5th DCA hears Neal-McClash-Swiftmud Perico Island case

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Before the three 5th District Court of Appeals judges heard arguments March 9 from attorneys for developer Pat Neal, adversary Joe McClash and the Southwest Florida Water Management District, work was underway at the disputed project site for Harbor Sound, where Michael Neal, right, and a worker meet Harbour Isle resident Dennis Cohen March 6. Story, page 16. Islander Photo: Kathy Prucnell
Lisa Davies and Dennis Cohen, residents at the adjacent Harbour Isles development on Perico Island, discuss the March 6 construction activity at Harbor Sound. Islander Photo: Kathy Prucnell
A March 7 photo shows a long view of the 3.46-acre waterfront site targeted for the development of four homes on Perico Island.

Three judges in Daytona Beach heard a 40-minute argument about Perico Island.

Squaring off March 9 were Ralf Brookes of Cape Coral, representing former Manatee County Commissioner and environmentalist Joe McClash, against Tampa attorney William S. Bilenky, on behalf of a land trust controlled by developer Pat Neal of Neal Communities, and attorney Amy Wells Brennan for the Southwest Florida Water Management District.

The arguments streamed live online on the 5th District Court of Appeal website.

At issue was an August 2015 Swiftmud governing board decision that granted the developer a state wetlands permit to build four homes on 3.46 acres, including about 1 acre of mangroves and wetlands. The board was chaired by Long Bar Pointe/Aqua by the Bay developer Carlos Beruff. Beruff resigned from the board a day after the decision in the Neal case.

Brookes urged the panel to uphold an administrative decision that denied Swiftmud’s state wetlands permit due to the adverse effects to fish, wildlife and marine productivity as well as storm buffering.

The environmental attorney also argued the Swiftmud governing board improperly substituted its own facts for the judge’s findings — that the destruction of mangroves and proposed mitigation was not in the public interest.

Bilenky responded that the judge’s findings were conclusions of law.

Brennan and Bilenky also argued McClash did not possess the proper standing to wage the appellate challenge. Actual injury from the permit issuance was required, they said.

The judges inquired about the appellate standing and mitigation issues.

Brookes replied evidence of McClash as a fisherman, crabber and recreational boater meets the requisite appellate court standard of someone who “could be” adversely affected by the permit. He said the Swiftmud mitigation requirement in another Hillsborough County case was not in the public interest.

Bilenky argued a case holding the administrative agency’s power to choose the type of mitigation.

A federal wetlands permit needed for the development is pending with the U.S. Army Corps of Engineers.

The three appellate judges, Kerry I. Evander, Wendy W. Berger, Bruce W. Jacobus, are expected to render opinions and decide the case.

One thought on “5th DCA hears Neal-McClash-Swiftmud Perico Island case

  1. Bob Potter

    Seems to me the Swiftmud Governing Board was Just a Bit Unbalanced with Carlos Sitting on it!!!

    Now Scratch Mine,

    Ya, Right There.

    Reply

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