More join No Name lawsuit over power

By Steve Estes

The No Name Key Property Owners Association has filed to become a player in an appeals court action currently before the Third District Court of Appeals that will aid in the battle to decide on the potential of electrification of the island.

The purpose of that appeal is to determine if Circuit Court Judge David Audlin was right in dismissing a declaratory judgment action and punting to the state Public Service Commission.

According to the NNKPOA, the county has no jurisdiction to decide matters of electrification on the island because Keys Energy is an autonomous entity policed by the Public Service Commission.

Who has jurisdiction over what on No Name Key has been bandied about in the courts for more than two decades. Thus far, the county has been on the wining side of those arguments, but even with that history, Keys Energy in May signed a line extension agreement with residents of the remote, environmentally sensitive island.

There are 43 homes on No Name Key, all powered by solar arrays, generators or a combination of the two. Just over half, 25, of the homes signed onto the original KEYS line extension agreement, leaving 18 either content with solar power or neutral in the battle to this point.

KEYS have erected the poles and lines, placed the transformers and have energized the power grid on No Name Key.

And there it ends for now as KEYS and the NNKPOA have run into a county ordinance that prohibits the extension of commercial utilities to the ecologically sensitive island, requiring the county building department to deny permit applications seeking to tie the homes into grid power.

The No Name Key property owners was a group formed solely to push for commercial utilities on the island, which has been developed off and on for more than 70 years without commercial utilities of any kind.

The group joined in the appeals action this week on the side of fellow No Name resident Bob Reynolds, a part-timer on the island who has bankrolled many of the independent studies the group has undertaken thus far.

It was Reynolds’ attorney’s actions that resulted in the dismissal from Audlin, a position Audlin has held since his involvement in a No Name Key electrification case a decade ago when he sided with pro-power contingents and lost.

The Solar Community of No Name Key and Monroe County appealed the dismissal.

According to Assistant County Attorney Bob Shillinger, the circuit court pushed the declaratory action to appeal, but failed to rule on the validity of the county ordinance, leaving the county with no choice but to enforce its land use laws.

The PSC has said it believes it has some jurisdiction in the matter, even though county attorneys are sure that the PSC can’t invalidate the land use prohibition that is standing in the way of issuing building permits.

In its own literature, the PSC claims that its jurisdiction ends at the power meter. Getting power from the meter to the house is a matter for the local jurisdiction, in this case Monroe County.

The state commission was supposed to act on Reynolds’ request to force KEYS to provide power and to force Monroe County to abdicate its land use laws back in June, but delayed that hearing after KEYS withdrew its defense and asked for more time to answer Reynolds’ complaint. It is KEYS contention that the issue is moot because the utility has signed and completed the line extension agreement.

NNKPOA has also been granted intervener status in that case which the PSC has not yet set for re-hearing.

At last report, the PSC intended to conduct a period of fact-finding to determine jurisdictional questions.

So barring a ruling from the 3rd DCA upholding Audlin’s decision, or a ruling from the PSC that the county’s local land use laws have no bearing, the county steadfastly refuses to issue building permits to No Name Key homes that intend to hook into the energized lines in the streets.

Should the county prevail at either level, there is a chance the pro-power contingent on No Name will be forced to pay to have the grid removed unless the Board of County Commissioners decides to lift the prohibition on commercial power on No Name Key.

The PSC revised staff report was due Sept. 4, but hasn’t yet been filed, and there has been no word from 3rd DCA on when that court might rule on the appeal action.