Heads They Win, Tails You Lose

In 2020, politically connected developer Carlos Beruff sued Manatee County over its policy on wetland buffers. He was unsuccessful and appealed the decision. The Second District Court of Appeals also recently ruled in favor of the county, but don’t pop the champagne quite yet. It seems Big Development has found another way to change the rules.

Wetland buffers are the natural, undeveloped area surrounding a wetland. They are a critically important component of the wetland system and must be protected. Wetland buffers help filter sediments and other pollutants from stormwater runoff as they head toward the wetlands, which further filter the water, replenishing groundwater and helping to alleviate flood risk. They also slow stormwater, reducing erosion.

The larger the wetland buffer, the more effective the wetlands themselves will be in performing this critical function within Florida’s unique ecology. The lawsuit argued that Manatee County’s requirement for developers to include a 30-foot buffer zone amounted to an uncompensated regulatory taking of property (a 50-foot buffer is required for wetlands contiguous with the Terra Ceia Aquatic Preserve, the Sarasota Bay Outstanding Florida Water, or the Little Manatee Outstanding Florida Water, and the inflowing watercourses within the Watershed Protection Overlay Districts).

Both courts disagreed, citing the Florida Constitution's direction on wetland protections, the fact that the buffer policy did not create an easement that favored the county, as well as the fact that Manatee County has a process to apply to develop within the wetland buffer that the plaintiffs did not attempt to utilize, perhaps because they sought to establish a precedent via a legal test case.

However, as TBT reported in early March and followed up with additional reporting in today's edition, there seems to be a new developer-driven strategy that would render the rulings moot. A list of suggestions on a "white paper“ submitted to the county by the Manatee-Sarasota Building Industry Association–a development industry group–and seemingly authored by an attorney who regularly represents Beruff, include scaling back or completely deleting regulations that expand upon the minimum requirements and regulations imposed by the state. Redlined draft documents related to wetland policies were leaked to TBT with the white paper, and included several deletions to the comp plan’s existing text relating to wetland mitigation,including wetland buffers, which would make them subject only to state minimums. It is difficult to imagine that both are not being instigated by the same special interests.

Florida requires a 15-foot buffer near wetlands with a 25-foot average, although they not only allow but encourage municipalities to establish their own regulations to best protect wetlands in their communities. The drafts of the white paper obtained by TBT also suggested the deletion of residential greenbelt requirements and the complete strikethrough of the portion of the land development code that regulates the planting of canopy shade trees in residential planned developments.

It also suggests the removal of the county's current "cash in lieu of" policy on development-related tree removal that, as we also reported in today's edition, was waived to the tune of more than $5 million dollars for an unnamed party that is planning a massive commercial development. In other words, were these suggestions to be taken, rather than a sensational story regarding a dubious government giveaway, such an outcome would have merely been policy.

To be certain, industry groups are free to lobby government agencies, but what is perhaps most disturbing about the way this is being done–aside from Beruff’s well-established influence among county officials and county commissioners–is that it seems that the county will be presenting these proposed changes to both the board and the public as having been initiated by county staff rather than the very people who would benefit economically.

To muddy the waters even further, at least two county commissioners have ties to the BIA–Commissioner Vanessa Baugh, whose husband is on its board of directors, and Commissioner Amanda Ballard, whose husband is, or was until very recently, the number two in command for the group (mention of Ballard was deleted from the BIA website following TBT’s reporting that he had been arrested for two DUI car crashes in just over a month’s time).

This is not only misleading but also benefits the special interests driving the changes because privately-initiated changes are subject to an application fee for each suggestion to account for the large amount of salaried staff work hours that are required of such policymaking. A comprehensive ask of this magnitude would have likely cost tens of thousands of dollars but will instead be free, which probably makes sense since, in reality, Manatee County government and its employees are clearly working for Big Development, not the taxpayers they ostensibly represent.

Wetlands are a crucial component of our ecosystems. Destroying and/or degrading them will obviously have an extremely negative impact on our water bodies, which are already struggling–in large part because of decades of short-sided wetland destruction by developers. Allowing the same development interests to weaken policies that we should instead be strengthening, merely so that a few more houses can be thrown on each development, would be a moral crime of the highest order and one that will bring steep environmental and economic costs to future generations.