STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF OPA LOCKA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6241

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on December 5, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Patricia C. Ellis

City Attorney City of Opa Locka

777 Sharazad Boulevard Opa Locka, Florida 33054

For Respondent: Francine M. Ffolkes

Assistant General Counsel Department of Transportation

Haydon Burns Building, Maill Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner City of Opa Locka is responsible for reimbursing the Department of Transportation for the cost of relocating water and sewer lines owned and maintained by Petitioner within the State Road 916 right-of-way.

PRELIMINARY STATEMENT

By letter dated July 7, 1993, the Department gave Petitioner

30 days’ notice to remove or relocate certain water and sewer lines, and Petitioner timely requested an evidentiary hearing regarding that requirement. The Department thereafter transferred this cause to the Division of Administrative Hearings to conduct the proceeding.

The Department presented the testimony of James Radcliff, James McGetrick, Lee C. Spitzkopf, and John W. Bolton, Jr.

Petitioner presented the testimony of Deborah S. Irby, Conrad Harris, W. Ajibola Balogun, Jorge Corzo, and Winston Mottley. Additionally, the Department’s Exhibits numbered 1-14 and Petitioner’s Exhibits numbered 1 and 2 were admitted in evidence.

Petitioner timely filed post hearing its proposed recommended order. Although the Department requested and was given an extension of time for filing its proposed recommended order, the Department did not file one.

FINDINGS OF FACT

1. Opa Locka Boulevard and N. W. 135 Street in Dade County, Florida, are paired one-way streets between I-95 and N. W. 27 Avenue. They are located within the city limits of the City of Opa Locka and have been designated as State Road 916.

2. Public records reveal that the portions of Opa Locka Boulevard and N. W. 135 Street which were involved in the Department’s road construction project and the right-of-way

   attendant to those streets were dedicated to perpetual public use by private landowners platting subdivisions between 1928 and 1956. In 1959 the City of Opa Locka transferred those roadways and rights-of-way to Dade County, Florida, so that the County would be responsible for maintaining them. In 1979 Dade County transferred its interests to the Department. The State Road 916 designation was subsequently made.

3. The Department determined the need to improve those streets by widening them and making other improvements such as installing drainage and lighting. As the Department prepared to begin that project, it conducted a utility pre-design meeting on May 26, 1992.

4. Such a meeting involves the Department’s employees who will be supervising portions of a road improvement project and representatives of the owners of utilities located within the area of anticipated construction. The owners of utilities are advised as to the details and extent of the anticipated construction, and they mark maps as to the location of their utilities. As the road design process proceeds, agreements are made and relocation schedules are prepared. If practical, the Department will design the road around utilities which conflict with the location of the roadway. If designing around the utility is not practical, the owner is required to relocate any utility which conflicts with the Department’s roadway or which interferes with the construction project.

5. If the utility owner intends to relocate its own utilities, a Utility Relocation Schedule is agreed upon by the owner and the Department. If the owner requests that the Department do the relocation work and agrees to pay the costs in advance, a Joint Participation Agreement is entered into, and the Department’s contractor performs the work.

6. The City’s consulting engineer attended the May 1992 utility pre-design meeting and attended many subsequent meetings. Subsequent meetings were also attended by the City’s public works director and the City’s project engineer.

7. During the pre-design and design stages of the road project, the Department was able to design around all utilities or obtain voluntarily removal or relocation by all utility owners except the City. The City maintained that it could not afford to remove or relocate its water and sewer lines.

8. Both the City and the Department were very concerned about the location of the City’s lines and about the lines themselves. The lines were made of cement asbestos and were old. Cement asbestos lines cannot withstand nearby construction and will break. Neither the Department nor the City wanted the lines to break during construction, and the Department did not want to build new roads and have the lines underneath breaking afterward, requiring re-construction.

9. As feared, the City’s sewer line ruptured while another utility owner was relocating its utilities in the area of the

   City’s sewer line prior to the Department’s construction work. Further, as a result of that other utility owner’s relocation work, it was discovered that the City’s water and sewer lines within the project limits were not in fact located where the City’s maps of the lines reflected. Therefore, the City’s

   utilities posed a danger to the construction project, and the Department could not allow the lines to remain wherever they were.

