charles vitunacVs.william e. sundstrom|Public Service Commis... -- eLawyers

Judges: G. STEVEN PFEIFFER
Agency: Public Service Commission
Latest Update: Jun. 15, 1990
Summary: Allow the incorporation of the subject properties into the area served by the Petitioner and deny the County's intent to deny the change.

80-1630.PDF

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1630

) SOUTH PAUL BEACH UTILITIES ) CORPORATION and PUBLIC )

SERVICE COMMISSION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in the above matter on September 19, 1980, in West Palm Beach Florida. The following appearances were entered: Charles Vitunac and Dennis Koehler, West Palm Beach, Florida, appeared on behalf of the Petitioner, Palm Beach County; William E. Sundstrom, Tallahassee, Florida, appeared on behalf of the Respondent South Palm Beach Utilities Corporation; and Marta M. Crowley, Tallahassee, Florida, appeared on behalf of the Respondent Florida Public Service Commission.

South Palm Beach Utilities Corporation has filed notice with the Public Service Commission in accordance with Section 367.061, Florida Statutes, of its intention to extend its service area to include properties in Palm Beach County, Florida, which are known as the "Atlantic," "Mitchell," "Snow," and "Benson" properties. Palm Beach County protested the utility's effort to extend its service to these areas. Four individual residents of the area protested the extension of service to the "Snow' and "Benson" properties.

On September 9, 1980, the Public Service Commission forwarded the matter to the office of the Division of Administrative Hearings, and requested that a Hearing Officer be assigned and a hearing scheduled. The final hearing was scheduled as set out above by notice dated September 11, 1980, after the parties agreed to waive their rights to notice of not less than fourteen days. Section 120.57(1)(b)2, Florida Statutes. At the hearing, the South Palm Beach Utilities Corporation amended its application with regard to the "Snow" property to exclude a portion of it from the requested extension of service area. The individual protestants then withdrew their protests. The remaining parties agreed that the requested extension of service area into each of the four properties be considered through this proceeding.

At the final hearing, the parties entered into a stipulation with regard to certain facts. The Petitioner, Palm Beach County, called the following witnesses: Donald P. Garbrick, a civil engineer with a private consulting firm who has been employed by the County in connection with its wastewater treatment plans; and Harry King, the principal planner employed with the County's planning, zoning and building department. Exhibits 1 through 5 were received into evidence.

Palm Beach County contends that the effort of South Palm Beach Utilities Corporation to extend its service area would conflict with the County's long- range land use and water and sewer service plans which have been adopted in accordance with Chapter 163, Florida Statutes, and that the extension of service area should therefore be denied. The utility and the Public Service Commission contend that the provisions of Section 367.061, Florida Statutes, have not been amended by the provisions of Chapter 163, that the Public Service Commission has authority to grant the requested extension of territory without regard to plans adopted in accordance with Chapter 163, and that the County maintains its power to control land use within its boundaries through its zoning authority.

The County and the Public Service Commission have submitted post-hearing legal memoranda. South Palm Beach Utilities Corporation has submitted a proposed order which includes findings of fact and conclusions of law. To the extent that the proposed findings and conclusions have not been adopted in this Recommended Order, they have been specifically rejected as being irrelevant to the issues, or as not being supported by the evidence.

FINDINGS OF FACT

South Palm Beach Utilities Corporation is a private provider of water and sewer services in Palm Beach County, Florida. It is presently operating within a specified service area according to a certificate issued by the Public Service Commission. The utility is seeking to expand its service area north of the present boundaries, and has filed various notices of its intention with the Public Service Commission. As to some of these notices, no protests were filed, and the utility has commenced preliminary engineering planning activities to provide water and sewer lines to those areas. Palm Beach County has filed timely protests with respect to four off the parcels to which the utility is proposing to extend its certified service area. These four properties have been called the "Atlantic," "Mitchell," "Snow," and "Benson" properties. In its notices, the utility described the "Atlantic" property as follows:

