Item C1* BOCC SPECIAL MEETING
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 2/26/13 — MAR Division: County Attorney
Bulk Item: Yes No XX Staff Contact Person: Bob Shillinger, 292-3470
AGENDA ITEM WORDING: Discussion and direction to legal staff regarding the pending matters
of:
1) Monroe County v. Utility Board of the City of Key West, dba Keys Energy Services, Case
No. CA-K-12-549;
2) Alicia Roemmele-Putney, et al. v. Robt. D. Reynolds, et al., Case No.: 3D12-333 (formerly
styled as Roemmele-Putney, et al. v. Monroe County, et al., Case No. 3D 12-333, Lower
Tribunal Case No. CA-K-11-342);
3) Reynolds v. Utility Bd. of the City of KW, dba Keys Energy Services, PSC Docket No.
120054-EM;
4) James B. Newton, Ruth L. Newton, Robert D. Reynolds and Julianne C. Reynolds v.
Monroe County, Case No. 2013-CA-86-K; and
5) An administrative appeal by James D. Newton, re: Property at 2047 Bahia Shores Road,
No Name Key, Planning Department File No. 2012-096 also styled as James B. Newton &
Ruth Newton, Appellants, v. Monroe Co. Planning Commission, Appellee, DOAH Case
No. 13-000083.
ITEM BACKGROUND: A closed session of the Board is scheduled for 9:00 a.m. on 2/26/13
concerning the above -referenced litigation. This agenda item provides for discussion by the Board
subsequent to the closed session and an opportunity to provide direction to legal staff on the following
matters:
Monroe County v. KES, CA-K-12-549 was dismissed without prejudice by Judge Audlin on 2/21/13
with leave to re -file if Public Service Commission (PSC) does not resolve all issues raised. Order
attached as Exhibit A. This case alleged that KES had trespassed when it strung a power line over
County owned property that had been acquired for conservation. The complaint also sought injunctive
and declaratory relief. The NNKPOA has filed a counterclaim seeking a writ of mandamus that would
order the issuance of the building permits. NNKPOA association has tendered a proposed settlement
agreement, a copy of which is attached as Exhibit B.
Roemmele-Putney, et al. v. Reynolds, # 3D 12-333 — appeal of dismissal of County's 2011 declaratory
judgment action. Third DCA affirmed the dismissal on 2/6/13 with direction to have PSC determine its
jurisdiction first then hear issues falling within that jurisdiction. Opinion attached as Exhibit C.
Reynolds v. KES, PSC Docket No. 120054-EM; Reynold's complaint against KES seeking to force
KES to run the power lines. Previously abated while Third DCA appeal was pending. Status
conference scheduled for 3/1/13. Exhibit D.
Newton & Reynolds v. Monroe County, Case No. 2013-CA-86-K, Suit seeking damages, invalidation
of MCC 130-122, and a mandamus order to compel issuance of permits. Exhibit E. Awaiting remand
from U.S. District Court due to Newton & Reynolds' dismissal of federal civil rights complaint, then
hearing on mandamus count. Plaintiffs have made a verbal offer to settle similar to Exhibit B.
AGENDA ITEM #
ITEM BACKGROUND: (Continued)
Newton v. Monroe Co. Planning Commission, DOAH Case No.: 13-000083, administrative appeal
of planning commission's decision to uphold denial of building permit for installation of box necessary
to connect house to utility line. Newton's initial brief due March 16, 2013.
PREVIOUS RELEVANT BOCC ACTION: 2/20/13 BOCC approved a Closed Session to be held
at the BOCC Special meeting on 2/26/13 at 9:00 a.m. in Marathon, FL
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: To be made at closed session held on same date.
TOTAL COST: N/A INDIRECT COST: BUDGETED: Yes No
DIFFERENTIAL OF LOCAL PREFERENCE: N/A
COST TO COUNTY: N/A SOURCE OF FUNDS: N/A
REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year
APPROVED BY: County Atty X OMB/Purchasing Risk Management
DOCUMENTATION: Included xx Not Required
DISPOSITION: AGENDA ITEM #
Revised 2/05
INDEX OF EXffiBITS TO
AGENDA ITEM SUMMARY
EXHBIT A. Order Granting Motions to Dismiss the Complaint,
Without Prejudice
Monroe County v. Utility Board of the City of Key West, dba Keys
Energy Services, Case No. CA-K-12-549
EBIT Be Proposed Settlement Agreement
Monroe County v. Utility Board of the City of Key West, dba Keys
Energy Services, Case No. CA-K-12-549
EXfIIBIT C. Third District Court of Appeal Opinion filed
February 6, 2013
Alicia Roemmele-Putney, et al. v. Robt. D. Reynolds, et al., Case
No.: 3D12-333 (formerly styled as Roemmele-Putney, et al. v.
Monroe County, et al., Case No. 3D12-333, Lower Tribunal Case
No. CA-K-11-342)
EIT D. Public Service Commission Notification dated 2/21/13
of Status Conference scheduled for 3/1/13
Reynolds v. Utility Bd. of the City of KW, dba Keys Energy
Services, PSC Docket No. 120054-EM
EBIT E. Petition for Writ of Mandamus and Complaint
James B. Newton, Ruth L. Newton, Robert D. Reynolds and
Julianne C. Reynolds v. Monroe County, Case No. 2013-CA-86-K
EIHOIT A.
Order Granting Motions to Dismiss the Complaint, Without Prejudice
Monroe County v. Utility Board of the City of Key West, dba Keys Energy Services,
Case No. CA-K-12-549
IN THE CIRCUIT COURT OF THE 16T"
JUDICIAL CIRCUIT OF THE STATE OF
FLORIDA IN AND FOR MONROE COUNTY
CASE NO: 2012-CA-549-K
MONROE COUNTY, a political subdivision
of the State of Florida,
Plaintiff
V.
UTILITY BOARD OF THE CITY OF
KEY WEST, FLORIDA, d/b/a
KEYS ENERGY SERVICES,
Defendant
ALICIA ROEMMELE-PUTNEY,
NO NAME KEY PROPERTY OWNERS'
ASSOCIATION, INC., ROBERT REYNOLDS
And dULIANNE REYNOLDS,
Intervenors
ORDER GRANTING MOTIONS TO DISMISS THE COMPLAINT
WITHOUT PREJUDICE
Intervenors Robert Reynolds and Julianne Reynolds, and No Name Key
Property Owners Association, Inc. (NNKPOA), having moved, in separate
motions, for dismissal of the first amended complaint in this action, the Court,
having examined the record, the applicable law, and being otherwise informed in
the premises, finds as follows:
EXHIBIT
This action is the most recent of a series of actions generated by a dispute
over bringing electric service to certain property owners on No Name Key in
Monroe County. As expressed by the Third District Court of Appeal after this
Court dismissed a previous action, "[t]he legal issue presented to the circuit court
and here is whether the County and private landowners may obtain judicial
(declaratory and injunctive) relief establishing that the prospective electrification
of No Name Key is regulated -or even precluded -by the Coastal Barrier Resources
Act, and the County's policies and regulations adopted pursuant to that Act." ' This
Court had dismissed the complaint, with prejudice, because it had determined that
the Florida Public Service Commission (PSC) had exclusive jurisdiction to decide
the issues. The Third DCA affirmed this Court's order.
Monroe County has brought a second actqP
ion seeking a declaratory judgment
to determine its rights pursuant to 1995 Grant of Easement and 1973 Quit Claim
Deed to exclude the construction of an electric transmission line over land it owns.
A second count in the amended complaint sought injunctive relief, and the third
count alleged a cause of action for aerial trespass due to the presence of power
lines suspended over its land.
Though at first blush the issues raised by the parties on this motion to
dismiss appear complex, because of the guidance given in the opinion by the Third
1 Roemmele--Putney v. Reynolds, et al., (3 D 12-333) (Fla. P DCA 2013).
DCA in the previous case, the complexities fall away. Citing Fla. Ptib. Serv,
Comin'n >>. Bryson, 569 So. 2d 1253 (Fla. 1990), the DCA observed that "[a]s the
State entity charged bylaw with planning and regulating the generation and
transmission of electrical power throughout Florida, the PSC is to determine its
own jurisdiction."' The District Court further found that the jurisdiction of the PSC
is extensive, as the PSC, under §366.05(l) of Chapter 366 of the Florida Statutes,
the PSC has the power "to exercise all judicial powers, issue all writs and do all
things, necessary or convenient to the full and complete exercise of its jurisdiction
and to enforcement of its orders and requirements."
