Commission upholds permit revocation on island

By Steve Estes

The Monroe County Planning Commission last week upheld its staff in the denial of a building permit application for a No Name Key property that sought to upgrade the electrical service.

According to property owner Jim Newton, he was attempting to be proactive in upgrading his home’s systems in the event an energized grid became available, but that the upgrade could also be used for other purposes in his current hybrid solar/generator power system.

The fight over electrification of the remote island has been going on for more than 20 years.

Newton was originally granted the permit by new Building Official Jerry Smith, but the permit was later revoked by Planning Director Townsley Schwab who said that the permit was issued in error because the county’s land development regulations specifically prohibit the extension of commercial power into areas designated as part of the federal Coastal Barrier Resource System.

The county implemented a CBRS overlay district in 2001. And the courts upheld the prohibition at about the same time, ruling that the No Name Key property owners had no statutory or constitutional right to electrical power.

Over the course of this year, Keys Energy has actively developed a commercial power grid on No Name Key over the objections of the county after 25 members of the No Name Key Property Owners Association paid to have the grid designed and built.

Unsure of some of the legal issues surrounding the grid, the county asked for a declaratory judgment from the circuit court. That case was dismissed and bumped to the state Public Service Commission. The court ruling was appealed and that appeal is still in the courts. The PSC also has yet to rule on its jurisdiction in the matter.

Barton Smith, attorney for the Newtons, pointed out to the planning commission that the county had issued building permits to allow structures at Bahia Honda State Park to be hooked into commercial power.

According to Growth Management Director Christine Hurley, her building department does issue electrical permits in CBRS units where power grids existed prior to the establishment of the CBRS overlay in 2001.

But the No Name grid did not exist prior to this year and after the implementation of the CBRS overlay district.

The issue will continue to wend its way through the courts and the PSC in the coming months. Until then, says incoming County Attorney Bob Shillinger, the county has a valid ordinance to prohibit electricity on No Name on the books that has to be upheld unless a court of competent jurisdiction overturns that ordinance.

The commission voted 4-1 to uphold the permit revocation after nearly seven hours of testimony on both sides of the battle. Before the hearing began, however, Smith tried to get the commission not to act on the appeal because he said that the Contractor’s Examining Board was the proper venue. County staff and the planning commissioners didn’t agree with him so the hearing went on.

Some county officials are concerned that the matter, unless resolved by the state courts, will wind up in federal court because the county has in the past issued electrical permits in other CBRS areas and even now issues plumbing permits in CBRS areas in Key Largo to hook into the newly installed central wastewater system.

The county does not control public utility development in established rights-of-way, but does claim to control permits on private property.

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