Island residents sue for $10 million
By Steve Estes
Claim emotional distress over electrification issue
Two No Name Key families are asking the courts to award them $10 million for emotional trauma brought about by Monroe County’s refusal to issue building permits to allow them to hook into energized energy wires running just yards from their homes.
The suit is the latest in a lengthy litany of lawsuits filed over the potential electrification of the remote island off the northeast shore of Big Pine Key.
It is now running concurrently with at least four other legal battles in three separate venues dealing with the electrification of No Name Key.
There has never been commercial power to No Name Key. The 43 homes on the island, 22 of which have signed on for commercial power through Keys Energy Services, are powered by solar arrays, generators, or a combination of the two.
James and Ruth Newton and Robert and Julianne Reynolds filed the suit last Thursday in the circuit court of Judge David Audlin who already has two No Name electrification cases on his docket.
In the first, Audlin is waiting along with opponents of commercial power, proponents of commercial power, the Board of County Commissioners and the state Public Service Commission for a ruling from the Third District Court of Appeals on his ruling last year in a declaratory action.
The county and KEYS filed the declaratory seeking to get judicial clarification on legal questions they had surrounding the extension of commercial power to No Name Key. The county claims it has a valid land development regulation that prohibits the extension of public utilities into or through areas designated as federal Coastal Barrier Resource Systems. There are 15 such systems in the Keys. Some of those areas already have utilities, placed there before the county’s prohibition went into effect in the early 2000s.
The county also claims that it can’t give utility easements across some lots it owns on No Name Key for power lines to traverse because the pot of money used to buy the land specifically prohibits their use in that fashion.
Proponents of commercial power claim that the county has no legal standing to withhold building permits because KEYS has the right to run power lines in public right-of-way without county interference. Parts of the No Name grid cross public lands.
Audlin ruled in the declaratory action that only the state PSC had jurisdiction to decide on matters regarding commercial power grids and dismissed the declaratory action, kicking it to the PSC. The PSC has the case for hearing based on a request from Reynolds, but hasn’t as yet acted on the matter, waiting, along with all the others, for some action from the Third DCA.
The dismissal was appealed by opponents of commercial power, many of whom claimed they moved to the island specifically because it was off the grid. Oral arguments on the appeal were heard earlier this month, but the DCA hasn’t yet issued a ruling. No time frame has been announced for that ruling. DCA issues opinions in such cases on Wednesdays. It didn’t this Wednesday.
The PSC has claimed it does have some jurisdiction in the case, but county legal staff says that jurisdiction ends at the meter box. A county electrical permit is required to hook the home into the power line, a permit county staff says it can’t issue as long as the prohibition is in place.
Newton was granted a permit to upgrade his electrical system, claiming that the upgrade could be used in a number of ways, but admitting that he wanted to tie into the grid. That permit was later revoked by the planning director as inconsistent with land development regulations prohibiting commercial power extension in a CBRS.
That is part of Newton’s argument in the current suit.
Audlin also has on his docket a civil trespass case filed by Monroe County against KEYS for using its lands for power lines without the permission of the BOCC. The county’s top elected body was asked for that permission, but denied it because it claims the state laws governing the money used to buy the lots doesn’t allow their use for utility easements.
Audlin heard arguments in that case Monday, as well as a county request to hold any further action in abeyance until the Third DCA has chimed in on the appeal.
In that hearing, attorneys for No Name Key residents raised several additional arguments and Audlin gave both sides 10 days to present briefs on those new arguments.
In the current suit seeking monetary damages, Reynolds and Newton claim that most No Name Key residents did not desire to live without utilities when they bought their homes, though many were purchased after the prohibition was invoked by the county, including Reynolds.
The two claim that the ordinance invoking the prohibition is invalid because only the first reading of the ordinance establishing the regulation was advertised in a legal publication, but not the second. Governments have for years advertised ordinance readings as one of two or three required to implement.
The suit claims that the lines went in once Audlin kicked the case to the PSC because that voided the county’s jurisdiction in the matter. According to County Attorney Bob Shillinger, however, the judge did not act on the ordinance itself, and the general counsel for the PSC has said that the issuance of building permits is not at issue in their action.
Reynolds was also denied a permit to hook into the power lines.
The two claim in the suit that Monroe County has intentionally denied the permits, not based on anything illegal about the permits, but simple because the count disagrees with the court’s dismissal and “desires to prevent No Name Key residents from connecting to commercial power.”
That means the county is treating No Name residents differently from other residents in the county without “any rational basis, discriminating against the applicant, which has caused undue hardship, embarrassment and damages…”
Thus the request for $10 million in compensatory damages.
Newton claims in the suit that his property is not located in a CBRS unit. Parts of NO Name Key aren’t located in a CBRS. The county, however, uses the words “to and through” a CBRS for the prohibition.
The suit claims that state statute gives the PSC sole authority to regulate power grids under chapter 366.04 and .05. That is the same statute ruled on by retired Judge Payne in 2001 where he ruled that the residents of No Name Key have no statutory or constitutional right to commercial electricity.
The suit also claims that No Name resident Alicia Putney, who is an opponent of commercial power, aided the county in drafting the ordinance the county uses as a basis for withholding permits while a seated planning commissioner. The ordinance in question was written was written by former Growth Management Director Tim McGarry, according to county records. Putney was seated in her first planning commission meeting when the ordinance came up for a vote and legal staff opined she could vote since the ordinance pertained to 15 units and not just No Name Key.
The suit claims that since the ordinance created an overlay district, thus changing the zoning regulations, individual notices had to be mailed to adjoining property owners, which the suit claims wasn’t done.
The suit asks the court to compel Monroe County to issue permits for electrical upgraded service for No name Key homes. It also claims that the county has deprived the homeowners of rights, even though the homes were purchased without commercial utility service other than telephones, which were installed prior to the prohibition.
Part of the suit relies on statements from then-County Attorney Suzanne Hutton that the county has no jurisdiction over utilities in the established right-of-way. That is not in dispute by county officials. The declaratory action sought clarification on whether private lands could be construed as a right-of-way for the purpose of installing utilities.
The suit claims that the Newtons and Reynolds lost “enjoyment of life, deprivation in the use of their properties, diminution in the value of their properties, and emotional distress…”
And finally, the suit asks the court to declare Monroe County’s ordinance invalid due to notification errors…in a declaratory action…the same action Audlin dismissed, deferring to the PSC.
Shillinger has repeatedly stated publicly that in his opinion, nothing that has transpired on No Name Key rises to the level of a property takings.
No time frame on a hearing has been set.