Though jurisdiction of the PSC is extensive, it is not all encompassing, and
matters not within the jurisdiction of the PSC (the County claims that this Count
can presently rule on the issues it has presented) can be heard by this Court but not
by the avenue the County has chosen. "Where the Public Service Commission, or
this Court (Florida Supreme Court) on review, has disposed and completed a
matter coming within the Commission's jurisdiction, subsequent unresolved claims
or causes arising against the affected regulated carrier or utility which are not
statutorily remediable by the Commission and lie outside its jurisdiction maybe
litigated in the appropriate civil courts." State v. Willis, 310 So.2d 1 (Fla. 1975).
The court finds that the issues in this case are sufficiently related to the
regulation and planning of electrical generation and transmission lines, that the
issues should first be addressed and determined by the PSC. It would serve no
purpose to speculate as to what matters the PSC will address, and what matters, if
any, will be left for this Court's determination.
WHEREFORE
, it is ORDERED and ADJUDGED that the motions to
dismiss are GRANTED, without prejudice, to the commencement of a new action
addressed to claims not resolved by the PSC, after the PSC hearing and all appeals
therefrom have been completed.
All other pending motions are DENIED as moot.
ORDERED in chambers in Key West, Monroe County, this the 21 S` day of
February, 20130
David J. Audlin, Jr.
Chief Judge
Copies furnished to:
Andrew M. Tobin, Esq.
P.O. Box 620
Tavernier, FL 33070
Barton W. Smith, Esq.
Gregory S. Oropeza,Esq.
624 Whitehead St.
Key West, FL 33040
Nathan Eden, Esq.
302 Southard St., Suite 205B
Key West FL 33040
Robert N. Hartsell, Esq.
1451 West Cypress Creek Road,
Suite 300
Fort Lauderdale, FL 33205
Robert B. Shillinger, Esq.
Derek v. Howard, Esq.
Monroe County Attorney s Office
I I I I 12`" St., Suite 408
Key West, FL 33040
Lawrence Harris, Esq.
Martha C. Brown, Esq.
Office of the General Counsel
Public Service Commission
2540 Shumard Oak Boulevard
Tallahassee, FL 32399
EXI3IBIT B.
Proposed Settlement Agreement
Monroe County v. Utility Board of the City of Key West, dba Key Energy Services,
Case No. CA-K-12-549
IN THE CIRCUIT COURT FOR THE 16TH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
MONROE COUNTY, FLORIDA, a
political subdivision of the State of Florida,
Plaintiff,
UTILITY BOARD OF THE CITY OF
KEY WEST, d.b.a. KEYS ENERGY
SERVICES,
Defendant,
and
NO NAME KEY PROEPRTY OWNERS
ASSOCIATION, INC.,
Intervenor- Coun terpl a i ntiff,
VS.
MONROE COUNTY, a political
subdivision of the State of Florida;
TOWNS LEY S CHWAB , as Planning
Director; and BERRY SMITH, as Building
Official,
Counterdefendants.
Case No.CA-K-12-549
SETTLEMENT STIPULATION
SETTLEMENT STIPULATION, made and entered by and between Intervenor
NO NAME KEY PROEPRTY OWNERS ASSOCIATION, INC., and MONROE
COUNTY, FLORIDA.
Recitals
Whereas, NO NAME KEY PROPERTY OWNERS ASSOCIATION, INC., ("the
ASSOCIATION) is a non-profit corporation whose members own property on No Name
Key, Florida.
Whereas on or about March 2012, the ASSOCIATION entered into a contract
with the KEYS ENERGY SERVICES (KES) to extend electrical transmission lines and
i EXHIBIT
to provide electricity to members of the Association that own property on Name Key,
Florida; and
Whereas MONROE COUNTY FLORIDA, (MONROE COUNTY) filed an action
in Circuit Court styled Monroe County vs. Utility Board of the City of Key Vest, Florida
d.b.a. Keys Energy Services; and the owners of 43 developed properties on No Name
Key, to wit. Robert L. Eakan, et al., Case No. CA-K-11-342; and
Whereas the case was dismissed for lack of jurisdiction, and subsequently
appealed, See: Putney vs. Reynolds, Case No. 3D12-333); and
Whereas, on February 5, 2013; the Third District Court of Appeals issued an
opinion in Putney vs. Reynolds, that concluded that i) pursuant to § 366.04, the Public
Service Commission has jurisdiction over "the planning, development, and maintenance
of a coordinated electric power grid throughout Florida to assure an adequate and reliable
source of energy for operational and emergency purposes in Florida and the avoidance of
further uneconomic duplication of generation, transmission, and distribution facilities."
and ii) "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; and
Whereas the parties accept the Court's decision Putney vs. Reynolds, Case No.
3D 12-333, and
Whereas, in a 1951 Resolution, Monroe County granted permission to the City of
Key west, the predecessor in interest to KES, "to construct and maintain an electrical
system on and over any of the public streets, roads, bridges and/or highways under [the
County's] jurisdiction and control within the Florida Keys, Monroe County, Florida, from
the City of Key West, Florida up to and including Pigeon Key, Florida."
Whereas, the installation of utility lines on established rights of way does not
constitute development. F.S. 380.04 (3) (b);
Whereas the Monroe County Comprehensive Plan and/or land development
regulations do not expressly prohibit homeowners from receiving electricity.
y
Whereas, the parties desire to resolve any and all pending claims arising from the
prior and pending lawsuits or the installation of transmission poles, utility lines, and the
furnishing of electricity.
NOW THEREFORE, the parties stipulate and agree that:
1. The foregoing recitals are true and correct.
2. KEYS shall have a perpetual easement and permission to maintain and to repair
the transmission poles and electrical lines that are the subject matter of this lawsuit.
3. MONROE COUNTY agrees the Building official will accept building permit
P g
applications for the purpose of allowing all of the homeowners to connect to the
transmission lines that are the subject of this lawsuit, provided the building permit
applications comply with the technical building and electrical codes.
4. The parties will release each other from any and all claims, demands or suits
that arise from or are related to the lawsuits referenced above.
S. Each party will bear its own costs and attorneys fees.
3
5. The Stipulation will be presented to the Court for approval, and incorporated
into an order that requires the parties to comply with its terms.
7. The Court will retain jurisdiction over the parties and subject matter for
purposes of enforcing the Settlement Stipulation.
8. The lack of joinder or the objection by any other party to this stipulation shall
not prevent the parties from complying with its terms.
Andre M. Tobin, Esq.
Attorney for No Name Key
Property Owners Association, Inc.
Robert Shillinger, Esq.
County Attorney for Monroe County, Florida
51
..
EXIIIBIT C.
Third District Court of Appeal Opinion filed February 6, 2013
Alicia Roemmele-Putney, et al. v. Robt. D. Reynolds, et al., Case No.: 3D12-333
(formerly styled as Roemmele-Putney, et al. v. Monroe County, et al.,
Case No. 3D12-333, Lower Tribunal Case No. CA-K-11-342)
trb 7Digtric� court of �pea[
State of Florida, January Term, A.D. 2013
Opinion filed February 6, 2013.
Not final until disposition of timely filed motion for rehearing.
No. 3D12-333
Lower Tribunal No. 11-342
Alicia Roemmele-Putney, et al.,
Appellants,
vs.
Hobert D. Reynolds, et al.,
Appellees.
An Appeal from the Circuit Court for Monroe County, David J. Audlin, Jr.,
Judge.
Robert N. Hartsell (Fort Lauderdale); Robert Wright (Tallahassee); Richard
Grosso (Ft. Lauderdale); Derek V. Howard, Assistant County Attorney, Monroe
County Attorneys Office (Key West); Andrew M. Tobin (Tavernier), for
appellants.
Barton W. Smith and Gregory S. Oropeza (.Key West), for appellees.
