Port St. Lucie City Council frustrated with Florida Power & Light’s refusal to negotiate better terms on right-of-way

PORT ST. LUCIE -- The City Council voted unanimously June 24 to begin eminent domain proceedings against Florida Power & Light over a strip of land that threatens to impede the development of a long-desired park and ride facility on Gatlin Boulevard.

Deputy City Attorney Margaret Carland told council members the Legal Department had attempted – so far unsuccessfully – to negotiate an equitable right-of-way agreement with the utility over a portion of the land needed for the project that lies under its high-voltage transmission lines.

“We just want to highlight certain provisions that have the potential to expose the city to monetary liability,” she said. “The agreement essentially excuses FP&L from liability for any damage or loss to the city or any other person resulting from their use of the lands. The agreement [also] requires the city to unify FP&L entities, and we would be required to indemnify them for all liability or loss… arising out of or in connection with this park and ride project.”

At the request of Mayor Gregory Oravec, St. Lucie Transportation Planning Organization President Peter Buchwald then addressed the Council, emphasizing the lengthy history of the project and the importance of encouraging carpooling among the thousands of residents that work in the counties to the south.

“This is really almost a decade in the making, because it started out around 2009 when gas was approaching the $4 levels, we were entering a recession and looking for a space,” he said. “You have 10,000 to 15,000 commuters a day going south. The challenge is there wasn’t much publicly available land around the interchanges at Becker or Gatlin, so we found a slice here that the city owns one part and FP&L the other portions underneath the power lines. We started talking with FP&L back in July of 2013 about the design, and they were in favor.”

Over the next several years, the TPO managed to secure nearly $8 million in funding through a collaborative effort with the Florida Department of Transportation, money that Mr. Buchwald now feels could be lost if the city can’t come to an agreement with FP&L.

“Now we’re here getting near the end, and all the sudden we’re in this difficult position where FP&L is being really tough,” he added. “We’re kind of at a point where we need to have some type of leverage or pressure because to go with another property is going to put that two or three years behind, and we’re not sure if the money’s going to be there.”

Mayor Oravec then suggested the idea of eminent domain to his fellow Council members.

“It’s their property, right, so they’re not obligated to let us use it,” he said. “When I met with staff last week, I asked if they would draft a letter from us to the head of FP&L ramping it up and specifically mentioning – should our collaborative effort fail – then we would have to pursue all options, including eminent domain. At least that would be an attempt to rachet it up, so to speak.”

Vice-Mayor Shannon Martin latched onto the idea immediately, saying she was disappointed that FP&L was holding Port St. Lucie to different standards than it did for “other entities and other municipalities.”

“I’m totally in favor of, because it’s not fair, and I do not want to do anything that will jeopardize this funding, either,” she exclaimed. “As Peter said, that is quite a considerable amount of money, we’ve been working on it a long time, and to risk losing it would be really detrimental after all this time.”

Before potentially heading to court over the issue, Mayor Oravec wanted to know if the deputy city attorney had gotten any proof of more favorable FP&L agreements with other municipalities. Ms. Carland, however, said there was only a slight difference in one of the two she’d received so far.

“I got Broward County and Pembroke Pines,” she explained. “Broward County was somewhat similar but not required to indemnify FP&L for their negligence. I have asked for copies for as many other municipality agreements as they’re willing to provide, and that has not been forthcoming.”

Mayor Oravec emphasized the need for additional information to help ensure the city’s success.

“I’m going to request that we reach out to the Florida League [of Cities] and other sources in order to build the best possible case… if it’s okay with the Council,” he responded.

Interim City Attorney James Stokes told the Board it would take nearly three months to formally go through the quick-take eminent domain process, which comes with its own inherent financial risks.

“With a quick take, you have to get an appraisal on the property, send them a letter and make them an offer, and they have 30 days to consider that,” he said. “You can’t file the case until that 30 days expires, but once you do that, you can file it as a quick take, and you can probably be in front of a judge within another 30 days or so. The risk there – you take the property – and after the trial or whatever, you have to pay whatever it is because you’ve pretty much committed to it at that point.”

For her part, Councilwoman Jolien Caraballo said she trusted the judgement of the city legal staff and didn’t want to lose any more time with them having to come to the Council for another eminent domain approval in the future.

“I’m 100 percent good with doing the letter first and going after eminent domain but I would like to go ahead with whatever Margaret decides,” she said. “I think we need a good timeline and then don’t even bring it back. If we don’t hear anything from FP&L and they’re not willing to work with us, go right into eminent domain because we really need to get on this as fast as possible.”

Councilwoman Stefanie Morgan then got a verbal commitment from Mr. Buchwald to write FP&L on the behalf of the city, after which Mayor Oravec attempted to rein in the horses a bit.

“I can certainly understand everyone’s dedication to this project and I would want to say let’s send the letter and then pursue eminent domain, but I would want [this] to come back because I would be looking for the appraisal,” he emphasized. “I’m not sure they’ll successfully be able to argue that they’ll have to relocate some of their transmission lines and turn that bill into an amount that would essentially kill the project. I mean if they came back and it was valued at $10 million, I can’t imagine the Council wanting to go forward with it.”

Mr. Stockton insisted his department would not be idle in the interim.

“I saw a first draft, but we’ll have that letter in your hands tomorrow,” he said. “We could go ahead and get started by ordering the appraisal and getting that groundwork done. While you’re waiting for a response to that letter, we could definitely keep things moving forward.”

Vice-Mayor Martin then sided with the mayor on the additional Council review of the matter.

“I would want to see it come back because I would want to know what the amounts are, absolutely,” she insisted.

When Councilwoman Caraballo then asked whether the city would be taking the easement or the property itself through the imminent domain process, Ms. Carland emphasized the latter would be more beneficial for Port St. Lucie.

“I would suggest we still acquire the property, and we allow them to retain their easement,” she answered. “Then we’re in a different negotiation posture to negotiate the terms of the right-of-way consent agreement.”

Ms. Caraballo subsequently made the motion to have staff begin the eminent domain process including an appraisal and discussions with FDOT on whether that state might reimburse the city for any of the expenses, which was seconded by Vice-Mayor Martin and passed unanimously.

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