PSC staff says power to island

By Steve Estes

The state Public Service Commission meets Tuesday in an effort to declare its jurisdiction in the potential electrification of No Name Key.

The commission staff last week issued its report on the long-running issue, claiming that the state agency has the jurisdiction to force Keys Energy to supply commercial power to the remote island off the northeast shore of Big Pine Key.

And the report suggested that the full commission claim that jurisdiction Tuesday. Whether Keys Energy had the authority to run a commercial power grid to No Name Key using public lands and public rights-of-way has never been a bone of contention between the utility and Monroe County. Both sides agree that the utility has the authority from the state to establish a power grid on public lands and with privately granted easements.

What has been the stumbling block in recent months, as well as in the recent decade of the two-plus-decade-old battle to electrify the island, is a county ordinance that prohibits the extension of public utilities to or through areas designated as federal Coastal Barrier Resources System lands.

That ordinance was put into place about a decade ago after the courts ruled against another group trying to electrify No Name Key that the group had no statutory or Constitutional right to commercial power. The hope, expressed by then Growth Management Director Tim McGarry when he presented the ordinance written by county planning staff, was that the language would put the battle to rest once and for all.

It worked for 10 years until a new group of homeowners, many of whom are transplants from other areas, brought the battle to the forefront again.

In its report, the staff said that the PSC’s jurisdiction to manage the development and expansion of a coordinated power grid for the state is superior to all other governing bodies, except as the report points out, when that governing body is the state or municipal government with legislative jurisdiction in that area.

The report hastens to footnote that note, claiming that because the statute didn’t specifically state county government, it doesn’t include such, although staff made that claim under the statute used by the local circuit court to uphold the non-electrification of No Name Key in 2001.

The PSC staff also suggests that under the authority of the PSC that homeowners on No Name Key asking for commercial power should be granted service from Keys Energy. Keys Energy is asking that the complaint from the No Name residents be dismissed as moot because the utility has supplied power to the island. It admits it doesn’t have the jurisdiction to hook the grid to the homes.

In its closing paragraphs of the PSC staff report, however, officials recognize that the PSC doesn’t have the authority to direct Monroe County to disregard lawfully enacted land use ordinances.

“While it is not the Commission’s place to direct the County to act in any way with respect to its ordinances in this case, staff would point out that the United States Fish and Wildlife Service has indicated that the Key Deer and other endangered species will not be harmed by the installation of power lines, if constructed properly. Staff would also emphasize that this recommendation does not suggest authorization of further development on the island, which is within the county’s purview,” states the PSC report.

Should the PSC determine it has jurisdiction to settle the issues, the full hearing is anticipated to be held in early June, after which is directly appealable to the Florida Supreme Court, where most onlookers felt the case would eventually end up anyway.

Part of the case is already at the Supreme Court level where attorneys for No Name Key resident Alicia Putney have asked that the court to issue a stay of the PSC hearing until it can hear her appeal of a PSC hearing officer’s denial for her to intervene in the PSC case.

Putney, as well as members of the No Name Key Property Owner’s Association, not all of whom have signed the contract with Keys Energy Service to have electricity extended to the island, petitioned to intervene in the PSC hearing. Putney was denied, with the hearing officer claiming that she had no significant interest to petition for intervention. The members of the No Name Key POA were admitted.

Where that leaves the issue is about where County Attorney Bob Shilinger predicted it would be several months ago when the local circuit court and the Third District Court of Appeals shuffled the jurisdictional question off to the PSC to allow that state agency to determine its own level of jurisdiction.

Back then Shillinger and other legal onlookers predicted that the PSC would agree that it had authority to mandate a power grid on public lands and private easements, but would stop short of agreeing that it could override a local building code regulation.

The prohibition against extension of electrical service to No Name Key affects 14 other areas in Monroe County where CBRS designations exist, but the PSC wasn’t asked to look at those cases.

To address both the regulation issue and the other areas where the ordinance might affect the extension of public utilities, the Monroe Board of County Commissioners is expected to discuss embarking on the necessary process to change the county land use code and remove the prohibition.

That decision is reportedly based on a consultant’s report received last week that generally states that the county’s land use policies are strong enough in other areas to offset the loss of the utility prohibition and control future development in environmentally sensitive areas that are part of federal CBRS units.

The consultant report also points out that under the terms of the Big Pine/No Name Key Habitat Conservation Plan and resulting Incidental Take Permit for endangered species on the two islands, there is only enough room under the cap for Tier One lands, which includes all of No Name Key, for one more building allocation. Six of the Tier One permits on Big Pine Key have already gone to No Name Key, and with one more, the county would have to deny any building allocations in any other Tier One area on Big Pine Key or No Name Key until the HCP is either renegotiated with USFWS or expires in 2023.

But the HCP/ITP combination would not limit some commercial growth on No Name Key where commercial zoning or industrial zoning already exists. That limiting factor thus far has been the lack of public power.

Should the BOCC decide to begin the process of changing the land use prohibition on No Name Key and the other CBRS areas for public utilities, it is estimated that with no appeals, the building department could begin to issue permits in February 2014. With appeals along the way, the first permits to hook to the grid could be more than a year away.

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