The first appellate brief in the ongoing battle to halt wetlands development on the mangrove-lined Perico Island shores is on the books in the 5th District Court of Appeal.
Attorney Ralf Brookes of Cape Coral, representing five environmentally minded groups, including the Cortez-based Florida Institute for Saltwater Heritage, filed the 53-page document May 2.
It looks to reverse a Southwest Florida Water Management District governing board order that gave developer Pat Neal of Neal Communities a state permit to destroy mangroves and build in the wetlands.
The brief also seeks attorneys’ fees and costs under a state statute that makes such an award mandatory if the court finds an agency improperly rejected or modified a recommended administrative order.
Neal plans to build a four-home subdivision on 3.46 waterfront acres of a 40-acre parcel on the east bank of Anna Maria Sound, adjacent to Minto’s Harbour Isles development.
In August 2015, the Swiftmud governing board — then led by Manatee County developer and U.S. Senate candidate Carlos Beruff — rejected an administrative law judge’s recommended order and approved the permit.
According to Brookes’ brief, the governing board “improperly re-weighed the evidence and changed findings of fact to allow it to change conclusions of law to reach the desired result.”
The ALJ heard three days of expert and witness testimony and held the destruction of mangroves and proposed mitigation was not in the public interest.
“We hope the 5th DCA will overturn the political decision by the governing board,” wrote Brookes, attorney for FISH, former Manatee County Commissioner Joe McClash, Suncoast Waterkeeper, Sierra Club and Manasota-88, in a May 3 email.
Brookes emphasized wetlands and mangroves protect against storm erosion and preserve the habitat of juvenile fisheries.
Brookes’ brief and ALJ findings criticized Neal’s project because it allows a developer to destroy wetlands in exchange for paying an out-of-county Tampa Bay Mitigation Bank.
Neal’s attorneys are required to file an answer brief by May 23.
“I think the brief is badly flawed,” said Pat Neal. “It misses the point.”
Neal said it “completely ignores” legal precedent, which allows Swiftmud to determine the mitigation is in the public interest.
He predicted the 5th DCA will affirm the Swiftmud decision because it raises no conflicts in existing law or argument for a new legal precedent.
Since receiving the permit, Neal and his son, contractor Michael Neal of E.T. MacKenzie of Florida, cleared the land and performed site improvement work — taking the position they were only working in “uplands” until the U.S. Army Corps wetlands permit could be issued.
The Neals sodded in April to protect the property during the rainy season and predicted a long process before the Corps issues the federal permit.
Pat Neal blamed the environmental groups and lawyers for unnecessary delays.
In October 2015, the Corps, Swiftmud and the U.S. Environmental Protection Agency visited the site after the agencies received reports that Neal’s site work broached wetlands.
In September and October 2015, federal Clean Water Act notices from Suncoast Waterkeeper and Brookes, on behalf of neighbors in Harbour Isles, asked regulatory agencies to address alleged illegal dredge-and-fill operations.
Two lawsuits were then filed.
After the 5th District case was filed, Waterkeeper filed a complaint against the city of Bradenton in 12th Circuit Court for issuing permits to Harbor Sound inconsistent with its comp plan. That suit awaits a possible hearing on a city motion to dismiss — the city contends Waterkeeper failed to file a timely suit.
According to Neal, the Corps regulatory division is checking with his team about alternative upland properties to locate the proposed 3.46-acre subdivision within a 15-mile radius — one of the criteria for the federal wetlands permit.
The impacts are avoidable, according to Suncoast Waterkeeper’s comments on the project to the Corps.
“A public source on the Internet called Zillow and field inspections prove beyond a doubt that there are numerous lots and homes available to avoid impacting the wetlands,” Waterkeeper executive director Justin Bloom wrote.
The Corps decision is pending, according to public information officer Nakeir Nobles.