Power proponents ask for dismissal

By Steve Estes

No Name Key property owners have filed at least two motions to dismiss the county’s latest claims in circuit court, claims that Keys Energy Services committed trespass by installing power lines over county-owned properties for which they had not been given permission for easements.

The motions to dismiss are based on Circuit Court Judge David Audlin’s ruling that the state Public Service Commission has sole jurisdiction to determine matters relating to the extension and expansion of the public power grid.

Audlin kicked a declaratory action filed by the county against Keys Energy to the PSC earlier this year, but in doing so did not invalidate a county ordinance that prohibits allowing the extension of public utilities to or through areas designated as part of the federal Coastal Barrier Resource System.

Audlin also didn’t rule on whether Keys Energy had the right under state statute to use county lands to run the power grid to the remote island off the northeast shore of Big Pine Key.

The county filed the trespass claim after the power grid was put in place by Keys Energy with lines crossing county conservation lands. The energized grid currently stands idle as the county’s Building Department refuses to issue building permits to No Name Key property owners to hook into the lines based on the prohibition in the county’s land use rules.

Audlin’s ruling is currently under appeal in the 3rd District Court of Appeals by opponents of the power grid on No Name Key, who were joined by the county. The 3rd DCA has set oral arguments in the appeal case for mid-January. Should the county win the appeal, the case could be remanded back to Audlin for decisions on the declaratory action.

The PSC has said that it has some jurisdiction in the matter, but hasn’t as yet gone public with how much jurisdiction it believes that to be. There is no hearing on the matter scheduled before the PSC as yet.

According to County Attorney Bob Shillinger the PSC appears to have adopted a “wait-and-see attitude” on the outcome of the legal wrangling in the courts, not wanting to make some decision that it might have to then defend should the 3rd DCA rule that the courts must make the determination on who has final authority to allow, or not, a power grid to serve the 43 homes on No Name Key.

Only 25 of those homes signed the line extension agreement with Keys Energy, leaving 18 homes that either have publicly opposed electrification of the island or taken a neutral stance awaiting the outcome.

Should the county prevail and the property owners not be allowed to hook in to the grid currently standing unused on the environmentally sensitive island, county officials could request that the grid be dismantled. Under the resident’s contract with Keys Energy, those who signed the line extension agreement could then be on the hook financially to remove the grid. Those properties have already paid more than $600,000 to install the grid that they can’t hook into as yet.

Representatives on both sides of the issue have given no estimate on when the 3rd DCA might rule after it hears oral arguments. If that court upholds Audlin’s ruling, it could well be up to the PSC to determine to what extent Monroe County’s land use rules apply in the electrification fight on the island.

That fight has been going on for more than two decades.

But No Name Key isn’t the only island with CBRS issues that cause some changes in infrastructure plans. The Key Largo Wastewater Treatment District had decided recently to extend its central sewer collection system up route 905 to pick up some 72 homes that previously were destined to be served by on-site septic systems.

But those lines would have to go through a CBRS in at least one instance, bringing into play the county’s prohibition against issuing permits for the affected property owners to hook into the central system lines.

The Key Largo district faces another hurdle, as well, because it has received federal money during its quest to finance the 14,000 unit system. Federal CBRS regulations prohibit the use of federal money for any type of development in a CBRS unit.

As of Tuesday, the district had decided to stop the lines short of encroaching on a CBRS.

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