IN THE CIRCUIT COURT OF THE 17Th JUDICIAL CIRCUIT IN AND FOR

BROWARD COUNTY, FLORIDA

CASE NO.: 12-7337(25)

CITY OF PEMBROKE PINES,
Plaintiff,
vs.
CORRECTIONS CORPORATION OF
AMERICA, INC. a foreign corporation,
CCA PROPERTIES OF AMERICA, LLC,
a Tennessee limited liability company,
Defendants.

This court has been requested to address issues of law in dispute between the
parties. The court having a trial on the matter, October 27-29, 2014, heard legal
argument and considered the applicable law, it is found, ordered and adjudged as
follows:
The testimony at trial was as follows:
Joseph McLaughlin, a retired engineer for The City of Pembroke Pines, testified
that he sent out a capacity letter on 9/1/05 for the CCA property, however, the
capacity was for that time period, and was subject to compliance with Chapter 50
of the City Code. Further, the capacity letter states that it is for informational
purposes only and is not intended to obligate the city in any manner.

Mr. McLaughlin testified that he did receive site plans in 2005, reviewed and
redlined the plans, returned the plans to CCA and did not believe he ever received
anything back.
In 2006, he signed off on Broward County and FDEP applications regarding service
capacity. He further stated he had the ability/authority to determine capacity but
did not have the authority to approve connection because the CCA property was
outside the city limits. He stated that he told Mr. Poole and the engineer for CCA
that an agreement would be needed.
In November, 2010, once again he was requested by CCA and provided a capacity
letter which contains the same language requiring compliance with Chapter 50
and further states that the letter is not intended to obligate the City.
He agreed that the Bergeron property located within the City of Pembroke Pines
has a stub out that abuts the CCA property but stated that city approval would be
needed because CCA is located outside the city limits. He agreed it made sense
that the City would provide the service, the infrastructure and capacity are
available. If another provider came in it would be far away and they would have
to go over City pipes and that would have to be approved by the commission.
He further stated that he had dealt with Mr. Poole and his engineers numerous
times over the period of the project, and he believes he made it very clear that
they had to have a water and sewer agreement.
Charles Dodge, The City of Pembroke Pines City Manager, testified that the
commission regularly turns down contracts that he and the city attorney
recommend. He stated that he never told Mr. Bergeron that the pipelines for his
property within the city would be used for the CCA property. He further stated
that the city has no responsibility to provide water outside the jurisdiction of the
city and that no studies have been performed to extend the lines or sewage, nor
any resolution as to any studies has been done.
He testified that if the commission were to approve service, he knew of no utility
reason why the service could not be provided. However, he believed the city
could make a policy decision not to serve the site.
He testified that the Town and the City did enter into two Inter local agreements
(ILA).(This court has reviewed the agreements, both contain language within the
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agreements that the City would not interfere with the development of the CCA
Site and in 22.20 of the other ILA, the City agrees to approve a water/waste water
utility agreement to provide service to the CCA Site. Both agreements however
contain clauses (10.3 and 22.11) stating that there are no third party beneficiaries
to the agreement and that no third party shall be entitled to assert a claim against
either of them based upon the agreement)
Mr. Dodge stated that in the absence of municipal services, a well can be dug and
septic tanks installed but agreed that could limit the use of the property that is
zoned industrial. He further stated that it is not a consideration for the city if the
property is outside the city limits.
Greg Proctor is president of the engineering firm that prepared the plans for the
pipes on the Bergeron property. Mr. Bergeron hired his firm and paid for the
plans and infrastructure. He stated that the original plans had the stub outs and
were approved by the city in 2000.
Brad Wiggins is the senior director of site acquisition for CCA. The CCA property
was originally purchased for a 750 bed women's jail for the county but the county
withdrew plans to build the jail.
The CCA property was purchased in January, 1998. When the CCA property was
purchased it was in an unincorporated area of Broward County and in June, 2000,
it became part of the Town of Southwest Ranches.
Mr. Wiggins had no working knowledge of a "Plan B" once it became known that
the City was refusing to provide services. The design and construction group
would do that and he does not know the results. He had not seen a study and had
not heard the company say that they are unable to find alternate service.
Samuel Poole is the land developer lawyer for the CCA property. He testified as a
fact witness, not an expert. Mr. Poole stated that no issue was ever raised
regarding providing utility services to the CCA property. Further, no utility reason
has ever been given to him why service could not be provided.
Mr. Poole stated that the factors he relied upon that there was no question in his
mind that the city would provide services were: that the city utilities were in
place and encircling the area, no other utilities being able to connect without
crossing the city utilities, the 2000 plat note amendment, 2006 applications, the
