Homer Alaska - News -

Story last updated at 11:53 PM on Wednesday, May 7, 2008

Judge issues split decision in HEA right-of-way case



BY MICHAEL ARMSTRONG
STAFF WRITER

In a split decision issued late last month, Kenai Superior Court Judge Carl Bauman ruled that the city of Homer improperly revoked a right-of-way permit in 2006 allowing Homer Electric Association to extend a powerline along Judy Rebecca Court near Mount Augustine Drive. Bauman restored the permit, with the period of construction modified for 2008.

"That decision will hopefully set precedent for future situations like this, and that was our point," said HEA spokesman Joe Gallagher.

However, Bauman found for the city and denied a claim by HEA seeking potential damages. The judge ruled the city had immunity under Alaska Statutes.

While defending in court its right to build in city rights-of-way, HEA started construction on an alternate route to bring power to Country Club Estates, a large-lot subdivision on Baycrest Hill off the Sterling Highway.

In 2006, after Country Club Estates landowners asked for power, HEA had proposed a powerline route along Judy Rebecca Court and over a creek that would have meant cutting alders and putting in overhead lines. Raising concerns that the project would increase erosion not to mention marring their Kachemak Bay view neighbors protested the Judy Rebecca Court route, and formed the Baycrest Subdivision Neighborhood Alliance to fight HEA's plan. After listening to neighbors, the city of Homer pulled HEA's permit to work in a city right of way. HEA did put in lines on the Country Club Estates portion of the project.

HEA engineers last year came up with an alternate route from the Sterling Highway down to Orca Way, a platted right-of-way on the edge of Country Club Estates and north of Mount Augustine Drive. HEA hired Silverfox Construction, owned by Bob and Shirley Harr of Kasilof, to drill a hole and run conduit on a mostly underground route. Silverfox Construction used a directional drilling machine to bore underground holes and string conduit for the powerline. Construction started last fall and all the underground boring is done, Gallagher said. Some conduit and electrical lines still have to be installed and connected.

"The practical reality of the Country Club Estates job is it will be done through an alternate route," he said.

City lawyers said HEA didn't need the Judy Rebecca Court right-of-way because it had an alternate route and thus the issue was moot. HEA lawyers countered that it still wanted the option of using Judy Rebecca Court should unforeseen problems arise. Bauman wrote that until power is successfully installed along the Orca Way route the case is not moot.

HEA also argued the city had to grant a right-of-way permit, citing a 1999 HEA case, Homer Electric Association v. City of Kenai, in which the Alaska Supreme Court ruled that state law requires cities to grant HEA authority to use rights-of-way. That was the principle HEA pursued and sought to affirm.

Bauman considered the right of a city to impose conditions or exceptions to a right-of-way permit. In an earlier decision in the case, Superior Court Judge Charles Huguelet said exceptions are not involved since the city made an after-the-fact revocation, and Bauman affirmed that decision.

Michael Armstrong can be reached at michael.armstrong@homernews.com.

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