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Stand and fight for the people

Lee County is right to defend decision against mining firm

BERT HARRIS

Known as a champion of private property rights in Florida, former state Rep. Bert J. Harris Jr., made the promotion of agriculture his life’s work. A 1943 honors graduate of the University of Florida with a degree in agriculture, Harris was a citrus grower and rancher and was an independent farming consultant until his election to the Legislature. Harris’ efforts with the passage of private property rights to protect landowners from excessive government resulted in the naming of the bill the “Bert J. Harris Jr. Private Property Rights Protection Act.” — Source: Florida Agriculture Hall of Fame

Good for Lee County attorneys and the county commissioners who withstood the threat of a Bert Harris Private Property Rights lawsuit to deny rock mining on a Corkscrew Road site.

Development (and mining) companies seeking approval for their operations have held this law over the heads of county officials throughout Florida to get their projects — or some version of them — approved. In Lee County, we’ve heard it over and over again.

At times, we suspect commissioners hide behind the Harris Act to justify unpopular decisions. We’ll be sued unless we approve it, they say.

In fact, no one knows exactly what the Bert Harris Act does until it has been extensively litigated and judges decide what it means. It may take quite a few court cases to determine what our local governments can say no to and what they can’t.

It looks like Lee County will get a chance to find out. Good. It’s about time.

This is a thorny issue: Should property owners be protected from the decisions of governments that devalue their property? If so, under what circumstances and what kind of relief should they get?

Schwab Materials Inc. is suing Lee County because commissioners decided last August not to allow Schwab to blast and dig to 90 feet to mine limerock on 637 acres of its property at Corkscrew and Six L Farm roads in Estero. The company cites the 1995 Bert J. Harris Jr. Private Property Rights Protection Act, which provides relief to property owners whose properties have lost value because of government action or regulation. Schwab wants $22.8 million, which it says is the difference between the property’s value if the county had approved additional mining and what it’s worth now.

The company still has permission to dig to 20 feet for fill dirt.

Nearby residents complained that they didn’t want the blasting and additional truck traffic the mine would generate.

Lee County attorneys think they have a strong case.

Of particular interest is a Bert Harris case recently litigated in Miami. Developer Royal World Metropolitan claimed it had permits to build a 24-story building, but Miami Beach officials had passed new zoning rules limiting buildings to six stories. The developer sued, but a judge ruled that, under the rule of sovereign immunity from lawsuits given to local governments, the city could not be sued. The case is being appealed.

In response, two legislators, Sen. Ken Pruitt, R-Port St. Lucie, and Rep. Jeff Kottcamp, R-Cape Coral, sponsored legislation that would remove the sovereign immunity from governments in Bert Harris cases. Both bills died in the 2003 general session.

The Schwab lawsuit not only highlights concerns over the Bert Harris Act, but also the controversy over continued mining in Lee County when mines encroach on residential property and when residential property encroaches on mines.

We would urge the commissioners not to settle, but to fight this out.

We also would urge that discussions with their attorneys be done in the sunshine. In certain instances, commissioners are permitted by state law to discuss strategy with their attorneys in private — but we would remind them that they aren’t required to.