02-21-57SpMtg 37
FEBRUARY 21st, 1957.
A S~ecial Meeting of the City Commission was held in the Com-
mission Chambers with Mayor George V. Warren in the Chair, City Man-
ager W. E. Lawson Jr., City Attorney Harry Newett, and Commissioners
Dugal G. Campbell, R. J. Holland, Martha K. Holland, and Catherine E.
Strong being present.
The City Attorney informed the Commission as follows, which in-
formation is contained in his letter, dated February 20%h, addressed
to the Commission:
"On Saturday, February 16th, City Manager Lawson advised me of
the receipt of a letter from Dade-Commonwealth Mortgage Company re-
questing the City to immediately install 250 feet of water pipe under
North West 13th Avenue, running from North West 2nd Street into the
Jefferson Manor Subdivision. On that date we arranged for a meeting
Monday morning with Mr. Howard Cromer and his attorney, John Adams,
which was held with the result a conference was arranged for Tuesday
afternoon at Mr. Adams' office at which all parties interested, in-
eluding Mr. Groves of the Veterans Administration, would be present.
This conference was held, and Mr. Lawson and myself attended in
the role of "Spectators" inasmuch as the dispute exists between Dado-
Commonwealth and Mr. Cromer. The results of the conference, as far
as I can see, were fruitless. However, I wish to report various con-
tentions made in relation to the City.
As I understand it, Dado-Commonwealth contends that the City,
by the acceptance and approval of the plat of Jefferson Manor, be-
came the owner of the streets and rights-of-way dedicated thereon
to the public use; that by virtue of such dedication, the City like-
wise becomes the owner of any improvements installed thereon or there-
in; that acceptance of the said plat constitutes acceptance of such
improvements subsequently installed;
In my opinion, it is true that the City, by the acceptance of
the plat does become the owner of the streets and rights-of-way dedi-
cated thereon. See Sec. 11, City Charter. However, until the water
mains have been transferred and accepted by the City, which is a
question of fact, the property owner who installs the same has the
exclusive right, thereto. See Newport Manor v. Carmen Land Co.,
(Fla. 1955) 82 So. 2d 127.
Contra the contention of D~de-Commonwealth, Mr. Cromer claims
he is the owner of the pipe, having put it down with the City's
Knowledge and consent through the bankrupt developer of said sub-
division, and thereby he is entitled to remove the same.
As I see the City's position, whether Mr. Cromer's contention
is true or not is immaterial inasmuch as no one else contends they
own it. That is, Dado-Commonwealth contends the City is the owner,
but if the facts are there has been no transfer or acceptance of the
pipe, the City could not sustain by Drool or evidence such ownership
if compelled to do so. ~erefore, to attempt to render control over
the water main could probably result in the City becoming liable for
the payment thereof.
Thereupon, it is my conclusion that %he following alternatives
are open to the City. First, to adopt a complete hands-off attitude,
leaving each of the parties free to take whatever course of action
they may be advised. Second, the City can ~ttempt to exercise its
police power to protect its rights-of-way by revoking any and all
licenses or permits to do construction and excavation therein and
thereon until such time as it may be ordered to permit one or the
other of the parties to take over and complete the pipe to the
quirements of the City for maintenance by a cou~% of competent juris-
diction.
FEBRUARY 21st, 1957.
The City has no forum for hearing the dispute, no authority to
determine the rightfulness of either of the ~arties contentions, and
no power to enforce any decision it might make.
Mr. Lawson and I were informed Dade-Commonwealth was excavating
to tie-in to the pipe now existing, and that Mr. Cromer was preparing
to remove the remainder of "his" pipe. Thereupon, Mr. Lawson ~d I
and the Chief of Police went to the site. Mr. Cromer's machinery was
there, and possibly still is. ltowever, he agreed to refrain from 'any
action pending the holding of a Commission meeting. It appears he
will bring legal action of some nature if the City interferes. While
there Mr. Sadowski of Dude-Commonwealth phoned the site and indicated
they might institute an adverse publicity effort if we did not take
action in their favor.
This is the way matters stand now and I do not contend that the
City is a party to this dispute; however, the position to be taken is
for the Commission to make."
Mr. Jason M. Berkman, legal adviser for Dade-Commonwealth, ex-
preseed his opinion of belief that the City of Delray Beach is re-
sponsible for supplying water to the buildings in the subdivision,
through the channels established, by virtue of having granted permits
for installation of water lines as well as~ meters, and further ttm t"
the City is the owner of the pipes and mains of the water distribution
installation installed in accordance with subdivision development
policy and apparently accepted by the City as reflected and evidenced
on the recorded plat of the Subdivision, together with the streets
shown and dedicated thereon.
