2001-24542 RESO
RESOLUTION NO. 2001-24542
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE CITY
ATTORNEY'S OFFICE TO REQUEST A FORMAL ADVISORY OPINION
FROM THE ATTORNEY GENERAL'S OFFICE RELATIVE TO WHEN
THE GOVERNING BODY OF A MUNICIPALITY, WHICH LEVIES AND
COLLECTS SPECIAL ASSESSMENTS TO FUND THE PLACEMENT OF
UNDERGROUND UTILITIES, PURSUANT TO CHAPTER 170, FLORIDA
STATUTES, MAY COMMENCE COLLECTION OF SAID ASSESSMENTS
AGAINST PROPERTIES SO SPECIALLY BENEFITTED.
WHEREAS, the City of Miami Beach ("City") is currently engaged in discussions 'with
various homeowners and neighborhood associations throughout the City which have requested that
the City, through the Mayor and City Commission, create a series of special assessment districts,
pursuant to Chapter 170, Florida Statutes, for the purpose of funding the undergrounding of utilities
in these respective neighborhoods; and
WHEREAS, prior to proceeding with the creation of Chapter 170, Special AssessLent
Districts to fund the public portion of the aforestated underground utility improvement projebt(s),
the Mayor and City Commission, at its regular meeting on July 18,2001, requested that the City
Attorney's Office obtain an opinion from the Attorney General's Office with regard to an
interpretation and/or clarification as to when, following the completion of the aforeStated
improvement, the City may start to collect special assessments for same against specially benefitted
properties; and
WHEREAS, because the City contemplates the future possibility of creating num~rous
special assessments within individual homeowners/neighborhood associations throughout th~ City
for the placement of underground utilities, what is really at issue is the definition (under Chapter 170,
Florida Statutes) of "completion"; and
WHEREAS, the Attorney General for the State of Florida will not issue an opinion relating
to the powers and duties of a public body unless such opinion is requested by a majority of the
members of that body.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission herein authorize the City Attorney's Office to request a formal Advisory Opinion from
the Attorney General's Office relative to when the governing body of a municipality, which levies
and collects special assessments to fund the placement of underground utilities, pursuant to Chapter
170, Florida Statutes, may commence said collection of said assessments against properties so
specially benefitted.
PASSED and ADOPTED this 18th day of
,2001.
ATTEST:
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CITY CLERK
MAYOR
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APPROVED AS TO
FORM & LANGUAGE
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CITY OF MIAMI BEACH
OFFICE OF THE MAYOR & COMMISSION
MEMORANDUM
TO:
JORGE GONZALEZ
CITY MANAGER
NANCY LIEBMAN /1)
COMMISSIONER ~
FROM:
DATE:
JULY 6, 2001
RE:
UNDERGROUNDING OF UTILITIES
Please place this issue on the July 18th Commission Agenda. Some questions to be
considered include:
Should the city coordinate a workshop including neighborhood associations, city
administration, and FPL officials to learn the realistic costs and benefits to
undergrounding?
Should the city pursue additional funding through a bond issue to allow for
undergrounding of utilities? Should special assessments be considered?
Should the city survey our residents to determine whether undergrounding is an city
improvement priority among our neighborhoods?
Should the city initiate discussion with and collect feedback from other
neighborhoods which have pursued undergrounding of utilities to provide us with a
clearer understanding of this subject?
Should the city perform a financial analysis to determine whether the increase in
property values in comparable neighborhoods has added significant tax revenue to
fund utility undergrouding construction? Should special assessments also be
considered?
Should the city interview Miami-Dade County officials involved with modifying the
county building code on this subject to understand their perspectives?
I believe these and other issues need to be addressed in a timely fashion, as this matter is of
great importance to many of our residents and neighborhoods.
NLlsl
Attachment
Agenda Item R1't-
Date 7- /g-O)
.
CITY OF MIAMI BEACH
OFFICE OF THE MAYOR & COMMISSION
TO:
FROM:
JORGE M GONZALEZ
OTY MANAGER
NEISEN O. KASDIN -J{-
MAYOK
SUBJEcr: UNDERGROUND UTIliTY OOAUTION
DATE:
07/11/01
Attached, for your review is the Miami Beach Underground Utilities o,alition's correspondence
of June 25, 2001. I feel that better communication nrust be established between homeowners and
the Gty in order to address the o,alition's concerns. Please place an item for discussion on the July
