A local developer has filed court documents in an attempt to block a local utility from building a substation.
Attorneys Sarah Cripps and Brandon Cox filed a complaint on behalf of Joe Rice, developer of the Meadowview Subdivision off College Street, on Sept. 2 against the Smithville Electric System (SES) and the City of Smithville.
The action seeks a declaratory judgment to construe and apply state law to the matter, and asks for a temporary injunction and a permanent injunction to prohibit SES from constructing the facility in an R-1 low density residential district, and for any further relief. Cripps and Cox have asked for a hearing on the request for an injunction on Sept. 8 at 9 a.m., or as soon thereafter as counsel may be heard in DeKalb County Chancery Court.
The attorneys allege that SES defied state law by beginning excavation of the site for the new substation after the Smithville Planning Commission rejected the plans at a June 14 meeting. The planning commission concluded that the location is inconsistent with the city’s Land Use and Transportation Plan.
Cripps and Cox argue that the SES board was required to appeal the planning commission’s decision to the chief legislative body for the city, the mayor and board of aldermen, which has the power to ratify or overrule the planning commission by a simple majority vote. The SES board apparently did not file an appeal, and voted to continue with the project.
City Attorney Vester Parsley, Jr., however, told the Smithville Planning Commission at the June 14 meeting that the Smithville Electric System Board of Directors has the authority to overrule the decision of the planning commission and proceed with its plans without having to appeal to the Smithville Board of Mayor and Aldermen.
Attorneys for Rice allege that his rights are currently and will continue to be violated as a direct result of SES’s actions in constructing an electrical service and supply substation on real property near Rice’s residential development, and that the proposed construction of an industrial use structure in an R-1 low density residential district will have an adverse impact on the residential subdivision and real property owned by Rice, resulting in continued and marked depreciation of the value of Rice’s real property and to persons who reside directly adjacent to the location of the proposed construction, unless a temporary and permanent injunction is issued by the court.
Cripps and Cox further claim that an electrical service and supply substation at the location would create both auditory and visual pollution to residents close by, and that approximately two acres of the SES property for this facility is located within a protected wetlands area which will cause serious, permanent, and irreparable harm and damage to the ecosystem and environment of such a protected wetlands area if the substation is built there.
Rice’s attorneys go on to allege that Smithville Electric System apparently asserts that it is an entity wholly separate from the municipality, City of Smithville, in that its budget is separate from the city’s budget. But Cripps and Cox claim that SES’s contention that it is independent from the city is unsupported by the utility’s own by-laws and other proof. They say SES has the status of a governmental department authorized by and subject to the Smithville Board of Mayor and Aldermen.
According to Cripps and Cox, Smithville Electric System is a public utility, wholly owned by the City of Smithville as a governmental department of the municipality and that the authorization or financing of SES falls directly within the scope and ambit of the chief legislative body of the city, the board of mayor and aldermen. They further reference the by-laws of Smithville Electric System which show a relationship between the city and the utility in that the members of SES must be appointed by the mayor and approved by the aldermen; that a member of the board of mayor and aldermen shall serve as an ex officio SES board member with full voting privileges; that SES is required to prepare and file a complete annual report with the board of mayor and aldermen each year; and that under state law, the city conducts an annual or causes to be made an annual audit of the accounts and records of all departments including SES. As further proof that the city considers SES a governmental entity, Smithville Electric System obtained a building permit for this proposed substation without having to pay a fee.
Cripps and Cox state in the complaint that the “Smithville Electric Power Board voted unanimously on June 24, 2015 to authorize the purchase of a home and approximately 5.54 acres of real property situated at 1223 South College Street in Smithville for the sum of $150,000 for the purpose of erecting an industrial use, to wit: an electrical service and supply substation being 20,160 square feet in size and being capricious enough unilaterally to supply electric power to all industries, businesses, and residences within the City of Smithville. At all times material to this cause of action, the aforementioned 5.54 acres has been located within an R-1 low density residential district within the City of Smithville.
On Tuesday, June 14, 2016 the Smithville Planning Commission voted to disapprove the South College Street location for the proposed electrical service and supply substation pursuant to the provisions of TCA (state law) on the grounds that the location of the proposed construction of an electrical service and supply substation at this location is inconsistent with and contrary to the City of Smithville’s Land Use and Transportation Plan recently adopted by the Smithville Planning Commission.
Subsequently, the Smithville Electric Power Board voted unanimously to defy the June 14 decision of the Smithville Planning Commission and determined to proceed with construction of the electrical service and supply substation upon the real property situated at 1233 South College Street in Smithville, all without first obtaining a final decision from the City of Smithville’s Board of Mayor and Aldermen either ratifying or overruling the June 14 action of the Smithville Planning Commission.
Indeed, SES has, in short, determined that it is a law unto itself and, hence, subject to the authority of neither the Smithville Planning Commission nor the chief legislative body of the City of Smithville, i.e., the Smithville Board of Mayor and Aldermen.
Plaintiff, Joe Rice, is the developer of the Meadowview Subdivision, a residential development located within an R-1 low density residential district and situated in close proximity to the location put forward by the SES for construction of its electrical service and supply substation. Plaintiff Rice is the fee simple owner of 39 lots or parcels of unimproved real property within the Meadowview Subdivision.
Plaintiff Rice commences this declaratory judgment action seeking to have this Court construe and apply the provisions of Tennessee Code Annotated to the facts of the case. Specifically, Plaintiff Rice asserts: (1) SES is a public utility and governmental department of the municipality, City of Smithville; (2) that Smithville Electric System is wholly owned by the City; and (3) that the City has authorized SES to sell, furnish, and disseminate hydroelectric power within the corporate limits of the City. Moreover, Plaintiff Rice will demonstrate that the authorization or financing of the SES falls directly within the scope and ambit of the chief legislative body of the municipality, i.e., the Smithville Board of Mayor and Aldermen.
Additionally, Plaintiff Rice respectfully urges this Court to find and conclude that TCA (state law) as applied to the facts of the instant case, requires that the location and the extent of the electrical service and supply substation proposed to be constructed by the SES be submitted for final decision by a simple majority vote of the members of the chief legislative body of the municipality, the Smithville Board of Mayor and Aldermen.
In addition, the Plaintiff Rice respectfully asks this Honorable Court for entry and filing of an order declaring that Smithville Electric System violated the provisions of TCA (state law) by acting in complete defiance and utter disregard of the June 14 ruling of the Smithville Planning Commission and instead, proceeded to excavate and prepare the site for construction of an electrical service and supply substation without first appealing the ruling of the Smithville Planning Commission to the chief legislative body of the City of Smithville, i.e. the Smithville Board of Mayor and Aldermen.
Finally, Plaintiff Rice will demonstrate that he has suffered and will continue to suffer immediate and irreparable injury, loss, damage, and harm if Smithville Electric System and the City are not temporarily and permanently enjoined and prohibited from constructing an electrical service and supply substation proximal to Rice’s residential subdivision.”
