Should a landowner be compensated when the most lucrative use of its property — but not the only use — is rejected by the county?
Resource Conservation Holdings, LLC, a mining company that was denied a rezoning for lime rock extraction on its Corkscrew Road property in 2010, believes so, at least in regards to its own property.
A judge’s decision is still in the offing, as a lawsuit the company filed against Lee County wends its way through Lee Circuit Court.
During a Tuesday hearing, both sides presented arguments in the matter as the county attempted to have the case dismissed.
The 90-minute hearing ended without a resolution — Lee Circuit Judge Sherra Winesett told counsel she needed to re-examine RCH’s complaint before rehearing arguments — but it shed light on the legal theories behind the case and their relation to the more restrictive mining regulations put in place by Lee County in recent years.
The RCH lawsuit relates to a 1,365-acre swath the company owns along Corkscrew Road, east of Interstate 75. In 2010, RCH applied to rezone the acreage from an agricultural designation to industrial planned development, a use that would permit the company’s planned mining venture on 400 acres.
The county hearing examiner recommended approval of the application following a lengthy hearing. County commissioners then unanimously rejected the application, citing the impact of the project on nearby properties and along Corkscrew Road.
The rejection followed the county’s move in 2008 to restrict mining in the 82,000-acre Density Reduction/Groundwater Resource area, of which the RCH property is a part.
Tuesday, RCH attorney Bill Moore argued the county’s rejection amounted to a “partial taking” of RCH’s land by removing the property’s most lucrative use. The monetary return on remaining land uses — agriculture or low-density housing — would never approach the company’s investment in the land, which it purchased in 2005 for $33 million, Moore told Winesett.
“The agricultural use doesn’t even get you to one half the purchase price,” he said.
A study of southeast Lee County around the time of the application suggested the company could expect to mine $200 million of lime rock on the property.
Moore pointed to the county’s comprehensive land use plan, under which mining is an allowed use for the acreage, and he contended that case law mandates zoning should fall in line with land use plans.
To that end, he said RCH had proven during its zoning application that its mining intentions were a reasonable use of the land.
The attorney representing Lee County, Kenneth Oertel, told Winesett that Moore was attempting to re-argue the zoning application when the issue at hand is whether RCH should be reimbursed for the lost use of its property.
Even that argument has been decided in case law, Oertel contended. He said that contrary to Moore’s interpretation, courts have never recognized a partial taking. If a landowner still has use of its property outside of the rejected zoning, no “taking” ever occurred, he argued.
“The defendant is treating the right to mine as inseparable to the right to own the property,” Oertel said.
Moore responded that Oertel was relying on outdated case law, and he presented a stack of federal and state cases speaking to the concept of a partial taking.
Winesett told attorneys she was struggling to understand the claims central to the case, and she promised to re-examine the original complaint before setting additional arguments.
The lawsuit is the second filed by RCH against Lee County. In 2009, a Lee Circuit judge ruled the county had to accept the company’s rezoning application despite its mining moratorium, imposed retroactively as the county examined the issue in DR/GR lands.