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Mayors meet, but utility dispute still seen headed to court

STORY BY LISA ZAHNER (Week of December 30, 2021)
Photo: Mayors Brian Foley and Robbie Brackett met about water-sewer utility territory issues.

Mayors Brian Foley and Robbie Brackett met last week about water-sewer utility territory issues at the crux of the Town of Indian River Shores’ federal antitrust lawsuit against the City of Vero Beach.  While the meeting was friendly, the case still seems headed to a judge.

Vero’s claim that a 1989 territorial agreement with Indian River County granted the city a permanent utility service territory which includes Indian River Shores is the issue in dispute.

Brackett and his Shores counterpart met for about 15 minutes on Dec. 21 at the Indian River Shores Community Center, with their respective managers and lawyers on hand. Including introductions, greetings, a break and good-byes, the whole exchange lasted roughly 35 minutes, Foley said.

“It was a nice, cordial discussion. No fireworks,” Foley said, adding that he appreciated Brackett’s respectful, businesslike manner, and his desire for progress.

“It was a very good meeting. I have the utmost respect for Mayor Foley and I think he’s doing a good job. We just have a difference of opinion on this one issue,” Brackett said. “One thing we agreed upon was to move as quickly as possible. They want to move the process along and so do we.”

The Shores’ legal team argues that depriving the town of the ability to seek competitive rates from other providers of an essential service violates federal antitrust laws, so the 1989 agreement should be declared invalid.

Vero’s lawyers say the city’s service territory is perpetual by design, as the operation of a utility involves decades of costly capital outlays for infrastructure. The city says it has documents and statements from people involved in the drafting of the 1989 agreement that prove the signers’ intent was to create permanent territories. 

“It’s pretty evident that we didn’t have an agreement on ending the federal antitrust suit. We really need the court to do that,” Foley said.

Both Brackett and Foley said they are committed to a quick resolution, as both the town and the city need answers sooner than later. Vero is designing a state-of-the-art wastewater treatment plant to serve its customer base for the next 50-plus years and Indian River Shores is facing an October 2023 deadline to tell Vero whether the town will renew its water-sewer franchise with Vero in 2027.

“I’m just trying to get an answer so I know how to move forward,” Brackett said.

Indian River County Utilities is the obvious alternate provider for Indian River Shores if the case goes the town’s way, but Foley says county officials have been leery about making anything close to a proposal to serve the Shores due to threatened legal action by Vero for violating the 1989 territorial agreement.

Vero could give Indian River Shores permission to exit the service territory and the town and city would negotiate the legal and financial terms of that exit, but no such permission has been given.

Foley and Brackett discussed a brief “standstill” in the fighting so the Shores could get some real answers from the county about the county’s capacity and desire to serve the town, and what it would cost to connect the Shores to the county system. If the answer turned out to be that the county was not interested, or that the cost was insurmountable, at least the town would know.

Brackett said he’s taking the matter back to city staff, and that he plans to broach the topic with his fellow Vero Beach City Council members in January. But if the majority of the council opposes the “pause,” it won’t happen.

The federal case is scheduled for formal mediation at 9 a.m. on Jan. 20 at the Indian River Shores Community Center, with retired Judge Paul Kanarek serving as mediator. The mediation is open to the public.