STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF SOUTH PASADENA, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2396

) STATE OF FLORIDA, DEPARTMENT ) OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in Courtroom "C", Pinellas County Courthouse, Judicial Building, 545 First Avenue, St. Petersburg, Florida. The hearing commenced at 9:30 A.M., February 24, 1981.

APPEARANCES

For Petitioner: Mark R. Lewis, Esquire

City Attorney

6528 Central Avenue

St. Petersburg, Florida 33707

For Respondent: Vernon Whittier, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

ISSUES

This case concerns a dispute between the Petitioner and Respondent on the question of whether a certain underground utility operated by the Petitioner, namely a sanitary sewer force main, unreasonably interfered with the construction of an additional lane on the west side of Pasadena Avenue, between Huffman Way and Matthews Road in the City of South Pasadena, Florida. See Section 338.19, Florida Statutes. If it is found that the utility unreasonably interfered with the road construction, then a decision must be reached on the propriety of the $21,604.45 charge which the Respondent has placed against the Petitioner for the removal of the underground utility at the instigation of the Respondent. See Section 338.20, Florida Statutes.

FINDINGS OF FACT

1. The Petitioner in this action, City of South Pasadena, is a municipal corporation located in Pinellas County, Florida. The Respondent, State of Florida, Department of Transportation, is a governmental department within the State of Florida, which has, among other functions, the construction and maintenance of roadways within the State.

2. This dispute arises between the parties based upon the Department of Transportation's decision to construct an additional lane on the west side of Pasadena Avenue, between Huffman Way and Matthews Road in the City of South Pasadena, Florida, and the associated removal of an underground utility which was owned and operated by the City of South Pasadena. The underground utility was a sanitary sewer force main. In the absence of the removal of this utility by efforts of the Petitioner, the Respondent had those utilities removed at a cost of $21,604.45, of which $14,666.95 was acknowledged by the City as representing a reasonable cost of removing the utilities in question, should removal be found to be necessary. The remaining $6,937.50 is contested by the City as being an unreasonable cost of removal, even if it is determined that it was necessary to remove the utilities in the first instance.

   
   

3. The facts reveal that as early as 1975, the Department of Transportation was desirous of knowing of the existence and whereabouts of underground utilities in the City of South Pasadena along Pasadena Avenue from Corey Causeway to the south to Park Street in the north. Petitioner's Exhibit No. 26, dated October 18, 1975, is a letter from the district utility engineer of the Respondent addressed to an official in the City of South Pasadena indicating possible improvements from Corey Causeway to Park Street along Pasadena Avenue and requesting information about the possible necessity to relocate or adjust utilities in the area of the proposed highway construction. Again, on July 1, 1977, in anticipation of the improvements to Pasadena Avenue in the aforementioned area, subject to funding, the Respondent requested the City to identify its utilities which might require relocation or readjustment in view of possible highway construction. A copy of correspondence addressed from the district utility engineer of the Respondent to a City official which deals with this subject matter may be found as Respondent's Exhibit No. 3, admitted into evidence. The private consulting engineers and architects employed by the City responded to this request by correspondence of August 22, 1977, a copy of which may be found as Respondent's Exhibit No. 2, admitted into evidence, and it had attached certain drawings indicating the location of utilities; however, those drawings did not depict the subject sanitary sewer force main between Huffman Way and Matthews Road. The drawings may be found as Respondent's Exhibit No. 1, admitted into evidence.

   
   

4. The sanitary sewer force main had been placed there sometime in the period of the years 1971 and 1972, and was to be found anywhere from ten (10) inches to three (3) feet underground. Both the Petitioner's Exhibit No. 18 and the Respondent's Exhibit No. 4 demonstrate that the sewer force main was within the "right-of-way" granted to the State of Florida, Department of Transportation. The two exhibits spoken to are site plans depicting the "right- of-way" limits. Although the parties entered into a relocation agreement for utilities along Pasadena Avenue above the disputed area (see Petitioner's Exhibit No. 17, admitted into evidence), they did not have an agreement to relocate the utility in dispute.

   
   

5. By September 5, 1978, the Respondent had decided to undertake project No. 15590-3609 which was to construct a third lane from Huffman Way to Matthews Road along Pasadena Avenue, as a traffic aid. This is evidenced by Petitioner's Exhibit No. 14, correspondence carrying the date September 5, 1980, from the resident engineer of the Department of Transportation to the district design engineer in the Department. Final plans on the overall Pasadena Avenue work referred to the construction of the third lane premised upon available construction funds, as shown in Petitioner's Exhibit No. 19, admitted into evidence.

