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Opinion

County Demands $250,000 for Attorney Fees in Aborted Wetland Policy Challenge

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On October 5, 2023, Manatee County Commissioners approved the elimination of our Local Wetland Policies. After attending the meeting and looking at the requirements of the State of Florida and our local rules, I decided to challenge the changes to our comprehensive plan. The county failed to make a finding, as required, that existing policies were no longer in the public's best interest. The county was also required to have scientific data and studies from professionals to support eliminating these policies that have protected our wetlands and coastal environments for over 30 years since the inception of our comprehensive plan. 

The sad reality is that the county hired Daniel Delesi, who was not an expert on wetlands and recently worked with Carlos Beruff to challenge our wetland requirements. After several unsuccessful attempts to challenge our policies in the courts, commissioners that got into office via Beruff political money then hired the same consultant the county had defeated to testify as an “expert,” denying this community the right to protect our environment with proven science.

The challenge to a comprehensive land use plan is usually done at an administrative hearing. These hearings are assigned to an administrative law judge and are meant to be less formal than an actual court case. This process also serves as a means to hold the government accountable if their action was done improperly. I have succeeded in previous challenges under DOAH (Department of Administrative Hearings). Of critical importance to this challenge, in 2023, developers lobbied the state to change the rules and force anyone challenging a comprehensive plan to pay for the attorney fees and cost to the party that prevails. There is also a provision within the rules that allows proceedings to be De novo. This essentially allows new facts and evidence to be considered. So, in this case, even though the county screwed up its original approval, it could have new experts and evidence to correct its failures.

The statutes provide guidance if a petitioner like myself challenges a comprehensive plan and the facts prove the county screwed up its original action and corrects its failure at a De novo hearing. The petitioner that has justification for challenging the county’s action would be considered “not a non-prevailing party.” I had reliable facts and evidence that the county had failed to approve the elimination of the wetland policies properly, and even though there was a chance the county could correct its action at a new hearing and technically “prevail,” I would not owe any attorney fees and costs under this new statute since my petition challenging the county’s approval had merit. 

One would think that would be a reasonable interpretation of the law since a citizen should not be penalized for having been found to have a valid reason to challenge the county’s action—one that the county then had to correct. The administrative law judge ignored the Florida Statutes that shielded me from paying the county to correct its action. She also decided that the local requirements to find that those important wetland policies were no longer in the public's best interest were not under her jurisdiction.

Without the ability to rely upon the statute to not pay for the county to correct its failed approval at a new hearing with new evidence, I decided to dismiss the petition. When I dismissed the petition, the administrative law judge decided the county was the prevailing party even though it did not provide any facts to prove it complied with the statutes for approving the amendments to the comprehensive plan.

After dismissing the challenge, the county submitted a motion for me to pay its excessive attorney fees and costs in excess of $250,000. The county’s ridiculous fees and costs were not even for preparing or having a final hearing equivalent to a trial. Bill Clague, the Manatee County Attorney who recently resigned and now works for the Galvano firm, outsourced what he could have easily done with county lawyers.

The first video hearing on a simple motion had seven attorneys and/or legal assistants while I was representing myself. As a Manatee County Commissioner for 22 years, our county attorney would have never hired outside counsel for work they are more than qualified to perform. It is a fact that the Manatee County Attorney's office defended the same wetland policies against three challenges from Carlos Beruff and won all of them using in house attorneys in what amounted to far more complicated cases than mine.

Anyone who has experienced a legal proceeding has witnessed maybe two attorneys defending an issue. My last hearing was on a simple entitlement hearing for attorney fees, and the county had four attorneys attending. This wasteful spending by the county is uncalled for and obviously sends a message that anyone challenging the county can expect to be financially destroyed. So much for democracy and the protected right for redress under our constitution. Allowing the county not to be held accountable is dangerous. We have our local state representatives along with Bill Galvano—where Bill Clague, our county attorney during my challenge to defend our wetland policies sought refuge—to thank for this change.

The county should have no more than $25,000 of legal fees and costs for an issue that never went to trial. Instead, the demand for ten times that will be challenged at a fee hearing if the county does not settle with a reasonable amount. The county has been provided a more than reasonable offer to settle for $50,000 and has refused. This amount would be at least twice as much as what would be reasonable to expect. I should not have to pay for the county’s wasteful spending on an issue in which it clearly failed to present the required evidence to support its action. 

The county never actually prevailed in proving it complied with the requirements to be entitled to any fees and costs. It is evident that had I continued, the county’s wasteful and unethical approach could have requested close to a million dollars if they prevailed. Remember, the ALJ decided the county would be allowed to correct its failing to comply with state statutes and our local rules at a new hearing at my expense, and what they did at the approval hearing is irrelevant.

