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Frances Kreutzer, Marie Caranci v. Illinois Commerce Commission

November 30, 2012

FRANCES KREUTZER, MARIE CARANCI,
WILLIAM BYRNE, AND LINDA BYRNE,
PETITIONERS,
v.
ILLINOIS COMMERCE COMMISSION, COMMONWEALTH EDISON COMPANY,
THE VILLAGE OF HUNTLEY, EXELON BUSINESS SERVICES COMPANY,
NEUEMANN HOMES, INC., INDYMAC BANK, F.S.B.,
HOWARD E. REID, AND THE VILLAGE OF GILBERTS,
RESPONDENTS.



On Petition for Administrative Review from the Illinois Commerce Commission. ICC Case No. 07-0310

The opinion of the court was delivered by: Justice Birkett

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.

OPINION

¶ 1 This case comes before this court for the second time. In the prior proceeding, Kreutzer v. Illinois Commerce Comm'n, 404 Ill. App. 3d 791, 815 (2010) (Kreutzer I), we reversed the order of the Illinois Commerce Commission (Commission) granting respondent Commonwealth Edison Co. (ComEd) a certificate of public convenience and necessity for the construction of an electrical power line along Kreutzer Road, on which is situated the property of petitioners, Frances Kreutzer, Marie Caranci, William Byrne, and Linda Byrne. On remand, ComEd modified the dimensions of the easement it was seeking and the Commission determined that this change cured the evidentiary deficiency on which the reversal in Kreutzer I was based. The Commission rejected petitioners' attempt to introduce additional evidence on whether the Kreutzer Road route was superior to the other candidate routes, an issue that the Commission had determined in the first proceeding. The Commission reasoned that our reversal and remand in Kreutzer I was narrow and did not reopen the issue that petitioners attempted to reargue. The Commission reconfirmed the Kreutzer Road route with the modification that ComEd had made. Petitioners appeal, and we affirm.

¶ 2 BACKGROUND

¶ 3 The backdrop is set forth in Kreutzer I, and we restate only what is necessary here. In May 2007, ComEd petitioned the Commission for a certificate of public convenience and necessity for the installation of a new electrical transmission line in McHenry and Kane Counties, the latest phase in its Northwest Reliability Project. The first leg of the proposed line would begin at an existing electrical substation at Interstate 90 and Randall Road in Gilberts and run westward six miles along Interstate 90 to a new substation to be called the Sandwald substation. The second leg of the line would run north from Interstate 90, eventually reaching and running eastward along the south side of Kreutzer Road before ultimately connecting with an existing transmission line. The proposed line, known as the Kreutzer Road route, would pass through petitioners' property on Kreutzer Road.

¶ 4 A hearing on the petition occurred in 2007 and 2008. A Commission administrative law judge (ALJ) received prepared testimony from various witnesses comparing the Kreutzer Road route, which was endorsed by the Commission staff, to three other candidate routes: the "Freeman/Galligan" route, the "modified Freeman/Galligan" route,*fn1 and the "Main & Haligus" route. Exhibit B to ComEd's petition was a legal description of the Kreutzer Road route. The route was described as running "ALONG KREUTZER ROAD APPROXIMATELY 6,433.0 FEET TO THE INTERSECTION OF KREUTZER ROAD AND HUNTLEY ROAD," but the dimensions of the corridor along Kreutzer Road were not indicated. Ronald Dyslin, a real estate agent with ComEd, testified before the ALJ that ComEd was seeking a "50-foot right-of-way *** adjacent to the south edge of the current road right-of-way." In January 2008, the ALJ closed the proofs in the case. In July 2008, the ALJ filed a proposed order authorizing ComEd to install the transmission line along the proposed Kreutzer Road route. Appendix 1 to the proposed order adopted verbatim ComEd's Exhibit B. The ALJ then invited the parties to submit their briefs on exceptions. Petitioners subsequently filed a motion for the ALJ to take judicial notice of the fact that, on June 10, 2008, Kane County passed an ordinance designating petitioners' home on the south side of Kreutzer Road (Kreutzer House) as a historic landmark. Petitioners argued that the designation significantly impacted the desirability of the Kreutzer Road route. The ALJ denied the motion. In its brief on exceptions, ComEd suggested that it could minimize the impact on the Kreutzer House by locating the transmission line to the south side, or rear, of the house. ComEd attached as Appendix 1 to its brief a legal description that it claimed would allow it flexibility to situate the transmission line so as to preserve the aesthetics of the house. Appendix 1 modified the legal description in Exhibit B to state that the line would run "ALONG KREUTZER ROAD WITHIN 175 FEET OF THE CENTERLINE OF THE ROAD RIGHT-OF-WAY FOR A DISTANCE OF APPROXIMATELY 6,433.0 FEET TO THE INTERSECTION OF KREUTZER ROAD AND HUNTLEY ROAD." (Emphasis added.)

