MILWAUKEE (CN) - Utilities should foot the bill, expected to cost at least $10 million, if construction of a streetcar line affects their facilities, Milwaukee says in court.
The city's Nov. 17 petition Milwaukee filed in circuit court notes that federal grants will cover most of the $64.6 million price tag for the first phase of streetcar-line construction, stretching 2.1 miles, which the Common Council authorized in 2011.
A special tax district would kick in $9.7 million of that amount, and utility companies would be on the hook for the costs of possibly relocating any facilities that the construction would affect, the petition states.
Though such relocation could cost $10 million to $25 million, Milwaukee says it deliberately excluded those costs from the project price.
"This is because historically, [by Wisconsin statute], companies placing their facilities in municipal rights-of-way must pay for their own relocation or modification costs so as not to 'obstruct or incommode the public use of any highway,'" the petition states.
Brett Healy, president of the conservative John K. MacIver Institute for Public Policy, nevertheless petitioned the Wisconsin Public Service Commission during the planning stages to ensure that the city would not pass the costs of relocating facilities to utilities.
In its Aug. 29 final decision, the Public Service Commission declared any Milwaukee city ordinance that directed utilities to pay for relocation of their facilities to accommodate a streetcar "unreasonable and void."
Milwaukee notes in its petition for judicial review that this decision relied on budget Wisconsin bill, 2013 Wisconsin Act 20.
Provisions of the law were "directed at derailing the Milwaukee Streetcar Project and enacted as part of the multi-subject 2013 budget bill in violation ... of the Wisconsin Constitution," the petition states.
Voiding the ordinance and the authorizing resolution means that "the cost of the Streetcar Project will increase significantly," Milwaukee says.
The commission lacks the authority to review the resolution related to the streetcar because it neither regulates municipal right-of-way nor requires any action by the utility companies on its face, according to the petition.
"Rather, the Authorizing Resolution is a municipal action undertaken pursuant to the city's police power authorizing the construction of a public works project, i.e., the Streetcar Project," the petition states. "The commission has no authority to invalidate such a municipal decision to undertake a public works project."
Further, the ordinance has not been applied to any project as yet, the petition states.
"Consequently, voiding the ordinance can have no legal effect either on the city's ability to proceed with the Streetcar Project or on the utilities' ... obligations ... to relocate or modify their facilities at their expense so as not to 'obstruct or incommode' public transportation projects in local right-of-way, such as the Streetcar Project," the petition states.
Milwaukee says the commission also overstepped its bounds in declaring nonexistent "future" legislation void.
"Moreover, it is not clear what the intent of the commission's declaration regarding 'future' city regulations is; thus, it is impossible for the city to comply with the order," the petition states. "If it means that the city may not adopt resolutions in the future that would authorize the future construction of streetcar projects in other areas within the city, then the commission lacks authority to issue such a declaration."
Milwaukee is represented by Boardman & Clark attorney Anita Gallucci, who said in an interview that she is optimistic about the city's chances in court. Gallucci, according to the firm's website, appears regularly before the commission.
Thomas Miller, the assistant city attorney listed on the petition, has not returned a request for comment.
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