10. Due to the City’s position that it could not afford to remove or relocate its water and sewer lines and due to the Department’s need to proceed with the construction project, the Department and the City’s representatives agreed that the Department would issue to the City a 30-day notice to remove or relocate, but the City would not do so. The Department would then do the work for the City, and the City would reimburse the Department for its costs under a reimbursement plan yet to be negotiated. That meeting was attended by the City’s consulting engineer, the City’s former public works director, and the City’s current public works director. Everyone attending agreed that the lines needed to be replaced with newer, stronger lines.

11. The Department agreed to issue the 30-day notice, do the work, and then seek reimbursement from the City since doing so was the only solution to the problem which would allow the road project to proceed without substantial damages and increased costs due to delay. Based upon that agreement and the City’s inability to pay the costs of relocating its water and sewer lines, no Utility Relocation Schedule or Joint Participation Agreement was entered into by the City and the Department.

12. The City’s consulting engineer drew preliminary plans for the relocation of the City’s utilities, and the Department

    submitted those plans to its contractor to obtain bids for the City’s relocation work. The contractor priced the work and obtained three bids. The subcontract was awarded, the prime contractor added its overhead costs, and that became the anticipated cost. The Department kept the City advised as to additional costs as they were incurred.

13. On July 7, 1993, the Department issued its 30-day notice to the City, expecting the City to respond in the agreed non-adversarial manner. Instead, the City requested this administrative proceeding.

14. As the work was actually performed, the City expressed no disagreement with the materials used or the construction techniques. The City’s representatives were frequent visitors to the construction site since the actual work disclosed more problems. Not only were the City’s utilities not located where the City indicated they were but also the construction crews encountered lines which the City did not know existed. These problems caused additional delays in the project and thereby caused additional expenses to the Department.

15. The reasonable and necessary costs incurred by the Department to remove and relocate the City’s utilities within the project limits total $791,751.07

    CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.

17. Sections 337.403 and 337.404, Florida Statutes, provide as follows:

    337.403 Relocation of utility; expenses.–

    
    

    1. Any utility heretofore or hereafter placed upon, under, over, or along any public road or publicly owned rail corridor that is found by the authority to be unreasonably interfering in any way with the convenient, safe, or continuous use, or the maintenance, improvement, extension, or expansion, of such public road or publicly owned rail corridor shall, upon 30 days' written notice to the utility or its agent by the authority, be removed or relocated by such utility at its own expense except as provided in paragraphs

       (a) and (b).

       
       

       1. If the relocation of utility facilities, as referred to in s. 111 of the Federal-Aid Highway Act of 1956, Pub. L. No. 627 of the 84th 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 that event the utility owning or operating such facilities shall relocate such facilities upon order of the department, 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.

       2. When a joint agreement between the department and the utility is executed for utility improvement, relocation, or removal work to be accomplished as part of a contract for construction of a transportation facility, the department may participate in those utility improvement, relocation, or removal costs that exceed the department's official estimate of the cost of such work by

       more than 10 percent. The amount of such participation shall be limited to the difference between the official estimate of all the work in the joint agreement plus 10 percent and the amount awarded for this work in the construction contract for such work. The department may not participate in any utility improvement, relocation, or removal costs that occur as a result of changes or additions during the course of the contract.

       
       

    2. If such removal or relocation is incidental to work to be done on such road or publicly owned rail corridor, 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.

       
       

    3. 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 or publicly owned rail corridor, and the owner thereof fails to remove or change the same at his or her 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 such expense shall, except as provided in subsection (1), be charged against the owner and levied and collected and paid into the fund from which the expense of such relocation was paid.

    
    

    337.404 Removal or relocation of utility facilities; notice and order; court review.–

    
    

    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 the owner's 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 the owner's 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.

