The restraining order, granted by 3rd District Court Judge Stephen Henriod on Tuesday, stopped the Tooele County Planning Commission from issuing a conditional use permit for the project at a special meeting that was to be held later that same evening.
“Tooele City believes that important legal issues must be resolved by the court before a CUP can be issued,” said Tooele City Attorney Roger Baker. “We think it would do us irreparable harm to issue the permit because Rocky Mountain Power would claim that they then would have a vested property right that we can’t take away from them without compensating them for it.”
He added in order for RMP to build the transmission line with its preferred route, the company would have to cross approximately 4,000 feet of property owned by Tooele City.
“To do this, RMP will have to acquire a right-of-way over the city’s property or acquire the property outright,” he said. “Tooele City will not sell its property, or a right-of-way across its property, for the power line, so RMP will have to try to condemn it by eminent domain.”
Baker said the company has the ability to do this because utility lines are considered to be a public purpose. However, he said according to Utah code, if the property has already been appropriated to a public use, and someone else wants to appropriate the same property to a conflicting public use, the person with the “more necessary” public use will win.
“We think the CUP should not be issued until the issues surrounding eminent domain have been resolved,” said Baker. “If they can’t condemn the city’s property then there’s no point in giving them a CUP for a route that they can’t acquire.”
Baker said the city had informed the county of their intentions before seeking the restraining order.
“We did not want to catch them by surprise,” he said. “We wanted them to understand where we were coming from and they did not object.”
Tooele County Attorney Doug Hogan said the county was certainly sympathetic and understanding of the issues that the city had raised.
“After reading the complaint it made sense to me,” he said. “I think the issues they’ve raised in seeking the temporary restraining order highlight the disharmony that exists between the conditional use permit process and facility review board process.
“There are different standards that apply in each arena,” he said, adding when transitioning from one process to the other, elements get left out. “I think that’s really what the city is trying to highlight in its complaint for this temporary restraining order, so I’m very sympathetic to what they’ve done and I understand.”
Hogan added the county appreciated being given notice of the city’s intentions so the county wasn’t shocked.
“We appreciate Tooele City giving us notice of what they were going to do so that we weren’t surprised and we had a chance to look at it and understand,” he said. “That is very helpful and I think there’s a good working relationship between the city and the county.”
Tooele County had been ordered to issue the CUP within 60 days by the Utah Utility Facility Review Board on June 21. That 60-day period expires at the end of this week. The county had requested the board stay its own order — a request that was denied Wednesday — and that the state Court of Appeals stay the board’s order — a request the court has yet to respond to.
“Absent the district court issuing that injunction [temporary restraining order], we would’ve went forward and would’ve approved that permit last night [Tuesday],” Hogan said. “That’s likely what would have happened to ensure we were complying with the board’s order. We were still hopeful a stay would be granted, but there’s been no response from the Court of Appeals. We were kind of in limbo. We’d done what we could do to stop that meeting from happening on our own. Now we’ve got kind of competing orders, but the restraining order in our estimation trumps the order the board has issued because the district court is a court of general jurisdiction and has flat out prohibited us from taking any action.”
Margaret Oler, spokeswoman for Rocky Mountain Power, said, “We were disappointed that Tooele City sought that temporary restraining order without giving any notice to the company at all. Tooele County notified the company about an hour before the hearing that the city was seeking the temporary restraining order.”
A hearing has been set for Sept. 2 before Judge Henriod for further arguments on the restraining order and motion for preliminary injunction. According to Baker, at the September hearing the court will determine whether to lift the temporary restraining order or grant a more permanent injunction until certain legal issues are resolved.
In the meantime, Baker said the city will be filing an amended complaint that seeks a resolution to the broader question of public good.
“When Tooele City has already appropriated this property for public use and Rocky Mountain Power wants to appropriate it for an inconsistent public use, who wins?” he asked. “The law says that the more necessary public use wins, but at this point only a court can determine whose use is more necessary, and we’re asking that to happen before they get a CUP.”
He added, “Tooele City believes strongly in the watershed, viewshed, open space and other public uses for which it has appropriated its own property.”
Baker said the city believes that those public uses are more necessary than the company’s proposed use for the property because the city can’t relocate its watershed and viewshed while RMP can relocate its power line.
Hogan said the county is in an interesting dilemma.
“Temporary restraining orders can be issued within a matter of minutes and they can be dissolved within a matter of minutes,” he said. “But where the judge in this case has set a hearing for Sept. 2, we felt that gives us enough time we can adjust and try to figure out when we need to tentatively schedule this [planning commission meeting] again in case that restraining order is going to go away.”
If the temporary restraining order were to be dissolved, Hogan said the county would request a certain number of days to get back into compliance (since the 60 days will have been up) until proper notice of a planning commission meeting can be made.
“I’m not trying to predict it’ll be dissolved,” Hogan said. “We’re hopeful that the city will prevail on its claims and that the injunction will be extended,” Hogan said. “Maybe it’ll be made a permanent injunction until the legal issues the city has raised are totally resolved. That would be the ideal scenario.”
In the meantime, Hogan said the Court of Appeals could also rule on the matter.
“But if it’s the status quo, which is we haven’t heard anything back, and we get to Sept. 2, we’ll be faced with the same decision, which is we’ve got this board order, we need to comply and we’re still waiting for the court that has authority to do something with that board’s order,” he said. “We’re still waiting for them to make a ruling. It’s kind of an awkward, uncomfortable spot to be in.”
Sarah Miley: swest@tooeletranscript.com
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