18 Gtyo,mmissionAgenda.
Miami Beach Underground Utilities Coalition
Venetian Islands Improvement. Palm-Hibiscus-Star Homeowners
Upper North Bay Road Homeowners. Lower North Bay Road Homeowners. Sunset Islands
3 & 4 Homeowners. Lakeview Homeowners. Normandy Shores Homeowners. Biscayne
Point Homeowners. Normandy Sud Homeowners. P;netree-LaGorce
June 25, 200 I
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We, selected representatives of the homeowners associations named above, have met and fo ed~j:o~on 0
to pursue the undergrounding of utilities in our respective neighborhoods. We have fonned his ~alittlJD
because we are concerned about several issues that have not been adequately addressed in meetings:that we
have had as individual neighborhood organizations with officials of the City of Miami Beach. We recognize
that these inadequacies are due in part to the fragmentation of our efforts, and that fragmentation is caused by
the fact that each neighborhood has unique geographic and infrastructure characteristics and needs, by the
fact that we have met at different times with different city administrators, and by the fact that our members
bring different perspectives and levels of experience to these discussions.
Miami Beach City Commission
1700 Convention Center Drive
Miami Beach, FL 33139
In our meetings with each other, we fInd that we have often been told different things by the same people.
We fInd that we have each come away from our meetings with Miami Beach city officials with the distinct
impression that the administration simply does not want to have to cope with infrastructure improvements
beyond those contemplated by the current round of improvements related to the GO, water and sewer, and
stonn water bond funding. Outwardly, city officials express a desire to help, and yet they do everything in
their power to discourage us from proceeding, including delaying actions that they have promised and
misinfonning us about the costs and process of under grounding.
In a meeting held by the city on June II at our request, we were told that the city will not assist in any way
with fmancing individual projects -- except to the extent of assisting in negotiations with private-sector
lenders who might fInance the projects. We understand the city's need to maintain the best possible credit
standing. Yet we are concerned that if the purpose of a good credit position is to allow raising money
efficiently for priority city improvements, we wonder why these improvements, which are a priority for our
neighborhoods -- and which should be a priority for the city at large -- are so ardently opposed by the
administration.
We feel that the city should be promoting, not discouraging, undergrounding of utilities throughout the city
for the following reasons:
Public safety. The Miami-Dade County Building Code requires new developments to have
underground electric utilities for public safety purposes. It seems the county has learned that
underground utilities are both more reliable and less dangerous in South Florida's stonns, and
therefore requires that developers spend the money to protect the public safety. In our meetings with
city officials and with Florida Power and Light, we have heard over and over that underground
utilities perfonn worse in storms. Is there something about Miami Beach's stonn experience that
would suggest that Miami Beach should not subscribe to the same position as Miami-Dade
County? Where are the studies to support this position?
Aesthetic appeal. Miami Beach has just passed a large General Obligation Bond funding
initiative for the express purpose of improving the "quality oflife" and appearance of the city. Yet
even when neighborhoods request undergrounding of utilities and state that undergrounding is a
priority, the city plans expensive plantings of trees and simultaneously discourages undergrounding
utilities. Why? What public hearings have been held where citizens have supported the planting of
trees under wires, as opposed to creating a utilities infrastructure that is more safe, reliable and
appealing?
Property value elevation. All studies of which we are aware show that the cost of
undergrounding utilities in neighborhoods like ours results in an improvement in the value of
properties that exceeds the cost of the utilities construction. In fact, some studies seem to point to
such an improvement in values that the added tax revenue easily fmances the cost of the
construction.
Both. the Palm - Hibiscus - Star Homeowners Association and the Venetian Islands Improvement Association
have had officers meet with FPL and experienced estimates of undergrounding costs that were reduced by as
much as 90% as the first, second, and third meetings progressed. Why is the city not assisting its
neighborhoods in their discussions with FPL so that these hugely overblown and disingenuous cost
estimates are exposed as a self-serving avoidance of responsibility by FPL? Does the administration simply
not know the facts, and unlike the homeowners, not have the sense to insist on real numbers from an
obviously reluctant FPL? From the discussions that these two associations have had with FPL, it now
appears that the cost of undergrounding utiiities may be less than $1,000 per homeowner in most
neighborhoods -- and possibly even less than $500 per year over the term of the loan.
We recognize that each homeowner will have additional expense in bringing the underground line into his
own home. We further recognize that Miami Beach's building code may require that individuals may have to
also upgrade some aspects of the wiring of their home, specifically the nature of the junction box where the
power comes in. It is interesting to note, however, that in the meeting of June II, no one representing the city
was familiar with the actual requirements of the building code regarding this issue. Nor were they aware that
most homeowners who have improved their driveways in the city for the past few years have been required by
the building department to pay the cost of laying conduit under the driveway to accommodate "potential
future undergrounding".
