Staff: Eliminate utility prohibition

By Steve Estes

Monroe County planning staff, based on a report received this week from land use consultant Keith and Schnarrs, plans to recommend to the Board of County Commissioners next Wednesday that a long-standing prohibition against public utilities in a Coastal Barrier Resource System area be removed from the county’s land development regulations.

The recommendation follows a request by the BOCC to have the consultant study the potential ramifications of changing the LDRs and the effect on growth in environmentally sensitive areas.

The commission asked if the county’s current Tier System of land classification provided enough protection for CBRS areas or if the overlay that was added more than a decade ago needed to remain.

The conclusion by the consultant is that the Tier System classifications provide nearly the same level of protection and the utility prohibition can be removed.

That recommendation directly affects efforts by residents on No Name Key to hook their homes up to commercial power.

That battle has been ongoing for more than two decades as each new wave of residents took a stab at getting commercial power to the island, rebuffed always by the BOCC or the courts.

Until this time.

Mayor George Neugent and Commissioner David Rice have already voiced their support for lifting the prohibition and new Commissioner Danny Kolhage said he could agree if the data and analysis presented by the consultant showed no greater potential for growth on the sensitive island that is encased by the National Key Deer Refuge.

Three votes are needed to begin the process to implement the change that could eventually lead to the electrification of No Name Key.

“We are recommending modifying the code to be consistent with the comprehensive plan,” said County Planner Mayte Santamaria.

The county’s comprehensive land use plan says the BOCC will “discourage” further development through the use of policies that limit growth while the LDRs contain the word “prohibit.”

Based on that prohibition, the county building department has refused to issue permits to allow No Name Key residents to hook into the power lines that Keys Energy installed back in August 2012.

Santamaria also said that staff is recommending modifying the LDRs so that central wastewater is excluded from the discouragement language because near-shore water quality is one of the primary goals of the planning department.

The county’s CBRS language has also been called into question in North Key Largo where the Key Largo Wastewater Treatment District plans to install central sewer pipes to two subdivisions where the pipes would pass through a CBRS area. By establishing the exemption, CBRS designation would not affect wastewater expansion.

No Name Key is not currently on the county’s master plan to receive central wastewater collection pipes, instead slated for enhanced on-site treatment systems.

To further stymie development, she said that staff is also recommending that CBRS units outside the Big Pine/No Name area begin with negative points when entering competition for the limited Rate of Growth Ordinance building allocations. Inside that area, only 10 Tier One permits, which covers all of No Name Key and much of Big Pine Key, can be issued through the agreement between the county and US Fish and Wildlife Service called the Habitat Conservation Plan.

Nine of those allocations have either been issued or are in the pipeline for a building permit, leaving just one more, but six of those are on No Name Key where 43 homes exist today.

Those homes are currently powered by solar arrays or generators or a mix of the two.

“The report says that 98 percent of the current CBRS lands are already in Tier One, the most restrictive designation for building,” said Santamaria. “The remaining two percent is on off shore islands where other factors work to control growth.”

The general consensus of the consultant report, she said, is that even if the prohibition against utilities is removed, it won’t impact growth in those areas.

County Attorney Bob Shillinger said he hasn’t had a chance to fully digest the report as yet.

“At first blush, the policy recommendations would reduce or eliminate the county’s legal exposure going forward, if any ever existed,” said Shillinger.

No Name Key resident Alicia Putney, who has been a vocal opponent of commercial power to No Name Key, said she felt that the recommendation, and what she assumes will be BOCC approval to move forward, is “A disappointing way for this to end. This is extremely anti-climactic for this special island.”

Putney said she and other anti-power parties will have to study the recommendations and figure out what to do from here.

Meanwhile, the county is still embroiled in the No Name electrification issue on several fronts, mostly because the county has a valid ordinance on the books that it must defend until overturned by a court or changed by the BOCC, said Shillinger earlier.

The state Public Service Commission is expected to make a decision May 14 on how much jurisdiction it believes it has to force, or block, the eventual electrification of No Name Key.

Once that determination has been made, the two sides may again be at odds to argue who has authority to control growth in CBRS areas like No Name Key.

According to Santamaria, if the staff gets a positive vote on its recommendations May 15 at the BOCC, she expects the change will go to the Development Review Committee in June, the planning commission in July and August and could go to the BOCC in September.

With the necessary transmittal to the state Department of Economic Opportunity and a mandated appeal period, the earliest the new language could be enacted is February 2014. If there are the anticipated appeals, the process could drag out for many months after that unless a court tosses out the county’s prohibition.

“Until the ordinance is changed, we cannot issue permits to hook into utilities on projects that are in or pass through a CBRS area,” said Santamaria.

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