Tracts 49 thru 56 inclusive; 73 thru 88 inclusive and 105 thru 120 inclusive, in Section 21; and Tracts 9 thru 24 inclusive;
41 thru 56 inclusive; 73 thru 88 inclusive; and 105 thru 120 inclusive, in Section 28, all as shown on Palm Beach Farms Company Plat No. 1, as recorded in Plat Book 2, Pages 26, 27 & 28, Public Records of Palm Beach County, Florida, together with the West Half of the East Half of Section 21 and the West Half of the East Half of Section 28, all in Township 46 South, Range 42 East, Palm Beach County, Florida.

EXCEPTING therefrom the dedicated public right of ways of record, as shown on the said Palm Beach Farms Company Plat No. 1, and the Plat of Delray Roads (containing 10.9500 acres) and the following Lake Worth Drainage District right of ways:

LWDD Canal L-34: Beginning at a point where the Southerly line of a public right of way, 120.0 feet wide known as Del Ray
West Road (State Road 806) intersects the North & South Quarter Line of Section 21, Township 46 South, Range 42 East, Palm Beach County, Florida, said point being S 1 degree 54' 34" E, 34.13 feet from the
North Quarter Corner of said Section 21; run thence along said Quarter Section Line
S 1 degree 54' 34" E, 90.02 feet; thence N 89
degrees 18' 11" E, 1342.63 feet to the East line of the West Half of the East Half of said Section 21; thence along said East Line
N 2 degrees 06' 02" W, 90.03 feet to the South Line of said Del Ray West Road; thence
along said South Line S 89 degrees 18' 11" W, 1342.33 feet to the Point of Beginning, Containing 2.7737 acres;

LWDD Canal L-35: The South 10.0 feet of the West Half of the Northeast Quarter; the North 80.0 feet of the West Half of the Southeast Quarter; the South 15.0 feet of the Northwest Quarter (less the West
55.0 feet); and the North 75.0 feet of the Southwest Quarter (less the West 55.0 feet), in Section 21, Township 46 South Range 42 East, Palm Beach County, Florida, Contain- ing 8.2207 acres;

LWDD Canal L-36: The South 15.0 feet of the West Three-Quarters of Section 21 (Less the West 55.0 feet); and the North 75.0 feet of the West Three-Quarters of Section
28 (less the West 40.0 feet); all in Town- ship 46 South, Range 42 East, Palm Beach County, Florida, Containing 8.2672 acres;

LWDD Canal L-37: The South 40.0 feet of the North Half of the West Three-Quarters; and the North 50.0 feet of the South Half of the West Three-Quarters of Section 28, Township 46 South, Range 42 East, Palm Beach County, Florida, (Less the West 40.0 feet Thereof), Containing 8.1733 acres;

LWDD Canal L-38: The South 105.0 feet of the West Three-Quarters of Section 28, Township 46 South, Range 42 East, Palm Beach County, Florida (less the West 40.0 feet thereof), containing 9.6120 acres; and

LWDD Canal E-3: The West 55.0 feet of the South Half, and the West 55.0 feet of the South 664.91 feet of the North Half of Section 21; and the West 40.0 feet of Section 28, all in Township 46 South, Range
42 East, Palm Beach County, Florida, con- taining 9.2135 acres.
Containing a net acreage of 816.1290 acres.
The utility described the "Mitchell" property as follows: All of Tracts 65 to 128 inclusive, Section
29, Township 46, South, Range 42 East, (less
30.59 acres sold to Florida State Turnpike Authority and more particularly described in Deed Book 1104, Page 577), The Palm Beach Farms Co. Plat No. 1, according to the Plat thereof on file in the Office of the Clerk of the Circuit Court in and for Palm Beach County, Florida, recorded in Plat Book 2, Pages 26 to 28.