S. Curtis Kiser, General Counsel, and Martha C. Brown, Senior Attorney,
and Pamela H. Page, Attorney (Tallahassee), as Amicus Curiae for the Florida
:Public Service Commission.
Before SUAREZ, LAGOA and SALTER, JJ.
EXHIBIT
SALTER, J.
The appellants are certain individual property owners on No Name Key in
Monroe County, and the County itself. Other No Name Key property owners and
the Utility Board of the City of .Key West (doing business as "Keys Energy
Services") are the appellees. The legal issue presented to the circuit court and here
is whether the County and private landowners may obtain judicial (declaratory and
injunctive) relief establishing that the prospective electrification of No Name Key
is regulated —or even precluded —by the Coastal Barrier Resources Act' and the
County's policies and regulations adopted pursuant to that Act. Concluding that
the Florida Public Service Commission has exclusive jurisdiction to decide the
issues raised by the appellants, we affirm the circuit court judgment dismissing the
complaint with prejudice for lack of jurisdiction.
The Complaint and Motion to Dismiss
In the complaint, Monroe County sued Keys Energy Services (KES) and the
individual owners of forty-three developed properties on No Name Key. The
County alleged that KES had the exclusive power and authority to extend electric
service to the residences on No Name Key owned by the individual defendants,
and that a number of the property owners and KES were nearly ready to move
' 16 U.S.C. §§ 3501-3510.
2
from the design stage to actual installation. The County asked the circuit court to
determine whether KES has the authority to extend the utility lines to the
residences on No Name Key (Count I), and whether the property owners have the
right to connect their homes to the KES lines despite an express prohibition in the
Monroe County Code (Count II).2 In Count III of its complaint, the County sought
temporary and permanent injunctive relief prohibiting KES and the property
owners from "expending any fluids or taking any steps toward the extension of
electric service to No Name Key," in furtherance of the declaratory judgments
sought in Counts I and II.
The individual appellees, homeowners on No Name Key, were among the
defendant property owners who applied to KES for electrical service. These
appellees moved for the dismissal of Monroe County's complaint on grounds that
the Florida Public Service Commission (PSC) has exclusive jurisdiction to enforce,
regulate, and resolve the issues raised by the County. The motion was briefed, 3
argued, and ultimately granted (with prejudice) by the circuit court. This appeal
followed.
Z Monroe County Code § 130-122 (purporting to prohibit the extension of electric
utilities to properties within the Coastal Barrier Resources System overlay).
The PSC was allowed to participate as amicus curiae in the circuit court and
here.
3
Analysis
Although KES is not a "public utility" within the definition of section
366.02(1), Florida Statutes (2011)9 it is an "electric utility" under the subsection
which follows, section 366.02(2). Section 366.04, "Jurisdiction of commission,"
in subsection (5), grants the PSC jurisdiction over "the planning, development, and
maintenance of a coordinated electric power grid throughout Florida to assure an
adequate and reliable source of energy for operational and emergency purposes in
Florida and the avoidance of further uneconomic duplication of generation,
transmission, and distribution facilities." To that end, the homeowner appellees
filed an administrative complaint with the PSC seeking the extension of electrical
transmission lines to the No Name Key property owners.4
As a threshold matter, and as the State entity charged by law with planning
and regulating the generation and transmission of electrical power throughout
Florida, the PSC is to determine its own jurisdiction. Fla. Pub. Serv. Comm'n v.
Bryson, 569 So. 2d 1253 (Fla. 1990). Although B son involved a public utility,
the case holds that "the PSC must be allowed to act when it has at least a colorable
claim that the matter under its consideration falls within its exclusive jurisdiction
as defined by statute." Id. at 1255. Any claim by the County or by the appellant
4 In re: Complaint of Reynolds v. Utility Bd of the Cit of f Key West Fla etc.,
PSC Docket No. 1210054-EI.
homeowners that the PSC does not have jurisdiction may be raised before the PSC
and, if unsuccessful there, by direct appeal to the Florida Supreme Court. Art. V, §
3(b)(2), Fla. Const.
The appellees and the PSC also have argued, and we agree, that KES's
existing service and territorial agreement (approved by the PSC in 1991) relating to
new customers and "end use facilities'" is subject to the PSC's statutory power over
all "electric utilities" and any territorial disputes over service areas, pursuant to
section 366.04(2)(e), Florida Statutes (2011). The PSC's jurisdiction, when
properly invoked (as here), is "exclusive and superior to that of all other boards,
agencies, political subdivisions, municipalities, towns, villages, or counties."
366.04(1). Section 4.1 of the 1991 KES territorial agreement approved by the PSC
expressly acknowledges the PSC's continuing jurisdiction to review in advance for
approval or disapproval any proposed modification to the agreement.
Conclusion
The Florida Legislature has recognized the need for central supervision and
coordination of electrical utility transmission and distribution systems. 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 appellants do retain, however, the right to
seek relief before the PSC, and we express no opinion as to the merits of any such
claims by the appellants in that forum.
The circuit court's order dismissing the County's complaint with prejudice
is affirmed.
EXHIBIT D.
Public Service Commission Notification dated 2/21/13 of
Status Conference scheduled for 3/1/13
Reynolds v. Utility Bd of the City of KW, dba Keys Energy Services,
PSC Docket No. 120054-EM
State of Florida
0 0 a
gjma!i 95�e9mwwCe
CAPITAL CIRCLE OFFICE CENTER e 2540 SHUMARD OAK BOULEVARD
TALLAxAssEE, FLORIDA 32399-0850
-M-E -M- 0 -R-A -N -D - U-M -
DATE: February 21, 2013
TO: All Parties of Record & Interested Persons
FROM: Martha C. Brown, Senior Attorney, Office of the General Counsel
RE: Docket No. 120054-EM - Complaint of Robert D. Reynolds and Julianne C.
Reynolds against Utility Board of the City of Key west, Florida dlbla Keys Energy
Services regarding extending commercial electrical transmission lines to each
property owner of No Name Key, Florida.
Please note that an informal meeting between Commission staff and interested persons to
the above -captioned docket has been scheduled for the following time and place:
Friday, March 1, 2013 at 10:30 a.m.
Gerald L. Gunter Building, Room 382D
Florida Public Service Commission
2540 Shumard Oak Boulevard
Tallahassee, Florida 32399-0850
The purpose of the meeting is to discuss issues and procedures for the complaint
proceeding. Attendance is not required; however, all interested persons are encouraged to attend.
Interested persons may participate telephonically in this meeting by dialing 1-888-670-
3525, Passcode 5317547583 then #. If you have any questions about the P
meeting, lease call
Martha Brown at (850) 413-6187.
If settlement of the case or a named storm or other disaster requires cancellation of the
meeting, Commission staff will attempt to give timely direct notice to the parties. Notice of
cancellation will also be provided on the Commissions website (http://www.psc. state. fl.us
under the Hot Topics link found on the home page. Cancellation can also be confirmed by
calling the Office of the General Counsel at 850-413-6199.
MCB
cc: Office of Commission Clerk
EXHIBIT
D
EIHBIT E.
Petition for Writ of Mandamus and Complaint
James B. Newton, Ruth L. Newton, Robert D. Reynolds and
Julianne C. Reynolds v. Monroe County,
Case No. 2013-CA-86-K
La
atex.Ir� AJ _.. .......... ,., ,,, _
wor
IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
JAMES B. NEWTON, RUTH L. NEWTON,
ROBERT D. REYNOLDS AND JULIANNE C. REYNOLDS
C(-
Petitionem/Plaintiffs, Case Number.
V.
Judge:
MONROE COUNTY, FLORIDA, a political
subdivision of the State of Florida.
Respondent/Defendant.
PETITION FOR WRIT OF MANDAMUS AND COMPLAINT
Petitioners/Plaintiffs, JAMES B. NEWTON and RUTH L(collectively,. NEWTON
"Newton") and ROBERT D. REYNOLDS AND JUL(collectively,
IANNE RE'�NOLDS
"Reynolds" )(together Newton and Reynolds shall be referred to '
as Applicants"), by and through
undersigned counsel, petition this Court to issue its writ of m `
mandamus compelling Respondent
MONROE COUNTY, FLORIDA ("Monroe Coon erfo .
County") to p rm a ministerial task which the
Defendant refuses to perform and sue the Defendant Monroe
County, and in support thereof,
state:
PRELIAHNARY STATEMENT
1. For decades, based on no federal or state statute local ordinance, aance, or any legal
restriction, property owners on No Name Ike Monroe County, unty, Florida ("No Name Key
Residents") have lived without most utilities except for -
ep phone service, which had previously
y
been installed. The No Name Ivey Residents have live
d on the island by primarily using
generators and batteries, with Solar Energy to assist in producing '
P g a portion of the power.
EXHIBIT
1
2. Most No Name Key Residents did not choose or .. desire to live without utilities,
but rather chose to build or purchase a home on No Nam -
e Key due to Its scenic surroundings.
Unfortunately, due to high costs, for man ears No Name • Y Y Key Residents could not afford to pay
the costs to extend utility transmission and distribution bras to their remote island in the Florida
Keys.
3. Recently, a majority of No Name Ike Residents,, esYdents, tired of the costs and
environmental degradation associated with runningen
generators and disposing of acid and lead
based batteries, contracted with the local power utility, - .
P Utility Board of Ivey west, d.b.a. Ife
Ys
Energy Services ("KES") to extend electric distribution • n lines to then homes, However, prior to
P
installing the lines, Monroe Coup intervened and .
County protested KES installing the distribution lines
ones
based on its belief that the distribution lines - are inconsistent with its Comprehensive Plan
C'Comp. Plan" and a Land Development Re("LDR').iP gulat�on An LDR that s void ab initio
due to Monroe County's failure to notice .
properly ce the hearings where it enacted the ordinance.
4. Monroe County filed a declaratoryaction .
on xn the Sixteenth Judicial Circuit Court
In and For Monroe County, Florid Case No. _ _ . � 2011-CA 342 K requestnag the Court determine
whether Monroe County could regulate KES ex - • tension of distribution Imes. Mo
nroe County s
Lawsuit was subsequently dismissed based on � •
Judge Audlrn s determination that Monroe Cou
nty
has no regulatory authority over the placem
ent ant of electric distribution lures within a territory
approved by the State of Florida Public Service Commission.
missYon.
S. Based on the foregoin ,KES installe
d ed the distribution lines. Si
nce the Court -is
decision and because electric transmission 1' .
lines had already been installed, Ann licants applied
for electric permits to install 200 AMP Electric c Service and Subfeeds on their No Name K
eY
homes in order to be able to connect to KES. The Applicants believed that Monroe County
0J
would treat their applications fairly and process the applications in the ordina
ry ary fashion and
manner as any other land owner applying for an electric pez it. The Applicants belief was
incorrect and Monroe County did not process their applications in the same fashi on or manner as
other electric applications. Instead, Monroe Coup has intentional) denied e . County y the electric permits,
not based on anything illegal regarding the electric permit applied for but because a Monroe
County disagrees with the State Court's decision and desires to prevent No Name '
p Ivey Residents
from connecting to commercial power. In doing so, Monroe Coup has treated '
County the applicants
differently than other landowners who desire to connect to legally existing electric c distribution
lines without any rational basis, discru�ninating against the Applicants, which has
pP caused undue
hardship, embarrassment, and damages to Applicants.
GENERAL GATIONS
Jurisdiction and Venue
5. This Court" s jurisdiction to issue writs of mandamus is establi '
shed by Article V,
Section 5(b), of the Florida Constitution. Accord, Fla. R. Civ. P. 1 • .63��d}�3j. Mandamus 1s
properly invoked to compel the performance by a governmental officia
l of a ministerial duty
imposed by law which the official refuses or fails to erfo p rm. City of Cara) Cables v. Stat,44
So. 2d 298, 300 (Fla. 1950).
6. This is also an action for relief brought !� forth Pursuant cant to 42 U.S.C. §1983 for
Violation of the Equal Protection Clause, Fla. Stat. f
§86.011 or declaratory relief, and violaiton of
Article I Section 9 Florida Constitution.
7. Venue is proper because all the events subject t � o this action took place in Monroe
County, Florida.
3
Parties
8. Newtons are sui juris individuals who own a home situated at 2047 Bahia Shores
Road, No Name Ivey, Florida 33043 and reside on No Name Key, Monroe County, Florida.
9. Reynolds are sui juries individuals who own a home situated at 2160 Bahia
Shores
Road, No Name Ivey, Florida 33043.
Florida.
10. MONROE COUNTY, FLORIDA, is a political subdivision of the Stat
e of
Newton Electric Permit Application
IL On April 3, 2012, Newtons applied for an electrical buildingpermit for
P the
installation of 200 AMP Electric Service and Subfeed to their No Name
�y P�P�Y (,&&Newton
Electrical Permit Application"). A true and correct copy of the Electrical Permit Application
pp on is
attached hereto and incorporated herein as Exhibit A.
12. At the time Newtons submitted their Electric Permit Application there were no
electric di stributi on lines on No Name Ivey,
13. On May 15, 2012, Monroe County issued Newtons an electrical '
permit big
Permit number 121-1527 CNewton Electrical Permit' ant to the ' '� pursuant Electrical Permit
Application. A true and correct copy of the Newton Electrical Permit is attached hereto and
incorporated herein as Exhibit B.
14. On June 12, 2012, Monroe County revoked the Newton Electrical ical Permit, stating
the permit was issued in error. Monroe Coup 's revocation o • � f the Newton Electrical Permit was
contained within a letter ("Newton Revocation Letter'. A true and correct copy of the Newton
Revocation Letter is attached hereto and incorporated h ' rp herein as Exhibit C.
n
.,
15. The Newton Revocation Letter is co -executed by Mr. Townsl ey Schwab, in his
capacity as Senior Director of Planning & Environmental Resources
for Monroe County
("Planning Director"), and Mr. Jerry Smith in his capacity ' p ty as Building Official for Monroe
County ("Building Official").
16. The Newton Revocation Letter asserts that the Monroe County Department of
Planning and Environmental Resources did not review . the permit for consistency with the
adopted Comprehensive Plan and Land Development Regulations, gulations, resulting in the Electrical
Permit being issued in error.
17. The Revocation Letter alleges that electricals • service is not authorized on a
property located within a Coastal Barrier Resource System("CBRS3")y pursuant to the Coastal
Barrier Resource Act ("CBRA"),
18. The Property is not located within a CBRS an .
d is therefore not subject to the
CBRA. A true and correct copy of the nearest CBRS designated area to the Property is attache
hereto and incorporated herein as Exhibit D.
19. Pursuant to Monroe County's policy, the type of service and work which would
have been performed pursuant to the Newton Electrical Permit does not warrant review b the
y
Planning Director in the course of processingelectrical
permits.
20• Pursuant to Monroe County's own admissions, the type of service and work
which would have been performed Pursuant to the N - .
P Newton Electrical Permit does not conflict
with the Comp. Plan. True and correct copies of testimony mony from Growth Management Director
Christine Hurley acknowledging the of '
� work which would occur pursuant to the Newto
n
Electrical Permit is attached hereto and incorporated •
rp � herein as Exhibit E.
W
KES Extension of Electrical Distribution Line to No Name Key
21. Electrical distribution lines already traverse CBRS desi ated areas within gas thin
Monroe County's jurisdiction. Additionally, the servicing and Win of electrical service
ce to
properties not located within a CBRS occurs within Monroe County,
22. CBRS Units FL 45, FL 39 and FL 35 all contain electrical trammn
issron and
distribution lines used to provide electrical service to both .
properties, th within and not within a
CBRS designated area. A true and correct copy of the CBRS maps for p CBRS Units FL 45, FL 39
and FL 35 are attached hereto and incorporated herein as Exhibit F.
23. On March 17, 2012, the Utility Board of the Cityof Key ' y west Board")
approved a line extension agreement with the No Name Key Property Owner's Association for
the extension of electrical service on No Name Ike(""Line E "Yxtenston ). A taste and correct coP Y
of the Line Extension is attached hereto and incorporated herein as Exhibit
t G.
24. On July 23, 2012, the electrical service lines co - nstructed pursuant to the Lune
Extension were energized.
Reynolds Electric Permit Application
25. After KES installed the electric distribution line on No Name Key, Reynolds
applied on December 13, 2012 for an electric Permit to inst
all tall a 200 AMP Electric Service and
Subfeed (""Reynolds" Electric Permit A licatiolf to connect • PP '} ct to the electric distribution line
outside his home located on No Name Key,
25. On January 14, 20139 Monroe Coup denied •
County Reynolds Electric ,Permit
Application ("Reynolds Denial Letter"), A true and correct copy of the Reynolds Denial Letter
is attached hereto and incorporated herein as Exhibit H. The ` Reynolds Denial Letter- is executed
sal el y by Mr. Town sl ey Schwab, in his capacity as Senior •
P tY Director of Pla�antng & Environmental
Resources for Monroe County, and not b Mr. Jerry Smith in • Y rry his capacity as Building �cial
for Monroe County.
Monroe County's Illegal Enactment of 043-2001 Prohibitingil
to No Name fey
27. The sole regulatory jurisdiction over the development of the coordinated power
grid of the State of Florida rests with the Florida Public Service Commission. See Fla. Stat,
§366-04(5) and 366.05. Moreover, Monroe County has no jurisdiction over utilities within
established right-of-ways. See Fla. Stat. §380-04(3)(b). Monroe County's code enforcement, by
and through its Director, Rhonda Norman, has stated the County has no jurisdiction or regulation
over utilities. A true and correct copy of correspondence from Rhonda Norman to her staff
acknowledging that Monroe County has no code compliance powers over the Utility Board is
attached hereto and incorporated herein as Exhibit I.
2 S . Beginning in September, 2001, Monroe County, with
th the assistance of then -sitting
Monroe County Planning Commission member Alicia
a Putney, who then and still currently
resides on No Name Key, and was an intervenor in a � . case attempting to bang commercial power
to No Name Key,' drafted Ordinance 043-200 1, which prohibits the extension or expansion of
public utilities, including electric uti 1 ities throw •
through CBRS units.
29. Ordinance 043-•2001 amended Monroe Count
y Code Section 9.5-258 by creating
an overlay district on all areas, except for Stock Island wi .
thin federally designated boundaries of
a CBRS Unit. Additionally, Ordinance 043-2001 .
provides that within the overlay district,the
transmission and/or collection lines of the following.
types of public utilities shall be prohibited
from extension or expansion: central wastewater• treatment collection systems; potable water,
� Ms. Putneyintervened on behalf
half of Monroe County and sought to Prevent
No N . � P commercial power to
Name Ivey. See In the Circuit Court of the Sixteenth J .
County,judicial ci al Cu cuit, In and For Monroe
Florida, 'Taxpayers for the El ectrifi cation of No .
iVlo Name Ivey, Inc. et al. plaintiff V.
Monroe County, Defendant. Case No. 99-819-CA-19(uTaxpayers» for Electrification LawsuitIll }
7
electricity; and telephone cable. A true and correct - .
copy of Ordinance, 043-�2001 is attached
hereto and incorporated herein as Exhibit J.
30. On September 25, 2001, the Monroe County Planning Commission, including
then -Commission member Alicia Putney,a approved("Planning.
ppno a resolution Resolution'
supporting Ordinance 043-2001. A true and correct copy of the Planning Resolution is attached
hereto and incorporated herein as Exhibit K.
31. Ordinance 043-2001 was heard at a Monroe County Board of County
Commissioners ("BOCC19) meeting first on November 2 •
0, 2001 and again on December 19,
2001. On October 19, 2001, Monroe Coup noticed in a n . County newspaper of general circulation the
November 20, 2001 Monroe County Commission meetingof ' .
Ordinance 043-2001 which was the
first of the two (2) public hearings set for Ordinance 043-20 ol.
32. Monroe County failed to notice the hearingof '
Ordinance 043-2001 set for the
BOCC December 19, 2001 meeting in a newspaper of en '
general circulation.
33. On December 19, 2001, Monroe Coup ado '
County adopted Ordinance 043-2001 which
amended the Monroe County Code by adding Section 9.5-25 S.
34. while the overlay district applies to van '
PP ous properties throughout the Florida
Keys, the intent of Ordinance 043-2001 accordingt ��
o Monroe County Stag, was to create an
overlay district to prohibit all properties on No '
oP Name Key from being served bYpublic
electricity and resolve issues surrounding the lawsuit brought by Taxpayers for
the
Electrification of No Name Key,Inc."'.A true
e and correct copy of the Agenda Item Summary for
the December 19, 2001 Monroe Coon Comm County mission meeting is attached hereto and incorporated
herein as Exhibit L. In essence, Burin .
g pending litigation, Monroe County attempted toamend
8
the LDRs without providing notice to No Name Ike m owners ' litigation
.
Y Property involved in the ht�gatron
of the proposed amendment.
35. The Appl i cants' Property is located in the Improved Subdivision P son land use
district map.
36. The IS land use district map does not prohibit utilities.
37. Ordinance 043-2001 materially changed the IS land •
g use district map as it relates
to No Name Ivey, Florida by prohibiting utilities.
38. Monroe County Code Sec. 102-15 provides that "no
P txces of changes to the land
use district map and FLUM shall be mailed to owners within 300 fe
d of the affected property 15
days prior to the required hearing before the planning commi •
P g commission and 30 days before the
required heating before the board of county commissioners for the land use district map
amendment and the FLUM transmittal hearing."
39. Monroe County did not provide notice to each landowner - . w�tlun a three hundred
(300) feet radius who was affected by the changes set forth in Ordinance 043-2001 at any
hearing in the planning process.
COUNT I -- WRIT OF AMiUS
40. The Plaintiffs re -allege the allegations set forth in numerics] paragraphs 1 through
39, as if set forth in full.
41. Applicants filed for electrical its with
P the Monroe bounty Building
Department, and their applications were denied based • solely on a legally incorrect Ynt retatYon
�P
of Monroe bounty's band Development Regulations egulations C"LDRs'j) by the Planning Director.
42. The Planning Director based
g his denial of both Applicants' application o
PP n
amongstother things, n gs, a 1999 opuvon letter by TimothyMcGarry, arry, then Planning Director for
9 '
j
i
Monroe County, that states that the extension of ' commercial power to No Name Ivey is
inconsistent with the Comp. Plan based on its requirement
q irement to discourage the extension of public
utilities to No Name Ivey. McG 's opinion letter .
�'Y P admits that nowhere in the Comp. Plan does
it expressly prohibit the extension of commercial power to CBRS units, but he is takingthe
Comp. Plan collectively to support the Position P that power should not be extended to No Name
Ivey based on the use of the word "'discourage"".
43. Monroe County further based its denial of both applications on Resolution P 17-
99, which agreed with Mr. Mc ' Garry s opinion letter. Finally, the Planning . Y g Director based his
denial on a mistaken belief that Resolution P 1 - e
799 was affirmed by the 1Judicial Circ
uit in
Taxpayers for the Electrification of No Name Ivey, Inc, et al. v. Monroe County, No. 99 base -
819-CA-19.2
Argument in Favor of Writ of Mandamus
44• This Court should issue a writ of
Mandamus to compel Defendant to erfo '
p rm its
clear legal duty to issue the electrical .
permits applied for by the Applicants. That du is
duty clearly
prescribed and is non-discretionary.
Pursuant to Sec. 6-1012 Monroe Co -
unty Code,, a bu1lding permit s be issued if
it is consistent with the Florida Building Cod
e and LDRs.
45. The electrical permit lied for is - -
aPP consistent with the Florida Building bode
g as
has been admitted by the BuildingInspector. . sp ctor. See a copy of Jerry Smyth, Monroe Cou
nty
Building Inspector, sworn testimon attached '
Y hereto and incorporated herein as Exhibit
N.
2 The judgment in the action states as follows,• Plaintiffs take nothing by this action and that Defendant County shall go hence without day". See a � of the F' t Monroe
hereto and incorporated herein as °PY oral S Judgment rendered June 13, 2003 attached
��it M. Clearly, the Final Summary Judgment does no
power cannot be extended, but rather only found that Plaintiffs could t hold that commercial
e nothing by that specific action.
10
47. The LDRs contained in Part 2 of Monroe County's Code contains no prohibition
on the issuance of a 200 AMP Electric Service and Subfeed to a private ho
meowner. omenwner. Moreover,
the only prohibition of electrical service in the Monroe County land development regulations is
as follows:
"Application. The coastal barrier resources system overly district shall be
overlaid
on all areas, except for Stock Island, within federally designated
boundaries of a coastal b amer resources system unit on current flood insurance
rate maps approved by the Federal Emergency Management Agency, which are
herebyadopted b
pt y reference and declared part of this chapter. Within this overly
district, the transmission and/or co Y
collection lines of the following types of public
utilities shall be prohibited from extension or expansion: cent
ral tral wastewater
treatment collection systems; potable water, electricity, and telephone an
tY ep d cable.
This prohibition shall not preclude the maintenance and u .
upgrading of existing
public utilities in place on the effective date of the ordinance from . which this
section is derived and shall not apply to wastewater nutrient reduction cluster
systems."
See Monroe County Code Sec. 130-122.
Nowhere in the above quoted language does it prohibit pI' the issuance of a 200 AMP
Electric Service and Subfeed for a private homeowner's
home. Furthermore, no section in
Monroe County's Comprehensive Plan prohibits the issuance . pY' nuance of a permit for 200 AMP Electric
Service and Subfeed for a private homeowner's home on
No Name fey, whether it is located in•
a CBRS unit or not. Even more absurd, is that the Coun decision .
ty s decision to deny Newtons Electrical
Permit is based on Newtons' home being located within a CBRS unit. Newtons' home is not
located within a CBRS twit.
48 • Moreover, this LDR does not applY to electric distribution butlon lin
es, only
transmission lines and collection lines, In terms of electricity, transmission lines are defined as
high voltage electric lines used to transmit mass quantities of electricity distribution substations.
Distribution lines are defined as low voltage electric lines (69 kilovolts or less) used to distribute
electricity sent from transmission lines through distribution substations to consumers. Collection
11
systems pertain solely to sewer collection systems which collect wastewater from homes and
transmit it to a wastewater treatment plant.
49. In addition, according to Building Inspector J Smith
sP �y ,never before has the
Planning director reviewed an electrical permit.
50. Since 1973, the Florida Supreme Court has consistent) held "
y ► [z]aping regulations
are in derogation of private property rights of ownership... and should be '
interpreted in favor of
the property owner." Rinker Materials Corp. v. Cityo N. Miami 286 5 f o. 2d 552. 553 [Fla. I973].
Here, the Planning Director has made multiple interpretations that redefine " •
rP ne the words discourage
public utilities from extending service to CBRS districts" to mean prohibit i p n derogation of the
Florida Supreme Court's clear holding that interpretations should be made in favor of the property
owner. Because there is no express prohibition on 200 AMP Electric Service and Su
bfeeds for a
private homeowner's home that is not located within a CBRS distri
ct, Monroe County must issue
the electric permit if it meets with the Florida BuildingCode, , which the Budding Inspector
admits the permits complies with the Florida Building Code.
51. The Planning Director's unusual review, first to review
evl w an electrical permit and
second, his ad hoc interpretation to include language not con . tanned in the LDRs and then to
interpret discourage as prohibit is without any g basis. legal '
s. Defendant may consider nothing but
the express language in the Land Development Regulations. .
P which contains no prohibition on the
issuance of the permit requested. Thus the Pl - . arming Director is required to perform the
ministerial act of determining Plaintiffs ermit application -
P pp capon as being consistent with the LDRs.
Plaintiff Is Entitled to Relief
52. Defendant has failed to review Plaintiffs
permit applications . �n compliance with
State Law requiring all zoning regulations be con
strued nstrued in favor of Plaintiffs. Failure to perform
12
this ministerial act violates Plaintiffs clear legal right to have their electrical '
pernaYts processed in
accordance with State law.
A Writ of Mandamus is an Appropriate Form of Relief
53. Plaintiffs have a clear legal right to have their electrical •
permits reviewed in the
Same manner as other appl i cants not residing on No Name Key. Mandamus is the only
adequate
remedy available to prevent Plaintiffs from sufferin a material in' •
g fury. A person � s entitled to a
writ of mandamus from the Circuit Court when the person can demonstrate emonstrate that he or she has a
clear legal right to the performance of a clear legal duty by apublic
officer and that the on
has no other adequate legal remedy available to him or her. See fatten v. State, 561 So. 2d 562
(Fla. 1990); Art. V § 5(b), Fla. Coast.; Fla. R. A . P. 9.030(c)(3).
PPIa order for another remedy
to be adequate it must be clear, complete, and sufficientlyspeedy t .
Sp y o prevent material injury. See
Moorman v. Hatfield, 958 So. 2d 396 (Fla. 2nd DCA 200 ; State ex •
7], rel. Palmer v. Atkinson,
So. 726 (1934); State v. Brown, 129 So. 782(1930), Bishop v. Chxllxngwarth, 154 So. 254
(1934); State ex rel. Garrett v. Johnson, 151 So. 315 D '(1933). Declaratory relief will not be
sufficiently speedy to prevent wrongful frustration of Plaintiffs' r1 •
right to have the electrical
permit issued.
54. Plaintiffs arc entitled to a writ of mandamus compelling p g Defendant to perform the
ministerial act of determining Plaintiffs' electrical ermits are • p consistent with the LDRs in
accordance with state law requiring all interpretations be in fav � or of the property owner. See
Rinker Materials Corp. v. City Of N. Miami, 286 So. 2d 552 553 � • (Fla. 1973]. Defendant's failure to
perform his clear legal duty in accordance with Rinker .
depraves Plaintiffs of their legal right to
obtain a clearly permissible electrical crmit, There ere are no other adequate legal remedies
13
available to Plaintiffs. Declaratory relief under Chapter 86 Florida Statutes
Pt � , is not adequate
because it will not be sufficiently speedy to prevent material mi
]m'Y•
Court.
WHEREFORE, based on the foregoing, Plaintiff r ectfull requests that '
�P y req this Honorable
A. Issue an order directing Defendant to show cause if an be
had, no later than
twenty (20) days from the date of the order, why the relief requested by Plaintiffs should not be
granted;
B. upon hearing, issue a writ of mandamus directingPlaintiff •
a�nt�ff to find the electrical
permit consistent with the LDRs; and
C. Grant such other and further relief as the Court deems a
ppropnate.
COUNT II -- DISC-NDMATION PURSUANT To 42 USX, 41983 FOR VIOLATION OF
APPLICANT'S EQU PROTECTION RIGHT'S
55. The Plaintiffs re -allege the allegations set forth inn nu
merical paragraphs 1 through
39, as if set forth in full.
56. 'phis is an action for reliefPaant to 42§1983U.S.C. for violation
on of the
Plaintiffs' Fourteenth Amendment rights.
57. Monroe County is a "person" for purposes of - 3
P p the Plaintiffs 42 U.S.C.
§ 1983 claim against it.
58. Monroe County has, under color of its ordinances and regulations subjected the
Plaintiff's to the deprivation of their property yrighis, privileges, and/Or immunities es secured b the
y
Constitution, Florida law, and Monroe Coup 3s own ordin
ances nances and regulations.
59. The Applicants' Electrical Permits were applied for in accordance with the
building code and requirements as set forth in the ("'Monroe
Monroe County Code of Ordinances
County Code''.
14
60. Monroe County revoked and/or denied both electric errs its claim' . p claiming the permits
requested would require an extension of an electrical line to No Name Ke Florida y, or because
the electric permits could connect to commercial power. Therefore Monroe P County asserted the
electric permits were illegal.
51. Monroe County's claim was pretextual. and incorrect, as the electrical service
upgrade applied for in the Electrical Permit could be used for connection
to fuel -based
generation systems sufficient to generate power for the Property, addition to connection to
solar azray systems sufficient to generate power for the Property.
62. The electrical service authorized under the Electrical Permit would not
o depend on
the extension of an electrical line to No Name Key.
63. Notwithstanding the foregoing, the properties subject to the two e . � electrical permits
are not located within a CBRS designated unit and therefore the CBRS and CBRA have no force
and/or effect on the permits applied for by the Applicants.
64. Monroe County has created a second class of property owners in its jurisdictional
limits to which the Plaintiffs have been relegated because •
g Monroe County desires the electrical
lines constructed pursuant to the Line Extension be r •
removed and is desirous of preventing the
residents of No Name Key, Florida, includingthe Plaintiff .
s, from connecting to commercial
electrical service.
65. Monroe County is aware that its attempts to prevent and/or remove the Line
Extension are unlawful. Counsel for Monroe County has advised Monroe County that it caanot
prevent the Line Extension as evidenced in that certain letter' dated April 29, 2010 from the
Monroe County Attorney to Lynn Teed as CEO for CCounty� Keys Energy Services Attorne
Y
Letter'}. The County Attorney Letter states in part. . "The County has no regulatory authority
15
over the RDWs3 exists pursuant to Ch. 380F.S. over the... . placement of utilities in the ROW."
The County Attorney Letter is attached hereto and 'incorporated herein as E '
rP xhi�it D.
66. Despite the undisputed fact that the Pro is not located '
Property in a CBRS unit,
Monroe County discriminatorily applied a standard of review to the el .
electrical permit applications
which would not have been and is not applied to other similarl • •
Y situ t a ed properties within
Monroe County's jurisdictional limits, includingneighboring Big Pine • gh g g Key which i s also in the
National Key Deer Refuge and contains the same environmental concerns
as No Name Ivey.
67. The Equal Protection Clause of the Fourteenth Amendment
of the United States
Constitution provides that "No State shall make or enforce an law which . y hich shall abridge the
privileges or immunities of citizens of the United States; nor shall an State deprive epnve any person
of life, liberty, or property, without due process of law; nor den to ' y any person within its
jurisdiction the equal protection of the laws."
68. The actions of the Planning Director and BuildingOfficial both agents gents of Monroe
County, have resulted in Monroe County applyingthe Monroe CountApplicants' y Code to the
PrnP� es in a manner which is inconsistent and unequalto the application cation pp of the same standards
to similarly situated properties.
69. The actions of the Planning Director and BuildingD .
Official are the direct and
proximate cause of the deprivation of the Plaintiffs' equal protection e9 pm rights.
70. The actions of the Plans 9 Director and Building'
Official have resulted in
discriminatory action in derogation of the Equal Protection .
q on Clause against the Plaintiffs.
71. The Plaintiffs have been injured b Monroe Co .
Y unty s actions.
"ROW" stands for Right of Way
16
72. The Plaintiffs are obligated to pay the undersigned a reasonable nable fee and seek
recovery of attorney's fees and costs pursuant to 42 U.S.C. § 1983.
VMEREFCRE, the Plaintiffs respectfully request the following .
eQ g against the
Defendant, Monroe County, Florida, a political subdivision of
the State of Florida, for violation
of Applicants' Equal Protection rights, actual damages for a .
g the Plaintiffs' losses attributable the
violation of the Plaintiffs' Equal Protection rights, Punitive � , PunYt�ve Damages in the amount of Ten
Million Dollars ($10,000,000.00) for the loss of enjoyment of life, deprivation in use of their
properties, diminution in value of property, and emotional di • stress suffered by Applicants, and an
award of attorney fees and costs expended b the Plaintiffs ' •
y in the prosecution of this matter.
COUNT ID — DECLARATORY JDGM ENT AS TO
THE YAL[Drr,.Y of M0NR0E
CO-UNTY CODE OF ORDINANCE 043-2001 FOR F AEL LM TO COMELY WITH
' ONROE C0 CODE OF ORI7IIANES SEC
TION 102-•158
73. The Plaintiffs re -allege the allegations set forth .
g rth �n numerical paragraphs I throe
39 as if set forth in full.
74. This is an action for Declaratory Judgment pursuant to Section 86.011 Fla. Stat, to
establish the validity of Monroe Coup Code of Ordinance
tY ante 043-2o0I 043-200I .
}
75. The Plaintiffs are in doubt as to whether ' Ordinance 043-200I was enacted
properly.
76. This declaratory action deals with esen
Pr t, ascertainable facts or a present
controversy as to a state of such facts.
77. The Plaintiffs have a bona fide, actual Pres
ent ent practical need for the declaration
as to whether Ordinance 043-200I was enacted properly y as Monroe County is using Ordinance
043-200I to deprive Plaintiffs of a beneficial use
of thee property,
17
78. Prior to the enactment of Ordinance 043-2001 the Plaintiffs could freely seek
building permits for 200 AMP electrical service. Subsequent t
@q o Ordinance 043-2001, Monroe
County refuses to issue building permits for 200 AMP electrical service,
79. Ordinance 043--2001 created a change in the itted
g perm uses of the .and Use
District Map for the Property.
80• Ordinance 043-2001 substantially changed the rights and privileges of the
Plaintiffs property without the proper notification as required by Monroe County Code of
Ordinances Section 102- 158, by failing to noti owners . fy within 300 feet of the affected
Propoly
15 days prior to the required hearing before the lannin ' -
P g commission and 30 days before the
required hearing before the board of county commissioners.
81. As a result of the foregoing,the Court hjurisdiction as under the Florida
Constitution and Section 86.011 Fla. Stat. to hear this matter.
WHEREFORE, the Plaintiffs re i request the judgment:
Y � Court to enter a
A. Declaring Ordinance 043-2001 void due to Monroe County's failure to notify
affected property owners pursuant to Monroe County Code of Ordinances Section
102-158; and
B. Awarding costs of suit; and
C. Granting such other and further relief as the
Court may deem appropriate.
COUNT iV —DECLARATORY JUDGMENT AS TO VALIDITY OF MOMROE
COUNTY CEDE OF ORDINANCE 043-2001 FOR FAILURE TO COMpLy WITH
MONlYOE COUNTY CODE OF QR--D-INANCES SECTION 110.5
82. The Plaintiffs re -allege the allegations .
ga set forth In numerical paragraphs 1 throw
gh
39 as if set forth in full.
18
83. This is an action for Declaratory•
Judgment ent pursuant to Section 86.011 Fla. Stat. to
establish the validity of Monroe County Code of Ordinance 043-2001 ("Ordinance 043-2001).
84. The Plaintiffs are in doubt as to whether'
Ordnance 043-200I was enacted
Properly pursuant to Florida Statutes and the Monro
e County Code of Or+d-
mance.
85. This declaratory action deals withPZ��t, as •
ble facts or a present
controversy as to a state of such facts.
$b. The Plaintiffs have a bona fide actual, practical need for the declaration
as to whether Ordinance 043-200I was enacted m
p perly as Monroe County is using Ordinance
043 -2001 to deprive Plaintiffs of a beneficial use of then '
Property.
$7. Prior to the enactment of Ordinance 043-2 001, the Plaintiffs could freely seek
building permits for 200 AMP electrical service.•
Subsequent to Ordnance 043-200I IVlonroe
County refused to issue building permits for 200 .
AMP electrical so -vice.
SS. Section 1I0-5(d) of the Monroe Co � .
County Code provides that `Notice of public
P
hearings for land use district map changes or land and development regulations shall be 'ven at
least
15 days in advance of the hearingdate b
y publication • �n the non -legal section of a 1 ocal
newspaper of general paid circulation in Monroe County.,, ty.
89. Monroe County did not ubli sh notice ce before each Public hearingheld regarding
Ordinance 043-200I .
WHEREFORE, the Plaintiffs respectfully •
P y request the Court to enter a judgment:
A. Declaring Ordinance 043-2001 vo • � .
�d due to Monroe Coup s failure t
tY o nonce the
proposed LDR in a newspaper of general circulation
on pursuant to Monroe County
Code of Ordinances Section 110-5; and
B. Awarding costs of suit; and
19
C. Granting such other and further relief as the C • Court may deem appropriate.
COS V —VIOLATION QP APPLICANTS
SUBSLANTTWDUE PROCESS
RIGHTS PURSUANT TO ARTICLE I 9
FLORIDA O�. ONSTInMON
90. The Plaintiffs re -allege the allegations .
ga set forth �n numerical paragraphs 1 throw
P gh
39 as if set forth in full.
91. Monroe County has, under color of ' .
its ordinances and regulations subjected the
Plaintiffs to the deprivation of their ro
P ply rights, privileges, and/or immunities secured by the
Constitution, Florida law, and Monroe Coup ' . ty s own ordinances and regulations.
92. The Applicants' Electrical Permits .
were appl1ed for in accordance with the
building code and requirements as set forth' in the Monroe County Code.
93. Monroe County revoked both electric
permits, claiming the electric perrnit. s were
illegal because they would wire an
m9 extension sion of an electrical line to No Name Key, Florida or
because the electric permits could connect t . o an electrical line.
94. Monroe County's claim was to .
P'm �, arbitrary, capricious and not substantially
related to any legitimate health, saf or we .
may, welfare concern as the prope�es sub ect to ] the two
electrical permits are not located within a -
CBRS designated unit and therefore the CB
RS and
CBRA have no force and/or effect on their '
pmpertY es.
95. The actions of Monroe Coup have
County adversely affected the p rights
roPertyof the
applicants.
WHEREFORE, the Plaintiffs respectfully p ly request the following
Judgment against the
Defendant, Monroe County, Florid a - • subdivision Florida, political subdivision of the State of Florid
a, for violation
of Applicants' Substantive Due Prot '
ess rights, actual damages for the Plaintiffs'
ffs losses
attributable to the violation of the Plain ' .
t�s Substantive Due Process rights, and an award of
attorney fees and costs expended b the Plaintiffs '
Y alntiffs in the prosecution of this matter.
20
Dated this 24" day of January 2013.
Respectfully submitted,
IslBarton ''LTV. Smith Es
Barton W. Smith, Esq.
Florida Bar No. 20169
bart bartonsmith 1.com
13ARTON SMjTH, P.L.
624 Whitehead Street
Key West, Florida 33040
Telephone: 3 05.296.7227
Facsimile: 305.296.8448
Attorney for Plaintiff
21
The Solar Community of No Name Key
1934 No Name Drive
No Name Key, Florida 33043
Monroe County Board of County Commission Special Meeting
February 26, 2013 — Marathon, Florida
agenda Item C-i
Dear Mayor Neugent and Fellow Commissioners:
The County could conceivably decide to enter into a Settlement Agreement to end
the ongoing litigation by allowing the 22 homes to hook into the power lines on
No Name Key, but that would be against the law.
It is clearly an illegal act for a local government to enter into a Settlement
Agreement if the agreement is in violation of the local Code.
Any agreement that would allow the hook-up of the 22 houses to the newly placed
infrastructure on No Name Key would be considered contract zoning which is
highly illegal.
We wrote Attorney Robert Hartsell yesterday for confirmation that the County
cannot legally enter into a Settlement Agreement that would be in conflict with
the CBRS Overlay District ordinance.
Given Mr. Shillinger's advice at the BOCC meeting on December 12, 2012, when
the issue of a settlement agreement was first raised, we would imagine he would
agree with the case law in the attached letter from Mr. Hartsell dated February
24, 2013. (See attached Letter to Alicia Roemmele-Putney from Attorney
Hartsell dated February 24, 2013 regarding Contract Zoning.)
Thank you for you interest in this matter.
Sincerely,
Alicia Roemmele-Putney, President
The Solar Community of No Name Key
872-8888
-Letter to Alicia Roemmele-Putney from Attorney Hartsell dated February 24,
2013 regarding Contract Zoning, 2 pages.
ROBERT N. HARTSFLL, P.A.
Federal To\\cr huildim_
1600 South Federal I liLhvyay. Suite 9_' 1
Pompano Beach. Florida 33062
Main (954) 778-10-52 Fax (9-5 41 941-6-4621
Robert a Hartsell-I.a\\.com
\\\\-\\.l lartsel l-l-m .com
I-ebruar\ 25. 2013
Alicia Roenimele-Putne\. President
The Solar Communit\ of No Name he\
1914 No Name Dri\e
No Name ire\. FT. 33u43
Dear Alicia:
YOU are correct in \our thinking. The Board of Count\ C011111iS5ioners cannot legally enter into
a Settlement ;agreement that \\ould he inconsistent mth the Coastal harrier Resources System
O erla\ District ordinance because it \\ould be considered as contract zoning under the la\\.
which is highly illegal.
Contract zoning occurs \\hen there is an settlement agreement bet\\een a property owner and a
local government \\herein the o\\ner agrees to conditions in return tUr the go\ernment*s rezoning
or enturceable promise to rezone. Such contracts are considered ultra\ires and unent'Orceable
because they illegally restrict the government's authorit\ and ettectkel\ contract a\\a\ its
exercise of police po\%er. Chung: V. Sarasota Count\. 686 So.2d 1158 (Fla. 1996). Morgran Co..
Inc. \. Orangc Count\. 818 So.2d 640 ( Fla. ;`n DCA 2002).
As the 5" District Court of :appeal held (Count\ of Volusia \. Cit\ of Deltona. 925 So. _1d 340.
345-346 (Fla. 5th DCA 2006)). a legislative bud\ cannot delegate its legislative functI by
investing unbridled discretion in a private property o\\ner or administrative agenc\. Similarl\.
an agreement eectivel\ contracting a\\a\ a count\ � exercise o Its poIICC po\\ar l
tt
unenturceable. Because the zoning po\ver is an aspect of the police po\\er. a local _,o\ernment
nny not enter into a private contract \yith a property o\\ner tur the amendment of a zonlllg
ordinance subiect to restrictions in an agreement to be executed bemcen the cit\ and o\\ner. See
Hartnett v. Austin. 93 So. _'d 86. 89 (Fla. 1956) (stating that "Jtihe adoption of an ordinance is
the exercise of municipal legislative power" and that the cit\ exercising this power "cannot
legislate b\ contract"). Accordingly. contract zoning has long been disapproved in Florida
because it contracts a\\a\ the exercise of the entit\'s police or legislative pov\ers. Morgiran Co. N.
Orange C'ount\. 818 So. _'d 640. 642-43 ( Fla. 5th DCA 2002). re\. denied. 839 So. ?d 699 ( Fla.
2003) ( declining to enlurce an agreement that obligated Orange Count\ to support the pri\ ate
owners request for rezoning. even where a clause purported that the contract did not interfere
With the COMM'S zoning authorit\).
-+ .
An a`reement cannot abrogate the Count -Cs responsibilitN under Chapter 163 and focal
Ordinances. Chung v. Sarasota Count. 686 So. 2d 1358 (Fla. 2d DCA 1996) (holding that an
improper settlement agreement to rezone was not cured h\ a pro\ ision requiring the parties to
tollo\\ the I'Ornial requirements to rezone. because the count\ alread\ obligated itself to a
decision).
The Third District Court of Appeal has also reaffirmed the illezalit\ of contracts to rezone.
finding entirel\ improper "an attempt h\ a hotel o\\ner and the C.IIN of Miami Beach to _rant
totally unJustitied and illegal height \ariances through the deice of a sweetheart
..settlement-..-. C'it\ of Miami Beach \. Chisolm Properties South Beach. Inc. 810 842.
I he reaaomn_' behind the prohibition against contract zoning is clear:
If each parcel of propert\ \tiere zoned on the basis of \ariables that could enter into
pri\ate contracts then the whole scheme and oblecti\e of conurtunit\ planning and zoning
\\ould collapse. The residential owner \\ould never kno\� \\hen he was protected against
commercial encroachment.... I'he adoption of an ordinance is the exercise of municipal
legi,latke po\\er. In the exercise of this gownurtental function a cit\ cannot leunslate h\
contract. If it could. then each citizen v ould be go\ erned b\ an indk idual rule based
upon the best deal that he could make «ith the governing body."
Chung. 686 So. 2d 1 3,58. quoting Hartnett v. Austin. 93 So. 'd 86 tl-la. 19*;6►.
Monroe Count\ has a legal obligation under Chapter 16 Part If. Fla. Slat.. to apple its
comprehensi\e plan. code and ordinances equall\ to all persons and all properties and in a
u ' ' m as t and not to abrogate this obligation b\ settlement agreement.
Sincerer.
-r -�
_ j
Robert N. Hartsell, Esq.
Robert N. Hartsell. P.A.
(9i4) 778-111-;-"