John Garcia’s mission was simple. He wanted to make it less likely that people in his neighborhood would suffer from the environmentally-caused cancers that had plagued so many of his friends and family members by preventing builders from erecting houses adjacent to a former garbage dump site where a toxic plume had been discovered in the mid Ô80s. But when he went up against a powerful developer with deep pockets, he found himself on the wrong end of a million dollar lawsuit.

In 2013, a developer wanted to build houses where a golf club that had been built over top of multiple landfills now sat vacant. The plan was to nestle the units between the raised berms where the landfills were believed to have been located. Citizens in the nearby community, already anxious about what was under their homes, begged the county commission not to allow the site to be disturbed, for fear that it would unleash a toxic soup that could impact a much broader area.

Garcia was at the forefront of the fight. He says his motivation was simple: "I lost my father to prostate cancer. No one told him he was living on top of toxic sludge that would eventually kill him." Garcia's mother would later survive breast cancer. Even Garcia's dog, whom he would allow to roam the former golf course property, died of cancer. The board listened to the pleas of him and others and voted unanimously to deny the rezone application.

Then, in late 2014, politically-connected developer Carlos Beruff, owner and CEO of Medallion Homes, brought a request to rezone the same site to the board. Despite continued public opposition and Garcia again presenting all of the data he’d researched on the toxicity of the area, the commission had suddenly become much more comfortable with the idea. They voted to approve a rezone, paving the way for 205 new units in a development called Waverly, where homes start at $470,000.

The dumping site in question operated under many names over the years, including the Proctor Road landfill, Sugar Bowl Landfill, Foxfire Landfill, and Sommers Landfill. The term landfill might be a bit misleading, however. The former facility might better be described as a garbage dump, an antiquated operation in which a giant hole was dug, and garbage was simply dumped into it with no liner separating whatever had been discarded from the soil or the aquifer beneath.

Sarasota County and many surrounding communities used the site heavily for all kinds of waste disposal beginning sometime in the 1940s (the exact year remains unknown), burning debris and burying garbage at various sites on the land. The county has very little in terms of records of the operation, but those who recall using the landfill have said during public hearings that there were few if any restrictions on what could be dumped. It was also noted that because the site was prone to flooding, it was sometimes impossible to reach the prescribed dumping spots, forcing customers to dump their waste wherever they could. This is supported by the later discovery of solid waste at least two locations that were outside of the original landfill boundaries indicated by the county.

The operation was finally closed in 1972 and replaced by the Bee Ridge Landfill. The county knew full well what a mess the site had become, so to keep the area as green space and prevent development following the closing of the dumps, it converted the land into golf courses. The courses were operated by the Foxfire Golf Club, which opened in 1975. However, the land would ultimately prove too volatile even for that use, and there was evidence that the underground damage might not be so easily contained.

In 1984, Ardaman & Associates conducted an electromagnetic survey of the landfill area that suggested contaminant plumes beyond the boundaries of the golf course. In 1992, a groundwater sample collected from a potable supply well operated by the golf club showed a benzene concentration (1.6 ug/l) that exceeded the FDEP Groundwater Cleanup Target Levels (GCTLs).

In 1996, a temporary monitoring well was installed in the largest of the former landfills, a 70-acre site. A groundwater sample collected from the well contained several possible petroleum-related contaminants, including benzene and lead concentrations in excess of GCTLs. Three more temporary monitoring wells were installed southeast and west of the club’s maintenance building and at the south end of the driving range, while a fourth was installed within the boundary of the 20-acre landfill a few months later.

During the next decade, several other potable residential wells in the neighborhood were sampled by Sarasota County and traces of contaminants were detected in some of the samples. However, despite the re-sampling of potable wells in the neighborhood during that period, contaminants were detected in only a few of the wells and reported concentrations did not exceed GCTLs, and so the wells are no longer routinely sampled by the county.

In August of 1996, Environmental Assessments & Consulting conducted groundwater sampling in the nearby Ashley subdivision (which is separated from Waverly by one of the landfills) finding elevated levels of volatile organic compounds, which they attributed to the adjacent site to the east (the golf club). Several heavy metals, acetone, carbon disulfide, chloroform, bromodichloromethane, benzene, chlorobenzene, 1,4 dichlorobenzene and 1,2-cichlorobenzene, dissolved cadmium, chromium and lead were detected as well.

