Challenge to Manatee County wetland buffer rollback dies. Is new Florida law to blame?

A legal challenge to Manatee County’s controversial decision to reduce local wetland protections and allow more development on environmentally sensitive land has been dropped.

At the suggestion of a developer interest group, commissioners voted 5-1 in October to eliminate the county’s extra layer of wetland protections, drawing heavy criticism from environmental advocates and hundreds of residents. Board members argued that the decision reflects their commitment to individual property rights.

The rule change will revert Manatee County to the state’s minimal rules, potentially allowing developers to build closer to sensitive wetland habitats and take less consideration of the environment in building plans. Critics argued that could harm ecosystem health, wildlife and water quality and expose residents to a higher risk of flooding and sea level rise.

A month after the regulation rollback passed, former County Commissioner Joe McClash filed an administrative challenge against the county, temporarily preventing it from going into effect.

Now that the challenge has been voluntarily dismissed, the new wetlands policy can take effect as soon as the judge presiding over the case issues a final order, a spokesperson for Manatee County Government said in an email Friday.

The county is seeking over $247,000 in attorney fees and other costs from McClash.

Case dropped due to developer-friendly Florida law

McClash’s challenge alleged that county officials violated county and state rules by removing beneficial environmental protections without proper evidence that the decision was in the public interest.

It cited the county’s Comprehensive Plan, which says commissioners shall amend the plan only “upon finding that the goal, objective, policy, or map sought to be amended is no longer in the best interest of the public.”

But on April 24, McClash voluntarily dismissed his case before testimony was heard.

The reason: a new Florida law allows local governments to recover attorney fees if they win a Comprehensive Plan challenge against a citizen.

Referred to by critics as “the sprawl bill,” and “a death knell for smart growth in Florida,” the law also allows developers to join legal disputes and further penalize citizens who challenge government actions with legal fees.

The law had almost complete support from Florida Republicans, including Manatee County’s entire state legislative delegation: Jim Boyd, R-Bradenton, Joe Gruters, R-Sarasota, Mike Beltran, R-Riverview, William Robinson, R-Bradenton and Tommy Gregory, R-Lakewood Ranch.

According to Michael Barfield, a Sarasota-based paralegal and public access director at the Florida Center for Government Accountability, the law threatens citizens with the potential of hundreds of thousands of dollars worth of legal fees if they lose a challenge.

“It’s access to the courts for the wealthy and a huge risk for anyone else,” Barfield said. “The legislature has pretty much preempted any teeth in our regulatory laws related to development.”

Environmental advocacy group Waterkeepers Florida, which has 15 chapters around the state, railed against the law before it passed.

“We sent over a thousand emails to our local representatives asking them to vote no on Senate Bill 540,” said Suncoast Waterkeeper Executive Director Abbey Tyrna in an email. “We did this because we knew that even with adequate legal claims, we could not shoulder the financial burden of challenges made on behalf of Florida residents. Meanwhile, decisions made on behalf of a few developers are moving full speed ahead, unchallenged.”

What happened in court?

In court filings, Manatee County attorneys warned McClash that they would seek to recover their fees under the new law if they beat him in court.

McClash argued that his challenge should not be subject to the new law. He also argued that the county should be prohibited from seeking attorney fees if his challenge resulted in the county correcting any of the issues raised in his case, but the judge disagreed.

In a renewed motion for attorney fees filed on Wednesday, county attorneys asked a judge to award them $246,097 in “reasonable attorneys’ fees” and $10,710 in taxable costs against McClash.

Court records show that the county had at least 10 people working on the case, with hourly rates that ranged from $75 to $375. Seven of those hourly rates were $300 or more.

In 2023, the average hourly rate for lawyers in Florida was $297, according to Statista, a statistics-compiling website.

“It was like David and Goliath,” McClash said. “The county had seven attorneys and legal assistants and I was representing myself. Whether they were trying to stack the legal fees to scare me away, I don’t know.”

Challenge dropped before testimony heard

Manatee County had successfully defended its wetland protections against several legal challenges by prominent local developer Carlos Beruff in recent years. The sudden move to undo those protections last year puzzled many onlookers.

To revise its wetland policies and argue for reducing them in public hearings, the county hired Daniel DeLisi, a private consultant who previously opposed the county in court on behalf of Beruff.

“It’s like you just won the Super Bowl and then you go and hire the losing team’s quarterback,” Barfield said. “In the space of just a few months, the county decided to completely abandon the victories they had won. It was mystifying, even to a neutral observer,” Barfield said.

In public meetings, officials presented the proposal to change the rules as a “county-initiated” amendment that would restore property rights to average homeowners, allowing them to build closer to the water.

But public records revealed that the decision to reduce wetland buffers was made after a special interest group, the Manatee-Sarasota Building Industry Association, approached staff with a behind-the-scenes proposal to change the wetland buffer policy and other rules that place restrictions on developers.

