City of Norcross v. Georgia Power Co., No. A90A1462

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: COOPER; BANKE, P.J., and BIRDSONG
• Citation: 197 Ga.App. 891,399 S.E.2d 725
• Docket Number: No. A90A1462
• Decision Date: 19 November 1990
• Parties: CITY OF NORCROSS v. GEORGIA POWER COMPANY.

Page 725

399 S.E.2d 725 197 Ga.App. 891 CITY OF NORCROSS
v.
GEORGIA POWER COMPANY. No. A90A1462. Court of Appeals of Georgia. Nov. 19, 1990.
Rehearing Denied Dec. 5, 1990.
Certiorari Denied Jan. 10, 1991.

Page 726

[197 Ga.App. 895] Boyce, Thompson & O'Brien, Peter F. Boyce, Norcross, Catherine M. Packwood, Lilburn, Hurt, Richardson, Garner, Todd & Cadenhead, Robert J. Middleton, L. Clifford Adams, Jr., Gerald W. Bowling, for appellant.

Troutman, Sanders, Lockerman & Ashmore, Robert P. Edwards, Jr., Charles F. Palmer, Atlanta, for appellee.

[197 Ga.App. 891] COOPER, Judge.

This is an appeal from the order of the superior court which affirmed a decision of the Georgia Public Service Commission.

Appellant and appellee are both electric suppliers under the Georgia Territorial Electric Service Act, OCGA § 46-3-1 et

Page 727

seq. (the "Act"). The Act establishes assigned geographical service areas within which an assigned electric supplier has the exclusive right to provide electric service subject to certain specified statutory exceptions. At issue in this case is the interpretation of one of those exceptions--OCGA § 46-3-8(a)--the so-called "large load" exception, which states that the consumer may choose a different electric supplier than the one assigned under the Act if the "service [is] to one or more new premises (but if more than one, such premises must be located on the same tract or on contiguous tracts of land), if [the premises is] utilized by one consumer and [has] single-metered service and a connected load which, at the time of initial full operation of the premises, is 900 kilowatts or greater...." Appellant alleges that appellee is violating the Act and the "large load" exception by providing electric service to a multi-building office park located within appellant's service territory. The premises (the "Premises") is being developed in phases on approximately 100 acres. Phase One, at issue in this case, involves 15.7 acres and three separate leased buildings plus a conference[197 Ga.App. 892] center for use by all the tenants. The three buildings were built as "shells" and were to be completed on the interior as they were leased and occupied by tenants. Prior to beginning construction on the Premises, the developer contacted appellant regarding electricity and was told that a fee, payable in advance, would be required for underground facilities. Upon contacting appellee, the developer was told that appellee could provide the service with no up-front fee if the 900 kilowatt and the other requirements of the "large load" exception could be met. At that time, a representative of appellee made estimates and calculated that the requirements could be met and service was subsequently provided by appellee. Just prior to the administrative hearing, and well after the buildings had been completed and substantially leased and occupied, appellant's experts performed an inspection of the Premises and determined that if all the buildings were considered together, the total connected load at that time exceeded 900 kilowatts.

The issues to be determined at the hearing were whether the Premises constituted one premises or several premises under the Act, whether the Premises are utilized by one consumer, whether the Premises have single-metered service, and whether the connected load to the Premises at the time of initial full operation was 900 kilowatts or greater. After much discussion of these issues, the hearing officer determined that the service to the...