01/23/08

Developer failed to address impacts, Russell says

A Charlotte County hearing officer denied a developer a permit to excavate a 108-acre dirt mine on Washington Loop Road because the mining proposal fails to address environmental impacts, especially to the nearby Myrtle and Shell creeks.

The applicant, Triple D Investment Group LLC, also failed to address how the mining would affect the health, safety and welfare of residents within a half-mile of the site, as required by the county's previous mining ordinance, according to an order signed Jan. 14 by Hearing Officer Kevin Russell.

Russell also concluded that Triple's D's plan for dealing with radioactive elements that are expected to found in the pit was inadequate.

Russell cited the expert testimony of Dr. Sydney Bacchus, a hydroecologist retained by the Washington Loop Homeowners Protection Association to oppose the mining application.

During a November hearing on the proposal, Bacchus had testified that the excavation of pits reduces the water table in the surrounding area, which has a detrimental effect on wildlife habitats.

Triple D called several engineers to testify that the application met the county's requirements.

"However, the greater weight of the evidence shows that the applicant has failed to meet its burden," Russell wrote.

Brian Kelsky, attorney for the Washington Loop association, said he was "amazed" that the group was victorious.

"I was amazed because the process is really stacked against the people trying to fight this," Kelsky said. "Under the process, the mining applicant submits an application and comes in with a team of engineers, environmental people and consultants. And the residents get 15 to 20 days' notice. Because of that, they have to act very, very quickly to get all the information, study it and hire an expert."

"We fought this application on our heels," added Kelsky, whose practice is based in Plantation. "They paraded six different experts (before the hearing officer) and we had one who was very qualified. To me, that's an amazing victory for (the group) and for the people of Charlotte County."

Russell pointed out in his order that the proposed pit would have been close to Myrtle Slough and Shell Creek.

"The proximity of the mines to the Shell Creek system presents a variety of environmental concerns which may not be found at other mining locations," he wrote.

With that language, Russell made it clear that his order will not serve as a precedent for denying other dirt mine proposals for sites not located near such waters, Kelsky said.

Mike Haymans, attorney for Triple D, could not be reached for comment Tuesday.

The association has also voiced concern about several proposed dirt mines or mine expansions along their rural road. At least one of those proposals remains pending.

The group cites concerns about traffic safety, dust and environmental impacts.

Those mines are among several dozen that have been proposed within the past year. Most of them will be considered under a revised mining ordinance adopted by the County Commission in December.

Robert Boehm, a member of the Washington Loop association, said his group was "real happy" with the outcome of the case.

"If there's any white knight in the process, I believe it was Kevin Russell's ability to look at the case objectively," Boehm said.

Staff Writer

Charlotte Sun-Herald