You've just received the official go-ahead for that $30 million capital improvement project that you've been coordinating. The project will include a great deal of work in the main business district, including widening an intersection, bringing all the sidewalks into Americans With Disabilities Act (ADA) compliance, and much-needed streetscaping.
All of the business owners have signed on and are pleased with the designers' plans for the area. You've received grants for small bioretention cells along the perimeter of the project to whisk away stormwater. City and state funding is in line, so that's been crossed off the to-do list. The city manager is pleased with the easy-to-maintain stamped concrete you've selected for the crosswalks. And your right of way manager is happy that the water and gas utilities can complete their underground relocation all at once, saving the street from too many future utility cuts.
But there's one glitch: The local telecommunications company doesn't want to pay to move its poles. Though the poles are obviously in the city right of way, the utility claims some of the poles are in an old easement. And why should they cough up $2 million to help fix something that's not technically broken?
Thus starts the balancing act.
Though it's very uncommon for a private utility—electric, gas, or telecommunications—to refuse to move assets that are within the public right of way, disagreements occur and these instances are increasing.
Utilities (for the most part) realize that their poles, pipes, and equipment are in the right of way at the invitation of the city and that the law of the land decrees that they move assets for any project that improves that land. But sometimes—mainly because they're in fierce competition with each other for customers—utilities are more zeroed in on the bottom line than being a good neighbor, so the lawyers start talking.
The Gloves Come Off
Nashville, Tenn. (population 607,000), is wrapping up a battle with local telecommunications firm BellSouth (now AT&T) over moving its poles. For the past 120 years, BellSouth has had a franchise agreement in the city. The common-law rule here—a rule typical in most of the United States—says the phone company can put its equipment in the right of way but has to pay to move it if the city of Nashville wants to complete work that will benefit the general public.
The city also has an agreement with several utility providers (electric and telecommunications) so that utility work can be done efficiently, without much red tape between the city and utility. If the work is performed by the utility company's in-house crew and the crew follows proper traffic control and safety guidelines, it can be done without paying for a permit from the city. If the utility brings in another contractor, the company must pay for a permit for any work done.
In the past 12 years—as long as Mark Macy has worked as the assistant director of public works in Nashville—BellSouth has moved its assets without question. About three or four years ago, BellSouth started to argue that it should not have to pay to move equipment for city “beautification projects.”
In city attorney Tom Cross's opinion, bringing city sidewalks into ADA compliance is not a beautification issue—it's a necessity. For the past five years, Nashville has been working to upgrade about 100 miles of sidewalks and more than 6000 curb ramps.
The dispute led the city to file suit in January 2006, and while the action has been pending, the three sidewalk projects in question have been stalled. BellSouth refused to move its poles, and the city doesn't want to even touch the equipment because it doesn't have the resources and doesn't want to assume responsibility if anything goes wrong (imagine residents screaming at you if their garbage isn't picked up and their cable service doesn't work).
On July 13, the federal district in Nashville ruled in the city's favor on the main issue in the case, concluding that Bell-South had no choice but to relocate its lines and equipment from public rights of way at its expense as requested by the city. Although an appeal is possible, the city's position has gained considerable strength.
Though the city hasn't officially lost any money from residents' lawsuits or from businesses' loss of use on these stretches of sidewalk, disabled residents can't use them. The projects total $3 million in today's dollars, but the construction price will undoubtedly go up once the dust settles from the lawsuit and the project is rebid.