County apparently ready to give up No Name power fight

The majority of the Monroe County Commission appears ready to wash its hands of the decades-long battle over electrifying No Name Key.

Mayor George Neugent, along with commissioners David Rice and Danny Kolhage, told the Keynoter they won't support appealing to the state Supreme Court Wednesday's Third District Court of Appeal opinion over No Name power.

The court ruled the state Public Service Commission -- not local courts -- has jurisdiction over allowing commercial electricity on the 1,000-acre island. Currently, the 43 homeowners are powered by solar and generators.

The opinion came about from a complaint No Name resident Bob Reynolds filed with the PSC. He contended that agency has jurisdiction while the county claimed Circuit Court Judge Audlin had the jurisdiction because the county had sought a declaratory judgment ruling in Circuit Court to stop the commercial electrification.

In a Jan. 31, 2011, ruling, Audlin agreed with Reynolds. No Name resident Alicia Putney, the most vocal anti-electricity No Name resident, appealed to the Third DCA.

She lost Wednesday -- and that could be the final nail in the coffin for those who don't want commercial power on No Name.

"The statutory authority granted to the PSC would be eviscerated if initially subject to local governmental regulation and Circuit Court injunctions of the kind sought by Monroe County in the case at hand," the court wrote.

The opinion also says Keys Energy Services, the Lower Keys power company that has already installed poles and activated them, "is subject to the PSC's statutory power over all electrical utilities and any territorial disputes over service areas."

County Attorney Bob Shillinger said county staff would discuss options with the commission during its Feb. 20 meeting in Key Largo. Any appeal would be heard before the Florida Supreme Court.

Neugent said he's been involved with the issue since his first year on the commission in 1998. He originally supported leaving the island as is, but said dynamics have changed there over the years.

He said that at one point, he "demanded a notarized affidavit supporting electricity" from the 32 of 43 No Name homeowners who said they want to be connected to the grid. He said the U.S. Fish and Wildlife Service then told him that electrical lines would have "no negative impact to the habitat or the deer."

Game over?

"It's pretty clear to me this will not go to the Supreme Court on my vote. How can we take the position that we're going to fight this in court?" Neugent said.

Rice said he is "not surprised at all" by the Third DCA's decision, and that it appears clear how the PSC will rule on the matter.

"We really have no idea when they're going to hear it, although I will be shocked if the PSC does not come down on the side of utilities," he said.

Rice added that the county is "splitting hairs out there with some of the positions we're taking" in regards to a separate lawsuit the county filed accusing Keys Energy Services of trespassing on county aerial easements.

"We've gone virtually to the point of the absurd," he said. "We're worried about a power line, three feet of which goes across our property ... in the air."

Andy Tobin, an attorney for the No Name Key Property Owners Association, said he agrees with Rice and that it's time for the county to move on.

"If the county now has clarity, where they were unsure, then the case will be resolved and everyone can march down to the Building Department to hook up to the poles that have been sitting there since July. It doesn't make sense for this battle to continue," he said.

Kolhage said the commission still has to discuss the case with county legal staff but that he is "not in favor of appealing this decision."

Commissioner Heather Carruthers said she has "long-range" concerns over the PSC's ability to allow utilities in a Coastal Barrier Resource System area or Area of Critical State Concern.

Congress enacted the Coastal Barrier Resources Act in 1982 to protect coastal habitats, and part of No Name -- not the entire island -- is included. The entire Keys are an Area of Critical State Concern because of their sensitive environment, meaning virtually all development decisions are made by state officials in Tallahassee.

Commissioner Sylvia Murphy is the lone board member to be outspoken against commercial electricity on No Name Key. She's long held that position and said "the people doing this to No Name Key are very wrong."

"I see no reason for anyone to purchase something on No Name Key with the expectation of having lights and water unless they expected to buy cheap and sell at a much higher price. I kind of resent that attitude, but it will be what it will be," she said.

Issues pending

Assistant County Attorney Derek Howard pointed out that the Third DCA opinion is far from a final decision on the matter of electrifying No Name.

"The Third DCA didn't actually make any decision on the merits of the county's position that utilities on No Name Key are prohibited," he said. "What they said is that this is an issue that should go before the PSC. This notion that there's been a decision, that the county is prohibited from maintaining its no electrification of No Name Key policy, is a misunderstanding."

Howard said the county officially began recognizing No Name as an "alternative energy" community in 1999.

"That was when the county was first asked to allow the extension of utilities and the Growth Management Division made its decision that policy does not allow for the extension of utilities," he said.

The rationale being, according to Howard, that utilities would "encourage greater development," which the county land-use plan discourages.

"Since it's so environmentally sensitive, that's something the county wants to discourage," he said. In addition, "there were already people on the island who bought there relying on there being no utilities."

Keys Energy has long held that the PSC requires it to provide power to any customers seeking it within its service territory. That's why it finally installed the poles last year at the request of the property owners association. The owners paid $650,000 to the utility for the work.

Cynthia Muir, director of consumer assistance and outreach for the PSC, said it would "most likely be about two weeks before any dates are set" to consider the No Name issue.