91-001159
Betmar Utilities vs.
City Of Zephyrhills
Status: Closed
Recommended Order on Tuesday, July 16, 1991.
Recommended Order on Tuesday, July 16, 1991.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8BETMAR UTILITIES, INC., )
12)
13Petitioner, )
15)
16vs. ) CASE No. 91-1159
21)
22CITY OF ZEPHYRHILLS, )
26)
27Respondent, )
29and )
31)
32FLORIDA PUBLIC SERVICE COMMISSION, )
37)
38Intervenor. )
40)
41___________________________________)
42RECOMMENDED ORDER
44Pursuant to notice, the Division of Administrative Hearings, by its duly
55designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the
67above-styled case on May 9, 1991, in Dade City, Florida.
77APPEARANCES
78For Petitioner: Scott L. Knox, Esquire
8428870 U.S. Highway 19 North
89Suite 230
91Clearwater, Florida 34621
94For Respondent: Thomas P. McAlvanah, Esquire
10037818 Highway 54 West
104Zephyrhills, Florida 34248
107For Intervenor: Robert J. Pierson, Esquire
113101 East Gaines Street
117Tallahassee, Florida 32399-0863
120STATEMENT OF THE ISSUES
124Whether Betmar Utilities, Inc.'s application for an expansion of territory
134under its water and wastewater certificates in Pasco County should be approved
146by the Public Service Commission.
151PRELIMINARY STATEMENT
153On November 13, 1989, Betmar Utilities, Inc. ( Betmar) filed an application
165with the Public Service Commission (Commission) for an expansion of territory
176serviced under its water and wastewater certificates in Pasco County, Florida.
187Betmar seeks to enlarge its certified service area to the north and south in an
202unincorporated portion of the county. Pasco County (County) and the City of
214Zephyrhills (City) timely objected to the application, and requested a formal
225administrative hearing. The case was referred to the Division of Administrative
236Hearings (Division) by the Commission on February 26, 1990.
245Jurisdiction was relinquished back to the Commission on November 8, 1990,
256based upon the assumption that the case had settled. When it was determined
269that settlement would not occur, the case was again referred to the Division on
283February 20, 1991. Final hearing was scheduled for May 9, 1991.
294Prior to the commencement of the hearing, the Hearing Officer was advised
306that the County would not be participating in the proceeding. The case style
319was amended to reflect the County's removal as a Respondent. As a preliminary
332matter, the City announced that its objection to the extension application was
344limited to a territorial dispute regarding the property abutting Geiger Road
355which extends 330' south of the road.
362As a preliminary matter, all parties agreed that the Commission rules with
374the revision date of February 1991 would be used in the Recommended Conclusions
387of Law as the April rule revisions were not available at hearing. It was
401further agreed that the statute in effect at the time the application was filed
415would be the controlling statutory law.
421During the hearing, two witnesses were presented by Betmar and four
432exhibits were moved into evidence. The City submitted three exhibits, and
443applicable portions of the Pasco County Land Use Plan were admitted as Hearing
456Officer Exhibit #1. Leave to file the land use plan and the Tariff Sheet marked
471Petitioner's Exhibit #4 posthearing was granted by the Hearing Officer. These
482exhibits were filed May 20, 1991, and all exhibits were admitted without
494objection.
495The transcript of the hearing was filed May 22, 1991. Proposed Recommended
507Orders were filed by all parties by June 3, 1991. Rulings on the proposed
521findings of fact are in the Appendix to the Recommended Order.
532FINDINGS OF FACT
5351. Betmar Utilities, Inc. is a private utility company who owns and holds
548Florida Public Service Commission Certificates Number 137W and No. 98S. These
559certificates grant Betmar the right to operate a water and wastewater system in
572a specified territory within an unincorporated area of Pasco County.
5822. Betmar seeks an extension of its certified territory into the areas
594immediately to the north and south in an unincorporated area of the county.
607There is, or will be in the near future, a need for water and wastewater
622services in the proposed amended territory. An Application for Amendment of
633Territory was filed with the Commission to allow Betmar to service the area on
647November 13, 1989.
6503. When Betmar noticed the City of its pending application, an objection
662was filed to the proposed expansion. The objection specifically relates to the
674property on the south side of Geiger Road, which extends 330 feet south of the
689roadway, and adjoins the City's boundaries.
