Posts Tagged ‘utility’

Utility Fails to Establish Public Use and Necessity Resulting in Dismissal of Condemnation Case

Posted by David Deutsch

On March 15, 2012, the Yavapai County Superior Court ruled in favor of a landowner represented by Dale Zeitlin against APS in a condemnation case where APS sought to condemn a right of way easement over private property to be used “to furnish the public with electricity”. Zeitlin argued that APS had failed to establish it had the required public use and necessity to take the property and asked the court to dismiss APS’s lawsuit. The court agreed that APS did not have a reasonably forseeable need for the property and dismissed the case. The court’s holding is the first case in Arizona where a public utility has been found to have acted arbiltrarily and capriciously in condemning private property. The court stated: “. . . there is a difference between APS not having plans to immediately build and not having immediate plans to build.” In the case, APS had no plans to construct on the easement it sought. Acknowledging that a utility company is entitled to pursue easements that allow for the utility’s reasonably forseeable future need to provide electricity, the court stated that “there needs to be a discernable differnece between that and the mere condemnation and acquisition of property and the stockpiling of property interests during difficut economic times and at a highly favorable reduced price in anticipation that the property condemned lies between two points on a map through which a power line might someday serve their purposes.” The court concluded that condemnation for reasonable forseeable future needs is a legitimate baisis for condemnation, but stockpiling property at prices and times advantageous to the utility without demonstrative future need is arbitrary and capricious.