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ILA between the City and the Town stating no interference, attorney Goren's
opinion and Commissioner Castillo's emails and Commissioner Siple's beliefs that
the city was obligated to provide the service, the 2011 commission workshop and
meeting, as well as a vote to request an application.
Mr. Poole conceded however, that Chapter 50.10(B) indicates the requirements
necessary to connect to a city utility system outside city limits and agreed that the
city engineer (McLaughlin) could not bind the city, and that CCA would have to go
to the City Commission. He further conceded that neither ILA is currently in effect
between the Town and the City and that no master plan, as-builts, or any other
records that indicate that the city required a 16 inch stub-out for the specific use
to serve the CCA property.
Jeffrey Nelson,the Mayor of the Town of Southwest Ranches, and the Town not
being a party to this litigation, testified that development of the CCA property is
advantageous to the Town.
Keith Poliakoff, Town Attorney for the Town of Southwest Ranches, testified as a
fact witness not an expert. He stated that negotiations between the Town and
City included the CCA parcel and it would be cost prohibitive for CCA to hook up
to the City of Sunrise utility. He also said that septic tanks are not an option on an
industrial site. On cross examination, he was unable to quantify the amount which
would be cost prohibitive, nor could he cite to any studies that had been
performed.
The parties by Stipulated Issues of Law have requested this Court to address
certain issues regarding utility service to the CCA Site.
1) Whether the City had a duty to provide utility to the CCA Site.
2) Whether the City's conduct constituted a manifest expression of desire or
intent to provide services to the CCA Site, sufficient to legally bind the City
to provide service.
3) Whether the City contractually agreed to provide water and wastewater to
the CCA Site under Florida law.
4) Whether the City established itself as a public utility to serve the CCA Site
or created a service zone inclusive of the CCA Site.
5) Chapter 180
6) Chapter 180
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7) Chapter 180
8) Home rule powers
9) If the City is required to provide water and sewer to the CCA Site, may the
City legally restrict the quantity or amount of service provided and the
length of time for provision of such services.
10)
Whether the City was equitably estopped from denying water and
sewer to the CCA Site, and whether the City could be equitably estopped.
11)
Whether the City waived its right not to provide water and
wastewater to the CCA Site.
This court has reviewed multiple cases on the above issues and will touch upon
those the court found instructive, although not inclusive, in addressing the issues
raised.
Town of Ponce Inlet v. Pacetta, LLC, 120 So.3d 27(Fla. 5DCA, 2013) addresses
equitable estoppel. Equitable estoppel can only be invoked in exceptional
circumstances against the government. The doctrine of equitable estoppel may
only be invoked against a government body when a property owner in good faith
relying upon some act or omission of the government has made a substantial
change in position or incurred such extensive obligations and expenses that it
would be highly inequitable and unjust to destroy the rights the owner has
acquired.
(CCA purchased the property in 1998, at that time until the present CCA had no
agreement with the City to provide utility services, they did not preface the
purchase of the property on the ability to receive City services, they essentially
assumed because there was a stub-out on the Bergeron property located within
the City limits that they would be able to connect)
P.C.B. Partnerships v. City of Largo, 549 So.2d 738 (Fla. 2DCA, 1989), involved an
agreement entered into between the City and the developer. The City approved
and adopted the agreement. The developer expended at least $100,000.00.
Thereafter, the City voted to delete a curvilinear road and disapproved
construction of the road and the developer filed suit. The Second District Court of
Appeal upheld the trial courts finding that the agreement purports to restrict the
City's ability to decide whether to build a road, install a traffic device and permit
the development of a parking lot and storm drain connection. They found that a
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City does not have the authority to enter into such a contract, which effectively
contracts away the exercise of its police powers.
(CCA and the City at no time from purchase date to present entered into any
agreement to provide utility services. Further the ILA entered between the Town
and City discussing expeditious approval seems very similar to the language in the
agreement in the above case where the appellate court found the City did not
have the authority to enter into such a contract, which effectively contracts away
the exercise of its police powers)
The County of Brevard v. Miorelli Engineering, Inc., 703 So.2d 1049(Fla. 1997),
involved an express, written contract between the developer and the City. The
Supreme Court opined that work performed outside the contract without written
change orders falls within the doctrine of sovereign immunity and would preclude
recovery for the cost of the extra work. They also declined to hold that the
doctrines of waiver and estoppel can be used to defeat the express terms of the
contract.
(Again no contract was ever entered into between the parties)
City of Orlando v. West Orange Country Club, Inc., 9 So.3d 1268 (Fla. 5DCA, 2009),
the parties came to terms on a contract, the country club executed the contract
