County's Effort to Gut Its Own Wetland Protections Gets Murkier

BRADENTON — New details are coming to light concerning the process behind the county’s initiation of a controversial wetland protection text amendment in the county's comprehensive land use plan. Though the Manatee County Planning Commission declined to recommend transmittal to the state last week, the matter is scheduled to go before the board of county commissioners for its approval on Thursday.

Previously, TBT has reported on the effects of how the proposed changes to Manatee County’s Comprehensive Plan would effectively defer local wetland mitigation and buffer regulations to state minimums. That reporting can be found here, and here.

Previous reporting has also provided hints that the motivation to make changes to the comp plan’s wetland protections could be found in a white paper submitted to the county by the Manatee-Sarasota Building Industry Association.

Details recently uncovered by TBT are providing even stronger suggestions of ties between developer interests and the supposed “county-initiated” effort to alter massive portions of its comp plan and land development code.

Daniel DeLisi of DeLisi Inc.—the consultant retained by the county to oversee the wetland protections text amendment, Ordinance No. 23-66—was not the first consultant that advised the county on changes to the comp plan's wetland protections.

In addition, DeLisi previously appeared as a witness in legal battles in which business entities tied to local developer Carlos Beruff filed suits over Manatee County’s Comprehensive Plan and Land Development Code seeking similar changes. 

A History of Legal Challenges

In 2015, Beruff’s Mandarin Development, Inc. challenged portions of the county’s comp plan and land development code relating to its wetland regulations. The long-running litigation ended with the court affirming the county’s right to enforce its wetland buffer requirements.

In the case Mandarin Development Inc. VS Manatee County, DeLisi appeared as an "expert witness" for the plaintiff—Mandarin Development Inc.

In 2016, an attorney representing Manatee County, Christopher DeCarlo, deposed DeLisi in the case, questioning him on the quality of his expertise and statements of a sworn affidavit provided by DeLisi for the plaintiff. According to public records, County Attorney Bill Clague was present on behalf of the county during the deposition.

On Page 24 of the deposition transcript:

DeCarlo: Would you agree, in terms of your background and your experience, that you are not an environmental scientist or an ecologist, per se?
DeLisi: That’s correct.

DeCarlo: Would you agree you’re not an expert in wetland ecology?
DeLisi: That’s correct.

DeCarlo: Would you agree that you’re not an expert in terrestrial ecology?
DeLisi: That’s correct.

DeCarlo: Would you agree that you’re not an expert in wetland buffers?
DeLisi: So, I think what I am an expert in and what I do deal in regularly is the environmental policy, and so to the extent that, you know, I’m not a wetland scientist, I don’t look at the plant materials and how they filter nutrients. I do understand the policy behind the creation of things like buffers…but no, I don’t do the science behind physically what needs to be in those buffers.

By page 34 of the transcript, DeCarlo had begun to drill down on the sworn statements in his affidavit. When pressed to explain the basis of his opinions, including one in which he asserted that the county’s 50-foot wetland buffer requirement and conservation easements were “unique” as compared to the “rest of the state,” DeLisi conceded that his “expert” opinion was not based upon having actually analyzed the codes of any other Florida counties. Instead, said DeLisi, his opinion that Manatee County’s regulations were “unique” was in comparison to what the state required so far as wetland buffers. 

The lawsuit was not the first time DeLisi had testified as an expert witness in a lawsuit against the county, nor was it the first time he had been deposed by DeCarlo.

In another 2015 lawsuit, developers Carlos Beruff and Larry Lieberman—of the Long Bar Pointe Development (or Aqua by the Bay)—sued the county over portions of its comp plan and development code. DeCarlo had deposed DeLisi in that case as well, less than a year prior. The Long Bar Pointe suit ended with a ruling in the county’s favor.

Much of DeLisi’s “expert” testimony in the Mandarin case bears a striking resemblance to his presentation and arguments before the county’s planning commission last Thursday in defense of the county’s proposal to reduce its wetland protections—including comp plan section 3.3.1.5.—and defer wetland buffer requirements to state minimums.

Manatee County prevailed against the Mandarin lawsuit as well, with the final judgment stating in part, “The extensive evidence presented by the County at trial established that the wetland buffers required by Plan Policy 3.3.1.5. serve a legitimate purpose of preserving and protecting wetland areas and drinking water from land development activities.”

