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Home My WebLink About12-12-2003 Legal Opinion - Power PolesBROWN, SALZMAN, WEISS & GARGANESE, P.A. Usher L. Brown' Suzanne D'Agresta° Anthony A. Garganese° Gary S. Salzman* John H. Ward' Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer °Board Certified Business Litigation Lawyer Board Certified City, County & Local Government Law Attorneys at Law Offices in Orlando, Kissimmee, Debra S. Babb-Nutcher Cocoa & Viera Jeffrey P. Buak ° John U. Biedenharn, Jr. Joseph E. Blitch Douglas Lambert Katherine W. Latorre Michelle A. Reddin Kimberly F. Whitfield Erin J. O'Leary Of Counsel December 12, 2003 Via Facsimile and U.S. Mail The Honorable Mayor John F. Bush and Members of the City Commission c/o Andrea Lorenzo-Luaces, City Clerk City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708 Re: Legal Opinion - Power Poles City of Winter Springs - General Utilities Our File No.: 315-018 Dear Mayor Bush and City Commission: This letter is in response to your inquiry regarding whether the City of Winter Springs is authorized to require utility power poles be constructed underground. Short Answer Pursuant to chapter 366.04(1), Florida Statutes, the Public Service Commission ("PSC"), and not the city, has the authority and jurisdiction to determine whether utility power poles should be placed underground. The PSC's authority in this area preempts the city's authority. However, while ultimate authority may be with the PSC, the city may negotiate an agreement with the power company to relocate the power lines underground at the city's expense, and cover the costs of such agreement by implementing a special assessment. Legal Analysis Section 366.04(1), Florida Statutes, states that "the commission shall have jurisdiction to regulate and supervise each public utility with respect to its rates and service." In Florida Power Corp. v. Seminole County, 579 So. 2d 105 (Fla. 1991), the Florida Supreme Court found that requiring underground placement of power lines clearly affected the power rates and services. Based on this finding, the Court held that the jurisdiction of the Public Service Commission 225 East Robinson Street, Suite 660 - P.O. Box 2873 •Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 - Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net - E-mail: firm@orlandolaw.net The Honorable Mayor John F. Bush and Members of the City Commission December 12, 2003 Page 2 preempts the authority of cities to require a utility power provider to place its already existing lines underground. Despite this finding, the Court clarified that its holding did not limit the ability of cities to require developers of new subdivisions to place their electric power supply facilities underground. So, while the city may not require the power utility company to relocate its already existing power lines underground, it is authorized to require developers to construct new power lines underground. City's Alternative Option Although the city may be restricted in requiring the power company to relocate the lines underground at the power company's expense, it is likely that the power company would be willing to negotiate an agreement with the city to relocate the lines at the city's expense. Such agreement would not affect the power rates because the city itself would absorb the costs of relocating the lines underground. In turn, the city could allocate the costs of relocating the lines underground to the city residents through the implementation of a special assessment. Section 170.201(1), Florida Statutes, confers upon the governing body of a municipality the authority to levy and collect special assessments to fund capital improvements and municipal services. Further, the city has the authority, pursuant to section 170.01(d), Florida Statutes, to pay for the relocation of utilities, including the placement of underground electrical services. This authority was confirmed in Attorney General Opinion 2001-82, which states that section 170.01(d) "clearly recongize[s] the placement of underground electrical services as a proper purpose for municipalities imposing special assessments." The assessment could be for all or for part of the cost of relocating the power lines and may be imposed by a local ordinance. Additionally, the assessment must satisfy two requirements in order to be valid. First, the property assessed must derive a special benefit from the service provided, and second, the assessment must be fairly and reasonably apportioned among the properties that receive the special benefit. See City of Boca Raton v. State, 595 So. 2d 25 (Fla. 1992). In this instance, the residents of Winter Springs living in areas where the lines would be relocated would receive the aesthetic benefit of no longer having the lines above -ground. I look forward to discussing this matter in the future. my yours, Anthony A. Garganese City Attorney aag:kwl:jd cc: Ronald W. McLemore, City Manager Sent_5y: "A OWN, SALZMAN,WEISS&GARGANESE; u 407 425 9596; Dec-12-03 2:59PM; Page 1l3 Brown, Salzman, Weiss & Garganese, P.A. 225 Tart Robinson Street — Suite 660 Pest Office Box 2873 Orlando, Florida 32802-2873 (407) 425-9566 (407) 425-9596 far agarganese@orlandolaw,net Date: December 12, 2003 To: Andrea Lorenzo-Luaees, City Clerk City of Winter Springs Fax: 407-327-4753 From: Anthony A. Garganese, Esq., City Attorney Pages (including this one): j COMMENTS: Please see attached correspondence: If there are any questions regarding this fax, please call 4071425-9566. This