Judge kicks trespass case to state commission

By Steve Estes

As expected, Circuit Court Judge David Audlin last Thursday dismissed an action by Monroe County charging Keys Energy Services with civil trespass in the installation of an electrical power grid to No Name Key.

Audlin ruled that in his opinion the state Public Service Commission, which regulates public utilities in Florida, had the sole authority to decide its jurisdiction in the matter and only after that decision is defined can any other proceedings continue.

Audlin had earlier dismissed a county declaratory action on the same grounds that sought to clarify whether the county’s land use codes prohibiting the extension of public utilities to or through a federal Coastal Barrier Resource System controlled the issuance of building permits to residents of the remote island wishing to hook into the power grid, and whether the county could be forced to allow utility easements across conservation lands it owns on the island.

Keys Energy had requested the easements and been denied on a unanimous vote by the Board of County Commissioners after the commission was told that the lots, having been bought with state funds, couldn’t be used in that fashion under the state law authorizing the purchase.

The sides in the 20-plus year battle to bring commercial power to No Name Key have a status conference scheduled today in front of the PSC where the state agency will outline the procedures it will follow in hearing the case.

A new PSC staff report was expected to be available for that conference, but was unavailable at presstime.

In earlier actions, PSC officials claim they do have jurisdiction over the extension of commercial power grids in the state, but did not chime in as yet on whether they believe their authority extends to overriding county land use codes in issues of individual building permits.

On its public website, PSC officials state that their jurisdiction over commercial power issues ends at the meter box on the home. It is the county’s contention that the homeowner needs a building permit to finish the actual connection to the grid from them and that the prohibition doesn’t allow them to issue that permit.

The PSC also states on its web site that its jurisdiction doesn’t include forced easements on private property but it does give public utilities the right to declare eminent domain in the furtherance of grid extension. Under eminent domain laws, easements can be forced for public good at a fair market value lease or purchase from the property owner. One of the other stipulations to eminent domain is that there must be no other route available for the project.

The Monroe Board of County Commissioners decided Wednesday that it will continue, at least for now, its status as an intervener in the PSC case although it they also decided not to appeal the Audlin dismissal at this time.

According to County Attorney Bob Shillinger, the county’s involvement in the PSC case is crucial because the commission could be litigating the county’s ability to control development in this ecologically sensitive chain of islands.

The case is the result of a request by No Name Key property owner Bob Reynolds who is asking the PSC to require Keys Energy to install a power grid to those on the island who want it. That grid is up and energized, it just powers no homes at the moment because the county says it can’t issue building permits against the prohibition.

Keys Energy has asked the PSC to dismiss the case because the grid is up.

Reynolds also wants the PSC to force the county to issue permits to the homeowners, claiming that only the PSC can regulate commercial power.

According to Shillinger, after the status hearing today, the actual merits case probably won’t be heard prior to the PSC meeting on June 18.

He said he will report to the BOCC at its March meeting the results of the status conference and seek direction from the commission on the next step.

PSC staff also has to rule on whether members of the Solar Community of No Name Key can join in the PSC proceedings as an intervener.

That group, through spokeswoman Alicia Putney, claims that they have invested considerable resources in maintaining the off-grid lifestyle.

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