¶ 5 On October 8, 2008, the Commission adopted the recommendation of the ALJ and issued its "order and certificate of public convenience and necessity" for the construction of the proposed line along the Kreutzer Road route. The Commission applied the criteria of sections 8-406(b) and (d) of the Public Utilities Act (220 ILCS 5/8-406(b), (d) (West 2008)): "(b) No public utility shall begin the construction of any new plant, equipment, property or facility which is not in substitution of any existing plant, equipment, property or facility or any extension or alteration thereof or in addition thereto, unless and until it shall have obtained from the Commission a certificate that public convenience and necessity require such construction. Whenever after a hearing the Commission determines that any new construction or the transaction of any business by a public utility will promote the public convenience and is necessary thereto, it shall have the power to issue certificates of public convenience and necessity. The Commission shall determine that proposed construction will promote the public convenience and necessity only if the utility demonstrates: (1) that the proposed construction is necessary to provide adequate, reliable, and efficient service to its customers and is the least-cost means of satisfying the service needs of its customers or that the proposed construction will promote the development of an effectively competitive electricity market that operates efficiently, is equitable to all customers, and is the least cost means of satisfying those objectives; (2) that the utility is capable of efficiently managing and supervising the construction process and has taken sufficient action to ensure adequate and efficient construction and supervision thereof; and (3) that the utility is capable of financing the proposed construction without significant adverse financial consequences for the utility or its customers.

(d) In making its determination, the Commission shall attach primary weight to the cost or cost savings to the customers of the utility. The Commission may consider any or all factors which will or may affect such cost or cost savings."

¶ 6 In a detailed discussion, the Commission applied these criteria to each of the three candidate routes and concluded that the Kreutzer Road route best met the standards. Appendix 1 to the Commission's order was a verbatim copy of ComEd's Appendix 1, with the 175-foot right-of-way. The Commission granted ComEd authority to institute eminent domain proceedings as necessary to construct the route described in the Commission's Appendix 1.

¶ 7 In November 2008, petitioners filed an application for rehearing, in which the sole argument was that the evidence did not support the 175-foot range that the Commission, during the exceptions period, granted ComEd in the placement of the line. The Commission denied rehearing, and petitioners appealed. In Kreutzer I, we noted that petitioners made the following three arguments to us:

"First, they claim that the Commission erred when, after the proofs were closed, it authorized ComEd to align the transmission line within 175 feet of the centerline of Kreutzer Road, when ComEd's witnesses, such as Dyslin, indicated only that ComEd needed a 50-foot-wide right-of-way adjacent to Kreutzer Road. Relatedly, petitioners suggest that the Commission may have violated the Open Meetings Act (5 ILCS 120/1.01 et seq. (West 2008)) in that, given the late insertion of the reference to the 175-foot margin, 'there may have been input from some source other than the record.' Second, they argue that the Kreutzer Road route was not the least-cost route for the proposed line in any case, and that the widening of the easement beyond that contemplated by ComEd's witnesses exacerbated the failure of proof. Third, they argue that the Commission was wrong to deny their request to take administrative notice of Kane Country's designation of the Kreutzer House as a historical landmark." Kreutzer I, 404 Ill. App. 3d at 808.

