Indian River Shores, filing not as the Town but as a customer of Vero Beach Utilities, has asked the Florida Public Service Commission to open up Vero’s electric service territory for review based on the legal doctrine of “changed circumstances” since the Town says Vero will be in violation of Florida’s constitution after its franchise agreement with the Shores expires on Nov. 6.
This latest move by the Shores – filed creatively to give the Town standing as a utility customer – shows that Shores officials are not giving up on getting Florida Power & Light as its sole electric provider, despite running into roadblocks so far at the Circuit Court and getting nowhere with Vero on FPL’s $13 million cash offer to purchase the portion of the Shores system it does not already own from the city.
But whatever the PSC decides to do, it’s sure to be appealed to the Florida Supreme Court, either by Vero or the Shores.
The last time the PSC fully reviewed Vero’s service boundaries was more than 28 years ago, according to the 54-page petition filed last Friday. The Shores’ lead utility attorney wrote in the complaint that modification of the city’s territory is now required, because once the franchise agreement expires, Vero will no longer have permission to operate inside the Town.
“Modification of the Order is also consistent with the public interest because it will allow the entire Town to be served by a single electric utility whose rates are professionally and neutrally regulated by the Commission rather than place the Town and its residents at the mercy of the City’s unregulated utility with which they have no recourse since they cannot vote in City elections,” May stated in the complaint.
Everything north of Old Winter Beach Road in the Town is served by FPL, where everything south of that point is currently in Vero’s territory, creating a situation where 75 percent of the Town’s residents are paying rates about 30 percent higher than their neighbors for the same electricity.
Vero Beach City Manager Jim O’Connor said he expects the city’s legal team to counter the complaint. “Not sure what happens next other than the City will file a response which has not been written as of now,” O’Connor said Monday.
The issue landed in the PSC’s lap after PSC legal counsel told Judge Cynthia Cox that the Circuit Court did not have jurisdiction to rule on matters related to Vero’s service territory. Cox dismissed that count in a Shores lawsuit against Vero, referring the Shores up to the five-person regulatory body in Tallahassee for relief.
When the Shores posed its constitutional questions to the PSC last week in a public hearing, the PSC failed to directly answer the Shores’ questions, but instead offered suggestions on what the Town might do to get resolution.
One of the options listed was to open up a territorial dispute. Knowing that the Town would not have standing to file a complaint as the Town, since the Town is not a utility, the decision was made to file instead on the basis that the Town Hall and other town facilities are a bona fide customer of the City of Vero Beach’s electric utility.
The PSC last week cautioned May and Mayor Brian Barefoot about continuing to use PSC staff time and resources to fight the Town’s battle with Vero Beach. That apparently did not dissuade the Town from following up within days with this new complaint, re-framing the Town’s long-standing argument that Vero cannot legally operate its utility within the borders of a sovereign municipality like the Shores without the Town’s formal written consent.
The Shores notified Vero by certified letter in July 2014 that it did not intend to renew the city’s franchise agreement with the Town for electric service.
The PSC on Monday sent the Shores a boilerplate acknowledgement letter in response to the complaint filed on Friday. The letter mentions that mediation may be available to resolve the dispute. May said he hopes to have part of the open, public proceedings hosted locally to give as many Vero electric customers as possible the chance to address the PSC members.
“We’ve requested that the PSC conduct a service hearing in the Shores to hear directly from the residents and other electric consumers in the Shores who are directly affected by the City’s implementation of, and actions under, the territorial agreement,” May said Monday.
