Planners to rule on power permit appeal

By Steve Estes

Although the results were unknown at presstime, the Monroe County Planning Commission Thursday was expected to hear an appeal from No Name Key property owner Jim Newton over a denied permit to install upgraded electrical service to his home.

Newton applied for a permit to upgrade the electrical service in his No Name home to 200 amps, and according to county staff reports, asked for items that would be conducive to hooking the home up to the power grid recently completed on the island by Keys Energy Services.

The permit was originally granted by new county Building Official Jerry Smith, but was later revoked by Director of Planning Townsley Schwab because he claimed that the permit wasn’t permitted under county land use codes.

The county has a reference in its comprehensive land use plan to discourage the extension of public utilities to or through lands designated as federal Coastal Barrier Resource Systems. Most of No Name Key is located in such a designation, and power lines would have to go through the area to reach any of the homes on No Name Key.

More specifically, the county’s land development regulations prohibit the extension of public utilities, including commercial electricity, to or through CBRS areas which, according to outgoing County Attorney Suzanne Hutton precludes the building department from issuing permits to hook into the energized power grid on the island.

Newton’s appeal claims that since the property in question isn’t specifically located in the CBRS, the county had no standing to deny the permit. He also claims that the same upgrade could be used if he intended to add solar panels to his home or if he planned to install a larger generator.

Until Keys Energy completed the power grid a couple of months ago, there had never been commercial power to the remote island connected to Big Pine Key by a two-lane bridge on the northeast side.

The 43 homes on the island are powered using solar arrays, generators or a combination of the two.

According to internal county emails, in a conversation with Newton by members of the county planning department, he stated that the permit application was to tie into the power grid running in the street, even though at the time of the application the grid hadn’t been completed.

The county has also denied two other electrical permit applications by No Name Key homeowners seeking to upgrade electrical service to tie into the grid, and has verbally rebuffed others.

At issue is whether the county’s land development regulations actually prohibit a public utility expansion into areas within the CBRS.

A declaratory judgment action had been filed by the county earlier this year in an attempt to answer that question in the local circuit court, but Judge David Audlin dismissed the action, ruling that the state Public Service Commission had sole jurisdiction in all matters pertaining to the expansion and maintenance of power grids.

That ruling is currently on appeal in the Third District Court of Appeals with no solid timetable for a ruling. The DCA could uphold Audlin’s ruling, which would send the issue to the PSC, or could overturn it and send the question back to the circuit court.

Either way, claims Chief Assistant County Attorney Bob Shillinger, Audlin’s ruling did not invalidate the county’s prohibition against a power grid to No Name Key.

The commission has yet to act on a request by No Name Key property owners to toss out the county’s land use regulations and force it to allow permits to hook into the grid.

The PSC has filed a brief with the DCA claiming it does have some jurisdiction in the matter, but stopped short of claiming jurisdiction over individual permits normally controlled by the county from the meter box to the home.

Newton’s permit application covered that area.

According to Shillinger, he believes the PSC is waiting to take any action until the legal battle has wended its way through the court system.

“I don’t think the PSC wants to be ruling on something one way and have the courts go another so it would have to be sorted out in more legal action,” said Shillinger.

To further muddy the waters of the planning commission appeal, Andy Tobin, attorney for the No Name Key Property Owners Association has asked to be granted intervener status in the appeal.

According to Tobin, a long-ago case on Big Pine settles the question on the side of the pro-electric contingent.

Tobin says in his brief that a ruling many years ago about the paving of Lytton’s Way on Big Pine should settle the matter. In that ruling, he says, the court declared that public infrastructure development in public rights-of-way doesn’t meet the definition of development and therefore isn’t bound by county code.

Part of the No Name Key power grid, however, crosses private lands owned by Monroe County for which easements have been previously denied. County officials claim that the state statute under which the land was purchased prohibits the land’s use for easements. Because of that, the county has sued Keys Energy for trespass in constructing the power grid.

There is also some question as to whether any outside interveners will be allowed in the planning commission appeal hearing. In its capacity as an appeal board, the planning commission is quasi-judicial in nature and is not supposed to allow any new information into the hearing, relying instead on things that have already transpired.

Power proponents have said during the course of this battle over the last five years that the extension of electricity to the island would not promote development.

There are, however, currently three lots for sale on No Name Key advertised with current building allocations.

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