Lee hit with big land-use claim

By DON RUANE, druane@news-press.com

A mining company denied permission last year to dig deeper for lime rock now wants Lee County to dig deep to compensate it for limiting the use of its land.

Schwab Materials Inc. claims the county should pay the company nearly $22.8 million because of a zoning decision county commissioners made last August. The commissioners denied Schwab’s request for permission to dig to 90 feet on 637 acres at Corkscrew Road and Six L’s Farm Road in Estero. Schwab has permission to mine to a depth of 20 feet. Schwab also wanted to blast rock.

The claim — the first of its kind in Lee County — was filed under the state’s Bert J. Harris Jr. Private Property Rights Protection Act. The 1995 law provides relief for property owners who are unable to get the fair use out of their property because of a government action that doesn’t take the land.

Attempts to reach William Merrill, Schwab’s attorney, and company president David Schwab were unsuccessful Tuesday.

Schwab’s May 31 letter stating the claim said the zoning denial kept the company from realizing investor expectations of the land. The letter, received on June 2 by Commission Chairman Ray Judah, said the result was a loss in the fair market value of the land.

The claim is one of the largest made in the state since the law was enacted in 1995. A claim for $23.5 million is pending against Miami Beach. There are 108 cases in the Florida Attorney General’s database. Settlement agreements were reached in six cases, although one is being challenged in Circuit Court. One was dismissed and not challenged. The total of the claims has not been tabulated.

The threat of a Bert Harris Act claim sometimes affects the way public officials in Lee County and elsewhere make zoning decisions.

The law has had such an impact all over the state, said Deputy Assistant County Attorney Tim Jones. Elected officials have been reluctant to pass laws that could expose them someday to the Bert Harris Act, Jones said.

When the Schwab case came up last August, County Commissioner Andy Coy asked if the denial would constitute a taking under the Bert Harris law. Jones told the board that he didn’t think so.

“They do not have a valid claim under the Bert Harris Act and I still believe that,” Jones said Tuesday. The law applies to ordinances passed after 1995, but the commissioners based their decision in the Schwab case on zoning ordinances adopted before 1995, Jones said.

Jones had better be right, Coy said after hearing about the claim.

“If we are in error we need to backtrack right away,” Coy said. “Just because there is a claim doesn’t mean they are right.”

The claim notice gives the county 180 days to respond, Jones said. A settlement could be proposed ranging from paying the claim to modifying the conditions for the use of the land. Schwab can follow with a lawsuit after the time expires.

Meanwhile, the county must notify adjacent landowners and others who participated in the zoning case. Public hearings will be held on any proposed settlement before the commission considers it, Jones said. Otherwise there are no public hearings, but the public can contact county commissioners or the county attorney’s office to share their thoughts, he said.

The mine is about 250 feet from Sandy Mitsos’ property on Six L’s Farm Road, and blasting is one of her concerns. The possibility of more trucks operating on roads used by her teen-aged daughter also is a concern, she said.

“I had things fall off my shelf when they did that test blasting,” Mitsos said.

Truck traffic could increase from 173 trips per day to more than 700, Judah noted during the August hearing. He was not available for comment on Tuesday.

“I don’t want them to change any conditions of the land use,” Mitsos said. “They made the right decision. They have to back it up.”

This case is back to haunt the area, said Lorie Frost of Glades Farm Road.

“We hoped it would go away but we knew it wouldn’t,” she said. Her family is concerned about blasting and seeing large pieces of mining equipment from their home, she said.

The company timed this to coincide with other mining controversies in the area, said 25-year resident Greg Cross. The company also wants to mine additional land that it owns in the area, he said.

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