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Jesse's last strike

By Henry Lamb
web posted November 1, 2004

Three years ago, the government of Collier County, Florida approved a three-year conditional permit for Jesse Hardy to begin the construction of an aqua-culture project. The plan called for the excavation of four 20-acre fish ponds on his 160-acre homestead, about 30 miles East of Naples. The "conditions" placed on the permit were to insure that the ponds were actually the size and depth shown in the plan, and that the project proceeded in an environmentally sensitive manner.

Hardy at one of his ponds
Hardy at one of his ponds

The three-year progress review has been underway for several months. Renewal requires a recommendation by the planning commission, and approval by the county commission. Every condition of the original permit has been met, according to Jesse's attorney. Nevertheless, by a vote of seven to one, the planning commission rejected the renewal permit October 21; it takes a four-fifths vote of the county commission to override the planning commission. The county commission vote is scheduled for November 16. This vote could be Jesse's last strike.

The material excavated from Jesse's fish pond has proven to be quite valuable road-building material. Collier County is one of Jesse's best customers. The county engineer says that Jesse's site is the only place in the entire county where the material can be purchased. Were it not for Jesse's excavation, the county would be forced to haul the material as much as 100 miles from sites across the state.

Since the permit was first issued, Jesse's land has become the target of rabid environmentalists, hell-bent on returning the Everglades to its "natural" condition. The massive, $8 billion project has already forced thousands of landowners off their property. Jesse doesn't want to leave. Engineering studies show that Jesse's land is not necessary to complete the project. What Jesse wants doesn't matter.

Nancy Peyton, of the Florida Wildlife Federation says "It is not a good location for people to be...." Her organization has the money and political clout to lobby local and state officials, while Jesse has nothing more than the revenue from his excavations to pay engineers and attorneys to try to defend his rights. Now the county is threatening to remove his only source of income.

The excavation material under the four proposed fish ponds is worth several million dollars. Property rights proponents contend that if the county denies Jesse the right to excavate and sell his material, the county will have, in effect, taken valuable property from Jesse, for which "just compensation" is due.

Opponents argue that Jesse's right to excavate the material arises from the county's permit in the first place, and therefore, the county has the power to deny the right to excavate.

This argument gives rise to the much deeper question: how does the county or state acquire the power to override the inherent right of an owner to use his property as he chooses?

It's not hard to trace the legislative history of Jesse's situation to the 1976 Comprehensive Planning Act adopted by the state of Florida, and extensively modified over the years. There is no question that the state and the county have the legislative authority to deny Jesse the use of his property. Nor is there any question that the exercise of this authority results in extensive financial loss to Jesse.

The state is expected to condemn Jesse's land and take the property by eminent domain. Will "just compensation" be based on the value of the land, including the value of the excavation material? Or, if the permit is denied, will the value of the land be limited to the palmettos, pines, alligators and rattlesnakes - a difference of several million dollars?

When the state secures title to the land, will the state prevent the county from continuing to excavate the material it badly needs, thereby forcing the county to haul its material several hundred extra miles, or will the state effect an agreement with the county that allows the county to continue using Jesse's material for several years before the Everglades project ever touches Jesse's land?

Jesse is one of thousands of victims whose right to own and use private property has been eroded by the socialistic notion that central planning must prevail over individual freedom. In Jesse's case, there is no logical reason why he should not construct his fish ponds, selling the excavated material to the highest bidder. His nearest neighbor is miles away, and his land is 30 miles from town. The use of his land as he chooses harms no one, and helps many. Still, Nancy Peyton, and her followers have convinced the county officials that Jesse's wishes and Constitutional rights should be ignored, in order to achieve what she thinks is the best use of Jesse's land.

Henry Lamb is the executive vice president of the Environmental Conservation Organization (ECO), and chairman of Sovereignty International.

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