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Manatee County man drops wetlands lawsuit, as law says challenger must pay winner's legal fees

Joe McClash speaks at a county commission meeting in October 2023. In the background, a woman carries a sign that "Stop the Madness."
Manatee County
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Joe McClash was among those who spoke against the rollback at county commission meetings last year.

Friends of the Everglades described the law as a "death knell for smart growth in Florida," and warned "it will effectively end citizen challenges to comprehensive plan amendments."

Despite vocal opposition from members of the community and environmental scientists, the Manatee County commission voted last year to reduce the required size of buffer zones between developed areas and wetlands.

Former Manatee County Commissioner Joe McClash, who is publisher of the Bradenton Times, said developers were the impetus for the rollback, and the alteration of the county’s comprehensive plan was not in the best interest of the public.

He planned to file a legal challenge with an administrative law judge, but had to abandon it due to a 2023 law signed by Gov. Ron DeSantis which said anyone who challenges a county’s comprehensive plan in court would have to pay the legal fees of the prevailing party.

The sponsor of that bill, known as SB 540, St. Petersburg Republican Senator Nick DiCeglie, said it was meant to “level the playing” field between developers and local governments and that those suing should have “skin in the game.”

For McClash, it meant the cost to proceed with the challenge could be on the order of $250,000, according to his own estimates.

“I'm like, David versus Goliath here. I'm the sole petitioner. I'm representing myself, I don't have an attorney,” he said, describing a preliminary meeting via Zoom. “And on the other side, the county has seven people, almost all of them attorneys. So, I could just imagine what the cost would be after a hearing.”

McClash spoke with WUSF’s Kerry Sheridan about why he decided to abandon the lawsuit, and what pathways remain to challenge such decisions in the future. 

This conversation has been lightly edited for length and clarity.

Could you summarize what the commission did, and why these buffer zones are so important for the environment?

What the board did is change our wetland policies that we had in place for probably well over 40 years. It’s safe to say the wetland protection policies go back to before the comprehensive plan that was established back in the late ‘80s.

The protections that we had in the plan were 30-foot buffers at a minimum, and then 50-foot buffers for primarily those coastal wetlands that are really valuable. So you might have a wetland in the middle of the county somewhere around an agricultural piece of property.

Also, the 30-foot wetland buffers from the phosphate mining. The phosphate mines are just very abusive to the environment, stripping away all the soil. And so you have these high quality wetlands that what the phosphate companies wanted to do was actually go right up to that wetland line without a buffer. And so the 30-foot buffer gave us an argument to preserve, what you could say, are those high quality wetlands.

Study after study after study has said that to protect the wildlife that needs these wetlands, these mangroves to live in, to nest in, that the 50-foot buffer does not even come close to the distance from humans that are needed to protect the wildlife that utilizes these wetlands. The studies reference 150 feet, 500 feet, even some are 1,000 feet. The 50 feet is just the absolute minimum of a compromise to help protect that environment.

Why they are so important is because without these buffers, there is no opportunity for our environment to transition with sea level rise. We've had six inches of sea level rise in the past 20 years. This is unprecedented. Think about that. If the trend continues, these mangroves need the opportunity to adapt. So as the sea level rises, if you have a buffer, then the mangroves can adapt as well as the rest of the environment around shorelines of Manatee County.

So you and others in the community spoke up, you felt that changes weren't in the best interest of the county. Tell me about the legal action you were considering, which was basically seeking a hearing before an administrative judge?

Yeah, so I did bring a challenge it, I tried to get other people, environmental groups to challenge it.

What's unique about the challenges to a comprehensive plan, last year our legislature in 2023 put in a provision that really makes it where you take an enormous financial risk to ever challenge a comprehensive plan. This is just to do with comprehensive plans, not other administrative challenges. And it mandated whoever doesn't prevail has to pay the other side back their cost.

So you had an initial hearing, or meeting? Tell me, what was that like and how far did you get with it? 

I'm like, David versus Goliath here. I'm the sole petitioner. I'm representing myself, I don't have an attorney. I have a meeting on Zoom. And on the other side, the county has seven people, almost all of them attorneys. So I could just imagine what the cost would be after a hearing.

It even gets crazier. So let's say I convinced the administrative law judge that I was right. And she proposes a recommended order. The proposed recommended order would have went to the governor and cabinet, Gov. DeSantis, who signed the bill that said if you don't prevail, then you have to pay back all the cost. And they have not been siding with a lot of recommended orders against the development community.

If the judge sided with me, and gave a recommended order that went to the governor and cabinet, as the administration commission, they call it, then the governor and cabinet could have changed her recommended order. And then I would not have prevailed, and they could have sided with the county. And so you could go through the hearing, then that recommendation goes to the governor and cabinet, then you lose, and then you have to pay back all the monies.

And you figured out a ballpark of about what it might have cost you?

I would say the risk by the time it got to the governor, based on seven attorneys being in the previous meetings, and consultants, you might be talking a quarter million dollars. That's some really, really significant monies. And I don't know of any organization that wants to take that risk on.

It's one of those things that is probably the most destructive policies that you can put in place. Because you now become really a dictatorship. Whatever the county commissioner does, they get a pass. You can't financially afford to challenge it.

And it really speaks to the type of government we're getting into, which is scary, because I don't care what party representation that you have, any time a government can do something that is wrong and not be corrected by a challenge of the community, without a financial penalty, to the point that it would bankrupt most organizations. That's wrong.

I was reading some of the comments in news reports on the situation, going back to last year, and a lot of people were praising you as a hero for pursuing a legal fight. I'm just wondering, now that you've realized you can't, what's next?

I think the people in Manatee County are still quite upset. And it crosses the political boundaries on both sides, which is unique in this political environment that both Democrats and Republicans see this as just a failure of the county commissioners, to respect the environment and in helping maintain our quality of life.

The most important thing people can do is make sure they vote smart. I know we always talk about this, but unfortunately, there's 80% of the people that don't pay attention to government at all. It's really important for all of us to reach out to our friends during elections and say, hey, we really don't need this person back into office again, when you look at how disrespectful the board has been to the general public for coming up and talking to them about issues that are important to them, most of them don't deserve to be back in office. Again, they're not representatives of any particular community, they only want to really at the end of the day, focus on changes needed to help out the person that funded their campaign.

I always tell people, don't give up. We get into these ugly cycles in American democracy, when you look at it over the past over 200 years. We've had these challenges where you kind of feel like you're always up against the wall, and certainly, I get frustrated, just like everybody else. Should I really be using my time to challenge this? It just seems like it's overwhelming at times. But if we all start going backwards and into a shell, and feel like we can't make a difference in our community, our governments, then we do lose our democracy.

I cover health and K-12 education – two topics that have overlapped a lot since the pandemic began.
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