¶ 8 We determined that the sole argument petitioners preserved for appeal concerned the 175-foot easement:

"We agree with ComEd and the Commission that petitioners' argument for rehearing on the issue of the least-cost option was significantly narrower than the argument they now bring on the issue. We note first that petitioners did not question below, and do not question here, the general need for the transmission line. They challenge only the Commission's preferred layout for the line, the Kreutzer Road route. In arguing that specific point here, petitioners contend that the evidence before the Commission does not demonstrate that the Kreutzer Road route is the least-cost option either with a 50-foot corridor adjacent to Kreutzer Road, as Dyslin contemplated, or with the revised range of up to 175 feet from the centerline of Kreutzer Road. In their application for rehearing, however, petitioners objected only to ComEd's attempt to secure a right-of-way wider than 50 feet. Petitioners thus forfeited their challenge that the Kreutzer Road route was not the least-cost option, given a right-of-way of no wider than 50 feet adjacent to Kreutzer Road. Thus, we do not review whether the Kreutzer Road route was the least-cost option as laid out before the revision that ComEd prompted.

Petitioners also forfeited their argument that the Commission erred by declining to take administrative notice of the designation of the Kreutzer House by Kane County. In their application for rehearing, petitioners mentioned the Commission's denial of the motion but did not assign error to it." Id. at 809.

¶ 9 We then turned to "petitioners' one preserved contention, that there was no evidence before the Commission to demonstrate the need for a 175-foot right-of-way reckoned from the centerline of Kreutzer Road or, for that matter, any right-of-way more expansive than a 50-foot corridor adjacent to Kreutzer Road." Id. Reviewing the pertinent law, we held that an order from the Commission authorizing a utility to institute condemnation proceedings to make improvements must both "describe with reasonable certainty the portion of the property sought to be condemned" and "have an adequate evidentiary basis." Id. at 812.

¶ 10 Applying these criteria, we found two flaws in the Commission's allowance of the 175-foot right-of-way. First, the Commission's order "[did] not adequately describe the portion of property ComEd [was] authorized to seek." Id. at 813. The order "allow[ed] for placement of a transmission line of unidentified width within a range of well over 100 feet (even allowing for substantial width for the road right-of-way) on petitioners' property." Id. Second, "even if such an uncertain description were sufficient, the record [did] not support a margin of 175 feet from the centerline of Kreutzer Road (in whichever direction) rather than some other margin." Id.

¶ 11 At the conclusion of our analysis, we made the following comments regarding the relief to be granted:

"As to how to proceed from here, ComEd prefers that we simply direct the Commission to delete the reference to the 175-foot width rather than 'remand for further proceedings on whether the 175-foot provision should be included.' The Commission, however, 'will accept remand to either hear evidence on the matter or to strike the 175 foot limitation out of the legal description.' Petitioners request a remand to 'reopen the hearing' but give no specifics.

We do not opt simply to have the 175-foot reference stricken. That would eliminate all measure of definiteness in the width of the right-of-way sought by ComEd and render the Commission's decision entirely out of compliance with the standards we set forth above. Notably, neither ComEd nor the Commission asks us to hold that the evidence at least supports a 50-foot right-of-way adjacent to Kreutzer Road, as described by Dyslin. We could not do so anyway because Appendix 1 to the Commission's order does not specify a 50-foot right-of-way. We simply remand this matter for further proceedings before the Commission, governed by the principles set forth above." Id. at 815.

Our judgment line read: "For the foregoing reasons, we reverse the decision of the Commission and remand this case for further proceedings consistent with this opinion." Id. The mandate, which issued on November 17, 2010, read:

"BE IT REMEMBERED, that, to wit: On the 16th day of September, 2010, a Decision of the aforementioned Court was entered of record and in accordance with the views expressed in the attached Decision the ...


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