Here are the Judge’s words - “Whether the Petition was justified is irrelevant to an award pursuant to a prevailing party attorney’s fees provision. … Petitioner’s concern, for example, that a commissioner misrepresented that the wetlands policies, which were removed by the plan amendment, constituted an unconstitutional taking of private property, is not an issue relevant to the final hearing. …Whether an individual commissioner misrepresented facts, or relied on mistaken facts, in explaining his or her vote for the subject plan amendment, is irrelevant to the sole issue in this case: whether the subject plan amendment is “in compliance” with the Community Planning Act, as that term is defined in section 163.3184(1)(b), Florida Statues.”

I knew my challenge had some financial risks associated with it, but not challenging an action by our government that was based on fraud was not an acceptable option for me. When I served as a Manatee County Commissioner, I always prioritized protecting the environment and supporting reasonable policies for future generations. The importance of that did not go away when I was no longer a commissioner. It was important to challenge our County’s irresponsible action. 

Perhaps with a new majority of commissioners, we can reverse the damage. I am unsure as to the final costs I will have to pay. Administrative Law Judge Suzanne Van Wyk will decide that at a future hearing. However, nothing prevents the current or future boards from withdrawing their motion for these unreasonable attorney fees. It is important for the community to remember that Commissioner George Kruse was the only Commissioner voting against the elimination of our local wetland protections.

Click here to help me pay these ridiculous fees with a donation on GoFundMe. I want to thank so many people for their support and encouragement in this fight to protect our environment.

Joe McClash is the publisher of The Bradenton Times. He is a Marine Corps veteran who served on the Manatee County Commission from 1990 to 2012.

Comments

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  • kmskepton

    It is never-ending with these people. Thank you for your efforts.

    Sunday, June 30 Report this

  • WTF

    It just never ends with this county. Bill Clague was a puppet for the county. Now he is handsomely rewarded to work for the Galvano firm, you know the same politician that wanted to gut home rule on vacation rentals. Unfortunately for him and his cohorts Governor Desantis veto the bill.

    The Manatee swamp just keeps getting bigger and bigger to the detriment of its citizens

    We hang the petty thieves and appoint the great ones to public office.

    Aesop

    Sunday, June 30 Report this

  • David Daniels

    The only way to enforce the public records law is to file a lawsuit. Commissioners like KVO know this, so they ignore County and conduct county business on their personal phones where text messages from Carlos Beruff can be hidden. My simple little public records lawsuit - which I am doing pro se as a blue-collar electrical worker with no legal training - is about KVO, Satcher, Bishop and the County providing some, but not all of their public record text messages from Jan 15-19, 2024 - really just 4 days because the 15th was a holiday.The County attorney could easily defend all 4 defendants, the issue is not complicated. Instead, each of the 4 defendants have their own outside team of attorneys, including the County. Each filing their own motions (there have been several). The case is dragging out, racking up billable hours, I'm sure - which, even if I win, they will first ask me to pay saying I didn't actually "prevail" and if that fails, the taxpayers will be asked to pick up the wasteful tab. I am not criticising the attorneys in my case - they are just doing their job - But why have a County attorney's office just to attend the Commission's half-day meetings? At last month's impact fee hearing, the County attorney cowered at the thought of having to defend a decision to use "extraordinary circumstances" to charge fair impact fees. So my question is what is the annual budget of the County Attorney's office and what do their team of in-house lawyers do all day?

    Sunday, June 30 Report this

  • David Daniels

    should say.. "they ignore County policy"..

    Sunday, June 30 Report this

  • pdsinc

    Joe, Thank you for your efforts and for caring. My only comment, WHAT A BUNCH OF CRAP !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    Sunday, June 30 Report this

  • san.gander

    Another way to silence the citizens right to speak out on an issue. The county has cease to be a "democracy".

    Sunday, June 30 Report this

  • iambillsanders

    Joe/Mitch/Dawn

    I know what you are going through. I can or could tell you other stories just like this or similar. There is a lot of detail of how and why they are doing this. You are fighting a powerful group. Anyone that speaks out and especially your paper is a target . I feel bad and I support you.

    Thanks

    Bill

    Sunday, June 30 Report this

  • Mtmartin

    Joe, you are standing up up for all of us. Dan Delisi is a fraud and conman. The idiots on the board lapped up his milly-mouthed words like pigs at a trough. We will all rejoice when waste-of-skin Ostenbridge is sent packing and the remaining fools are sent back to the dung heaps they came from. Let's all do our duty and vote these lowlifes out.

    Sunday, June 30 Report this

  • Debann

    why not just make payments.? Ten dollars a month ..At least you're attempting to make payments...this county sucks

    ..

    Monday, July 1 Report this