Power? Not yet
BOCC agrees further study needed on island issue

By Steve Estes

The Monroe Board of County Commissioners Wednesday agreed to begin the process that might end up with the county eliminating its prohibition against public utilities in areas designated as federal Coastal Barrier Resources.

If the process shows that those areas have as much protection from future development under other existing county land use regulations, the chances are that the prohibition would be lifted since there has been a distinct shift by the commission in how it views the subject.

If the process shows that only through the prohibition can county leaders ensure that sensitive environmental areas designated to provide protection to more sensitive inland areas, there still seems to be a possibility that the prohibition can be lifted.

And if the prohibition goes away, that clears the way for the issuance of building permits on No Name  Key for the residents there to hook into the power grid that currently sits idle, but energized, on the remote island off the north east shore of Big Pine. It also clears the way for the issuance of permits to allow about a dozen homes on Route 905 in Key Largo to hook into planned central sewer lines.

Both those projects are currently prevented from getting permits to hook up homes due to the prohibition that has been in place for more than 10 years.

Mayor George Neugent said it is time for the county to step away from the 20-plus-year-old-fight to electrify No Name Key.

He said the situation has turned into a “Hatfield and McCoy” scenario that the county has no business being in the middle of and dragging the other taxpayers in the county along for the ride.

Neugent claims that the county has spent nearly $1 million in legal fees over the electrification issue on No Name Key and he is unwilling to spend anymore, particularly since the power grid is already there.

“At the end of the day, there will be electricity on No Name Key,” said Neugent. “How long do we defend an illogical policy.”

According to County Attorney Bob Shillinger, the cost of legal fees, not counting staff time which taxpayers foot the bill for even if the legal team is munching donuts at their desks, is closer to maybe $30,000.

And that is OK with some who want the county to retain the policy for the sake of the environment and future development pressures on No Name Key.

“If later we have to change the comprehensive plan because some court or the Public Service Commission says we must, we do that,” said Hallet Douville, No Name Key resident opposed to commercial power on the island. “Complete the process. Let the data make up your minds.”

He was joined in that sentiment by more than a dozen others at the meeting, but proponents of power also were as passionate that the county should just give up the fight, agree to issue permits and let the matter die.

“That ordinance (prohibiting power) is void,” said Bart Smith, attorney representing two No Name Key couples. “The county must take steps to settle these issues. If you continue down this road, there will be liability.”

Smtih’s clients have sued the county for $10 milion for what they claim is emotional distress caused by the prohibition and the lack of electrical power.

Every homeowner of the 43 developed properties on No Name Key bought the property with no commercial power.

“Just recognize there was an error and agree that these folks are allowed permits,” said Smith.

Neugent and fellow Commissioner David Rice tried to get the BOCC to agree to define the particular LDR that prohibits commercial power as inconsistent with the comprehensive land use policy that it describes. By doing that, said Rice, the commission can begin the process to change the LDR under state statute, with the intent to change it, and begin issuing permits.

According to staff reports, if the commission chose that route, it could approve a resolution in March and begin issuing building permits.

Maybe. Perhaps. But probably not.

Shillinger said that any permit issued using the state statute allowing the inconsistency path could be challenged by any resident, including the anti-power contingent on No Name Key. That would stay the issuance of the permit until the full gamut of legal appeals runs its course. And that could be as long as nine months.

If no one appealed the permit issuance, the county could give out permits to hook to the electrical grid right away and change the LDR effective October or so this year.

But a lack of appeal is not likely to happen, said Shillinger.

Neugent and Rice were defeated in that attempt on a 3-2 vote.

“If we find we must change the policy, we have to use the process,” said Commissioner Danny Kolhage. “In order to make this decision we need the data and analysis to be defensible in a court. We’re already defending ourselves from our past actions.”

Staff members did not agree with the two commissioner’s interpretation of the LDR as inconsistent with the county’s comprehensive plan policy and instead recommended that the BOCC allow the county’s land use consultant to study the issue and determine if in fact a change needed to be made that would provide protection for environmentally sensitive areas equal to what is in place now.

The estimated the time frame for the study completion at about three months, at which time the BOCC could start the process to remove the prohibition if warranted, and complete it in the normal time frame for a land use change of about a year.

Of course, Shillinger pointed out, legal challenges to any decision, for or against lifting the prohibition, could add six to 12 months to the process.

In the end, the commission voted 4-1 with Neugent in the minority, to follow staff’s recommendation while other legal actions play out around them.

“To punish the people out there by dragging this out to sometime in 2015 in unconscionable,” said Neugent. “We’re going to wind up punishing people not in a CBRS area.”

The county’s code extends the prohibition to utilities that must also go through a CBRS area to reach development. Every property on No Name Key falls into one of the two categories.

Shillinger is expected to attend a status conference at the State Public Service Commission today on  the No Name Key issue. Circuit Court Judge David Audlin has kicked out every county filing to date, ruling that the PSC has exclusive jurisdiction over the extension of utilities in the state.

Shillinger is expected to report on the outcome of that status hearing at the March 20 BOCC meeting where the commissioners will probably take another bite at the apple.

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