Pro-power group offers settlement for No Name suitsBy Steve Estes
The attorney for two No Name Key property owners supporting the electrification of the island has asked the county to change its prohibition against extending electricity to the island in exchange for the group’s halt to legal proceedings.
Attorney Barton Smith, who represents two of the pro-electrification faction of No Name Key property owners, has suggested a settlement agreement to the Board of County Commissioners.
In that offer, Smith says that his clients will at least temporarily cease any further legal action against the county if the BOCC agrees to begin the process of changing the county’s comprehensive land use plan and land development codes to remove the prohibition against utilities in a Coastal Barrier Resource System area.
Most of No Name Key is inside a CBRS designation, but it is just one of 14 such areas in the county.
Just over half of the property owners on the remote island off the northeast shore of Big Pine Key dug into their own pockets and paid more than $600,000 to have Keys Energy Services run a power grid to the ecologically sensitive island that is surrounded by the National Key Deer Refuge, the Great White Heron Refuge and the National Marine Sanctuary.
The utility is exempt from certain county development rules as long as it remains inside established road rights-of-way by virtue of state statute. The county, however, says that even though the poles are in the ground and wires are in the air, the building department can’t issue permits to homeowners to hook into them because of the prohibitions in the code.
There are currently four different fronts on which litigation is taking place, or may be considered.
The first is an appeal of a local circuit court ruling where the court dismissed a declaratory action by the county seeking to sort out some legal questions concerning whether it could issue permits to homes in a CBRS where utilities never before existed and whether it could deny easements to the utility to cross conservation lands it owns for the power wires.
Keys Energy used the aerial easements anyway, basing its decision on a letter from the No Name Key Property Owner’s Association that said it had determined the easements existed, even though the county commission had formally denied use of the easements based on state statute and its own code.
In the ruling to dismiss, Judge David Audlin said that only the state Public Service Commission had jurisdiction to decide all matters of electrification, which opened a case in front of the PSC that has yet to be heard. Court documents filed by the PSC claim that it does have jurisdiction over utilities and where they go, but stops short of claiming it can override local ordinances prohibiting the issuance of building permits.
The two sides are also embroiled in a permit case where No Name resident Jim Newton was issued a permit to hook into the power wires by brand-new Building Official Jerry Smith and that permit was later revoked because of the code prohibition. The county planning commission upheld that revocation and Newton is expected to appeal the decision to the state Division of Administrative Hearings (DOAH).
The final legal front is that the county filed trespass charges against Key Energy for use of the aerial easements in Audlin’s court. That charge is slated to be heard Jan. 25.
The 3rd District Court of Appeals is scheduled to rule on the dismissal of the declaratory action by Audlin on Jan. 14. If the appeals court upholds Audlin’s ruling, the state PSC would then have some decisions to make as to its jurisdiction.
What isn’t in question, however, at the PSC level is whether the county can refuse building permits under the prohibition. According to County Attorney Bob Shillinger, Audlin dismissed based on only one of the counts in the declaratory action, and PSC General Counsel Curtis Kiser has said that the issue of building permits isn’t at question at the moment.
That, says Shillinger, leaves the county with a valid ordinance that it must enforce, or change.
And changing that ordinance is the basis of Smith’s offer to the county.
In his offer, Smith says that his clients will stay all further legal efforts, including any future actions they may explore involving violations of the Equal Protection Clause under federal statutes.
In return, Smith says the county must begin the process to change the comprehensive land use plan and land development codes to rid both of the prohibition against utilities in or through a CBRS area.
He says that his clients would process a joint application with the county to do that and that the county would waive the normal fees associated with requesting comp plan changes and LDR changes.
Shillinger received approval from the BOCC Tuesday to hold a closed session on the case at the December 12 meeting in Marathon.
“This is a settlement offer that I am ethically required to present to you,” said Shillinger.
According to a county survey, there are CBRS units in the county that already have some utilities, however, none that were installed after the prohibition went into effect in 2001, and most were in place before the CBRS Act was passed by the federal government in the late 1990s.
Upper Keys activist Ron Miller told the commission Tuesday that the public had already chimed in on this matter and that is supported continued protection of the CBRS units by denying utilities into sensitive habitat areas.
“We (county) are in a good position to win the legal battles,” said Alicia Putney, No Name Key property owner against electrification of the island. “The PSC has already admitted it has no jurisdiction between the home and the power line, and KEYS admits that its lines go over county conservation land without an approved easement.”
“This sends a horrible message to developers, that if they come with enough money, we will change the codes for them,” she said.