Commissioner wants vote on CBRS issuesBy Steve Estes
The Monroe Board of County Commissioners will hold a special meeting Tuesday, Feb. 26 to try and get some clarity on where the commission wants to go with issues surrounding the issuance of building permits when a project is located in or goes through an area designated as a federal Coastal Barrier Resource System.
The CBRS was established by the federal government in the 1980s in order to help protect environmentally sensitive coastal areas that serve as a buffer from storm and wind damage for more inland areas. The expenditure of federal dollars to subsidize development is prohibited in those areas, meaning no federal grants can be expended for development, nor can properties located there be issued federally subsidized flood insurance.
After years of infighting among residents of No Name Key, an island partially contained in a CBRS unit, and a court ruling that declared residents there had no statutory or Constitutional right to commercial power, the county established a CBRS overlay district that purports to discourage the extension of commercial utilities to or through such areas and in a land development regulation actually prohibits such.
Under that prohibition, the county is currently refusing to issue building permits for a few dozen homes in Key Largo where the wastewater treatment district wants to install lines through a CBRS, and to homes on No Name Key to hook into a commercial power gird paid for by 22 residents of the 43 homes there and installed by Keys Energy Services.
The issue of sewer hook ups in Key Largo is a relatively new one, but the fight over commercial power on No Name Key has been an on-again, off-again issue for nearly three decades.
But this is the first time that fight has resulted in actual utility poles carrying commercial power on the island.
But those poles power nothing at the moment because of the county’s prohibition on issuing building permits.
And the discrepancy that he believes exists in between the county’s comprehensive land use plan discouragement and the land development regulation that prohibits is something Commissioner David Rice wants some clarity on.
“We need a chance to sit down and talk with our legal council at length to see what the next step might be,” said Rice.
Rice, along with Mayor George Neugent have publicly said they are ready to end the No Name Key issue, and by default the Key Largo sewer issue, by voting to do away with the prohibition.
Commissioner Danny Kolhage said he feels as though the county’s land use codes let them down in this instance because no matter what route the county takes, a public utility can run its facilities at will through an established right-of-way, which except for a few small areas where aerial lines cross county-owned conservation lots, Keys Energy did.
Rice said his personal feelings concerning the electrification of No Name Key are a secondary issue.
“We have spent a lot of money over a long period of time discouraging the extension of utilities to No Name Key. I believe that can qualify as discouragement,” he said.
Rice said his ultimate goal is to get the taxpayer off the hook for potential legal losses and to save the taxpayer money in further legal expenses if necessary.
Some of the options Rice expects to hear at the meeting Feb. 26 include beginning the process to change the LDR prohibition and free up building permits for the homes on No Name Key.
He says there is a component in one of the state statutes that govern land use that when the comprehensive plan and the land regulations don’t agree, there is a process the county can use to make the two consistent with each other.
“The statute outlines what you do when something like this occurs, and even outlines how you do it,” said Rice. “This really might not be quite as complicated as we believe it to be.”
He said using that statute might be one of the options the commission hears, along with just going through the process to change the code because of the changes to the island with the installation of a commercial power grid.
“We can’t just vote to ignore our code. That’s not what’s going to happen,” said Rice. “There is a process. But it takes the direction of three commissioners to begin that process.”
The possibility of changing the prohibition was actually started last month when Kolhage got commission approval to have the county’s current land use consultant study the impacts of removing that prohibition on other areas in the county where sensitive lands exist and are covered by the CBRS designation.
“I want to make sure we don’t do something in haste that puts other areas in the county at risk,” said Kolhage. “None of us want development in environmentally sensitive areas.”
Kolhage said that if the commission decided to change the prohibition in the land code, “We need the data and analysis to support that decision or we wind up back in court. If the study says it’s not a good idea due to the impact on other areas, well then we have the data and analysis to make no changes,” he said.
The question for Kolhage, he said, is whether the county’s tier system of land designation carries enough protection for environmentally sensitive areas that the CBRS overlay can be done away with.
Both he and Rice agreed that doing nothing except waiting for the current legal issues surrounding the No Name Key power fight to play themselves out might be another of the options they will hear.
The county filed a declaratory action last year to try and get the circuit court to answer some of the lingering legal questions it had about the electrification of No Name Key.
Judge David Audlin said his court wasn’t the right place for that and kicked the ball to the Public Service Commission. The Third District Court of Appeals last week affirmed that decision.
The PSC has asked that its staff prepare a report on the jurisdictional questions so that it can act on them at a meeting later this year. That report is slated to be complete by Feb. 28.
But Kolhage and several other observers of the issue don’t expect the PSC to be able to answer the permit question.
“I’ve been told by several people with some expertise that the PSC doesn’t have the jurisdiction to tell us we must issue a building permit against our local codes, and certainly doesn’t have the jurisdiction to tell Keys Energy they must take down the poles that are already up,” said Kolhage. “Since the poles and lines are already there, what’s the use in forcing them to come down?”
The county could appeal the DCA ruling to the state Supreme Court, but that is a move both Rice and Kolhage said they wouldn’t support.
Opponents of commercial power to the island also don’t favor a direct appeal to the state’s highest court since any decision of the PSC is automatically eligible for hearing by the Supreme Court without that body having to accept the case.
Onlookers believe the PSC will schedule the No Name power issue for either the March or April commission sessions.
If staff and the BOCC moved very, very quickly the code could be changed prior to the April PSC session.
“Even using the state statute it is still a two-month process,” said Rice. “Doing it through normal channels, it could take longer than that.”
The statute to which Rice refers says that the proposed change for consistency must be submitted to the local land planning agency for its recommendation. If that recommendation isn’t back in two months, the BOCC can act without it. If commissioners vote to start the process outside the statute, it would still have to follow a route that takes it to the planning commission.
No Name resident Alicia Putney, who has long been a vocal opponent of power to the island, said she believes Rice’s interpretation of the state statute is incorrect.
“The comp plan policies are always general. The specifics of how to implement that policy are outlined in the LDRs. The two are not inconsistent with each other in this case because prohibit is a natural off shoot of discourage,” she said.
The county is also currently embroiled in a civil trespass case against Keys Energy because the utility installed power lines over conservation the county owns without an approved easement.
“This has devolved into a technical legal issue,” said Rice. “Government can do some pretty silly things at time, but there has to be a point where we say silly must stop and continuing a trespass case over a single line that is three feet inside our property line and in the air seems one of those times.”
Of course, two No Name Key families have filed a damages law suit against the BOCC asking for $10 million in award for emotional distress caused by the county’s denial of commercial power to the island.
“Doing something potentially illegal according to our code and state statute and then expecting to be rewarded for it is not something I can support,” said Commissioner Sylvia Murphy. “Costing the taxpayer to increase the value of one’s home is not something I can support.”