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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.”



About this Author

Nicholas Kile, Barnes Thornburg Law Firm, Indianapolis, Environmental and Litigation Law Attorney

Nicholas K. Kile is a partner in Barnes & Thornburg LLP’s Indianapolis, Indiana office. He practices primarily in the Governmental Services Department. He represents utilities and local governments in all facets of utility law, including utilities that are regulated in whole or in part by the Indiana Utility Regulatory Commission and those that are not. Mr. Kile’s practice includes rates and charges, bond issuances, acquisitions, privatizations, lobbying, environmental regulation, annexation, condemnation, territorial disputes, zoning, litigation, main extension agreements, cable...

Teresa Morton Nyhart Corporate and Energy Law Attorney Barnes Thornburg Law Firm Indianapolis

Teresa Morton Nyhart is a partner in the Indianapolis office and a member of the Corporate Department. She is also co-chair of the firm's Energy, Telecommunications and Utilities Practice Group, which was the only Indiana firm ranked Tier 1 on U.S. News-Best Lawyers Best Law Firms 2017 list in Indianapolis for energy law. Her practice concentrates on the energy, telecommunications and video/cable industries. She also works with consumers in the negotiation of customer specific contracts and related matters; with developers, property owners and universities; and with woman and minority owned businesses and professionals. Prior to joining the firm, Ms. Morton Nyhart worked for more than four years in the radio broadcasting and communications industry. Drawing on this experience, Ms. Morton Nyhart works with clients regarding crisis communications, media interviews and cross-examination for hearings. In 2015, Ms. Morton Nyhart celebrates 15 years of being rated AV Preeminent from Martindale-Hubbell. She is recognized in Best Lawyers in America in the categories of Energy Law and Communications and was named 2017 Energy Law "Lawyer of the Year". She has also been recognized in Indiana Super Lawyers and in 2009 Super Lawyers Corporate Counsel Edition in the area of Energy and Natural Resources.