coment, City Attorney, Vero Beach, FL, for Appellee City of Vero Beach.
Meredith Deanna Crawford, Assistant County Attorney, Pensacola, FL, for Amicus Curiae Escambia County, Florida.
Virginia Saunders Delegal, General Counsel, Florida Association of Counties, Inc., Tallahassee, FL, for Amici Curiae Florida Association of Counties, Inc. and Florida Association of County Attorneys, Inc.
William Bartow Willingham and Michelle Lynn Hershel, Tallahassee, FL, for Amicus Curiae Florida Electric Cooperatives Association, Inc.
, J.
In this consolidated appeal, the Board of County Commissioners Indian River County, Florida (County) challenges two separate orders of the Florida Public Service Commission (PSC).1 The first order is a declaratory statement that the PSC issued in response to a petition filed by the City of Vero Beach (City), in which the PSC declared that the City has the right and obligation under territorial orders issued by the PSC to continue to provide electric service in the territory described in the orders (which includes unincorporated portions of the County) upon the expiration of the City's franchise agreement with the County. We reject the County's challenges to this order, and for the reasons below, hold that the City had standing to seek this declaration from the PSC concerning territorial orders to which the City is a party and which the County had taken the position would be voided by the Franchise Agreement's expiration, thereby effectively evicting the City. We further hold that the PSC's declaration is within the PSC's authority as the entity with exclusive and superior statutory jurisdiction to determine utility service areas, and that the declaration does not impermissibly grant the County's property rights to the City or violate the statutory prohibition against the PSC affecting a franchise fee.
The second order on appeal denies the County's petition for a declaratory statement on the ground that it failed to meet applicable statutory requirements. We agree and affirm this order without further comment.
The Franchise Agreement between the County and the City, which gives the City the exclusive right to use County property to construct, maintain, and operate an electric system2 in unincorporated areas of the County, expires in 2017.3 The Franchise Agreement provides for renewal upon the mutual agreement of the parties, but the County has notified the City that it will not agree to a renewal. The agreement does not contain a buy-out clause or otherwise address the parties' rights upon its expiration. For the past several years, the City has been attempting to sell its system to Florida Power and Light Company (FPL), who also serves pursuant to PSC territorial orders in the unincorporated areas of the County. The County supports the sale to FPL, but it remains uncertain.
The Franchise Agreement defines the boundaries for the City's electric service as those that “are or may be defined in the Service Territory Agreement between the City[ ] and Florida Power and Light Company.” Prior to the Franchise Agreement's execution, the PSC had issued territorial orders approving the City's service area vis-à-vis FPL's, including a 1980 amended territorial agreement that recognizes the City's and FPL's “right and obligation to serve within” the areas referenced in the agreement. The PSC also approved an amendment to the service area boundaries after the Franchise Agreement's execution.
Representing that “the expiration of the Franchise [Agreement] calls into question the territorial agreements and boundaries approved by the PSC since the underlying legal authority for those PSC approved territorial agreements and boundaries will no longer exist,” the County filed with the PSC a petition for declaratory statement requesting 14 declarations regarding its “rights, duties, and responsibilities ... once the [franchise] expires.” The County alternatively requested “that the PSC initiate such proceedings as are authorized within the PSC's jurisdiction to address the territorial agreements, service boundaries, and electric grid reliability responsibilities so as to ensure the continued and uninterrupted supply of electric service throughout the County.” The City and FPL intervened and opposed the County's petition.4
In a separate proceeding before the PSC, the City also filed its own petition for declaratory statement. In its petition, the City alleged that the County's petition “threatens to attempt to evict the City from serving in the City's [PSC]-approved service areas in unincorporated Indian River County upon the expiration of [the] franchise agreement,” and asked the PSC to make the following two declarations:
The County intervened and opposed the City's petition.5
The PSC did not consolidate the dockets, but it considered both petitions at the same oral argument. Thereafter, the PSC issued an order denying the County's petition on the ground that it “fail[ed] to meet the statutory requirements necessary to obtain a declaratory statement.” In a separate order, in response to the City's petition, the PSC, rather than issue the declarations requested by the City, declared that the City “has the right and obligation to continue to provide retail electric service in the territory described in the Territorial Orders upon expiration of the Franchise Agreement.”
The County appealed both orders to this Court, and this Court consolidated the cases for all appellate purposes.
In its appeal to this Court, the County argues that the PSC erred in declaring that the City has the right and obligation to continue to serve its PSC-approved territory, including unincorporated areas of the County, after its franchise agreement with the County expires. Specifically, the County attacks the PSC's order on four bases, arguing that (1) the City lacked standing to request the declaration; (2) the declaration was outside the PSC's authority; (3) the PSC's declaration improperly strips the County of its property rights and grants them to the City, unregulated and in perpetuity; and (4) the declaration violates section 366.13
's prohibition against the PSC “in any way” affecting a franchise fee. We disagree and affirm the PSC's order.
As an initial matter, the County argues that the City lacked standing to seek the declaratory statement from the PSC. Section 120.565, Florida Statutes
, governs the requirements for requesting a declaratory statement from an agency such as the PSC, and it provides in pertinent part:
As the PSC concluded below, the City's petition “met the[se] threshold requirements for issuance of a declaratory statement.” More specifically, the record establishes that the County has taken the position that, when the Franchise Agreement expires, so too does the City's right and obligation to serve its PSC-approved territory within the franchise area. For example, in its own petition for declaratory statement, the County stated that, “[w]ith respect to the territorial agreements and boundaries approved by the PSC, once the Franchise has expired the [County] believes that those agreements and boundaries shall be invalid and void or voidable at least with respect to the Franchise Area.”
As an electric utility subject to regulation by the PSC and a party to PSC territorial orders that the County intends to treat as invalid, at least with respect to property located in the franchise area, the City had standing to ask the PSC to provide a declaratory statement as to how the territorial orders (entered pursuant to the PSC's “exclusive and superior” authority under section 366.04, Florida Statutes
) apply to its particular set of circumstances. See
Pub. Serv. Comm'n v. Fuller, 551 So.2d 1210, 1211 (Fla.1989) (...
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...of the utility.").Although there do not appear to be any cases specifically on point, in Board of County Commissioners Indian River County v. Graham, 191 So. 3d 890 (Fla. 2016), the Florida Supreme Court addressed the jurisdiction of the PSC in relation to the rights of a property owner. Id......
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