       
       

    2. A final order of the authority shall constitute a lien on any property of the owner and may be enforced by filing an authenticated copy of the order in the office of the clerk of the circuit court of the county wherein the owner's property is located.

       
       

    3. The owner may obtain judicial review of the final order of the authority within the time and in the manner provided by the Florida Rules of Appellate Procedure by filing in the circuit court of the county in which the utility was relocated a petition for a writ of certiorari in the manner prescribed by said rules or in the manner provided by chapter 120 when the respondent is an agency for purposes of chapter 120.

18. The evidence is uncontroverted that the City's water and sewer lines and attendant facilities located along the Opa Locka Boulevard and N. W. 135 Street corridor within the project limits unreasonably interfered with the Department's improvement of those roads. Further, no evidence was offered that the City's utilities fell within one of the exceptions to the City's responsibility to pay contemplated by Section 337.403, Florida Statutes. Although the City argues that the Department should have designed its road improvements around the City's utilities, no evidence was offered that such could be safely done. The City's further argument that the lines did not need to be

    replaced because they were working at the time is also without merit and irrelevant.

19. The City also alleges that it has a compensable property interest in the land where its water and sewer lines and attendant facilities were located so that the Department was responsible for paying all costs incurred in the replacing and relocation of those utilities, not the City. The only evidence offered by the City to support this argument was part of the minutes of a January 22, 1992, City commission meeting approving an unexecuted subordination agreement for a parcel identified as parcel 107.2 and containing the legal description for all of parcel 107. No other evidence was offered by the City to place that parcel within the project limits of the road improvement project under consideration in this cause or to show that the resolution relates to the same construction project.

20. On the other hand, the Department's evidence consisted of public records of the kind typically used to reflect ownership and typically used to transfer that ownership between governmental entities. The City's scant evidence offered to show its alleged compensable interest does not raise a genuine issue as to ownership. Even if it did raise such an issue, the ownership of real property cannot be adjudicated in this proceeding. The City can only obtain such an adjudication in the circuit court, and there is no evidence in the record of this proceeding that the City has sought such a determination.

21. The City further relies upon Section 137 of Chapter 96- 320, Laws of Florida (1996) which provides as follows:

    The Department of Transportation shall request approval from the State Comptroller to declare uncollectible and write-off any debt owned [sic] by a local government for utility relocation cost reimbursements in connection with highway construction improvements pursuant to section 337.403, Florida Statutes, if no joint participation agreement has been executed by the department and the affected local government entity for work completed prior to April 1, 1996.

    That statute provides no criteria for the Comptroller's decision and does not make the Comptroller's approval mandatory. The pleadings filed in this cause reflect that the Department did request approval from the Comptroller and the Department's request was denied.

22. As to the reasonableness of the costs incurred by the Department in relocating and replacing the City's utilities infrastructure in the project area, the City asserts that the work should have cost less. The City relies on one estimate obtained early in the project to replace a force main and asserts the entire project should have cost that much. The City offered no competent evidence to show that any specific item of materials or labor could have been obtained or performed for less money. Moreover, the Department's records are detailed and provide a breakdown of the actual costs to the Department for each component of the project.

23. The City's final argument that 30 days was an unreasonable time within which it could relocate its utilities is without merit. First, the 30 days is statutory and not discretionary. Second, the City never expressed an intention to comply; rather, it consistently maintained that it did not have the personnel or money to perform the work itself. Accordingly, the amount of time afforded to the City to do the work is irrelevant.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED THAT a Final Order be entered finding Petitioner City of Opa Locka responsible for reimbursing the Department of Transportation in the amount of $791,751.07 for the costs incurred in relocating and replacing the City's water and sewer utilities.

DONE AND ENTERED this 23rd day of April, 1997, at Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1997.

COPIES FURNISHED:

Patricia C. Ellis, City Attorney City of Opa Locka

777 Sharazad Boulevard Opa Locka, Florida 33054

Francine M. Ffolkes Assistant General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary Department of Transportation c/o Diedre Grubbs

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 93-006241

Orders for Case No: 93-006241