6. On October 24, 1978, Pinellas County, Florida, in the person of the Board of County Commissioners, by resolution, authorized the utilization of secondary gas tax funds to extend the Pasadena Avenue project to accomplish the lane construction. A copy of this resolution may be found as Petitioner's Exhibit No. 15 admitted into evidence.

   
   

7. This item's expansion of the lane was advertised for bid on March 28, 1979, and on September 15, 1980, construction was commenced. As stated before, at the time the construction began, there was no written agreement between the parties to remove the sanitary sewer force main and indeed the Department of Transportation was without knowledge of the existence of that utility, although employees of the Department of Transportation and their private contractor for the project had encountered a "valve box" associated with the sanitary sewer system prior to the commencement of construction and had concluded that the possibility existed that the "valve box" apparatus might be removed without hindering the road construction.

   
   

8. There is some dispute between the parties on the question of the point in time at which the officials within the City of South Pasadena learned of the installation of the third lane. The Department of Transportation claims that a preconstruction conference dealing with the overall work to be done on Pasadena Avenue made mention of the disputed item as early as May 8, 1979, and that officials for the City were in attendance. Again at a meeting in March, 1980, the Department urges that the project at issue was discussed. The officials for the City dispute this, and after considering the testimony of both parties, it can not be concluded that the City specifically knew of the construction in March of 1980. Nonetheless, in late September, 1980, the City clearly became aware of the project and the Department of Transportation learned of the unpermitted sanitary sewer force main within the "right-of-way" between Huffman Way and Matthews Road in the third lane expansion of Pasadena Avenue.

   
   

9. Sometime around September 23, 1980, the construction company's underdrain crew came in contact with the sanitary sewer line, and the line was found to be an interference with the road construction. At that point, the contractor removed the work crews and did not return until November 7, 1980, at a time when they worked through November 17, 1980, achieving job items that did not conflict with the sanitary sewer line. This work could have been achieved at anytime after September 23, 1980. The Department of Transportation gave the contractor the premission to remove the underground utility line on December 5, 1980, and in between December 10, 1980, and December 17, 1980, the utility line was removed. On December 22, 1980, the contractor resumed the construction of the roadway known as the south bound extension between Huffman Way and Matthews Road.

   
   

10. Around September 25, 1980, the City of South Pasadena was made aware of the conflict between the road construction and the sewer main, and the fact that the road construction could not be completed without the removal of that line. Having discovered the conflict between the main and the road construction and the fact of the road construction between Huffman Way and Matthews Road, the City Council held a meeting on September 29, 1980, at which time discussion was held on the removal of the subject sanitary sewer force main and the cost to be incurred by the City. An excerpt of the minutes of that meeting may be found as Petitioner's Exhibit No. 3, admitted into evidence, a copy. On September 30, 1980, the Mayor of the City of South Pasadena, by correspondence, a copy of which may be found as Petitioner's Exhibit No. 1, admitted into evidence, transmitted copies of resolutions Nos. 174 and 175 of the City of South Pasadena, copies of which may be found as Petitioner's Exhibits Nos. 4 and 5,

    respectively, and through these resolutions voiced the opposition of the City of South Pasadena to the road widening. On October 1, 1980, the consulting engineer for the City of South Pasadena wrote to the Department of Transportation indicating his opinion that the extension under construction was "an unnecessary extension of the present project." A copy of that correspondence may be found as Petitioner's Exhibit No. 2, admitted into evidence.

    
    

11. There followed correspondence from the Deputy District Engineer for operations of the Department of Transportation by a letter dated October 10, 1980, addressed to the Mayor of the City of South Pasadena. That correspondence acknowledges the receipt of Resolutions Nos. 174 and 175, and states the Department of Transportation's intention to proceed with the construction.

