Loading...
01-11-1994 OBWACINDY L. BARTIN JOSEPH W. LANDERS, JR. JOHN T. LAVIA, III RICHARD A. LOTSPEICH FRED A. McCORMACK PHILIP S. PARSONS HOWELL L. FERGUSON OF COUNSEL VICTORIA J. TSCHINKEL SENIOR CONSULTANT (NOT A MEMBER OF THE FLORIDA BARI Id. LANDERS PARSONS ATTORNEYS AT LAW CONFIDENTIAL WORK PRODUCT MEMORANDUM Federal Express TO: John Cook FROM: Rick Lotspeich 6( 'fL DATE: January 11, 1994 RE: Possible condemnation of OBWA water system 310 WEST COLLEGE AVENUE POST OFFICE BOX 271 TALLAHASSEE, FLORIDA 32302 TELEPHONE (904) 681 -0311 TELECOPY (904) 224 -5595 This memo discusses the authority of the City of Okeechobee to condemn the water system owned by Okeechobee Beach Water Associa- tion and the possible conflict which may arise if Okeechobee County also tries to condemn the OBWA water system. I. Citv's Power of Eminent Domain A municipality's powers of eminent domain are founded on Article VIII, Section 2 of the Florida Constitution. While there is additional statutory authority for condemnation under Part IV of the Municipal Home Rule Powers Act (Chapter 166, Fla. Statutes) and Chapter 180, Fla. Stat. (Municipal Public Works), these statutory provisions are relevant "only to determine limitations of authori- ty." City of Ocala v. Nve, 608 So.2d 15, 17 (Fla. 1992). In Nve, the Florida Supreme Court stated that no eminent domain enabling statutes are required for a municipality to exercise it condemna- tion powers: Although section 166.401 purports to authorize municipal- ities to exercise eminent domain powers, municipalities could exercise those powers for a valid municipal purpose without any such "grant" of authority. Under Section 166.401(1), Fla. Stat., municipalities are granted broad powers of eminent domain: All municipalities in the state may exercise the right Mr. Cook January 11, 1994 Page 2 appropriate property within the state, except state and federal property, for the uses or purposes authorized pursuant to this part. Under Section 166.411, a municipality may exercise eminent domain for numerous uses and purposes including: (2) Over railroads, traction and streetcar lines, telephone and telegraph lines, all public and private streets and highways, drainage districts, bridge dis- tricts, school districts, or anv other public or private lands whatsoever necessary to enable the accomplishment of purposes listed in Florida Statutes 4180.06. One of the express purposes listed in Section 180.06 is: (2) To provide a water supply for domestic, municipal or industrial uses. Section 180.22(1), Fla. Stat. essentially repeats the language of Section 166.411(2) and authorizes a municipality to exercise its powers of eminent domain over any "lands or property whatsoever necessary to enable the accomplishment of the purposes of" Chapter 180 (i.e. providing a water supply). While Section 180.02(1) authorizes a municipality to exercise its corporate powers within its corporate limits, Section 180.02(2) authorizes a municipality to: execute all of its corporate powers applicable for the accomplishment of the purposes of this chapter outside of its corporate limits, as hereinafter provided and as may be desirable or necessary for the promotion of the public health, safety and welfare or for the accomplishment of the purposes of this chapter; provided, however, that said corporate powers shall not extend or apply within the corporate limits of another municipality. (emphasis added) There is only one case which we found that construed Chapter 180 to allow the condemnation of entire waterworks systems by a municipality. City of Palm Bav v. General Development Util., Inc., 201 So. 2d 912 (Fl. 4th DCA 1967). Since the system being condemned in that case was located entirely within the city's limits; the court did not address the issue of the city's extrater- ritorial powers of condemnation. However, there is another case which did recognize a city's right to exercise its eminent domain 2 Mr. Cook January 11, 1994 Page 3 power outside its corporate limits to condemn land for the extension of a sewage system. Romero v. City of Pensacola, 214 So. 2d 88 (Fla. 1st DCA 1968). With regard to whether the City can condemn that portion of the OBWA system in Glades County, our research does not indicate that a municipality's eminent domain power is limited to property located within the county surrounding the city. Taken in light of Nve, it is strongly arguable that a municipality is not limited by county boundaries. Under Nve, it seems apparent that the only limitation on a municipality's eminent domain power is that it doesn't encroach upon the boundaries of another municipality. Based on the Florida Constitution, and the provisions of Chapter 166 and 180, Fla. Stat., it would appear that the City of Okeechobee has broad authority to exercise its right of eminent domain to condemn the OBWA water system for the purpose of pro- viding a water supply. II. Countv's Power of Eminent Domain Counties may acquire property under a general grant of power delineated in Fla. Stat. §127.01, (1993). Chapter 127 provides in pertinent part, that a county may appropriate property through eminent domain proceedings "for any county purpose." Along those lines, supplying water and sewerage is listed within county powers pursuant to Fla. Stat. 125.01(1)(k)1 (1993). See, Dade County v. General Waterworks Coro., 267 So. 2d 633 (Fla. 1972)(holding that a county had eminent domain authority to condemn all privately owned water systems within the county to create a uniform water- works system). Other statutory provisions grant counties eminent domain powers directly related to maintaining a water supply within and outside county boundaries. Chapter 153, titled the "County Water System and Sanitary Sewer Financing Law," provides a general grant of power that appears to grant counties authority to use eminent domain proceedings to acquire property "for the efficient operation or for the extension of or the improvement of any facility purchased or constructed under [this chapter]." Section 153.03(5), Fla. Stat. (1993). However, you should note that Section 153.03(5) expressly prohibits a county from condemning any "lands or rights or interests" owned by any municipality. 