Development apps pile up on No Name

By Steve Estes

Legal wrangling continues on at least two fronts, with another promised by frustrated No Name Key homeowners, as an energized power grid hums on the environmentally sensitive island that has been engaged in a battle over commercial power for more than two decades.

There has never been commercial power available to the remote island of 43 homes off the northeast shore of Big Pine Key. But since last week, there are installed power poles and wire strung to service those homes, or at least the 25 properties that signed the line extension agreement with Keys Energy Services.

But even though the lines have been energized by the utility, they at the moment provide power to nothing.

Though several property owners on No Name Key have applied for county building permits to hook their homes into the now-energized lines running through the streets, all of them have been rebuffed by the building department.

The county claims it cannot issue permits to hook into public utilities on No Name Key because of a Land Development Regulation that prohibits the extension of such into or through any areas in the county that carry the federal Coastal Barrier Resource System designation.

KEYS had to go through or into a CBRS to reach any unit on No Name Key.

KEYS Spokesman Julio Barroso said that the utility stands ready to energize the homes that have paid for the power grid, but that the homeowners will first have to have a building inspection through Monroe County.

According to the county’s process charts, homeowners apply for new service, either the owner or a contractor wire the home for power, including running to the service meter. Once the county has signed off on all the inspections, the inspector calls KEYS to authorize energizing of the line to the house.

With no permit, there is no inspection, without an inspection, there is no power flow.

KEYS is not required to have a county permit to run poles and lines on public rights-of-way, but the homeowner is required to have a permit to hook into those lines, says County Attorney Suzanne Hutton.

“Based on my best interpretation, we have a valid ordinance that prohibits the issuance of building permits for public utilities on No Name Key,” said Hutton.

According to Assistant County Attorney Derek Howard, there will be no permits to hook into the power grid issued by Monroe County unless a body of competent jurisdiction voids the county’s ordinance containing the prohibition.

The county had filed a declaratory action in circuit court to discuss that very issue and get a judge to rule on the validity of the prohibition. Judge David Audlin kicked the case out ruling that the Florida Public Service Commission had sole jurisdiction to decide utility matters.

The county joined with the Solar Community of No Name Key to appeal that ruling, and the case has been delayed by sporadic filings from members of the No Name Key Property Owners Association and most recently by a request from the Public Service Commission to file a friend of the court brief on the side of No Name resident Bob Reynolds.

It was Reynold’s motion to dismiss the declaratory action that Audlin acted on and the PSC wants to toss its weight behind the ruling that allows it to make the decision on extension of the power grid.

The PSC has twice delayed hearings on the Reynold’s complaint against Keys Energy for not agreeing to run a power grid, and KEYS has asked that the complaint be dismissed because not only did Keys agree to a line extension, the extension is now complete and ready to receive customers.

Of course, No Name power proponents also asked that the PSC toss aside the county’s prohibition against public utilities, but according to PSC General Counsel Curtis Kiser, that issue “Isn’t at court” at the moment.

According to the PSC’s informational guidance for utility customers throughout the state, it limits its jurisdiction to the grid up to the meter. Beyond the meter, the county routinely issues building permits, which in this case is prohibited.

The PSC has asked its staff for a revised report on the issue September 4, which means another month before that commission will be ready to act on anything.

And while those legal deliberations continue, No Name property owners have threatened to file lawsuits against the county for denying building permits. Not only are they threatening to sue the county, they are threatening to sue the county commissioners individually as well as members of the Solar Community.

No Name Key resident Richard Coleman says he will start filing lawsuits if the county denies a permit to hook into infrastructure he helped pay for.

But Chief Assistant County Attorney Bob Shillinger has said for months now that just because the poles are in the air doesn’t mean they can stay there if the county and the Solar Community ultimately win the legal battles.

The No Name Key Property Owner’s Association is on the hook for paying for all legal fees incurred by Keys Energy at any stage, and could be on the hook to pay for removal of the grid if they lose the latest court battle.

And as the legal issues play out on center stage, other things are happening on the island.

An Upper Keys real estate company is now listing building lots for sale on No Name Key. The listing says the property comes with two ROGO allocations with the rest in the system. It touts the property’s canal front and lake front locations.

More development on the island is something both sides in the electrification battle have said they don’t want, with pro-power voices actually telling county officials that no more development could take place on No Name Key.

That has never been true.

With enough money and/or enough patience, several more homes could be built on No Name Key in the Galleon Bay subdivision.

Monroe County has awarded four Rate of Growth allocations for Galleon Bay properties in the past year, one of which has expired, but three are still active. County building officials are currently in the process of reviewing a new single-family home construction permit for a Galleon Bay lot, albeit one that purports to be run by generator. All the island’s homes are currently powered by solar arrays or generators or a combination of the two.

Six more Galleon Bay properties are in the ROGO pipeline, all of them at the top of the list for the next quarterly award.

Not all of those lots can receive allocations, however.

The limiting factor on growth on No Name Key is the federal Incidental Take Permit, a result of the Habitat Conservation Plan agreement between the county and the US Fish and Wildlife Service.

The permit allows for limited human development in exchange for habitat mitigation at a rate of three to one in habitat destruction.

According to County Environmental Resources Director Mike Roberts, a maximum of 10 permits can be issued in Tier One properties until the HCP expires in 2024, or a total of 10 percent of the total allowable habitat take, whichever comes first.

The county has issued three Tier One building allocations thus far without including No Name Key. The habitat value used thus far is .0043 of an available .022 for Tier One properties. Adding the habitat value of the three pending Galleon Bay permits at .0085, that leaves just .0092 habitat impact left for Tier One properties. If the county issues three, possibly four more Galleon Bay ROGO allocations depending on the individual habitat value of the lot, which is different for each one, the available Tier One building would be exhausted meaning no Big Pine Key Tier One properties could be developed until either the HCP expires and a new one implemented, or the USFWS foregoes a new one, at which point building would only be controlled by the county’s annual ROGO allocations.

Under that scenario, said Roberts, No Name Key would have gotten six or seven of the possible 10 Tier One building allocations.

And during Board of County Commissioner meetings in the past, Hutton has opined that the county would not be able to refuse hook ups for future homes if the power grid is available and accessible to those properties on No Name Key if they have to issue permits to the current homeowners.

Monroe County has been covering all of the habitat impact mitigation needs for all development on Big Pine and No Name Key. That mitigation is almost always supplied by purchasing land using either county funds or funds from the county land authority, the latter of which gets most of its purchase dollars from the bed tax.

Power proponents have also threatened to take the county to court for land takings cases if they are denied permits to hook into the grid, but that seems an unlikely event, says Shillinger.

He said he has seen no credible evidenced that the county would be liable for any takings on No Name Key since the prohibition was in place before the grid was run, and in many cases prior to the purchase of the homes by the current owners.

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