Ultimately, the Florida Department of Environmental Protection sent a letter to then Sarasota County Administrator Jim Ley, dated August 20, 1998, regarding "possible violations of the law." The letter read, in part, "the Palm and Pine golf courses (two of the three that comprised the Foxfire Golf Club) apparently exhibit stressed vegetation which may be indicative of the presence of landfill gas. It has been reported that solid waste emerges through the turf on the golf courses. Gas bubbles have been observed on the surface waters of the vicinity of the landfill." The letter also noted the detection of manganese, iron, benzene, and lead in excess of standards.

In March of 2003, due to Sarasota County’s lack of progress in completing site assessment and remediation, the FDEP Southwest District referred the site to FDEP's Florida Parks Service for Pre-Comprehensive Environmental Response, Contamination and Liability Information System (CERCLIS) screening. The following May, the FDEP FPS completed a Pre-CERCLIS screening assessment of the site, recommending near-surface soil testing of neighboring residences and sampling of sediment in nearby canals. The Expanded Pre-CERCLIS screening assessment, conducted by FDEP and EPA during June 2005, revealed arsenic and dioxin/furan slightly above Soil Cleanup Target Levels (SCTLs) in shallow soil at a Foxfire Subdivision residence. Some of the subdivision had been built upon a previously unknown, smaller landfill not discovered until 1989.

As development continued in surrounding areas, fear that runoff from the former golf course–which was known to have poor drainage–would bring leachate from the soil into other communities grew. A developer initially planned to put housing on the golf course sites after the club was closed in July of 2006, but a groundwater investigation that included eight Geoprobe borings that were installed in the former 70-acre and 20-acre landfills revealed benzene, chromium, arsenic, lead and mercury at concentrations exceeding GCTLs.

Plans for the housing development were dropped, and so was a plan to reopen the site as a golf course, after environmental consultants that were hired warned that the infinitely greater amount of water-caused runoff that would come from something that has to be irrigated so often would put the surrounding area at significantly increased risk of being impacted by the underground contaminants (report). It seems that turning it into a golf course hadn’t been a sound idea in the first place.

(click here to view a memo by Sarasota County Environmental Services Solid Waste General Manager Gary Bennett that includes a thorough bullet point history of the site).

That brings us up to the failed 2013 rezone and Beruff’s successful application the following year. So, what changed to make it suddenly acceptable to build houses in such a troubled location? Not much, aside from the applicant and an increasingly pro-development ethos on the board it seems. FDEP had also grown much less wary of the site, claiming that the outside testing was not extensive enough to warrant greater concern and that since the applicant would not be puncturing the area known to have held landfills, there would be no pathway for anything beneath it to impact home sites.

Again I’ll note that the houses won’t be built on top of the known former dumping sites, but rather sandwiched between where they are believed to be. Garcia contends that it’s impossible to know exactly where all of the remnants of the former dumps are today, as such waste and the leachate that results are known to migrate over time, while pointing out that at least two additional sites where dumps had existed but not been documented have already been found.

Garcia adds that the known existence of the plume necessitates the sort of deep soil testing that’s been avoided thus far, in favor of 1-3 inch surface soil testing that wouldn’t reveal the most likely problems. He cites this Florida statute, and also points out that around the same time, the FDEP agent who gave the approval for Waverly without deep bore testing, required it for a site that had formerly housed a dry cleaning operation. In his view, it’s a case of not looking for something you desperately don’t want to find.

Having secured all necessary permits, Medallion has said that it’s done everything required to ensure that the site is safe for development and wouldn’t be building the houses if it didn’t believe that to be the case. But a developer is always going to try to maximize profits, and most businesses will do whatever the law allows them to in that pursuit. That’s precisely why government regulation is so important when it comes to ensuring that commercial enterprises do not put public health at risk in pursuit of the bottom line.

FDEP can and has required much more extensive testing of land with historic toxicity and/or a previous use that would suggest its possibility, especially when it is proposed for residential use. The agency, however, has undeniably gotten less regulatory and more developer friendly since Governor Rick Scott was elected in 2010. Scott, who’s now seeking a U.S. Senate seat, received strong support from Florida homebuilders–including Beruff–and has seemed to reward that support by shaping the agency more to their liking.

If not FDEP, then citizens should be able to count on their local government. The Sarasota County Commission, administration and county staff are fully aware of the site’s history, and the idea that a few inches of surface soil can adequately represent the site at large should seem preposterous to any one of them.

