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

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.