however,the governing boards never approved or signed the contract. The
parties thereafter constructed the water systems necessary for the City to provide
and the country club to accept the water. The parties expended large amounts of
money and the country club began accepting the water at no charge.
Thereafter, the Board passed a resolution to charge customers for the reclaimed
water, except for customers with long term contracts. The country club sued the
City seeking to force them to provide water at no charge under the contract that
they had signed but the City had not. The club also sought to revert to its old
system but the permit was denied by the City. The club was then forced to use
the City's water.
The Fifth District Court of Appeals found that because the purported contract was
not approved nor signed by the governing boards, the trial court erred in ordering
specific performance and that the doctrine of promissory estoppel cannot be
used to circumvent the statute of frauds.
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(This case far exceeds any facts in our case and yet the Appellate Court found that
no such specific performance could be ordered)
City of Indian Harbour Beach v. City of Melbourne, 265 So.2d 422 (Fla. 4DCA,
1972). This Court finds the language and findings in this case compelling and
informative. The city fathers were unable or unwilling to adjust the differences.
Thus, the controversy has been placed before the judicial branch. The Fourth
District Court of Appeal declined to become a rate making and regulatory body,
which would force a franchise upon unwilling parties and usurp the function of
the legislative bodies. The court held that the only solution was divorcement,
holding that Melbourne was under no obligation to continueto provide water to
some other city which is unwilling to accept its rate proposals and structure.
Further, the court held that if the cities were unable to agree then Melbourne
could discontinue water service utility.
Allstate Insurance Company v. The City of Boca Raton, 387 So.2d 478 (Fla. 4DCA,
1980). The Allstate property was located outside the boundaries of the city,
however, it was within the service area and the city was the designated agent
within the area. Allstate sued the city alleging improper refusal to supply water
and sewer services. Because of the refusal, Allstate was unable to develop the
property. The Fourth District Court of Appeals found that the trial court was
correct in determining that the city, even as the designated agent under the plan,
did not have an absolute duty to supply water and sewage to landowners outside
its boundaries.
(The City is not the designated agent/service area to the CCA Site)
Sebring Utilities Commission v. Home Savings Association of Florida, 508 So.2d 26
(Fla. 2DCA, 1987). Home Savings was constructing an office building outside the
municipal boundaries. The city informed Home Savings that it would not approve
the water service unless they agreed to purchase electricity. Home Savings
brought suit alleging that tying water and electricity together was arbitrary and
unjustly discriminatory.
The court found that the reasons given by the commission for refusal to provide
water only was not unreasonable. They stated that courts will not interfere with a
municipal utility's exercise of its authority as long as the municipality does not
arbitrarily discriminate between its customers and can present reasonable
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justification for its actions. Pinellas Apt. Assoc. v. St. Petersburg, 294 So.2d 676
(Fla. 2DCA, 1974). A municipality's decision is presumed valid, and the burden is
on the challenger to prove it is unjust or arbitrary. Clay Utility Co. v. City of
Jacksonville, 227 So.2d 516 (Fla. 1DCA, 1969)
Allen's Creek Properties, Inc. v. City of Clearwater, 679 So.2d 1172 (Fla. 1996). The
Supreme Court of Florida found that a municipality has no duty to supply services
to areas outside its boundaries. The Supreme Court cites to the Sebring case, as
listed above, reaffirming that courts will not interfere with a municipal utility's
exercise of authority as long as the municipality does not arbitrarily discriminate
between its customers and can present reasonable justifications for its actions.
The Supreme Court found that the agreements entered did not affirmatively
express the City's intent to supply sewer service to the unincorporated portion of
its sewer service area. Nor did the city engage in any other conduct that
expressed the intent to serve the area.
This court has also reviewed the applicable Florida Statutes, County Charter, City
Charter and the City Code.
Beginning with Florida Statute Chapter 180.02(2), Municipal Public Works, a
municipality shall not extend or apply its corporate powers within the corporate
limits of another municipality. F.S. 180.02(3), In the event any municipality desires
to avail itself of the provisions of this chapter, it is lawful for such municipality to
create a zone or area by ordinance. That has not been done by the City in this
case. CCA argues that F.S. 180.19(1), allows for connection, however, F.S.
180.19(1) cannot be read in a vacuum and it clearly states: A municipality which
constructs any works as are authorized by this chapter....The authorization comes
from F.S. 180.02(3).
The County Charter, section 34-45(d), states that the provisions of this section
shall not apply when ...there is the inability or unwillingness of a city to extend its
water or sewer systems. Further, section 34-45(c) states that service shall be
made in accordance with the requirements of all applicable rules and regulations
of any county, state, or municipal agency having authorization.