    
    

12. A meeting was held between the City and the Department of Transportation on October 14, 1980, at which meeting the City indicated that they did not intend to pay the cost of relocating the sewer force main. On October 22, 1980, the Deputy District Engineer for the Department of Transportation, by correspondence with attachments, a copy of which may be found as Petitioner's Exhibit No. 10, admitted into evidence, wrote to the Mayor of the City and referred to the attached Sections 338.17 through 338.20, Florida Statutes, on the subject of the responsibility of the utility owner to relocated or adjust utilities that conflict with road improvements within a public "right- of-way." That correspondence asked that the City adjust, at the earliest date possible, the utilities in conflict to allow the conclusion of the construction. The correspondence closed by indicating the availability of officials within the Department of Transportation to meet with City officials to clarify the adjustments to be made. On October 31, 1980, the Petitioner was informed by registered letter that it was directed to remove, relocate or adjust the subject utility and granted twenty (20) days to request a hearing on the question of that disposition of the utility, and by doing so alluding to the opportunity for hearing before the Division of Administrative Hearings. Finally, the correspondence noted that failure to request a hearing would promote action by the Department of transportation.

    
    

13. By correspondence dated October 31, 1980, a copy of which is admitted as Petitioner's Exhibit No. 9, the Mayor of the City of South Pasadena wrote the Department of Transportation and stated that the City of South Pasadena would not take any action to remove the force main, for reason that there was no budgetary provision for that expense in the City's 1980-81 budget. This lead to the removal of the underground utilities by the contractor employed by the Department of Transportation to construct the road improvements.

    
    

14. The underground utility was an unreasonable interference found in the "right-of-way" at the location where the additional lane was being constructed between Huffman Way and Matthews Road on Pasadena Avenue and the necessity to remove it was not discovered until the project was underway, and in that respect, its removal was coincidental and not incidental to the construction.

    
    

15. It having been determined that it was necessary to remove the utility, there remains in contest the $6,937.50 charge for removal. These removal charges are reflected in Petitioner's Exhibit No. 7, a copy of the statement of charges drawn by the contractor and forwarded to the Department of Transportation. On the second page of that document, which was admitted into evidence, are found Items 2, 3 and 4. Item 2 is a charge in the amount of

    $4,000.00 entered by the contractor due to the necessity to stop the paving operation when they encountered the sanitary line, and to remove the asphalt

    crew and, in turn, bring the asphalt crew back to conclude the work. Item 3, constitutes a charge of $937.50 for the rental of barricades from September 23, 1990, to November 6, 1980, and from November 17, 1980, to December 18, 1980.

    Item 4 speaks of setback charges caused by "long delay and waiting for the City of S. Pasadena and the DOT to resolve the force main matter-2 months field office expense and job overhead $1,000.00" and indicates cost of $2,000.00.

    Other than this summary explanation of the charge found in the document, no other indication was given as to the meaning of Item No. 4 and consequently, its true meaning is not understood.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

17. The sanitary sewer force main on Pasadena Avenue between Huffman Way and Matthews Road in the City of South Pasadena, Florida as located in the area of the additional lane construction on the west side of Pasadena Avenue was in the right-of-way and unreasonably interfered with the convenient, safe and continuous improvement, extension or expansion of that public road within the meaning of Section 338.19, Florida Statutes. 1/ The City of South Pasadena was properly notified of this interference and on the failure of the City to remove that utility, it was appropriate for the State of Florida, Department of Transportation to cause its removal and to assess the proper costs of that removal against the City of South Pasadena.

    
    

18. While the removal or relocation of the utility would have been incidental to the work and would have required notice to the City of South Pasadena at the time the contract for the work was advertised for bids or within thirty (30) days prior to the commencement of the work, in this situation, the Department of Transportation did not know of the existence of the utility when the contract was advertised for bids nor did they know of the existence of the utility thirty (30) days prior to the commencement of the work. Therefore, the discovery of the utility and subsequent necessity for removal was more coincidental than incidental and the notification required by Subsection 338.19(2), Florida Statutes was not required.

    
    

19. The notice of removal of the underground utility by the Respondent, the request for formal hearing on that matter and the conduct of the hearing, complies with the terms and conditions of Subsection 338.20(1), Florida Statutes. 2/

    
    

20. It having been determined that the sanitary sewer force main was an unreasonable interference to the road construction in question, the agreement of the parties as to the propriety of the costs for removal in the amount of

    $14,666.95, is found to be correct. In addition, the $4,000.00 charge to remove the asphalt paving equipment and crew once the force main had been encountered and the additional move to include the paving work is found to be a reasonable charge.