Though the judge ultimately upheld the county’s right to adopt wetland buffer requirements that were more stringent than the state’s, the plaintiff appealed the ruling. At the appellate level, the prior court’s judgment was affirmed on the basis that too much time had passed since the ruling. 

In 2020, North River Land LLC and Cargor Partners—business entities of Beruff—again filed a lawsuit attempting to challenge the county’s comp plan section 3.3.1.5. The policy includes the requirements of 50-foot buffers adjacent to all environmentally sensitive non-isolated wetlands.

Again, the court ruled on the side of the county. This ruling was also appealed by the plaintiff and a Feb. 3, 2023, appellate court judgment affirmed the prior court’s ruling, upholding the county’s constitutional right to adopt and enforce wetland regulations more stringent than those required by the state.

Before DeLisi Inc.

Revelations about DeLisi’s prior connection to lawsuits brought against the county by business entities of Beruff—including at least two that specifically related to county wetland regulations and buffer requirements—begs the question as to why the county would hire the same consultant who provided “expert” testimony in those cases. Cases in which Manatee County likely invested significant financial resources defending against throughout years of litigations. 

Now DeLisi is leading an initiative for the county geared toward the deletion of the very comp plan policy, 3.3.1.5., which the county has long fought to protect.

Sources who agreed to speak with TBT under the protection of anonymity have alleged that the effort to gut the county’s wetland protections did not begin with DeLisi.

As TBT reported in March, a BIA white paper may have been one of the first steps toward bringing the county closer to reducing its wetland regulations. In that report, TBT confirmed that the white paper had been drafted by local land use and real estate attorney Scott Rudacille—an attorney who has represented Beruff on multiple development-related matters throughout recent years.

Sources told TBT that upon receiving the white paper,  initial efforts were put into motion within the Department of Development Services to bring the suggested edits of the land development code to fruition. County staff was directed to begin reviewing—and eventually drafting—the proposed comp plan and LDC text amendments related to wetland protection policies.

Some county staff pushed back on these directives initially, but ultimately came around to writing draft works that would revert almost all of the county’s wetland regulations to state minimums but for the county’s 50-foot buffer requirements along sensitive coastal and other non-isolated wetlands.

Proof of this, sources said, can be seen in ordinances drafted by staff back in February.

Microsoft Word Documents examined by TBT contain matching ordinances and PLNs (planning case numbers) to the PLN numbers and ordinances assigned to the proposed comp plan and LDC wetland protection text amendments today.

Although the county has not yet advertised a public notice for the associated LDC text amendments related to the county’s wetland regulations, should the comp plan text amendment be approved by the county commission, the LDC changes must follow. Currently, the county’s Accela portal contains a planning case number awaiting upload of the LDC’s text amendment.

According to revision history captured in the Word Document, the early draft version of Ordinance No. 23-66 “Comprehensive Plan Text Amendment Wetlands Protection,” one of the county’s Principal Planners, Bill O’Shea, produced a draft that would retain some of the county’s key wetland protections—including Policy 3.3.1.5’s requirement for 50-foot buffers “adjacent to all non-isolated wetlands.”

The drafted ordinance also shows that at the time of its preparation, the item was intended to go before the planning commission on April 13 and the county commission (for transmittal) on April 20—just as TBT had reported in March.

But sources have told TBT that after staff made evident their continued resistance to deleting all of the county’s buffer requirements in place of state regulation minimums, department administration determined that staff would no longer be required to oversee the measures. Instead, staff members were advised that a consultant would be hired as the lead on the assignment.

April 13 and 20 came and went without the comp plan text amendments ever appearing on a meeting agenda.

Sources further alleged that sometime in April, a senior scientist with Kimley-Horn and Associates was “loosely” engaged by the county to review the proposed changes to the county’s wetland protections. The consultant met with county staff on the matter.

However, one source who claimed direct knowledge of those meetings said that Senior Scientist Alec Hoffner ultimately agreed with staff that—at a bare minimum—the county’s policy requiring 50-foot buffers adjacent to all sensitive wetlands should be preserved.