6954. Although the City does not currently provide services to this locale,
707it does own water and sewer lines on the northern side of Geiger Road in the
723Silver Oaks area. Other water and sewer lines in the City's system extend below
737the south side of Geiger Road at the far eastern portion of the area for which
753Betmar is seeking the extension of territory.
7605. In an interlocal agreement between the City and the County dated
772February 9, 1988, these governmental entities established designated service
781areas for water and wastewater services in this particular area of the county.
794The purpose of the agreement was to promote the economic delivery of services to
808citizens in the area, and to provide for the necessary long-range planning
820inherent in the provision of these services. Prior to the agreement, the County
833was authorized to provide the services to the areas for which an extension is
847sought by Betmar.
8506. The service area boundaries delineated in the agreement were to be
862periodically reviewed in conjunction with the review of each party's respective
873comprehensive plans.
8757. Pursuant to this agreement, the City and County determined that the
887City's Service Area Boundry would include the area south of Geiger Road that
900abuts Betmar's current service area.
9058. The City and the County each relied upon this interlocal agreement in
918the creation of their respective comprehensive plans. However, no additional
928action has been taken by the City to service the area.
9399. The City is not actually operating within the disputed area for a
952number of reasons. First of all, the City has adopted an ordinance which
965requires annexation of contiguous property as a condition of receiving its water
977and sewer services. The disputed portion of the proposed amended territory is
989not within the city limits and has not been annexed. Secondly, the City is not
1004prepared to build utility lines to service the disputed proposed amended
1015territory until the new bypass road along Geiger Road is built, and the proper
1029right-of-way is obtained. At that time, the City would like to extend the
1042Silver Oaks line under Geiger Road to the south, and the line along the eastern
1057side of the disputed portion of territory to the west. These anticipated
1069expansions correlate with the City's Service Area Boundry in the interlocal
1080agreement which remains unchanged between the City and the County. A proposed
1092service date was not provided by the City at the formal hearing.
110410. The City seeks to control land use and development of property along
1117the Geiger Road corridor though its ability to provide or withhold utility
1129services.
113011. Betmar also has water and sewer lines abutting or located on all
1143properties described in its application for extension, including the area in
1154controversy. These lines are currently active due to Betmar's water and sewer
1166system which is in the center of the area targeted for expansion.
117812. Both Betmar and the City have the technical and financial ability to
1191provide water and wastewater services in the proposed amended territory.
120113. Betmar has a tariff approved by the Commission which allows it to
1214charge 110% of the cost of the extension of service from its existing lines to
1229any property seeking service.
123314. Owners of property abutting Geiger Road have contacted Betmar about the
1245possibility of providing service. A formal request for service has been made by
1258Jake Developers for service in that area.
126515. Betmar's sewage collection facilities abutting the Geiger Road property
1275are gravity lines. The City's sewage collection facilities in close proximity
1286to the area are force mains.
129216. Betmar does not charge impact fees for connection into its system. The
1305City charges a water impact fee of $350.00 and a sewer impact fee of $1,278.00
1321for connection into its system.
132617. Betmar anticipates a reduction in water and sewer rates if the
1338extension is approved.
134118. Betmar presented no evidence about plans for further financial
1351investment which would enable the utility to provide service in the area for
1364which the extension has been requested because Betmar believes further
1374investment is unnecessary.
137719. Betmar has an agreement with the County that states the County will
1390provide bulk wastewater treatment to Betmar for the purpose of offering
1401centralized wastewater services from the County's Southeast Subregional
1409Wastewater Treatment Plant for a twenty-five year term.
141720. The County has placed a possible qualification on the term of years in
1431the agreement by inserting the following clause:
1438... its first responsibility is to the
1445customers inside its own service limits and
1452that it reserves the right to act in the best
1462interest of those customers in all
1468circumstances.
146921. The agreement between the County and Betmar has not been approved by
1482the Commission.
1484CONCLUSIONS OF LAW
148722. The Division of Administrative Hearings has jurisdiction over the
1497parties and the subject matter pursuant to Sections 367.045(4) and 120.57(1),
1508Florida Statutes.
151023. When a utility applies for an amended certificate of authorization
1521from the Commission, it is required to provide all information required by rule
1534or order of the Commission. Section 367.045(2), Florida Statutes.
