County alleges trespass by utilityBy Steve Estes
Monroe County has filed new documents with the local circuit court charging Keys Energy Services with trespassing over the latter’s installation of an electrical grid on No Name Key.
Circuit Court Judge David Audlin gave the county permission to amend its declaratory action to include the charge of trespass because the utility used four county-owned lots to string power wires across.
The declaratory action was requested again by the county even though Audlin had dismissed an earlier case ruling that the state Public Service Commission had sole jurisdiction over the matter.
That ruling is currently under appeal with the Third District Court of Appeals and no time frame has been given for that body to rule on the appeal.
The county claims that KEYS encroached on its conservation lands by about one to two feet in four instances without permission of the county government.
According to state statute, some of the lots in question have no allowance for use for easements, and the Board of County Commissioners denied the easements when they were requested by KEYS.
The utility board of Keys Energy asked for permission to use the county’s lots for easements, were turned down, then used them anyway to build the now energized electrical grid to No Name Key.
The utility board used a letter from the No Name Key Property Owners Association claiming it had established the use of the land for utility easements as a basis for determining it didn’t need county permission for easements despite having asked for that permission earlier.
In its trespass filing, the county claims that KEYS knew it needed approval to use the land, thus the reason to ask for its use. The county’s claim also refutes claims that easements already exist.
On disputed lots, the utility admits that it knows the easements across the lots have been granted only for ingress and egress of residents who live in the area where no public road exists.
This is simply the latest in a long and convoluted legal action that has resulted in energized power lines spanning heretofore unpowered No Name Key and going nowhere at the moment.
The 43 residents of No Name Key currently power their homes using solar arrays, generators, or a combination of the two.
Both sides still await a ruling from the 3rd DCA on the appeal of Audlin’s ruling. The PSC has filed a brief with the court that claims it owns exclusive jurisdiction to determine the issues at hand, but in public documents posted on the PSC website, the commission claims that it has no jurisdiction beyond the meter box.
The PSC has also not set a date to act on the electrification issue for No Name Key. A staff report was due September 4 but as of this date has not been posted on the agencies web site.
The question of jurisdiction beyond the meter box is one that is also soon to be in court.
No Name Key resident Jim Newton applied for a county building permit to upgrade his home to 200 amp electrical service and install all the necessary accoutrements to accept commercial power from the grid.
New Building Official Jerry Smith issued the permit based on a mailing address of Big Pine Key for the No Name Key property.
The Monroe County comprehensive land use plan, in its land development regulations, specifically prohibits the extension of public utilities such as electricity to or through areas designated by the federal government as Coastal Barrier Resource System lands. While not all of No Name Key is included in a CBRS, the lines must cross the CBRS to reach those areas that aren’t.
The permit was later rescinded based on the county’s specific prohibition in the land development regulations.
Newton is appealing that decision to rescind in a special planning commission meeting October 18.
Other No Name Key property owners have also applied for electrical permits since then but have been denied.
The county claims that is has a valid ordinance prohibiting the extension of commercial power to the homes on No Name Key, an ordinance that wasn’t invalidated by Audlin’s ruling and hasn’t been acted on by the PSC.
According to PSC General Counsel Curtis Kiser, the issue of individual building permits “isn’t at court at the moment” in the action the PSC may take up at a later date.
It is because of that public admission that the county claims its land use codes prevail in whether to issue a building permit to hook into the grid.
If the county’s jurisdiction holds up, the poles and lines will sit unused on No Name Key, or the county will demand that they be removed. If removal becomes the choice, the property owner’s association is on the hook for the costs of that removal, just as it is on the hook for all legal expenses incurred by KEYS in the matter of electrification of the island.