A copy of Hoffner’s resume from 2017 provides that his professional credentials include that he attended the University of Florida where he earned a Master of Science in Soil and Water Science, a Graduate Certificate in Wetlands, Center for Wetlands, and a Bachelor of Science in Forest Resources and Conservation.

Despite being an expert in appropriate fields, the county’s building services department ultimately opted to not retain the services of Hoffner to the work on the wetland protections text amendments.

Kimley-Horn, who Hoffner works for, is the planning and design consulting firm retained by the county to oversee/lead the overall update of the county’s comprehensive plan. The comp plan update will guide the county’s future development through 2024.

The work assignment agreement between Kimley-Horn and the county was signed by a representative of the consulting firm on April 24 and later by a county procurement official on May 15. The county will pay Kimley-Horn $354,500 for its services on the comp plan update.

TBT sent multiple requests for comment to the county regarding its decision to hire DeLisi instead of Hoffner for the wetland text amendment. Despite directing our emailed requests to the county’s PIO, deputy administrator, and acting county administrator, as well as other officials, the county has not responded to our requests.

The Staff Report

According to a separate purchase order, the county will pay DeLisi $25,000 for his services relating to the proposed wetland protection comp plan and LDC text amendments.

“DeLisi will coordinate with Manatee County staff and take the lead in drafting staff reports to support the proposed amendments,” according to the purchase order. DeLisi will also attend all public hearings and “coordinate” with staff to “create presentation materials.”

The rate for his service is $250.00 per hour—the same hourly rate DeLisi quoted for his services in 2016 when deposed by DeCarlo.

According to a bio on his website, DeLisi received his Bachelor of Arts degree from Brandeis University and a Master's in City Planning from MIT.

In the county staff report attached to the comp plan text amendment, under the section titled, “Manatee County’s Role in Wetland Preservation,” the report describes how development regulations that contain “specificity” can be too restrictive.

“...as is the case with Policy 3.3.1.5, (it) precludes a development from proposing alternative designs that could lead to the same or better results,” the report states.

“Alternative designs” appears to be a reference to revised language that has been inserted into the text amendment under the comprehensive plan’s Element 4: Coastal Management—”alternative engineering solutions.”

Less than 24 hours before the Aug. 10 planning commission meeting was set to convene, an update to the meeting agenda included a revision to language contained in the proposed wetland protections text amendment. 

The update would further revise the language provided in the Comprehensive Plan’s Element 4.

As it exists today, Policy 4.1.2.5 begins, “Buffers larger than fifty (50) feet adjacent to environmentally sensitive coastal wetlands may be required…”

In the proposed text amendment originally attached to the Aug. 10 meeting agenda, 4.1.2.5 would instead begin with, “Increased buffer widths or alternative engineering solutions adjacent to environmentally sensitive coastal wetlands may be required...”

After the agenda update, the text language was changed again and now is proposed to read, “Engineering Solutions shall be considered adjacent to environmentally sensitive coastal wetlands…”

This is not the first time that the undefined term “engineering solutions” has appeared in a county-initiated comp plan text amendment.

Peril of Flood

In Nov. 2021, the county initiated a comp plan text amendment it said was necessary to come into compliance with the state’s "Peril of Flood" law. The law specifies requirements for the coastal management element of a local government’s comprehensive plan related to coastal flooding and the impacts of high tide events, storm surge, flash floods, stormwater runoff, and sea-level rise. In Manatee County’s comp plan, the coastal management element is “Element 4.”

When the initial Peril of Flood text amendment was set to come before county commissioners, a last-minute agenda update revised the included language to allow for fill material and sea walls to be added to coastal properties to bring them out of the floodplain. The controversial language change received significant pushback from the public and Commissioner George Kruse, who strongly resisted its inclusion.

After Kruse made a motion to exclude the controversial fill dirt and sea wall language from the text amendment, the BOCC approved its transmittal to the state.

Following state review, the Peril of Flood text amendment was set to go before commissioners for a final adoption hearing. The item was scheduled for a March 3, 2022, land use meeting, but a meeting agenda update removed the item and delayed its return to the board until April 21, 2022.

Text message records later obtained by the Florida Center for Government Accountability revealed that Beruff had communicated with former-county administrator Scott Hopes in the days surrounding the initial scheduling of the Peril of Flood adoption hearing.

On February 28, Beruff texted Hopes, "Can I call you later?" 

Hopes responded, "ASAP." 

Almost an hour later, Hopes sent another text to Beruff, writing, "I pulled it."

Beruff replied to Hopes' confirmation with a "thank you" adding a praying hands emoji.

Based on the timeline of events and additional text records obtained by FLCGA, it appeared likely that Beruff and Hopes were discussing the text amendment.

Roughly an hour after Hopes texted Beruff to confirm having "pulled it," Director of Development Services Courtney DePol sent Hopes a message. DePol texted, "For Perils of Flood, I think it was Bobbi (presumably planning coordinator Bobbi Roy) who pushed the agenda item through. I will get more details from her on Tuesday, but I wanted to make sure you heard that from me."

Just weeks later, land use attorney Ed Vogler—who in Nov. 2021 had encouraged commissioners on behalf of Beruff and Pat Neal of Neal Communities to transmit the text amendment inclusive of language to allow for fill dirt and sea walls—sent a letter addressed to BOCC Chairman Kevin Van Ostenbridge, Hopes, and county employees Nicole Knapp (comp plan manager and impact fee administrator) and Bobbi Roy.

The letter communicated an odd request that the county consider revising the Peril of Flood text amendment before its adoption, despite it having already been transmitted to the state. Vogler's letter offered suggestions for how the county could develop “principles, strategies, and engineering solutions” that would comply with the law.

The day before Peril of Flood was set to go before the board for its rescheduled adoption hearing, DePol texted Hopes to relay that the language for Peril of Flood had been revised to include “principles, strategies, and engineering solutions.”

"Nicole (Knapp) just sent you the updated language and slides- it’s in your email. The language will be updated and reflected in tomorrow's update memo," DePol informed Hopes via text.

The Peril of Flood comp plan text amendment was ultimately adopted by the board inclusive of the revised language.

Directors of Development Services

Hopes hired DePol in Jan. 2022, just months after the Peril of Flood comp plan text amendment first went before the board. Initially hired as the director of the Department of Development Services, by June 2022, Hopes had promoted DePol to serve in a secondary role as a Deputy County Administrator—while also remaining as the director of development services.

After Hopes separated from the county in Feb. of this year, commissioners appointed Lee Washington to serve as the county’s acting administrator. Washington, who recently separated from the county himself, directed a change to both deputy administrator positions before his departure. Washington instructed that DePol and Charlie Bishop would step away from their roles as department directors and only serve as deputy county administrators. No public explanation was ever provided as to why Washington directed the change.

In a May 18 memorandum, DePol informed both Washington and the county’s HR Department that Knapp had been selected to oversee development services as interim director. In the memo, DePol included a request to increase Knapp’s salary from $102,000 to $140,000 for assuming the position. 

Records show the position appointment and salary increase went into effect on June 12.

A July 20 task force meeting on the topic of the wetland protections comp plan text amendment was led by Knapp who answered several questions from meeting attendees.

When a citizen asked “what was the impetus” to change the county’s existing wetland protections, Knapp responded stating, "We were given direction from the county board, they wanted us to take a look at duplicative language and this was one of the areas that they asked us to look at."

However, emails obtained by TBT following our initial reporting on the BIA white paper revealed that Knapp had attended a meeting with DePol, Development Services Deputy Director Denise Greer, and BIA President Jon Mast. David Ballard—Commissioner Amanda Ballard’s husband—also attended the meeting. At the time, he was the BIA’s Director of Government Affairs.

The meeting was held just two days before Mast sent the BIA white paper to Greer in an email—Knapp was cc-ed on Mast’s correspondence.

Additional emails showed that following DePol, Greer, and Knapp receiving the white paper from Mast, it was Knapp who delivered the white paper to Principal Planner O’Shea.

“This is the document that was shared earlier with me from the BIA,” Knapp wrote to O’Shea.

In another email to DePol and Greer, Knapp wrote, “I shared this document with Bill, and Bill only (meaning O’Shea). I asked him not to even discuss it with Charlie because I didn’t want to risk that any Planners heard about the suggested revisions before fellow managers did.”

The BIA white paper can be viewed here.

Dawn Kitterman is a staff reporter for The Bradenton Times. She covers local government and entertainment news. She can be reached at dawn.kitterman@thebradentontimes.com.