154324. Rule 25-30.036(d), Florida Administrative Code, requires a utility
1552proposing to extend its service area to provide:
1560[E] vidence that the utility owns the land
1568upon which the utility treatment facilities
1574that will serve the proposed territory are
1581located or a copy of an agreement, such as a
159199-year lease, which provides for the
1597continued use of the land.
160225. In this case, Betmar has an agreement with the County, who currently
1615has jurisdiction to service the area in controversy. The agreement states the
1627county will provide bulk wastewater treatment to Betmar in the area for a
1640twenty-five year term, subject to the County's need to use its Southeast
1652Subregional Wastewater Treatment Plant for customers within its own service
1662area. When this agreement was placed into evidence instead of a deed or a long-
1677term lease as required by rule, a legal issue arose as to whether Betmar's
1691request for an amended certificate of authorization is materially deficient
1701under the statutory and regulatory framework.
170726. During a cursory review of the pending amendment application, it
1718appears that there would be numerous public benefits if Betmar were to obtain
1731the amended certificate and expand its territory to all of the requested area.
1744The County has no objection, and the City is unable to act ultra vires in the
1760area due to its ordinance which prevents the provision of City utilities in an
1774unincorporated area. Further scrutiny reveals the amendment application is
1783materially deficient in that the required ownership or long-term 99-year lease
1794regarding utility treatment facilities is nonexistent. Even the proposed
1803twenty-five year permitted use agreement regarding the treatment facilities
1812contains conditions subsequent that severely limit the County's obligations
1821under the agreement. As a matter of law, the agreement lacks the certainty
1834required by Rule 25-30.036, Florida Administrative Code.
184127. The applicant has the burden to prove that his request for the
1854amendment is in the public interest. Although the proposed amendment
1864application contains numerous public benefits, it is contrary to the public
1875interest to cause future Betmar customers to rely on a wastewater treatment
1887agreement that lacks certainty. The conditions subsequent, which are out of
1898Betmar's control, make the proposed agreement with the County unreliable, even
1909for the proposed twenty-five year term.
1915RECOMMENDATION
1916Based on the foregoing Findings of Fact and Conclusions of Law, it is
1929RECOMMENDED:
1930The Commission should deny Betmar's application for an amendment to its
1941certified territory in Pasco County as the applicant has failed to provide that
1954it will be allowed the continued use of the County's Southeast Subregional
1966Wastewater Treatment Plant for the twenty-five year term set forth in the
1978agreement presented at hearing.
1982DONE and ENTERED this 16th day of July, 1991, in Tallahassee, Leon County,
1995Florida.
1996_____________________________
1997VERONICA E. DONNELLY
2000Hearing Officer
2002Division of Administrative Hearings
2006The DeSoto Building
20091230 Apalachee Parkway
2012Tallahassee, Florida 32399-1550
2015(904)488-9675
2016Filed with the Clerk of the
2022Division of Administrative Hearings
2026this 16th day of July 1991.
2032APPENDIX TO RECOMMENDED ORDER
2036Petitioner's proposed findings of fact are addressed as follows:
20451. Accepted. See HO #2.
20502. Accepted. See HO #1.
20553. Accepted. See HO #3.
20604. Accepted. See HO #11.
20655. Accepted. See HO #4.
20706. Accepted. See HO #9.
20757. Accepted. See HO #11.
20808. Accepted. See HO #13.
20859. Accepted. See HO #14.
209010. Accepted. See HO #9.
209511. Accepted. See HO #9.
210012. Accepted. See HO #11.
210513. Accepted.
210714. Rejected. Improper legal conclusion.
211215. Accepted. See HO #5.
211716. Accepted. See HO #8.
212217. Accepted. See HO #14.
212718. Accepted. See HO #14.
213219. Accepted.
213420. Accepted.
213621. Accepted.
213822. Accepted.
214023. Accepted. See HO #15.
214524. Accepted. See HO #15.
215025. Accepted. See HO #16.
215526. Rejected. Improper legal conclusion. See HO #17.
216327. Accepted. See Preliminary Statement.
2168Respondent's proposed findings of fact are addressed as follows:
21771. Accepted. See Preliminary Statement.
21822. Accepted. See Preliminary Statement.
21873. Accepted that an interlocal agreement between City and county existed. See
2199HO #5. The rest of the paragraph is rejected as legal argument.
