Completed in 2014, the widened stretch of Houghton Road between Irvington and Valencia roads is one of the smoothest pieces of pavement in Pima County.
Smooth, however, would probably not be the best way to describe the complicated, years-long legal back-and-forth between CenturyLink and the city of Tucson that has paralleled the Houghton Corridor project, one of the largest included in the $2.1 billion voter-approved RTA plan. When completed, the estimated $160 million project will provide a 13-mile, six-lane thoroughfare from Tanque Verde Road to Interstate 10.
CenturyLink has sued Tucson twice over the project — a third suit was avoided, according to the project manager, who said she wasn’t aware of a project that has faced as many comparable legal challenges — arguing that the city was obligated to cover the costs of moving communication lines impacted by the massive project. In both cases, the most recent of which was settled earlier this fall, one of the key issues at play was who had prior rights.
In city roadway projects, utilities usually pay for moving their infrastructure because most have so-called franchise agreements with the city. There is no such arrangement with CenturyLink.
Tucson and CenturyLink have gone 1-1, with the city prevailing in the first lawsuit, which made it up to the Arizona Court of Appeals, and the company winning a $1.35 million settlement in the second that was approved by the City Council this September. Robin Raine, the Tucson Department of Transportation’s deputy director, said the amount was “not as much as (CenturyLink) had hoped for, but also not as little as we had hoped for.” The company had asked for $2.4 million, as well as additional compensation for “loss of prior rights.”
In the wake of the most recent settlement, M.J. Dillard, the project’s manager, said the city and the company have come up with a plan she says is likely to limit, or eliminate altogether, the likelihood of more costly court battles.
“We are hoping that with this new relationship we will not end up in litigation with this or any other job,” she told the Road Runner last week.
Dillard also said that even with the additional costs from the settlement, the whole Houghton project is still likely to come in under budget. Its schedule has also not been impacted by the lawsuits.
Both cases get at some of the complicated, and potentially costly, issues that can arise with the utility work that accompanies any major road project. The Road Runner will do his best to provide an engaging summary of each .
The first suit was filed by the company in February 2012 in response to Houghton work between Irvington and Valencia roads. CenturyLink’s basic claim was that the State of Arizona Land Department granted Mountain States Telephone and Telegraph Company (which was subsequently acquired by Qwest, which itself was in turn acquired by CenturyLink in 2011) an easement to build an “underground communications line” in 1987. The company built it in 1992 and moved it in 2011 to make way for the widened road, work it said cost $840,000.
More than three decades prior, the state granted Pima County a 75-foot right of way in 1956 for the purpose of constructing Houghton Road, of which the city is the “successor in interest,” according to court documents. That, in the city’s view, was enough to give them “prior rights,” and should require CenturyLink to eat the utility costs.
But CenturyLink’s attorneys argued that the right-of-way did not give the city “any rights to the subsurface of the land.” If that were the case, the city responded, it would be impossible to build a road.
In his August 2013 ruling in favor of the city, Pima County Superior Court Judge Charles Harrington went after CenturyLink’s argument with this barb: “If Houghton Road could be built by only touching the surface it would essentially require the city to spray-paint a road onto the surface.”
In written comments, company spokesman Mark Molzen said, “We were disappointed that the court did not recognize that CenturyLink’s rights pre-existed the city’s road construction. We owe it to our customers and shareholders to continue to protect our land rights and will examine each situation as it arises.”
In the second round of the legal bout, which centered around the Valencia-Irvington stretch, CenturyLink made similar claims, but based them on private easements it had purchased around the project site as far back as the 1960s. Again, the key issue was who had prior rights, and that required a very slow and tedious dive into mountainous stacks of decades-old documents to try and prove “both the actual location of the utilities before the project as well as the actual cost of their relocation,” according to court documents and Dillard.
Though the picture painted by those documents wasn’t a perfect or complete one, “We finally just said, ‘you know what, this is going to be the best we can do without a couple more years and tons of research,’” Dillard recalled of the settlement negotiations.
“It was our best fit, as opposed to going to trial, which have been expensive and would have drawn everything out,” she added. “It would have been a nightmare.”
Those costs and delays could erode public trust in the ability of local government to carry out large road projects, according to Dillard.
For its part, CenturyLink said it was “pleased with the settlement and appreciative of the time the city of Tucson devoted to resolving this important issue,” according to a statement provided by Molzen.
For obvious reasons, Dillard said the city and CenturyLink are hoping to avoid additional legal tangles. To that end, language was included in the settlement that requires the company to work with the city earlier on in the roadway planning process to identify potential utility conflicts, something that did not happen consistently before, according to Dillard.
“I’m keeping my fingers crossed that we’ll find a way to make this work,” she said.
“It’s really important that we all come together as a team to make sure we are meeting the expectations of all of our stakeholders,” Dillard added later. “Because these utilities, the taxpayers are their customers every bit as much they are ours.”
