South Lee landowner seeks compensation for lost value due to mining restrictions

Should a landowner be compensated when the most lucrative use of its property — but not the only use — is prohibited by the county?

Resource Conservation Holdings, LLC, a landowner denied a rezoning for limestone mining on its Corkscrew Road property in 2010, believes so, at least in regards to its own property. The company is suing Lee County for the rejection.

During a Tuesday hearing, attorneys for both sides argued the legal theories surrounding the case, in particular what constitutes a “taking” of someone’s land and whether prohibition of a single land use — in this case, mining — makes compensation necessary.

The lawsuit is set against the backdrop of the county’s recent mining restrictions along Corkscrew Road in south Lee County, a change yet to be reflected in its comprehensive land use plan. With four more mining applications expected to go before commissioners in the near future, landowners may have reason to watch the RCH lawsuit.

“We don’t have any problem with what the county wants to do with the land,” Richard Friday, CFO of Younquist Brothers Rock, a shareholder in the RCH venture, said after Tuesday’s hearing. “What we disagree with is that they can do that, not change the comprehensive land use plan and not compensate us.”

The 90-minute hearing, set for several motions including Lee County’s request to dismiss the case, ended without resolution. Lee Circuit Judge Sherra Winesett told attorneys she needed to re-examine RCH’s complaint before rehearing arguments.

The lawsuit stems from a 1,365-acre tract the company owns along Corkscrew Road, roughly 7 miles east of Interstate 75. In 2009, RCH applied to rezone the acreage from an agriculture 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 22-day hearing. But county commissioners unanimously rejected the application, citing the impact of the development on the area, its homeowners and the environment.

The county telegraphed its decision two years earlier, when commissioners agreed to ban mining along Corkscrew Road east of Alico Road, part of a swath known as the Density Reduction/Groundwater Resource area — DR/GR. The amendment has yet to be reflected in the county’s comprehensive land use plan, due to delays in state approval.

Tuesday, RCH attorney Bill Moore argued the county’s rejection of the application amounted to a “partial taking” of RCH’s land by removing the property’s most lucrative use. The monetary return on alternative land uses — agriculture or low-density housing — would never approach investment in the land, which totals $46 million, Moore told Winesett.

“The agricultural use doesn’t even get you to one half the purchase price,” he said.

In fact, a county committee that studied mining in south Lee before enacting the prohibition found that mining operations in the area could expect to extract $100 million for every 640 acres of land.

Moore pointed to the county’s comprehensive land use plan, under which mining remains 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 through zoning application that mining was 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.

The outcome of the RCH case could impact several other landowners seeking a zoning change in the Corkscrew Road area. An 1,800-acre property operated by Troyer Brothers Florida recently went through public hearing, and is expected to go before county commissioners in the near future.

Two other land holdings along Corkscrew Road — 4,200 acres owned by Old Corkscrew Plantation and a 5,200-acre project known as Six L’s Farms — are also preparing applications. A fourth landowner, referred to as Lost Grove, is preparing an application for roughly 2,500 acres on a border of the DR/GR area.

Kevin Hill, a member of the Estero Council of Community Leaders and a mining opponent, said the applications won’t cease until the county’s comprehensive land use plan is changed.

“Until the large landowners don’t see that (option) any longer as a future entitlement that they’re willing to put money into to try and secure, these will continue to come up,” he said.

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