Who holds the power over power to No Name

By Steve Estes

The decision over what agency has final authority to decide whether residents of No Name Key seeking commercial power to the remote island can actually hook into a power grid began playing out Friday.

That day, representatives from Keys Energy Services, Monroe County, the state Public Service Commission and opposing homeowner groups from No Name Key joined together for a teleconference to set up the ground rules for what might be a precedent-setting decision.

County officials have for the better part of two years been trying to get some clarity on how the extension of commercial power, and probably water, to the island of 43 homes off the northeast shore of Big Pine Key is affected by a land development regulation they have in place.

The county’s comprehensive land use plan calls for the county to take steps to discourage further development in areas like No Name Key by a series of land development codes. One of those codes is to prohibit the extension of public utilities to or through areas designated as a federal Coastal Barrier Resource System.

Much of No Name is included in the CBRS area, but the power grid is installed running through CBRS areas to reach the homes not actually inside the CBRS boundaries.

Keys Energy has already put up the poles and lines using state authority to work inside established public rights-of-way.

But the county legal staff has opined that the building department cannot issue a permit to hook the house into that grid because of the LDR prohibition.

Using a declaratory action, the county sought clarity to that opinion in the local circuit court. Judge David Audlin dismissed that case, ruling that only the PSC had jurisdiction to rule on commercial power in Florida. That ruling was upheld by the Third District Court of Appeals who also said they took no stance on the merits of the arguments.

Audlin also dismissed a civil trespass suit filed by the county against Keys Energy because the power lines cross a county-owned conservation lot where the Board of County Commissioners denied easements. He said that since he opined only the PSC had jurisdiction, that trespass was moot until the PSC decided on its jurisdiction.

Friday’s meting was the fist step toward that decision.

PSC officials set the ground rules to move the case forward and allowed the parties to amend their original filings. All of those filings were in place before the power grid rose from the ground so they want to see updated arguments.

A planned PSC staff report researching the jurisdictional questions due Feb. 28 was delayed until March 28 and another informal meeting between the parties was set for shortly after that date.

Before that, however, the Monroe BOCC is expected to hear from its legal team what has transpired and make a decision on whether the county’s legal team remains at the table.

“I would think that we need to have that PSC decision on jurisdiction,” said Commissioner Sylvia Murphy. “Our next steps might hinge on what the PSC has to say.”

Remaining members of the BOCC have questioned the cost involved in staying the course with the No Name Key issue, particularly since the issue has blossomed of late into at least two other areas.

The Key Largo Wastewater Treatment District is awaiting a county decision on permits in CBRS areas before it proceeds with hooking up about three dozen homes on the 905. To get to those homes, the sewer pipes must pass through a CBRS area and the county has said it can’t, under its current rules, issue building permits for those hook ups.

Islamorada officials also learned late last month that one of the transmission pipes they will have to pay for to reach their area from the Key Largo treatment plant runs through a CBRS area if the contractor proceeds with plans to bore under the Tavernier Creek channel. If the pipes stay on the bridge, the issue is moot.

Legal staff estimated that the costs to stay the course with the PSC ruling could reach as high as $100,000 since the work is being done by outside counsel considered an expert in PSC issues.

Since the discovery of the Key Largo sewer hook up question, Commissioners George Neugent and David Rice have taken a strong stance against continuing the county’s prohibition on utilities through a CBRS area.

They attempted in a special meeting Feb. 26 to get approval from their fellow board members to declare the LDR inconsistent under state rules and begin issuing permits as they changed the language in the prohibition.

That effort failed. Instead, the BOCC authorized county land use consultant Keith and Schnarrs to perform an exhaustive study on the ramifications to other CBRS areas, 15 in the county, for future development is the prohibition is lifted.

After that study, expected to be complete in April, the BOCC will have the choice to keep the current rules if the data supports that, or start the process to change the rules if the data supports that.

That April meeting falls after the next PSC get together, however, and if there are three votes in March not to stay at the table, county legal teams would bow out of the PSC fight.

“I won’t support that. I think $100,000 is a very high estimate and I’ve never been one to take our rules off the table if sensible cost were the issue,” said Murphy.

Neugent says that the costs haven’t been sensible in a long time. He claims that the county has spent nearly $1 million in legal fees during the 20-plus year run of the fight over electrification of No Name Key. County Attorney Bob Shillinger says those costs are probably around $30,000 in the last couple of years since all the work has been done in house.

Neugent, however, says that internal staff time for the legal team and the county’s planning staff must be taken into account for an accurate cost estimate even though legal staff and county staff get paid the same regardless of the issue they’re working on.

Meeting participant Alicia Putney, leader of the anti-power contingent on No Name Key, said that she got the impression the PSC would like to settle the issue without the need for a formal hearing.

Any decision from a formal hearing process is automatically appealable to the state Supreme Court from the PSC.

During the conference, Keys Energy Attorney Nathan Eden pointed out that unless the PSC could direct Monroe County to issue permits, or ensure that the county would have to follow a ruling doing so under home rule statutes, the PSC hearing was a waste of time and money.

KEYS has asked that the PSC case be dismissed because the power poles and lines are already in place.

A dismissal puts the onus right back on the circuit court to make a decision.

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