The county’s Planning Commission did not buy the arguments that removing the wetland protections was a good idea and sent the Board of County Commissioners a majority recommendation to vote against it.

But commissioners were not swayed by that recommendation or evidence supporting the effectiveness of wetland buffers.

Public hearings leading up to the rule change drew crowds of concerned residents and led to angry clashes between the public and officials. When dozens of people voiced their disagreement at a final hearing, disgruntled commissioners fired back. Commissioner Kevin Van Ostenbridge accused opponents of the measure of being “radical climate activists.”

McClash’s legal challenge cited that tumultuous final hearing and criticized commissioners for spending it on combative and off-topic comments rather than defending the validity of the amendments.

His legal challenge aimed to make the county provide more evidence for its decision and ultimately prove that it was not in the public interest.

McClash is asking the judge not to award Manatee County’s attorney fees since he withdrew the case before it was decided.

Manatee County declined to comment on the dismissal of the case.

New Florida law ‘worse than a chilling effect’

McClash described the new law as “much worse than a chilling effect” on citizens’ ability to challenge controversial government actions.

“It’s an absolute elimination of any citizen challenges,” McClash said. “Draconian would be one word for it. It’s embarrassing, as a Republican like myself, to see other Republicans putting things in place that are like a dictatorship.”

McClash noted that even if the administrative law judge had ruled in his favor against reducing wetland protections, that decision could have been easily reversed in a final order by the state’s Administration Commission — a group comprised of Florida’s governor and Cabinet.

“The writing is on the wall that they would have found a reason for me not to prevail,” McClash said.

“It’s long been in the First Amendment that citizens have the right to question what their government is doing,” Barfield said. “This law takes away that ability. It is weaponizing the law to prevent citizens from challenging government rolling over for developers.”

Barfield said that successful citizen challenges of the past would probably have never happened under the new Florida law.

Even with his voluntary dismissal, McClash could still be on the hook for some of the attorney fees accumulated so far in the case.

A hearing set for June 4 at 9 a.m. will determine whether McClash has to pay any of those fees, court records show.

Reduced wetland protections can soon take effect

When a change to a local government’s comprehensive plan is challenged in court, the change is temporarily blocked.

If it survives the court challenge, it can be adopted into the Comprehensive Plan and go into effect.

Manatee County said Friday that a final court order upholding the new wetlands rule is expected within 30 days and will allow the new policy to go into effect immediately.

The county’s previous policy required buffers of at least 30 to 50 feet between development and wetlands. The new policy will revert Manatee County to the state’s less protective rules.

The state recommends minimum buffer widths of 15 feet with a 25-foot average, but developers can apply for exceptions to that rule.

Shortly after Manatee County officials voted to reduce local buffer requirements, developer Carlos Beruff asked the state to allow no wetland buffers for a future phase of his Aqua by the Bay development along Sarasota Bay in Bradenton.

However, the future of permitting development that impacts Florida wetlands is now in limbo. In February, a federal court order removed Floirda’s authority to issue 404 permits — a kind of permit that allows developers to impact wetlands — after a judge found that the state was not following federal laws for protecting endangered species.

Florida appealed that decision, and the court case will decide whether the state or the federal government ultimately gets oversight of 404 wetlands permits.

Waterkeeper groups arguing against Florida maintaining control of the program say that the state’s approach to protecting wetlands and water quality is not working.

Tyrna pointed to the federal judge’s recent ruling that Florida’s wetland permitting program was failing to adhere to the Endangered Species Act, as well as a recent federal report documenting severe wetland losses in Florida.

“During our long debate over the Comprehensive Plan changes with the Manatee County Government, the BOCC, along with their hired expert, pointed to the state of Florida’s wetland permitting program as being adequate protection,” Tyrna said.

“We now have two lines of evidence showcasing that this is simply not true.”

In 2022, Florida led the nation for the most acres of polluted lakes and ranked second for square miles of polluted estuaries, according to data collected by the Environmental Protection Agency under the Clean Water Act.

“Taken together, the federal and state governments have not adequately protected wetlands, which are known to provide pollution removal services,” Tyrna said. “ It is no wonder that harmful algal blooms continue to increase on the Suncoast. Saving our wetlands is critical to our overall health and well-being, and it is clear that the only way to protect our local ecosystems is through local action.”

Could there be another challenge to wetlands policy?

McClash hopes that community members who oppose the county’s wetlands decision will consider filing a new challenge in county court.

“The other avenue that’s still available is a suit that could be brought at the county level, where a person could sue the county for not following its own rules,” McClash said. “Going through the circuit court, you don’t have a time limit and you don’t have the threat of paying the other party’s fees.”

McClash said he is not planning to file such a challenge.

“We really need some organization to file,” McClash said. “The ball is still in play, and I think another challenge would be important if the community is serious about holding the county commission accountable.”