facsimile message is attorneylelient privileged material and is, accordingly, confidential. This rnesrage ix intended only for the individual or entity named above. Ifthe reeaiver ofthis message is not the intended recipient, plaaw be advised that any digteminotion, distribution, or copying nJihif rnmmunieadon is anictly pmhihired. tf you have received this communication in error, please noayfki g by telephone i mmedia rely and return the original message in either above address via the U. S, Mail, Thankyou, Sent -ay: 5R0WN,SALZMAN,WEISS&GARGANESE; 407 425 9596; Dec-12-03 2:59PM; Page 2/3 BROWN, MUM^ WEISS & GARGANESE, P.A. Usher L. Brown' Suzanne D'Agresta` Anthony A. Garganese° Gary S. Salzman' John H. Ward' Jeffrey S Weiss 'Board Certified Civil Trial Lawyer 'Board Certified Business Litigation Lawyer 'Board Certified City, County & Local Government Law Aitorngs al 1w1w Offices M Orlando, 1Vssnmrsee, Debra S Babb-Nutcher CULOx&Viera Jeffrey Buak" John U. Bledenharn, Jr Joseph E Burch Douglas t,amhert Katherine W Latorre Michelle A Reddin Kimberly F Whitfield Erin J O'Leary Of Counsel December 12, 2003 Via Facslmlle and U.S. Mal! The Honorable Mayor John F. Bush and Members of the City Commission c/o Andrea Lorenzo-Luaces, City Clerk City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708 Re: Legal Opinion - Power Poles City of Winter Springs - General Utilities Our File No.: 315-018 Dear Mayor Bush and City Commission: This letter is in response to your inquiry regarding whether the City of Winter Springs is authorized to require utility power poles be constructed underground. Short Answer Pursuant to chapter 366.04(1), Florida Statutes, the Public Service Commission ("PSC"), and notthe city, has the authority and jurisdiction to determine whether utility power poles should be placed underground. The PSC's authority in this area preempts the city's authority. However, while ultimate authority may be with the PSC, the city may negotiate an agreementwith the power company to relocate the power lines underground at the city's expense, and cover the costs of such agreement by implementing a special assessment. Legal Analysis Section 366,04(1), Florida Statutes, states that "the commission shall have jurisdiction to regulate and supervise each public utility with respect to its rates and service." In Florida Power Corp v Seminole County, 579 So. 2d 105 (Fla. 1991), the Florida Supreme Court found that requiring underground placement of power lines clearly affected the power rates and services. Based on this finding, the Court held that the jurisdiction of the Public Service Commission 225 East Robinson Slreel, Sulte 660 - P,O. Box 2873 •Orlando, Florida 32902-2873 Orlando (407) 426-9566 Fax (407) 425.SW • Kissimmee (321) 402-0144 • Cocoa 6 Vies (866) 425.9W6 Website, www.orlandolsw net - E-mail: Arm®orlandolew.nel Sentry: 9ROWN,SALZMAN,WEISS&GARGANESE; 407 425 9596; Dec 12 03 3:OOPM; Page 3/3 The Honorable Mayor John F Bush and Members of the City Commission December 12, 2003 Page 2 preempts the authority of cities to require a utility power provider to place its already existing lines underground. Despite this finding, the Court clarified that its holding did not limit the ability of cities to require developers of new subdivisions to place their electric power supply facilities underground. So, while the city may not require the power utility company to relocate its already existing power lines underground, it is authorized to require developers to construct new power lines underground. City's Alternative Option Although the city may be restricted in requiring the power company to relocate the lines underground at the power company's expense, it is likely that the power company would be willing to negotiate an agreement with the city to relocate the lines at the city's expense. Such agreement would not affect the power rates because the city itself would absorb the costs of relocating the lines underground. In turn, the city could allocate the costs of relocating the lines underground to the city residents through the implementation of a special assessment. Section 170.201(1), Florida Statutes, confers upon the governing body of a municipality the authority to levy and collect special assessments to fund capital improvements and municipal services. Further, the city has the authority, pursuant to section 170.01(d), Florida Statutes, to pay for the relocation of utilities, including the placement of underground electrical services, This authority was confirmed in Attorney General Opinion 2001-82, which states that section 170.01(d) "clearly recongize[s] the placement of underground electrical services as a proper purpose for municipalities imposing special assessments," The assessment could be for all or for part of the cost of relocating the power lines and may be imposed by a local ordinance. Additionally, the assessment must satisfy two requirements in order to be valid. First, the property assessed must derive a special benefit from the service provided, and second, the assessment must be fairly and reasonably apportioned among the properties that receive the special benefit. See City of Boca Raton v. State, 595 So. 2d 25 (Fla. 1992). In this instance, the residents of Winter Springs living in areas where the lines would be relocated would receive the aesthetic benefit of no longer having the lines above -ground. I look forward to discussing this matter in the future. ly yours, Anthony A. Garganese City Attorney aag:kwl:jd M. Ronald W. McLemore, City Manager