Former official files legal challenge against Manatee decision to cut wetland buffers

A recent vote by Manatee County leaders to roll back local wetland protections in favor of developer interests is facing a challenge from a former county official.

On Oct. 5, the commission voted 5-1 to reduce the buffer zone required between wetland areas and development to the state minimum over vocal opposition from hundreds of residents.

Opponents of the measure included Joe McClash, who previously served as a county commissioner for 22 years. On Nov. 6, McClash filed a petition with the state’s Division of Administrative Hearings requesting a review of the rule change.

His petition argues that commissioners did not prove that reducing wetland buffers was in the best interest of the public, which the county’s Comprehensive Plan requires the board to do before making an amendment.

McClash did not immediately return a request for comment Monday.

Commissioners: buffer change favors property rights

During a tense round of public meetings on the issue, residents and wetland scientists expressed concern that the reduction in buffer sizes could lead to increased pollution and habitat destruction and leave some wetlands not covered by state law totally unprotected.

The amendment cuts the width of buffers required adjacent to “environmentally sensitive coastal wetlands” from 50 feet down to the state’s minimum requirements, which call for minimum buffer widths of 15 feet with a 25-foot average.

Commissioners argued that the buffer reduction would restore property rights to residents by allowing them to build closer to the water.

“They act like there’s bulldozers lined up,” Commissioner James Satcher said at the Oct. 5 meeting. “The only question is can you put your pool 25 feet from the wetlands or 50 feet from the wetlands.”

Petition: Removing wetland protections violated county policy

However, McClash’s petition argues that commissioners failed to appropriately back up the Comprehensive Plan amendment with supporting facts that explain how removing the county’s wetland buffers was in the public interest.

“The County adopted the amendments despite and contrary to data and analysis about the amendments’ impact on the wetlands...” says one of several dozen allegations laid out in the petition.

“A reasonable person would determine that the amendments are only in the interest of developers, and not the public as a whole,” it says later.

The petition also criticizes commissioners for failing to refute the science presented to them during public testimony that supported the effectiveness of wetland buffers.

Instead, their statements at the Oct. 5. meeting included Bible verses and unsubstantiated claims that opponents of the rule change were George Soros-funded political operatives. Board members also claimed they were being personally attacked for being conservative. Commission chairman Kevin Van Ostenbridge accused a 15-year-old who spoke out against the rule change of being a “political pawn.”

Van Ostenbridge presented one of the few pieces of data to back the board’s move at the Oct. 5 meeting when he said that the rule change would impact 66,000 pieces of property in the county.

McClash’s petition alleges that was a flawed measurement.

“A public record request of what the commissioner used as fact included government-owned property, submerged property and even the Sunshine (Skyway) Bridge area within Manatee County,” the petition says.

The petition also notes that Manatee County had previously successfully defended the legality of its wetland buffer requirements in court when developer Carlos Beruff’s Mandarin Development sued in 2015.

McClash is asking a judge to find that Manatee County commissioners’ approach to passing the rule change violated the county’s Comprehensive Plan and state statute.

A hearing is set for Feb. 5, 2024, at 9 a.m. at the Manatee County Courthouse.

McClash has history of challenging development

During his tenure as commissioner, McClash frequently supported regulations aimed at protecting the environment.

McClash lost his commission seat in 2012. During that election, developer interests backed his opponent and helped launch an attack ad campaign against him, according to previous reporting by the Bradenton Herald.

Since then, McClash has led several challenges to local developments that raised concerns with residents over their potential impact on the environment.

In 2015, a challenge to Pat Neal’s Harbour Sound development had success when a judge sided with McClash and environmentalists that argued the development would “destroy almost an acre of high-quality wetlands.” However, that decision was ultimately overruled by the board of the Southwest Florida Water Management District, which at the time included Manatee County developer Carlos Beruff.

McClash was also part of an unsuccessful and years-long legal challenge to Beruff’s Aqua by the Bay development.

McClash owns The Bradenton Times, an online news publication that has criticized the county commission’s stance on the wetlands issue.

The outlet was the first to report that county leaders decided to revise the county’s Land Development Code and Comprehensive Plan after urging from the Manatee-Sarasota Building Industry Association, a pro-development trade group with ties to current and former commissioners. The two documents dictate the county’s development policies, including environmental protections.