Effort to Allow Fill and Seawalls in Floodplain Falls Short

MANATEE COUNTY – At a Manatee County Commission Land Use meeting Thursday, board members convened to address three legislative items related to the county’s comprehensive plan. A time certain comprehensive text amendment to comply with the state’s 2015 Peril of Flood Act gathered high profile public comments, as well harsh criticism from some board members due to wording changes of the proposed policies.

The most significant change was language inclusion that would, under county policy, permit the use of fill dirt, as well as the construction of sea walls to retain that fill along coastal lands for the purpose of bringing properties out of the floodplain. Language some public commenters argued would bring the county into compliance with the Peril of Flood Act by removing property from the flood plain, while others–including two former county commissioners–argued that the language inclusion would be a direct threat to coastal lands, water quality, and the community.

In 2015, the Florida Legislature passed Senate Bill 1094, titled "Peril of Flood." The new law, which became effective July 1, 2015, specified requirements for the coastal management element of a local government’s comprehensive plan related to coastal flooding and the impacts of high tide events, storm surge, flash floods, stormwater runoff, and sea-level rise. These requirements are to be contained in the coastal management element of the county's comprehensive land-use plan–specifically in the redevelopment component and amendments to the comp plan–to bring it into compliance with the act. Transmittal to the state is required by December 1.

To help with creating policies necessary to comply with the Peril of Flood Act’s requirements, Manatee County hired an expert consultant to compose an extensive set of proposed amendments to the comp plan to support state legislation requirements. However, at an August Manatee Planning Commission hearing, planning commissioners did not recommend the transmittal of the proposed amendments, stating that the amendments went beyond the requirements of Florida statute. Revisions were requested and the item went back before the advisory board in October.

At the October planning commission hearing, staff presented exhibits that significantly reduced the overall recommended policy changes to meet the Peril of Flood Act. The revised amendments received the planning commission’s unanimous approval and recommendation for transmittal to the state by the County Commission.

On the Wednesday prior to the commission’s legislative land use meeting, county staff updated the meeting’s agenda to include the addition of policies 4.4.4.2 and 4.4.4.3, to Ordinance 21-07 Flood Peril Comp Plan Text Amendments. The policy language of 4.4.4.2 included the allowance of fill material to be added to coastal property in an effort to elevate the topography of the property resulting in its removal from the flood zone. Flood zoning is regulated under the state and FEMA, which restricts types and amount of development along environmentally fragile coastal lands.

Policy 4.4.4.3. provided the addition of language to allow the construction of seawalls to support the placement of that fill material on coastal property. Sea walls harden the coastline creating numerous risks to the flood plain, fragile coastal ecosystems, as well as water runoff and water quality impacts. These are major additions to be includedafterthe planning commission's review.

Ed Vogler, a local land-use attorney with Vogler and Ashton Law Firm, provided public comments before the commission in favor of the changed amendment language. "This is something that has been of interest to me personally but also to several of our clients including Neal Communities and other developers that are active in our area.“ Vogler went on to explain that aside from his work representing large developers, his support of the proposed language was also related to his concern for private water-front landowner’s rights. He explained that although he had previously objected to policies proposed by the expert consultant hired by the county, he now stood in agreement with its revised and updated language. He encouraged the board to approve the transmittal to the state.

Carol Clark, a planner representing Medallion Homes, also appeared before the board to share her support of the text amendment and encouragement of the board to approve its transmittal. "I want to say that we are in favor of transmitting this now, there have been significant changesÉ“ She continued, "We urge you to transmit it as it is.“

However, former county commissioner Priscilla Trace appeared before the board to encourage the commission to not transmit the amendments with the inclusion of policies 4.4.4.2 and 4.4.4.3. "As you all know it takes something very serious to my heart to get me to come all the way from God’s country downtown." She went on to tell the board that something she discovered buried in the amendment packet caused her great concern, "fill dirt."

"There’s only one thing in my life my family has always done, and that’s land use," said the former commissioner. "You respect the land,“ she continued sternly, "you put a ton of fill on the land, and you’ve changed the land. You will change the land around it, the water, you will have changed all patterns of the coastal area."

Former commission chair and at-large county commissioner Betsy Benac also appeared before the board Thursday for public comment. Like her former colleague Priscilla Trace, Benac expressed outrage to have discovered the inclusion of policies that would permit the use of fill and sea walls to bring coastal property out of the flood zone. Benac explained that until she saw the addition of policies 4.4.4.2 and 4.4.4.3 the day before, she had not imagined that she would be coming before the board to make comments about the amendment. She agreed with Vogler that the comp plan amendments should be limited to meet the requirements of state statutes. "Staff has done a great job of trying to write a comp plan,“ Benac said. "I've been to a lot of hearings and they have limited it greatly, but what you’re doing is granting two exceptions to the language that increases the peril of flood."

Benac went in-depth, explaining the consequence of hardening the coastline by permitting sea walls to preserve the permitted fill. "For example, your new policy is going to provide incentives to remove repetitive lost property and other real property from projected 2040 sea-level rise. You're going to in fact allow that area now to be filled where it's not allowed? Do you know the land development code written in 1989 which Carol Clark knows very well–prohibited the use of fill for structural support in the coastal areas? Why are we going backward? Why are we sneaking these new policies into this proposed amendment?“

Benac quoted policy 4.4.2.4 from the existing comp plan, which prohibits construction of new sea walls and the repair and reconstruction of existing sea walls except as permitted by applicable federal and state regulations. "The language that you have in your proposed policies 4.4.4.2 and 4.4.4.3 go way beyond what is required in the peril of flood requirements, you’re relaxing the regulations to allow more development in the coastal area at the cost of the residents of Manatee County."