We request that a time-certain scheduled item be placed on the agenda for the next city commission meeting
to allow us to present a proposal that the city establish a task force of personnel from the city (finance,
planning, building, zoning, GO Bond Oversight, public works, code enforcement), from Hazen & Sawyer and
the engineering firms with th GO Bond project, and from our coalition to GET THE FACTS regarding the
issues addressed in this letter and in the greater general issue of undergrounding utilities in our
neighborhoods. Please contact Amy Rabin at 305-538-1284 for confirmation.
Thank you.
Sincerely yours,
The Miami Beach Underground Utilities Coalition
OFFICE OF THE CITY ATTORNEY
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MURRAY H. DUBBIN
City Attorney
Telephone:
Telecopy:
(305) 673-7470
(305) 673-7002
September 5, 2001
Robert A. Butterworth
Attorney General, State of Florida
Department of Legal Affairs
The Capitol
Tallahassee, Florida 32399-1050
Re: When may the governing body of a municipality which levies and collects special
assessments to fund the placement of underground utilities, pursuant to Chapter 170,
Florida Statutes, commence collection of said assessments against properties so
specially benefitted: (i) at the time following completion of that portion of the
underground utility improvement project on the public right-of-way; or, in the
alternative; (ii) at such time when each specially benefitted property connects to the
capital improvement (the "capital improvement" being defined as the aforestated
underground utility improvement completed upon the public right-of-way portion of
the project).
Dear Me, Butterworth:
Pursuant to Section 16,01(3) of the Florida Statutes, I hereby request a formal advisory
opinion from the Attorney General's Office relating to my official duties as Miami Beach City
Attorney with regard to the facts outlined below,
Pursuant to Chapter 170, Florida Statutes, entitled "Supplemental and Alternative Method
of Making Local Municipal Improvements," a municipality, by its governing authority, may levy
and collect special assessments against property benefited to pay for the relocation of utilities,
including the placement underground of the electrical, telephone, and cable television services,
pursuant to voluntary agreement with the utility. (See F.S. 170.01(I)(c)).
The City of Miami Beach is currently engaged in discussions with various homeowners and
neighborhood associations throughout the City which have requested that the City, through its the
governing body (the Mayor and City Commission), create a series of special assessment districts,
pursuant to the requirements for same set forth in Chapter 170, Florida Statutes, for the purpose of
funding the undergrounding of utilities in these respective neighborhoods, As contemplated, once
1700 Convention Center Drive -- Fourth Floor -- Miami Beach, Florida 33139
Robert A. Butterworth
Attorney General, State of Florida
September 5, 2001
Page 2
the particular details of the capital improvement project incident to the undergrounding of utilities
have been finalized through negotiations which include the City Administration (through its Public
Works Department), representatives of the requesting homeowners/neighborhood association, and
representatives of the utility companies, the City Administration would then recommend that the
Mayor and City Commission create a special assessment district to fund the project. The work
incident to the underground utility improvement project would be done through a contract entered
into between the particular homeowners/neighborhood association and the utility company, but the
monies to fund same would be secured by special assessments levied on the specially benefitted
property. It should also be noted that while the portion of the underground utility improvement
project to be funded by special assessments are allan the public right-of-way, each individual
homeowner within a proposed special assessment district would be required to pay for the cost of
connection or, as it were, the "hook up" from the private specially benefited property (in most cases,
these properties are residential) to the public portion of the project. This portion of the work is
outside the parameters of the proposed special assessment district and the cost, as stated, would be
borne by the individual benefitted home owner.
Prior to proceeding with the creation of Chapter 170 special assessment districts to fund the
public portion of the aforestated underground utility improvement project, the Mayor and City
Commission, at its last regular meeting on July 18,2001, requested that the City Attorney's Office
obtain an opinion from the Attorney General's Office, specifically with regard to an interpretation
and/or clarification as to when, following the completion of the aforesated improvement, the City
may start to collect special assessments for same against specially benefitted properties. Clearly, and
at a minimum, it is the City's intent not to commence with collections of special assessments until
the actual capital improvements constituting the underground utility improvement project have been
completed on the Ill!h!i& property portion of the project. However, since after completing the public
portion of the underground project, each benefitted property owner will eventually have to connect
his/her private property to same, what is really at issue is the definition (under Chapter 170, Florida
Statutes) of "completion." This definition is critical to the City for purposes of being able to collect
the assessments against specially benefitted property,
F.S. S 170.01, entitled "Authority for Providing Improvements and Levying and Collecting
Special Assessments Against Property Benefitted," provides that municipalities which are legally
obligated for providing capital improvements for water and alternative water supplies may recover
the cost of the capital improvements by levying and collection special assessments on specially
benefited property. However, collections of the special assessment shall not take place until the
speciallv benefited property connects to the c!\pital imJ'rovement. Understandably, because this
particular capital improvement refers to the legal obligation of a municipality to provide a water
supply for its citizens, the burden upon the municipality is placed under strict scrutiny. The Statute
makes no such distinction with regard to the point in time which a municipality may start the
collection of special assessments for other permissible improvements funded pursuant to Chapter
OFFICE OF THE CITY ATTORNEY. 1700 CONVENTION CENTER ORIVE . MIAMI BEACH, FLORIDA 33139
Robert A, Butterworth
Attorney General, State of Florida
September 5, 2001
Page 3
170. At the very least, it is clear that improvements funded pursuant to Chapter 170, must be
accepted by resolution of the governing authority. (See F.S. 9170.09).
