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Energy, Telecommunications and Utilities Law Alert - Regulatory Commission Must Decide Reasonableness of Municipal Ordinance

On Aug. 24, the Indiana Court of Appeals issued its opinion in Duke Energy, Indiana LLC v. Town of Avon, No. 93A02-1704-EX-780 (Ind. Ct. App. Aug 24, 2017), that reversed an Indiana Utility Regulatory Commission (IURC) order dismissing Duke’s complaint against Avon, Indiana, about a town ordinance that governs utility rights of way and their cost. The issue has been remanded to the IURC.

The dispute arose out of Avon’s plans to construct trail improvements and an ordinance adopted by Avon requiring Duke to relocate its facilities and to pay for the relocation. Avon originally filed a lawsuit in Hendricks Circuit Court seeking an injunction to order Duke to comply. Duke then filed a complaint with the IURC pursuant to Indiana Code § 8-1-2-101 seeking a review of the reasonableness of the ordinance. The IURC dismissed Duke’s complaint because of the pending lawsuit in Hendricks Circuit Court.

On appeal, the Indiana Court of Appeals reversed IURC’s decision and remanded to the agency, holding that “Indiana law establishes exclusive jurisdiction in the IURC.” The Indiana Energy Association and the Indiana Chapter National Association of Water Companies, Inc., joined in an amici brief. After noting and thanking the amici curiae, the court quoted extensively from the brief to the effect that there “are sound public policy reasons why the General Assembly has declared the [IURC] to be the exclusive arbiter of enforceability of ordinances affecting utility services.”

For more information, please contact the attorneys with which you work or Energy, Telecommunications and Utilities team members Nick Kile at Nicholas.Kile@btlaw.com or 317-231-7768 or Teresa Nyhart at Teresa.Nyhart@btlaw.com or 317-231-7716.

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This Barnes & Thornburg LLP publication should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

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