3 Mr. Cook January 11, 1994 Page 4 III. Conflictina Powers There appear to be no cases directly on point regarding conflicting eminent domain powers between a municipality and a county. It has been established that charter counties may preempt conflicting municipal ordinances under certain situations. It has also been held that a county may preempt municipal regulatory power, but that municipal consent must be given for a county to acquire the municipality's provision of services. City of Ormond Beach v. County of Volusia, 535 So. 2d 302 (Fla. 5 DCA 1988); Broward County v. City of Fort Lauderdale, 480 So. 2d 631 (Fla. 1985). Although we have not found any recent cases on this point, it is arguable that a county may not preempt a municipality's water system ordinance because the system relates directly to a municipal service the provision of water. This idea is supported by the statutes cited above relating to a municipality's authority under the Municipal Public Works provisions. A second approach contemplates the prior public use doctrine, which traditionally bars condemnation of property owned or controlled by another government entity having independent condemnation powers. The general prior public use rule has been excepted for situations in which transferring ownership or control, while maintaining the same use, would benefit the public. City of Palm Bav, 201 So. 2d at 916. Furthermore, there are cases holding that one governmental agency may have, by virtue of specific statutory language, a superior power of condemnation that supersedes the prior public use doctrine. Housing Authority v. State Department of Transportation, 385 So. 2d 690 (Fla. 5th DCA 1980)(holding that condemnation power of Department of Transportation was superior to that of city housing authority based upon statutory language limiting housing authority). There appears to be no specific statutory language establish- ing a hierarchy of condemnation power between a municipality and a county in a dispute involving privately owned property consisting of a waterworks system. However, it could be argued that a city's grant of eminent domain power to specifically pursue a public waterworks system, provided by Florida Statutes 166.411, relating to chapter 180.06, creates a superior right of condemnation. There are also statutory provisions that suggest a county enjoys similar powers to acquire water system property. See Chapter 4 Mr. Cook January 11, 1994 Page 5 153 Florida Statutes (1993). However, Section 153.03, which prohibits eminent domain over water system property owned by a municipality, suggests that the Legislative intent was to give municipalities superior condemnation rights against a county. Still, it is unclear whether the statutory language of Chapters 153, 166 and 180 would support the City's claim in a condemnation proceeding involving both the City and the County competing for a privately -owned water system lying outside the City's boundaries. In that situation, a court would likely consider whether city ownership would better serve the public. Conclusions If the City could condemn the system without intervention by the County, it is unlikely that the County could later condemn the system from the City. However, if the County did intervene in the City's condemnation of OBWA's system, several issues would arise regarding preemption, standing and the prior public use doctrine of eminent domain authorities. In a dispute as to which of the local government entities possesses a superior right of eminent domain, the court would likely examine the purpose and use of the property subject to condemnation. Since the use of the water system would essentially be identical for both the City and the County, the next issue is which entity could better serve the public use through the property. The County will likely contend that a county -wide water system is in the best public interest, as supported by several cases. Furthermore, the County would likely contest the City's authority to condemn property outside its corporate boundaries. Although there are several cases, as well as specific statutory language, supporting the City's authority, the boundary issue could be significant under the facts of this particular situation. Since there is an ongoing dispute as to the service area itself, the court might be influenced by the County's franchise relation- ship with OBWA. The City has several theories to contest the County's condemnation power. First, the City has an existing water system that is the sole water supplier for the disputed water system. Because the County could not condemn the City's system, the superior public purpose would be for the City to acquire OBWA's system, which is already meshed with the city system. 5 Mr. Cook January 11, 1994 Page 6 The City would also find support in several statutory provisions relating to municipal public works and powers. Those statutes would support the City's extension of its condemnation power outside its boundaries under these circumstances. I have not considered any procedural problems relating to the timing or specific requirements of both the City and the County's eminent domain authority. Specifically, I have not examined any negotiation requirements, etc. Furthermore, the County of Okeechobee charter, and the City's charter, if available, could further clarify any preemption questions. As we discussed, the subject of condemnation law is not within the area of law which I normally practice. Accordingly, before the City Council takes any steps toward condemning the OBWA system, I strongly recommend that you obtain a second opinion on the condemnation issues from an attorney who practices in this area of the law. 6