The court has also reviewed the Charter of the City of Pembroke Pines and the
Pembroke Pines Code of Ordinances. Code 50.10(B) titled City Commission
Approval for Connection to a City Utility states that property located outside the
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city limits shall not be allowed to connect to a city utility system unless the
connection is authorized by the City Commission. The Charter, Article III, Section
3.07(e), states that no action of the Commission shall be valid or binding unless
adopted by the affirmative vote of three (3) members of the Commission. No vote
by the City Commission ever took place, therefore the Commission has never
legally authorized a connection between the City and CCA. CCA was told
repeatedly that they needed to comply with Chapter 50 of the City Code.
CCA is not a protected class, nor is this a constitutional issue. CCA purchased the
property in an unincorporated area in 1998 and became part of the Town of
Southwest Ranches in 2000. CCA originally purchased the property in the hopes of
winning an RFP before the County Commission for a 750 bed women's jail facility.
The County withdrew the plans to build. More than several years later, CCA was
hoping to be awarded the opportunity to become an ICE detention center. The
federal government decided not to build that facility. No evidence was presented
that any plans exist at this time for the CCA Site. Further, CCA waited more than a
decade to submit the CCA Site for connection to the City utilities.
Ordered and Adjudged as follows:
The City does not have a "duty" to provide service to the CCA Site.
The conduct of the City to CCA was not legally sufficient to bind the City to
provide service.
No contractual agreement exists under Florida law to provide service to the CCA
Site.
The CCA Site is not part of any service zone.
Chapter 180 is the means in which a municipality can establish a service area
outside of its municipal boundaries. City of Hallandale Beach v. Smith, 853 So.2d
495 (Fla. 4DCA,2003), states the Section 180.02 makes the distinction between
exercising authority inside and outside of a city's limits and that the purpose of
Chapter 180 is to allow a municipality to exercise its powers regarding public
works when outside its corporate limits.
As to Municipal Home Rule Powers Act, enacted by the legislature in 1973, it
states that as provided by the Florida Constitution municipalities "may exercise
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any power for municipal purposes, except when expressly prohibited by law." City
of Hallandale Beach citing City of Ocala v. Nye, 608 So.2d 15, 17(Fla.1992). The
Hallandale Beach case states, that because Chapter 180 is in addition but not in
limitation to powers granted to municipalities it may be rejected by the public
entity and another applicable law used in its place. However, the City of Ocala v.
Red Oak Farm, Inc., 636 So.2d 81 (FIa.5DCA, 1994) case found a petition defective
and dismissed same for failing to comply with the requirements of Chapter 180 in
an eminent domain case where the land sought to be condemned was outside the
city limits.
Should the City vote to provide water and sewer to the CCA Site, the case law
clearly states that the City may restrict the quantity or amount of service provided
and set rates, etc.
The City is not equitably estopped from denying water and sewer to the CCA Site.
In the Town of Ponce Inlet and also in Sun Cruz Casinos, LLC v. City of Hollywood,
844 So.2d 681 (Fla.4DCA, 2003), in order to demonstrate the existence of
estoppel, a party must establish by clear and convincing evidence that(1) a
representation as to a material fact that is contrary to a later asserted position;
(2) reliance upon that representation; and (3) a change in position detrimental to
the party claiming estoppel, caused by the representation and reliance. Further,
the theory of estoppel requires "affirmative conduct" by the governmental entity,
not merely negligence. As stated above, no agreements between the City and
CCA have been entered, no evidence of considerable expense expended was
presented and at present there is no evidence that anything is planned for the
Site.
The City has not waived its right to deny water and wastewater to the CCA Site.
The court finds that no evidence was presented for the court to find by the more
persuasive and convincing force of all the evidence that there is no alternative
service for the CCA Site or that it would be so cost prohibitive that it could not be
done.
This court has not been asked nor does this ruling weigh on a future vote of the
commission. However, the court does caution the commission that in Roberts v.
Knox, 153 Fla. 165, 14 So.2d 262, 264,the Supreme Court of Florida stated: The
discretion conferred by law on an officer is required to be exercised according to
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established rules of law. The officer when exercising the discretion is not
permitted or allowed to act in an arbitrary or capricious manner. He is not
permitted to exercise the discretion conferred by law for personal, selfish, or
fraudulent motives or for any reasons not supported by the discretion conferred
by law. City of Hialeah v. Daniels, 97 So.2d 198 (FIa.3DCA, 1957).
Additionally, this courts findings do not extend to the Town of Southwest
Ranches. The Town is not a party to this litigation.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida on
this

MOV-6,i439.4 7--C) ,2014.

CARL-ISA PHILLIES------CIR
COURTKM-GE
Copies furnished to:
CAROL-LISA PHILLIPS
Leonard K. Samuels, Esq
Usher L. Brown, Esq.
Michael T. Burke, Esq.

NOV 2 0 2014

a) TRUE COPY

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