After the closure of public comments, Commissioner George Kruse explained that while he had gone through the agenda days prior, the night before the meeting the board began receiving numerous emails related to the proposed amendments. He acknowledged the fact that having seen the unanimous approval by the county’s planning commission for transmittal, he was surprised that anyone else would be seeing any problem in the proposed amendments.

Seeking clarity, Kruse described how after reviewing the planning commission report and the county staff report he noticed the addition of the new policies. "Two whole sections are new here so they weren’t actually approved by the planning commission, they were inserted post planning commission.“ Kruse then explained the possible conflicting interpretations of the added language, detailing the potential repercussions of permitting sea walls on coastal land. Ultimately, he cited the board’s recently decided legislative priorities as cause for being unable to reconcile the inclusion of the two newly added policies for transmittal in the comp plan amendment.

"We have $950,000 for clam restoration to protect our water, one of them was a hundred million dollars for Piney Point to protect our water, we talk about beach renourishment on there,“ Kruse explained. "We are going up there with almost a sole intent of petitioning Tallahassee as people who care about our coastline, and who care about our water. If this gets up there ahead of us in January and we’re intentionally working on a comp plan amendment to damage our coastline and water, how is that going to help us push our legislators for things we just said were our priorities?“

Commissioner Misty Servia opened her time by asking the county staff questions in attempt to drill down on the details concerning compliance, and the nature of the changes made to the consultant’s initial comp plan amendment. "Did our consultant say that we meet the criteria with our transmittal that we want today?“ Servia asked. "We did with the previous version, but not today’s," answered the staff member. "Can you explain the difference between this and the previous version?“ asked Servia.

After explaining the timeline on which changes occurred and the nature of those changes, some of which the staff member explained were minor, they noted that other changes came after the August planning meeting when county staff received a directive to "reorganize" and simplify the comp plan amendment. "We pulled out as many policies as we could that we thought might be progressive thinking."

When asked for confirmation that "progressive thinking policies" referred to policies that looked ahead to future impacts of the proposed amendments, the staff member confirmed, "There is now no future planning in it, we stripped it down to bare bones." Additionally, the staff member agreed that such changes are not in keeping with state requests. Servia responded by stating that she found the staff’s answers "troubling."

After numerous questions were asked of staff by Commissioner Servia ranging from peril of flood requirements to potential consequences of the revised text amendment, as well as the updated inclusion of policies 4.4.4.2 and 4.4.4.3, Commissioner Carol Whitmore added her considerations and comments. "I don’t have an issue with the fill," Whitmore explained, "I do have a major problem with sea walls."

Board Chair Vanessa Baugh declined to comment at length, acknowledging her current position on the executive committee of the Tampa Bay Regional Planning Council. Baugh only offered that the committee does try to keep sea walls away when possible, but that sometimes it is not possible.

However, Commissioners James Satcher and Kevin Van Ostenbridge did participate in the discussion and offered a different perspective to their colleagues who had expressed concerns. Both Satcher and Van Ostenbridge saw the issue as more related to the individual private property rights of a landowner, rather than a significant concern for the coastline, water quality, or flood risk.

"When we talk about 2015, that’s the Clean Water Act we’re talking about," said Satcher. "That was President Barrack Obama’s EPA which has a different motivation than what I would think at least four people on this board would have, and in fact, President Trump repealed that act and replaced it in 2019."

Satcher described the replacement legislation as necessary to push back on over-restrictive government regulations that were negatively impacting a property owner’s right to what they wanted with their private property. Satcher concluded his comments by motioning to approve the amendment. Commissioner Baugh seconded his motion before stating that additional commissioners were still waiting to make comments on the item.

After asking some questions of one of Manatee’s Environmental Planning staff, Commissioner Van Ostenbridge seemed content that the risk to the environment was of lesser concern than a landowner’s property rights. Van Ostenbridge attempted through his questioning to make the case that regulations already afforded by state and federal laws would not permit absolute free rein for any individual or business to destroy the coast and that, in fact, the government itself sometimes participates in practices that would be similar in nature to what the amendment policies before the board might allow.

Servia pushed back on that argument, asking additional questions of staff that helped to illustrate the gaps in state law, a broadness she contended was meant to be addressed by local governments as to what would be best policies in their communities as required by the Peril of Flood Act."Where is the logic in approving something that is for the benefit of a few and not all?“ she asked. "We have to do what is right to protect Manatee County. I will not be pressured by special interest.“

After the lengthy discussion, Commissioner Kruse made an amendment to the amendment that was up for a motion. His "hostile" amendment was a motion to approve the comp plan amendment excluding policies 4.4.4.2 and 4.4.4.3, and any additional related language concerning policy allowance of seawalls and fill on coastal property.

With the writing on the wall, once Kruse departed from the board's usual majority, most of the non-committed commissioners moved over and the motion passed 6-1, with only Satcher dissenting.