Mr. Asa Groves, of the Veteran's Administration's Miami office,
informed the Commission that the V. A. Administration felt that the
City of Delray Beach is responsible for the present situation re-
garding distribution of water within Jefferson-Manor Subdivision, as
well as owner of the pipes and mains and should take immediate steps
to replace water lines and provide water supply to the buildings in
existence therein.
Mr. Groves further stated that if the City failed to fulfill
such obligation it is within the power of his office to deny further
V. A. commitments in this city which action he would feen encouraged
to favor.
Mr. Berkman contended that Mr. Cromer had no right to attempt
recovery of any pipe in the subdivision by virtue of a recent Court
ruling, concerning many lines on said uroperty, and handed down by
Federal Judge Emett Choate,nor to undertake such recovery in N. W.
13th Avenue, without city permission for disturbing a public right-
of -way.
Commissioner Campbell, inquiring if Mr. Cromer had the right
to go in and disturb a public street, was advised by the City At-
torney that until completion and acceptance of a water distribut-
ion line being installed by Mr. Cromer in the right-of-way such
contractor, would, in his opinion, have that right.
Att'y. J. W. Nowlin, sDeaking on behalf of Mr. Cromer, stated
that Cromer had an original contract with Thos. J. Edwards, an offi-
cer of "Renfree Homes", for the installation of pipe lines to the
subdivision for water distribution purposes, later selling certain
lots therein to Jefferson-Manor Subdivision otherwise known as
Jefferson-Manor Corp., and following bankruptcy was of an opinion
that all pipes remained the ~roperty of Mr. Cromer as payment for
same had not been effected by Mr. Edwards, who .ordered the utility.
Commissioner Strong mentioned that information reached the
Comissioners that Mr. Cromer had removed a length of pipe from this
installation and that she, together with Mayor ~arren and Commission-
er Campbell went to the City Attorney to discuss this matter, un-
officially, and instructed the City Attorney to write to Mr. Cromer
and instruct him not to remove any pipe nor disturb any streets or
rights-of-way until this matter has been settled. 'lq~e Commissioner
further stated, that, in her opinion, no removal of pipe under such
39
FEBRUARY 21st, 1957.
conditions should be attempted without sanction by permit
from the City.
Attorney J. W. Nowlin stated that it was hoped this matter
could be settled at this time, otherwise Mr. Cromer would seek a
Permit to remove this pipe.
Commissioner Campbell, in referring to a letter from City At-
torney Itarry T. Newett directed to Mr. Howard Lee Cromer and dated
February 2nd, 1957, moved as follows - "Information ]las been made
to the City of Delray Beach that yozi (Mr. Cromer) have removed cer-
tain water pipes or mains located in and upon public rights-of-way
leading to the subdivision known as Jefferson-Manor, Delray Beach,
Florida, thereby disrupting water service to said properties For con-
struction ~urposes, which alleged act of removal was done without the
knowledge and consent of the city.
This is to notify you (Mr. Cromer) and all other persons, firms
or corporations who may be concerned that such alleged invasion of
the City's public rights-of-way without permit constitutes a viola-
tion o£ the City's rights and ordinances; that any Further invasion
of such rights-of-way to the damage of the City's interests will be
prosecuted in such manner as the City may be advised is proper to
pro,eot its rights in the matter."
Motion was seconded by Commissioner Strong and unanimously
carried.
Commissioner Campbell moved that, in view of said information
referred to in the ~receding motion, ~r. Cromer is hereby demanded
to replace such sections of water pipe or mains as may have been
removed by him, restoring them to the condition they were in prior
thereto or to show cause by written answer hereto why he should not
be compelled to do so; otherwise, in default thereof, such legal ac-
tion as the City may be advised is pro,er in the matter may be brought
against him therefor.
Motion was seconded by Commissioner Strong and upon Call of Roll -
Commissioners C~mDbell and Strong voted in favor thereof, Mayor Warren
and Commi,~sioners l{. J. Holland and .q.K. Holland being opposed. The
motion therefore did not carry.
City Attorney Newett again advised the Commission that, in his
opinion, the City has no authority to act in this matter which appears
to be an issue between Dude-Commonwealth and M~. Cromer.
Mayor Warren mentioned that an Ordinance is now being prepared,
the enforcement of which, when same becomes effective, will eliminate
the possibility of a repetition of such a situation, and hoped that
this present matter, concerning Jefferson-Manor Subdivision, would be
settled, to the satisfaction of ail concerned, between Dude-Common-
Wealth Mortgage Company and Howard Lee Cromer.
Meeting adjourned.
,/s/
Worthin~
City C1 erk
APPROVED:
MAYOR