Judges: Robert A. Butterworth Attorney General
Filed Date: 6/18/1997
Status: Precedential
Modified Date: 7/5/2016
Mr. Clifford Repperger, Jr. Cape Coral Assistant City Attorney Post Office Box 150027 Cape Coral, Florida 33915-0027
Dear Mr. Repperger:
On behalf of the city manager, you have asked substantially the following questions:
1. Does a franchise agreement allowing a public utility to locate on a public easement with no provision for liability for relocation expenses preclude the application of section
2. Does section
3. Are cable television facilities considered a utility subject to section
In sum:
1. While a franchise agreement for placement of a public utility on a public easement creates a property right that may entitle the owner or holder to compensation when such right is dispossessed, section
2. Section
3. While cable television is not specifically included in the definition of a utility subject to section
Question One
You state that the City of Cape Coral has a franchise agreement with the Lee County Electric Cooperative (cooperative) for the operation of an electric utility within the city. According to the agreement, the cooperative may "construct, maintain and operate an electric utility in, over, upon, under and across present and future streets, alleys, avenues, easement for public utilities, highways, bridges, canals, and other public places of the [c]ity . . . ." You indicate, however, that the agreement does not address who will be responsible for relocation expenses when the city requires a relocation of electric facilities. In light of the requirements in section
Section
"(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
When it becomes necessary for a governmental authority to remove or relocate a utility pursuant to this section, the owner of the utility or the owner's chief agent must be given notice and an order requiring the payment of such removal or relocation.2 The utility then has a reasonable time (not less than 20 nor more than 30 days) in which to contest the reasonableness of the order and is entitled to an adjudication of the removal or relocation of the utilities pursuant to Chapter
There is some question, however, that a franchise agreement creates a property right that may not be dispossessed without just compensation being paid. In Pinellas County v. General TelephoneCompany of Florida,4 the Second District Court of Appeal considered whether the county was liable for the costs of moving the utility's telephone lines from property that the county had acquired from the City of St. Petersburg. In that case, the utility had maintained its lines through a city-maintained alleyway pursuant to a franchise agreement with the city. The county acquired the property for construction of a county judicial building and requested the utility to remove its lines. The utility declined to do so unless compensated by the county for the cost of relocating the lines. The court concluded that the franchise agreement between the city and utility constituted a property right of which the utility could not be deprived without the payment of just compensation.5
You point out that the Pinellas court did not cite to specific language in the franchise agreement and posit that the rationale of the opinion may not, therefore, be applicable to the present situation. In that case, however, the utility was being dispossessed of its franchise right by the proposed use of the property for something other than an inconvenience upon the alleyway or its expansion or improvement. The county could not have properly claimed the rights of having the utility pay for the relocation of its lines under the statute, when the reason the lines had to be relocated did not fall within those prescribed in the statute.
In a similar case, the Fourth District Court of Appeal considered whether a telephone company should bear the cost of relocating its lines when a private developer elected to extend a public road for its private benefit.6 Noting that the dispute was between the utility and a private party, not the county, the court looked to a previous decision from a companion court and its conclusion that the relocation expense statute "applies only to circumstances where a public body or authority elects to take action requiring utilities facilities relocation."7 It was concluded that the developer, rather than the telephone company, would have to bear the cost of relocating utilities resulting from the widening of a road, when no public authority had initiated the road improvement but, rather, such expansion was made by the developer for its private benefit.8
The statute applies to relocation of utilities necessitated by the particular instances set forth therein — utilities unreasonably interfering with the convenient, safe, or continuous use, or the maintenance, improvement, extension, or expansion of a public road or publicly owned rail corridor. Moreover, placement of the burden of paying the cost of utility relocation depends upon whether the improvement or alteration of the roadway is initiated by the public authority or some other party.
Accordingly, while a franchise agreement for placement of a public utility on a public easement creates a property right that may entitle the owner or holder to compensation when such right is dispossessed, the relocation of a utility pursuant to section
Question Two
The plain language of section
a way open to travel by the public, including, but not limited to, a street, highway, or alley. The term includes associated sidewalks, the roadbed, the right-of-way, and all culverts, drains, sluices, ditches, water storage areas, waterways, embankments, slopes, retaining walls, bridges, tunnels, and viaducts necessary for the maintenance of travel and all ferries used in connection therewith.11
Section
Considering all of these definitions, it would appear that the rights-of-way or roads subject to section
Accordingly, it is my opinion that section
Question Three
Section
Cable television facilities are not included in the specific terms set forth as comprising a utility. The general term "other structures," however, may be interpreted to include facilities comparable to or in the same class as those enumerated.14
Moreover, section
You have not directed my attention to any statutory provision exempting cable television facilities from the definition of a utility for purposes of liability for relocation expenses under Chapter
Accordingly, it is my opinion that cable television facilities are subject to the relocation provisions in section
Sincerely,
Robert A. Butterworth Attorney General
RAB/tls
"(a) The entire width between the boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public for purposes of vehicular traffic;
(b) The entire width between the boundary lines of any privately owned way or place used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons, or any limited access road owned or controlled by a special district, whenever, by written agreement entered into under s.
(c) Any area, such as a runway, taxiway, ramp, clear zone, or parking lot, within the boundary of any airport owned by the state, a county, a municipality, or a political subdivision, which area is used for vehicular traffic but which is not open for vehicular operation by the general public; or
(d) Any way or place used for vehicular traffic on a controlled access basis within a mobile home park recreation district which has been created under s.
And see, State v. Lopez,