In 2013, the county planning commission recommended against the rezone. That was followed by longtime county commissioner Joe Barbetta passionately arguing that commissioners would be remiss in thinking that landfills respect boundaries and that things like leachate and plumes don’t occur outside of them. Barbetta said that too much was at risk and that the board couldn’t gamble when it came to public health. After his comments, not one commissioner dared to argue otherwise.

In 2014, however, Mike Moran–who would join the county commission two years later as Beruff’s favored candidate–successfully steered it through the planning commission under the logic that fellow commissioners who believed that the land was toxic but did not believe enough testing had been presented to demonstrate so conclusively, should still recommend approval, despite being informed by the county attorney’s office of the broad leeway the commission had when it came to public health issues.

Barbetta would term limit out in 2014, as would Norah Patterson. The meeting took place just after the new board was seated. Barbetta’s replacement, Paul Caragiulo, claimed a conflict of interest and recused himself from the vote. The new applicant made a similar show of explaining that they would not build on top of any known landfills, adding that they would also fence them off in the development.

Commissioner Carolyn Mason, who’d voted against the proposal in 2013, spun a ridiculous narrative (see video clip below) that there had been public confusion that the homes would be built on top of the landfills– apparently forgetting Barbetta’s treatise and significant public comment about the boundaries of unlined dump sites–and praised Beruff for going "above and beyond," before motioning to approve the rezone, which passed easily.

Medallion’s complaint against Garcia alleges that "Without any evidence or factual data to support his spurious claims Garcia has waged a campaign of misinformation..." It goes on to reference a since-abandoned website that compiled previous reports, testing, video from county meetings and testimonials from area residents that Garcia used to make his case.

Where it gets more serious is in accusing Garcia of specifically targeting "known current contracts holders and prospective clients who are considering buying a home in Waverly, and harassing and intimidating," contract holders and prospective clients when he "observes them to be physically present in the Waverly subdivision." It goes on to name two buyers the company claims were contracted to build but are reconsidering after being approached by Garcia.

In a 110-page response, Garcia adamantly denies ever having set foot on Medallion’s land or having any contact whatsoever with prospective buyers. He says that a cease and desist letter referenced in the complaint came after he offered to pay for deep bore soil testing himself, seemingly to discourage him from attempting to secure such tests from soil on their site. He attaches reports referenced on his site and in his emails, as well as more than 100 emails from other area residents who made similar complaints to the board. He says that he’s used only factual information to make his case and that such communications are protected by the 1st Amendment.

A pretrial conference had been scheduled for April 12, but Beruff didn’t show. His attorney said that they were not ready because the lead witness–Beruff himself–has been completely unavailable to be deposed and would likely remain so in the near future. The judge didn’t seem to have a problem with that, at one point suggesting that even if Beruff were to say he wouldn’t be available for, say, the next eight months, they’d just set another continuance, pushing the date further down the line.

At that point, it became hard to tell whether Beruff is serious in his pursuit for damages or just hanging a giant lawsuit over Garcia’s head so that the resulting anxiety might serve to keep him quiet, a tactic known as a SLAPP suit (strategic lawsuit against public participation). If so, it seems to be working thus far. Garcia has taken down his website and is struggling to secure legal counsel for the case, even starting a GoFundMe campaign in an effort to get donations to help hire an attorney. In a case of David vs. Goliath, being the former can be a very expensive proposition it seems, and that’s one of the reasons so many people find fighting the Goliaths of this world to be a lost cause. I suspect that is just the way the giants like it.

Beruff may be building his homes legally, and only he knows what he believes morally, but it seems quite clear that the public officials who are entrusted to protect the citizens have completely failed in that regard. Given the history of the site, the amount of unknowns in terms of the materials that had been disposed of, the questionable accuracy of the supposed boundaries of the dumps, and the consistent, documented discovery of such a broad portfolio of toxins on and surrounding the golf courses, there was every reason to require much deeper and more comprehensive testing before anyone even considered allowing homes to be built anywhere near the area, let alone directly up against what were believed to be the landfill boundaries.

That wasn’t done. Why? Only they could say for certain, but I suspect that for a variety of reasons it seemed more politically expedient not to look and assume the best, than to look closely and risk finding the worst. I just hope that no one has to pay for those officials’ inadequate concern at the price of their health and well being.

Beruff Drops Million Dollar Lawsuit Against Activist