Lee County Attorney Wesch proposes to pursue litigation against state regarding National Register nomination, county commissioners agree

August 6, 2021
By Marcy Shortuse

Just days prior to a scheduled online meeting of the National Historic Review Board to determine whether the Boca Grande Residential Historic District meets the criteria for eligibility for placement on the National Register of Historic Places, Lee County Attorney Richard Wesch announced his intention to pursue litigation against the State of Florida for placing the district on the meeting’s agenda.

As the meeting was scheduled for press time – 2:30 p.m. on Thursday, Aug.5 – and there were several agenda items to be discussed prior to our issue, we will have to give you an update on that later. On Tuesday, though, we emailed the Florida Office of State/Historic Preservation to see if they thought there was any chance the agenda item would be tabled due to the letter Wesch sent. We also asked if it would be unprecedented for a potential lawsuit to withdraw an eligibility ruling, and more importantly, why it was so important to determine Boca Grande’s residential historical district’s eligibility if there was overwhelming agreement between property owners and local and county government that they did not want that “honor.”

That question has been asked twice before, by the way, and no answer has yet to be given, other than it was “required under 36 CFR 60.6(n)” to be sent to the board.

As of press time a representative from their office said the email had been received, and they would “be in touch.”

Wesch’s request to Lee County Commissioners dated August 2, was approved on August 3.

It read:

A motion is requested to authorize suit against the State regarding the Boca Grande Residential Historic Nomination … if necessary, to prevent the State Historic Preservation Officer from forwarding the proposed Boca Grande Residential Historic Nomination to the Keeper of the National Register of Historic Places … This privately-initiated nomination has been opposed by the Boca Grande Historic Preservation Board, the Board of County Commissioners, and a majority of affected property owners. After extensive review of the matter, the County Attorney’s Office believes that this action violates the objecting property owners’ right of privacy granted by Art. I, Sec. 12 of the Florida Constitution.

Continuing it said:

On January 6, 2021, the county received a privately-initiated proposal to nominate the Boca Grande Residential Historic District, comprised of 129 individual homes and structures, to the National Register of Historic Places. The nomination was filed by Mikki Hartig … Ms. Hartig does not live or own property within the proposed district, nor does she represent any property owners within the proposed district. The nomination was prepared without any input from or notice to the affected property owners or the Boca Grande Historic Preservation Board, and appears to suffer from technical and procedural deficiencies, including questions regarding the historical accuracy of the nomination narrative, whether the proposed district sufficiently represents all of the historic homes in the area, and whether affected property owners were actually notified in accordance with the Florida Certified Local Government Guidelines.

For these reasons, as well as an overwhelming show of opposition by Boca Grande residents, the Boca Grande Historic Preservation Board voted on March 10, 2021, to oppose the nomination, and the Lee County Board of County Commissioners voted unanimously on April 6, 2021, to support the Historic Board’s decision. In addition, the Division of Historic Resources received 81 sworn objections by verified property owners, constituting more than 60 percent of the proposed district. Ordinarily, this utter lack of support on the local level would stop the nomination process. However, the nomination’s sponsor has appealed the decision of the Boca Grande Historic Preservation Board and is attempting to force the nomination through without regard to the rights of the opposing property owners.

The complete lack of both substantive and due process considerations for affected property owners, including Lee County, has been deeply concerning. Attempts by the County Attorney’s Office to resolve this matter with legal counsel for the Florida Department of State have been unsuccessful. Unfortunately, it seems that state and federal regulations governing this process have proven inadequate in protecting the rights of Lee County and its residents, at least as those regulations have been applied in this instance.

The County Attorney’s Office hereby requests authorization to initiate litigation to prevent the State from forwarding the proposed Boca Grande Residential Historic Nomination to the Keeper of the National Registry for a determination of eligibility for inclusion on the National Register of Historic Places under 36 CFR Part 60 and the State of Florida’s Certified Local Government Guidelines.

We will let you know what happened at the meeting as soon as we can. If possible, we will post a synopsis on bocabeacon.com and on our Facebook page.