F.S. 9170.09, states that "...[special] assessments may be paid without interest at any time
within thirty days after the improvement is completed and a resolution accepting the same has been
adopted by the governing authority." To date, the City has created one special assessment district
for underground utilities, in its Allison Island neighborhood. With regard to the creation of that
district, and as a policy matter (and not a legal interpretation under the Statute), the City
Administration took the position that, for the purpose of collecting special assessments. the project
would be determined "complete," not once that portion of the underground utility improvement
project consisting of the special assessment district was completed upon the public right-of-way, but
rather, once all specially benefited property owners within the district actually connected their
respective (private) properties to the public portion of the undergrounding (therefore eliminating the
appearance and existence of all above ground utility poles, etc.). The rationale for this in the past
was that the principal benefit conferred by the creation of a special assessment district for the
placement of underground utilities was primarily aesthetic; therefore, the special benefit conferred
was received upon elimination of all above ground poles, and this could only be done once all
property owners within the benefitted district had hooked up to the public portion of the underground
infrastructure project. As stated, Chapter 170 is only specific in requiring collection of special
assessments af!g connection to the capital improvements in cases where a municipality is legally
obligated to provide capital improvements for water supplies or alternative water supplies,
Because the City contemplates the future possibility of creating numerous special
assessments within individual homeowners/neighborhood associations throughout the City for the
placement of underground utilities, the former Administrative definition of "completion," as set forth
in the Allison Island example in the preceding paragraph, is necessarily being reevaluated. In the
past, this interpretation has been problematic for the City because it has not been able to collect
special assessments until the project has been certified complete. Therefore, by adhering to the
afore stated stricter interpretation of "completion" -- that is, not when the underground utility
infrastructure has been completed upon the public property, but rather when all individual benefitted
homeowners have hooked up to the underground project, this interpretation has hindered the City's
ability to collect assessments, This, in turn, has increased the amount ofthe assessments as a result
of the need to capitalize sufficient funds to cover interest payments on special assessment bonds until
such time as the City "completes" the project.
OFFICE OF THE CITY ATTORNEY. 1700 CONVENTION CENTER DRIVE ,MIAMI BEACH. FLORIDA 33139
Robert A. Butterworth
Attorney General, State of Florida
September 5, 2001
Page 4
Accordingly, I respectfuJly request an opinion on the foJlowing issues:
WHEN MAY THE GOVERNING BODY OF A MUNICIPALITY WHICH
LEVIES AND COLLECTS SPECIAL ASSESSMENTS TO FUND THE
PLACEMENT OF UNDERGROUND UTILITIES, PURSUANT TO
CHAPTER 170, FLORIDA STATUTES, COMMENCE COLLECTION OF
SAID ASSESSMENTS AGAINST PROPERTIES SO SPECIALLY
BENEFITTED: (I) AT THE TIME FOLLOWING COMPLETION OF THAT
PORTION OF THE UNDERGROUND UTILITY IMPROVEMENT
PROJECT ON THE PUBLIC RIGHT-OF-WAY; OR, IN THE
ALTERNATIVE; (II) AT SUCH TIME WHEN EACH SPECIALLY
BENEFITTED PROPERTY CONNECTS TO THE CAPITAL
IMPROVEMENT (fIlE "CAPITAL IMPROVEMENT" BEING DEFINED AS
THE AFORESTATED UNDERGROUND UTILITY IMPROVEMENT
COMPLETED UPON THE PUBLIC RIGHT -OF - WAY PORTION OF THE
PROJECT).
Should you require any additional information in order to render a formal advisory opinion
on the above stated issue, please do not hesitate to contact me at 305-673-7470.
Very truly yours,
.~
11!:::~Lbin
City Attorney
MHDIRJAlkw
F,IA TrOIAGURILETrERSIBUTTRWTH.OPN
OFFICE OF THE CITY ATTORNEY. 1700 CONVENTION CENTER DRIVE. MIAMI BEACH, FLORIDA 33139