The "Snow" Property is described as follows:

The North half of Sections 31 & 32, Town- ship 46 South, Range 42 East, Palm Beach County, Florida, and also known as Tracts 1 through 60, Block 71 and Tracts 1 through
64 of Block 70, Palm Beach Farms Company, Plat No. 3, as recorded in Plat Book 2, Page 52, Palm Beach County, Florida.

At the hearing, the utility amended its notice with respect to the "Snow" property to withdraw its intention to provide service to the north half of Section 32, or that property east of Lyons Road. As to the property west of Lyons Road, being the north half of Section 31, the utility maintains its intention. The "Benson" property has been described by the utility as follows:

Tracts 65 through 70, 91 through 102, and
123 through 128, Block 70, Palm Beach Farms Company, Plat No. 3, Plat Book No. 2, as recorded on Page 52 wholly within the South Half of Section 31, Township 46 South, Range
42 East, Palm Beach County, Florida.

[This finding is determined from a stipulation of the parties as stated on the record at the final hearing, and from Exhibit 1.]
The South Palm Beach Utilities Corporation is a fit provider of water and sewer service. No issue has been raised with respect to the quality of the service provided by the utility, and it is under no citations from any government agency. The utility has the financial integrity and engineering capability to provide service to the four properties involved in this proceeding. With respect to each of the four properties, the utility has provided the notices required by statute. Extension of the utility's service area to include the four properties would not result in a duplication of any existing facilities. No other utility is providing service to the area. In its long-range plans, the County envisions providing service to the area, but it does not provide service now, and would not be in a position to provide service for at least three to five years. The owners of the four proporties have proposed developments which would require provision of water and sewer service. [This finding has been determined from stipulations stated by the parties on the record at the final hearing.]
In accordance with the "Local Government Comprehensive Planning Act of 1975" (Florida Statutes Section 163.3161, et seq.), Palm Beach County has promulgated a comprehensive plan which includes a "sewer, potable water, drainage and solid waste element" and a "land use plan element." The land use element of the comprehensive plan provides that the areas where South Palm Beach Utilities Corporation is seeking to expand its territory will be set aside for low density development. The County contends that expansion by the utility into these areas would allow for a level of development which is not in harmony with the land use element of the comprehensive plan. The evidence does not support this contention. No specific evidence was presented as to development densities proposed by developers, and it does not appear that allowing the utility to expand its service area would as a factual or legal matter allow for development of any kind. [This finding is determined from the testimony of the witnesses Garbrick and King, and from Exhibits 3, 4 and 5.]
Extension of the South Palm Beach Utilities Corporation service area into the four properties at issue would conflict with the "sewer, potable water, drainage and solid waste element" of the County's comprehensive plan. Under this element of the comprehensive plan, which is in harmony with an overall management plan to treat wastewater pollutants that the County has developed in accordance with Federal funding requirements ("201 Plan"), the County envisions that it would provide sewer service to the "Atlantic" and "Mitchell" properties through a central wastewater treatment facility. Plans for providing such service have been made on a long-range basis, and the County is in the process of refining the plans so that it can obtain Federal funding. Removal of the "Atlantic" and "Mitchell" tracts from the area that the County proposes to serve through the central facility would not be in accordance with the "201 Plan." Removal of the properties would reduce the service area of that central facility, and could affect the size of the central facility, and funding. Removal of the properties would furthermore be contrary to the plans because of the introduction of a wastewater treatment facility other than the central facility. Both the "sewer, potable water, drainage and solid waste element" of the County's comprehensive plan and the "201 Plan" are long range. The County is not presently prepared to offer service to the properties at issue, and will not be prepared to do so for some time. This finding is determined from the testimony of witnesses Garbrick and King, the stipulation of the parties stated on the record at the final hearing, and Exhibits 2, 3 and 5.]
While the evidence establishes that extension of the South Palm Beach Utilities Corporation's service area would on its face conflict with the County's comprehensive plan, the evidence does not establish that the conflict would adversely affect the plan. The evidence does not reveal that provision of services by facilities other than the County's central system would render the central system less feasible. While it was speculated that the central system might need to be reduced in size as a result, and that the rate base for it would be lessened in an unspecified amount, no competent evidence to these effects has been presented. [This finding is determined from the record as a whole.]

CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.
The controlling statutory provision regarding the South Palm Beach Utility Corporation's effort to extend its territory is Section 367.061, Florida Statutes. This section of the "Water and Sewer System Regulatory Law" (Chapter 367, Florida Statutes) provides in paragraph (1):

A utility may extend its service outside of the territory described in its certifi- cate, if the extension does not involve territory described in an organizationally unrelated utility certificate, served by

a governmental agency, or receiving similar service from any other utility or govern- mental agency.

The remaining paragraphs of this section describe procedures to be followed. If an objection to a proposed extension of service is filed, the matter is handled in accordance with Section 367.051(2) and (3), Florida Statutes. Paragraph (3) provides in pertinent part:

The Commission shall not grant a certificate . . . for the extension of an existing system, which will be in competi- tion with, or duplication of, any other system or portion of a system, unless it shall first determine that such other system or portion thereof is inadequate

to meet the reasonable needs of the public or that the person operating the system is unable or refuses or neglects to provide reasonably adequate service.

Palm Beach County does not dispute that the utility meets the criteria set out in Chapter 367, but rather contends that these criteria must be considered in harmony with Sections 163.3161, et seq., Florida Statutes, and with comprehensive plans adopted by the County in accordance with the statute.

Nothing in Chapter 163 indicates that the County, through its obligation to develop a comprehensive plan, has the authority to set service boundaries for private utility companies. If the Act did provide to that effect, it would conflict with Chapter 367. In view of the language set out at Section 367.011(4), the latter would prevail. The paragraph provides:

This chapter shall supersede all other laws on the same subject, and subsequent inconsistent laws shall supersede this chapter only to the extent that they do so by express reference . . .

It must therefore be concluded that the provisions of Chapter 163 were not intended to amend or add criteria to the provisions of Chapter 367. The authority of a local governmental unit to develop a comprehensive plan does not carry with it any implication that the local government thus obtains the authority to designate service areas for providers of water and sewer services. Attorney General's Opinion 072-365 (October 20, 1972). This authority clearly lies within the sole discretion of the Public Service Commission under Chapter

367. City of Hollywood v. Yarborough, 274 So.2d 526 (Fla. 1973).

Palm Beach County has argued that allowing the private utility to extend its territory in accordance with the provisions of Section 367.061 without regard to the County's comprehensive plan would frustrate the County's efforts to meet long-range planning goals. This contention has not been factually established. Furthermore, as stated above, the discretion to designate service areas lies with the Public Service Commission, not Palm Beach County. To the extent that development plans of the owners of the subject property conflict with provisions of the County's comprehensive plan, or the County zoning ordinances, the County maintains its authority to control development through its zoning powers. Nothing in Chapter 367 takes that authority from the County, or renders any designation of service area binding upon the County in connection with the County's zoning authority and building permit authority.
If the owners of the subject properties are permitted to develop them, provision of water and sewer services would be a necessity, certainly in the public interest. All of the criteria set out in Chapter 367 for allowing the extension of service area have been established.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is, hereby,

RECOMMENDED:

That the Public Service Commission enter a Final Order denying the objections of Palm Beach County to the notices of intention to extend service area filed by the South Palm Beach Utilities Corporation, and that the South Palm Beach Utilities Corporation's application to amend its certificate to include the designated properties be granted.

RECOMMENDED this 12th day of November, 1980, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1980.

COPIES FURNISHED:

Charles P. Vitunac, Esquire Assistant County Attorney Palm Beach County

Post Office Box 1989

West Palm Beach, Florida 33402

Commissioner Gerald L. Gunter Florida Public Service Commission