PSC seeks legal briefs on power

By Steve Estes

The state Public Service Commission is asking all the sides in the fight over the potential electrification of No Name Key to file legal briefs outlining their various positions by next Friday.

The commission has requested that both opponents and proponents of the electrification of the island by a commercial power grid, Keys Energy Services and Monroe County as an accepted intervenor file briefs addressing the question of whether they believe the PSC has the jurisdiction to resolve the standing complaint filed by No Name Key residents Bob and Julianne Reynolds. It also asked for briefs on whether the 22 homeowners on No Name Key who have requested commercial power from KEYS are entitled to that power due to the 1991 territorial agreement the commission accepted between then City Electric and the Florida Keys Electric Cooperative.

Reynolds has requested that the PSC force KEYS energy to install a power grid to the island despite Monroe County objections.

County officials have long taken the stance that its land use code prohibition against extending commercial utilities to or through lands designated as a federal Coastal Barrier Resource System doesn’t allow it to issue building permits that allow homeowners to hook into a commercial power grid.

Keys Energy installed that grid under a contract with the No Name Key Property Owner’s Association in August last year. The lines are energized but at the moment power nothing because the homeowners can’t get permits from the county to hook into the grid. The property owners asking for commercial power paid just over $600,000 to have the grid installed, even though the county said it wouldn’t be able to issue permits and also denied easements across lands it owns that the utility crossed with power lines anyway.

Reynolds has also asked the PSC to force the county to ignore its land use prohibition and issue permits allowing them to hook into the energized grid.

The original complaint was filed against Keys Energy to try and force the local utility to install the grid. KEYS contracted for that work, claiming that it didn’t need county approval to run utility lines in established rights-of-way by virtue of state statutes.

Because the grid is up, Keys Energy has asked the PSC to dismiss the complaint.

Monroe County legal staff has also asked the PSC to dismiss the complaint, contending that the Reynolds and other members of the No Name Key POA have no standing to bring that action before the commission.

Monroe County also argues that the PSC does not have the authority to force the county to ignore its prohibition against power in CBRS areas as an administrative body.

Twice the county and opponents of commercial power have been dismissed from the local circuit court because Judge David Audlin says that sole jurisdiction to decide the issue resides with the PSC. He has been upheld by the appeals court, although the secondary court ruled that any actions not answered by the PSC would be returned to the circuit court for adjudication.

Both courts ruled that the PSC had a right to determine its own jurisdiction in the matter. In its order asking for the briefs, the PSC hearing officer opined that “it is time for the commission to move forward to resolve all matters within its jurisdiction as expeditiously as possible.”

In briefs filed with both the circuit and appeals court, PSC staff claimed that the state agency does have subject matter jurisdiction, but stopped short of saying it had jurisdiction over county land use rules.

On its public website, PSC staff claims that its jurisdiction ends at the meter box on the house. County officials claim that to get from the meter box to the house, a county permit is required, not just in CBRS areas, but anywhere.

Reynolds’ attorneys claim that the couple does have standing based on appeal law in the state where any party that can be substantially affected by the decision should be allowed a seat at the table.

Reynolds and fellow No Name residents Jim and Ruth Newton have attempted to show the court how much they believe they have been affected by a lack of commercial power by filing a $10 million damage suit against Monroe County. The basis for the suit is essentially emotional distress.

The local circuit court has held a preliminary hearing on the damage claim, but that case is stalled, probably awaiting a PSC ruling.

Newton built his home on No Name prior to the establishment of the code prohibition. Reynolds purchased his home after the prohibition was in place.

The 43 homes on the remote island off the northeast shore of Big Pine Key are powered by solar arrays and generators or a mix of the two and have been since the initial development of the island more than 50 years ago.

Monroe County bases most of its argument on jurisdiction on the definition of Keys Energy as a municipal utility and on the terms of the territorial agreement. County legal staff claims that the territorial agreement only affects KEYS and FKEC and that there is no territorial dispute for the commission to resolve.

County attorneys also claim that the PSC doesn’t have the statutory authority to override local land use ordinances on growth management and building matters.

PSC staff is expected to file its report on May 2 and an informal procedural conference will be held May 14.

The hearing officer is expected to issue a ruling on the legal issues in the briefs by June 3. If a formal hearing is necessary, County Attorney Bob Shillinger has said that it will probably come in July.

While the legal tussles continue, the Monroe Board of County Commissioners has requested an in-depth study of the potential ramifications of changing the prohibition against commercial utilities to or through a BCRS area with an eye toward possibly eliminating the prohibition based on the study’s outcome.

Growth Management officials expect that study to be completed sometime in May and a decision by the BOCC to come either in June or July.

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