    
    

21. On cost item 3, Petitioner's Exhibit No. 7, the Respondent has requested payment for 25 barricades for 75 days at the rate of $.50 per barricade. The Respondent is entitled to the cost for rental of those barricades from September 23, 1980, through October 31, 1980, at the rate of

$.50 per barricade. This decision is reached in view of the fact that October 31, 1980, was the date of the official notification by the City that it would

not remove the utility at its expense. In the intervening period between the time the utility was discovered and a decision officially made by the City not to remove it, the Department should be reimbursed. The Respondent is also entitled to costs on the prorata basis for 25 barricades at $.50 each for the period December 5, 1980, through December 10, 1980, the time necessary to get the utility removal crew in place once the contractor had been directed to remove the utility on December 5, 1980, and would be entitled to the cost for 25 barricades at $.50 a barricade for the period December 10, 1980, through December 17, 1980, the period of time in which the utility was being removed.

As to Item 4, the proof is insufficient to sustain the claim for the $2,000.00 reimbursement, related to so called "set back charges etc."

RECOMMENDATION

Based upon a full consideration of the Findings of Fact and Conclusions of Law reached herein and in keeping with the terms and conditions of Sections

338.19 and 338.20, Florida Statutes, it is RECOMMENDED:

That the charges as set out in the Conclusions of Law section of this Recommended Order, which have been allowed, be upheld as an assessment against the City of South Pasadena, Florida, occasioned by the necessity to remove a sanitary sewer force main along Pasadena Avenue between Huffman Way and Matthews Road. 3/

DONE and ENTERED this 31st of March, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1981.

ENDNOTES

1/ (1) Any utility heretofore or hereafter placed upon, under, over or along any public road that is found by the state or other authority to be unreasonably interfering in any way with the convenient, safe, or continuous use or maintenance, improvement, extension or expansion of such public road shall, upon

30 days' written notice to the utility or its agent, by the state or other authority be removed or relocated by such utility at its own expense; provided, however, that if the relocation of utility facilities, as referred to in s. 111 of the Federal Aid Highway Act of 1956, Public Law 627 of the Eighty-Fourth Congress, is necessitated by the construction of a project on the Federal Aid Interstate System, including extensions thereof within urban areas, and the cost of such project is eligible and approved for reimbursement by the Federal Government to the extent of 90 percent or more under the Federal Aid Highway Act, or any amendment thereof, then in the event the utility owning or operating

such facilities shall relocate same upon order of the Division of Road Operations, and the state shall pay the entire expense properly attributable to such relocation after deducting therefrom any increase in the value of the new facility and any salvage value derived from the old facility.

1. If such removal or relocation is incidental to work to be done on such road, the notice shall be given at the same time the contract for the work is advertised for bids, or 30 days prior to the commencement of such work by the authority.

2. Whenever an order of the authority requires such removal or change in the location of any utility from the right-of-way of a public road, and the owner thereof fails to remove or change the same at his own expense to conform to the order within the time stated in the notice, the authority shall proceed to cause the utility to be removed. The expense thereby incurred shall be paid out of any money available therefor, and shall, except in those cases where the state is required by subsection (1) to pay the expense, be charged against the owner and levied and collected and paid into the fund from which the expense of such relocation was paid.

2/ (1) Whenever it shall become necessary for the authority to remove or relocate any utility as provided in the preceding section, the owner of the utility, or his chief agent, shall be given notice of such removal or relocation and an order requiring the payment of the cost thereof, and shall be given reasonable time, which shall not be less than 20 nor more than 30 days, in which to appear before the authority to contest the reasonableness of the order.

Should the owner or his representative not appear, the determination of the cost to the owner shall be final. Authorities considered agencies for the purposes of chapter 120 shall adjudicate removal or relocation of utilities pursuant to chapter 120.

3/ The parties, in the person of their counsel, have offered Proposed Findings of Fact, Conclusions of Law and Recommendations to the Hearing Officer. Those proposals and recommendations have been reviewed prior to the entry of this order. To the extent that the proposals and recommendations are consistent with the Recommended Order, they have been utilized. To the extent that the proposals are inconsistent, they are hereby rejected.

COPIES FURNISHED:

Mark R. Lewis, Esquire City Attorney

6528 Central Avenue

St. Petersburg, Florida 33707

Vernon Whittier, Esquire Department of Transportation The Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 80-002396

Orders for Case No: 80-002396