2211Intervenor's proposed findings of fact are addressed as follows:
22201. Accepted. See HO #2.
22252. Accepted. See HO #12.
22303. Accepted. See HO #12.
22354. Accepted. See HO #3.
22405. Accepted. See HO #11.
22456. Accepted. See HO #4.
22507. Accepted. See HO #12.
22558. Accepted. See HO #9.
22609. Accepted. See HO #9.
226510. Accepted. See HO #9.
227011. Accepted. See HO #5.
2275COPIES FURNISHED:
2277Scott L. Knox, Esquire
228128870 U.S. Highway 19 North
2286Suite 230
2288Clearwater, Florida 34621
2291Thomas P. McAlvanah, Esquire
229537818 Highway 54 West
2299Zephyrhills, Florida 34248
2302Robert J. Pierson, Esquire
2306Florida Public Service Commission
2310101 East Gaines Street
2314Tallahassee, Florida 32399-0863
2317David Swafford, Executive Director
2321Florida Public Service Commission
2325106 Fletcher Building
2328101 East Gaines Street
2332Tallahassee, Florida 32399-0850
2335Steve Tribble, Director
2338Records and Recording
2341Florida Public Service Commission
2345101 East Gaines Street
2349Tallahassee, Florida 32399
2352Susan Clark, General Counsel
2356Florida Public Service Commission
2360212 Fletcher Building
2363101 East Gaines Street
2367Tallahassee, Florida
2369NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2375All parties have the right to submit written exceptions to this Recommended
2387Order. All agencies allow each party at least 10 days in which to submit
2401written exceptions. Some agencies allow a larger period within which to submit
2413written exceptions. You should contact the agency that will issue the final
2425order in this case concerning agency rules on the deadline for filing exceptions
2438to this Recommended Order. Any exceptions to this Recommended Order should be
2450filed with the agency that will issue the final order in this case.
- Date
- Proceedings
- Date: 08/06/1991
- Proceedings: Intervenor Florida Public Service Commission`s Exceptions to Hearing Officer`s Recommended Order w/Certificate of Service filed. (From Matthew Feil)
- Date: 07/29/1991
- Proceedings: (Petitioner) Exceptions to Recommended Order filed. (From Scott Knox)
- Date: 06/03/1991
- Proceedings: Final Argument; Proposed Recommended Order (unsigned) filed. (From Scott L. Knox)
- Date: 05/31/1991
- Proceedings: Certificate of Service; Proposed Recommended Order of Intervenor, Florida Public Service Commission (unsigned) filed. (from Matthew Feil)
- Date: 05/31/1991
- Proceedings: Notice of Appearance of Counsel w/Certificate of Service & cover ltr filed. (From Matthew Feil)
- Date: 05/22/1991
- Proceedings: Respondent`s Exhibit #2 filed. (from Thomas P. McAlvanah)
- Date: 05/22/1991
- Proceedings: Notice of Filing; Transcript filed. (From Sydney C. Silva)
- Date: 05/20/1991
- Proceedings: Exhibit-1 & Petitioner`s Exhibit-4 & cover ltr filed. (From Scott L. Knox)
- Date: 05/07/1991
- Proceedings: (Petitioner) Motion for Continuance of Hearing filed. (From Scott L. Knox)
- Date: 04/22/1991
- Proceedings: Notice of Taking Deposition filed. (From Thomas McAlvanah)
- Date: 04/08/1991
- Proceedings: Notice of Taking Deposition filed. (from Scott L. Knox)
- Date: 03/26/1991
- Proceedings: Prehearing Order (prehearing stipulation due no later than 10 days prior to the date set for final hearing) sent out.
- Date: 03/26/1991
- Proceedings: Notice of Hearing sent out. (hearing set for 5/9/91; at 9:30am; in Dade City)
- Date: 03/12/1991
- Proceedings: (Petitioner) Response to Initial Order; and Cover letter from S. Knox filed.
- Date: 02/22/1991
- Proceedings: Agency referral letter; Application for an Amendment to a Certificatefor Water and/or Sewer Utility; Objection to Notice of Amendment to Water and Sewer Certificate & exhibits; Request for Administrative Hearing, letter form, may include other supporting
Case Information
- Judge:
- J. LAWRENCE JOHNSTON
- Date Filed:
- 02/22/1991
- Date Assignment:
- 02/27/1991
- Last Docket Entry:
- 08/06/1991
- Location:
- Dade City, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO