County commission postpones decision on Duke Energy telecommunications shed after neighbors object

BY JENNIFER CABRERA

At their December 14 regular meeting, the Alachua County Commission considered an application from Duke Energy for a substation in Archer, specifically a new 13-by-17-foot telecommunications shed, a generator, and a propane gas tank, all within the fenced compound. Staff recommended approval of the application. 

The applicant told the board that the new shed will house modems, routers, switches, and hubs to monitor the electrical grid. They said the existing shed was not strong enough to withstand a hurricane, so the main purpose of the request was for storm hardening. Duke Energy said they didn’t want Archer residents to “think we’re trying to push something through that’s not actually happening,” so they’ve had some meetings with residents. Duke Energy’s representative said that there would be no new effects from the existing substation on surrounding properties and that if Duke Energy wanted to upgrade their power transmission capacity, they would need to come back before the board. 

Some neighbors were granted party status in the quasi-judicial proceeding and asked questions about the size of the propane tank (500 gallons, the same size used on many residential properties), any additional trucks on the road (once a week for maintenance, no change), and why it is being designated a major utility (that is a definition in the County’s land code). Each interested party had the opportunity to speak for up to 15 minutes, but most only asked a few questions. Several asked if attorney Nathan Skop could answer questions, and that request was refused. Then one of the parties, Jesse Moses, asked if Skop could speak during his allotted time.

Commissioner Chuck Chestnut said, “The parties can speak. [Skop] can speak when it’s public comment. He didn’t come in early, saying that ‘I’m the attorney for these folks, and I will be speaking on their behalf.’ He didn’t do that.” He said that allowing Skop to speak could open the County up to a challenge of the decision they would make. “This is illegal right now, is what I’m trying to say… This is just an upgrade of a facility… This is not going to be a power plant. This is not going to be a solar farm or anything like that.”

Assistant County Attorney Corbin Hanson said his opinion was that Skop should be allowed to speak during Moses’ remaining time, but “Mr. Skop is not a witness and not here to testify. Anything Mr. Skop says is merely argument, not competent, substantial evidence.”

Commissioner Ken Cornell agreed with Chestnut: “This whole idea of what’s happening here tonight is not right. It’s just not right… If Mr. Skop wants to comment at public comment or anywhere else, that’s the process. But for Mr. Skop to all of a sudden be an attorney in the middle—that’s not right.” Moses agreed that Skop would speak during public comment. 

Commissioner Anna Prizzia moved to accept staff’s recommendation with the additional condition that the special exception only be approved for the current request for upgrades for the telecommunications shed and that any future upgrades or additions would have to come back to the board. “Upgrades” was clarified as anything that would increase transmission capacity or increase the overall footprint of the facility. However, the Duke Energy representative was concerned that the language was too vague.

Alachua County Growth Management Director Missy Daniels said that if they were going to clarify that language, they should take a break and come back or consider it in January. Daniels  said she was “concerned with the motion the way it is.” She said staff could work on it during public comment. 

During public comment, Skop said that if he had been permitted to assist the party during their allotted time, he could have cross-examined staff and the applicant on the record. “There was nothing inappropriate about that; it’s perfectly legal and ethical… Parties are entitled to legal representation, even if it’s on the fly.” Skop, a former state utility regulator, added that “the crux of the matter is the major utility designation… I think there’s a simple solution… The telecom shed is not an expansion, it’s hardening infrastructure for reliability and resiliency of the existing substation. So, respectfully, the county commission, I believe, should balance what they’ve heard by approving this telecommunication shed without a major utility redesignation… Really, this is not an expansion of the existing footprint… Allowing the exception without designation as a ‘major utility’ would allow the county commission to maintain control, respect the Archer community, and give the utility what they need in terms of reliable service.”

Daniels said they’re not reclassifying it as a major utility; “it is, under your Comprehensive Plan and Uniform Land Development Code, a major utility.” She said that because Duke had to pull a building permit, “they are expanding the use.” 

Archer resident Michelle Rutledge said her group had arranged for an expert witness who hadn’t been able to testify because some of them weren’t granted party status, they didn’t get a chance to speak before the planning commission, and she and her neighbors felt that the board doesn’t “care what the community has to say regarding this, and I hate that because I don’t feel like that’s true but… I don’t think we got it right, as far as the community’s participation.”

Also during public comment, David Carpenter, who said he was “a public health physician and the former director of the State Health Department laboratories in New York state,” presented information about the health effects of living near high voltage power lines. “So when you talk about upgrade, the owner concern that’s related to human health is if the amount of current increases,” there could be an elevated risk of leukemia.

Prizzia said they were hearing “a very specific change to a very specific property,” but it was a quasi-judicial situation where they could only determine whether the special exception met certain criteria.

Commissioner Mary Alford said she sympathized with the concern about transmission lines because she lived under power lines when her son was born in 1984, and he died 12 years ago of leukemia. “But the best thing that we can all do, if we want to minimize these types of effects to our community, is to conserve electricity so that we don’t have to build new power plants and put in new lines. So the number one thing we need to do is to not use as much electricity as we do.”

Staff proposed the following language for a condition to be added to the motion: “upgrades to the facility that include expansion of the substation footprint beyond 10% or expansion of infrastructure that triggers an upgrade to the transmission poles or lines shall require an amendment to the special exception.” Duke Energy’s representative said they couldn’t agree to that language: “This is a special exemption for a telecom shelter, so we can’t agree to any limiting language with regard to power generation because it’s not a power generating shelter. We would be running afoul of the PSC [Public Service Commission], this could potentially be an illegal clause if we agree to this type of thing. At this point, Duke’s position would be that our special exemption speaks for itself. This is a telecom shelter. If we want to do any upgrade to any power lines, and I’ll go on the record saying this, if we want to do any of the type of things that the community is afraid of, we have to come back to staff and ask for that type of recommendation, we have to come back before the commission to get that approval because that would, in essence, require a permit.”

Alford said there are substations in neighborhoods all over the county, and the County doesn’t get any complaints about them. Given that it was 10:30 p.m., she suggested voting on staff’s recommendation to move forward. 

Cornell asked if Duke Energy wanted to postpone the vote until January: “I hear you, you just have the telecom guys involved. You haven’t got the power guys involved. We, and the neighborhood, are concerned about the power, because up until tonight, there wasn’t an understand—no one’s fault, there wasn’t an understanding at either the commission level or at the neighborhood level that this was just telecom, but the concern is power. If you can’t agree with that, I’m okay with continuing this, giving you more time, and that gives the neighborhood more time.”

Chestnut told the Duke Energy representative that the people from his company who met with the Archer residents about the previously-denied solar project were arrogant and condescending: “You’re different, though… I’m just being honest with you so that you can take this back and say, ‘Your image is bad’… I don’t think you understand that part of it, of why we’re asking and why we’re wanting certain stipulations is because I don’t trust you, they don’t trust you. We can only take your word. Then, if you violate anything, there’s nothing we can do at that point… You need to reconsider how you approach communities, especially communities of color.” He agreed that it was best to postpone the decision.

Prizzia withdrew her motion and made a motion to continue the quasi-judicial hearing to a meeting in January, “or as soon as we can come up with language.” The board voted unanimously to continue the item to the January 25 meeting.