3rd DCA confirms local ruling

By Steve Estes

The Third District Court of Appeals Wednesday upheld Circuit Court Judge David Audlin’s ruling that it is indeed the state Public Service Commission that has jurisdiction in deciding issues surrounding the possible electrification of No Name Key.

Monroe County had filed a declaratory action with Audlin seeking to have the court verify what the responsibilities and authorities are of the county with regard to electrification of the remote island off the northeast shore of Big Pine Key.

The county was seeking clarification on whether it had to allow use of conservation lands it owned for utility easements to allow the power lines. It also wanted the court to determine if all of the sides of the road the utility was using were indeed established rights-of-way where county officials are barred from local control by state statute.

Another question the county asked is whether the county’s land use codes, which prohibit the extension of commercial utilities to or through an area designated as a Coastal Barrier Resource System. Parts of No Name Key are in such a designation, and the power grid runs through such an area in all cases.

Before any court rulings were finalized, Keys Energy signed a line extension agreement with 22 property owners to run a power grid. And despite not having the county’s permission to use conservation lands for easements, the utility strung the poles and lines.

For that last act, the county has filed a civil trespass case against KEYS in Audlin’s court.

Also still in Audlin’s court is a suit filed by two No Name property owners asking for $10 million in damages from the county for not being allowed to hook into the grid.

In its ruling the appeals court agreed with Audlin that his court doesn’t have the jurisdiction to decide the issues brought on appeal. That jurisdiction rests with the state PSC.

The court agreed with Audlin that the PSC has jurisdiction over the “planning, development and maintenance of a coordinated electric power drip throughout Florida to assure an adequate and reliable source of energy for operational and emergency purposes…and the avoidance of further uneconomic duplication of generation, transmission and distribution facilities.”

The appeals court said that as the state entity charged thusly, the PSC has the power to determine its own jurisdiction.

“Any claim by the county or by the appellant (which was opponents of commercial power on the island) homeowners that the PSC does not have jurisdiction may be raised before the PSC and, if unsuccessful there, by direct appeal to the Florida Supreme Court,” stated the ruling.

The ruling said that the PSC’s jurisdiction is exclusive and superior to anyone else in the matters of commercial electricity.

“The Florida Legislature has recognized the need for central supervision and coordination of electrical utility transmission and distribution systems. The statutory authority granted the PSC would be eviscerated if initially subject to local governmental regulation and circuit court injunctions of the kind sought by Monroe County in the case at hand<’ stated the appeals court ruling.

The court said that the power opponents of No Name Key and the county could seek relief from the PSC and “we express no opinion as to the merits of any such claims by the appellants in that forum.”

The PSC has been asked to rule on the No Name Key issue but has as yet not set the case for hearing. A previous hearing was cancelled so that the PSC staff could conduct a fact-finding mission.

According to Monroe County Attorney Bob Shillinger, the PSC was waiting for the outcome of the appeals court before taking any action.

PSC staff has stated in public documents that the agency’s jurisdiction ends at the meter box. It is normally from that point to the house service that the county requires a building permit and staff there claims that it can’t issue those permits because of a land use code that prohibits the extension of utilities to or through CBRS areas.

According to Shillinger, the PSC probably doesn’t have the authority to void the county’s land use codes, an opinion somewhat upheld by PSC actions on Stock Island years ago when the sewer utility there had to adhere to county regulations when it left the public right-of-way.

Shillinger also says that the trespass case is still active in Audlin’s court, as is the damage suit from the No Name Key homeowners.

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