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IN THE CIRCUIT COURT FOR THE TWELFTH JUDICIAL CIRCUIT

IN AND FOR MANATEE COUNTY, FLORIDA

SUNCOAST WATERKEEPER INC., JOSEPH MCCLASH , KATHE

FANNON, KATIE SCARLETT TURIN, LARRY GROSSMAN,

BEVERLY HILL, ARLENE DUKAUSKAS, and LENKA SUKOVA

Petitioners.

v. Filed per Fla.R.App.P.9.100(f)(2)

MANATEE COUNTY, Case No: IN RE: AQUA BY THE BAY

Respondent

____________________/

[corrected] PETITION FOR WRIT OF CERTIORARI

Petitioners file this Petition for Writ of Certiorari pursuant to Florida

Rules of Appellate Procedure 9.100(b), (c) and 9.190(b)(3) to quash a

decision of the Manatee County Board of County Commissioners made on

October 3, 2017 (App., Ex. A) approving a Rezoning and General

Development Plan (GDP) for a Large Development Project known as

“Aqua” in the geographic area commonly known as Longbar Point in

western Manatee County. The BOCC approval violated procedural due

process rights to proper notice of the opportunity to provide comments, and

meaningful opportunity for review because the site plan was changed during

the quasi-judicial hearing. Proper notice of an opportunity to comment on

the revised site plan was not provided. The application did not meet the legal

requirements for GDP in the County Land Development Code (LDC).

Filing # 63693788 E-Filed 11/02/2017 05:52:49 PM

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JURISDICTION

This Court has been given jurisdiction to issue writs of certiorari by

Article V, Section 5(b) of the Florida Constitution and Florida Rules of

Appellate Procedure 9.030(c)(3).

STANDARD OF REVIEW

“In first tier certiorari proceedings, the circuit court must determine ‘(1)

whether procedural due process was accorded, (2) whether the essential

requirements of the law have been observed, and (3) whether the

administrative findings and judgment are supported by competent substantial

evidence.” Broward County v. G.B.V. International, Ltd., 787 So.2d 838 at

843 (Fla.2001) Deerfield Beach v. Valliant, 419 So. 2d 624 at 626 (Fla.

1982). Petitioners in this case respectfully request this court reverse and

remand the actions of the Board on the grounds that the Board:

1) failed to provide procedural due process, and

2) failed to comply with the essential requirements of law, and

3) certain administrative findings and judgment are not supported by

competent substantial evidence

STATEMENT OF RELEVANT FACTS

This petition for writ of certiorari seeks judicial review of the Manatee

County Board of County Commissioners approval of a Rezoning and

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General Development Plan (GDP) for a Large Development Project

known as “Aqua” in the geographic area commonly known as Longbar

Point in western Manatee County. Exhibits A and K

The site is west of the intersection of 75thStreet West and 53rd

Avenue

West, between El Conquistador Parkway and Sarasota Bay.

The total project acreage is 529 ± acres and rezoning approximately

190.97 acres in three parcels:

1) 38.66 ±acres(Parcel One) from RSF-4.5 (Residential Single-

Family-4.5 dwelling units per acre), and

2) 22.17±acres (Parcel Two) from A-1 (Suburban Agriculture-One

dwelling unit per acre)zoning districts to PDR(Planned Development

Residential)zoning district, and

3) 130.14±acres (Parcel Three) from the PDR and A-1 zoning districts

to the PDMU (Planned Development Mixed Use)

The project is within (and retains) the following overlay districts each with

specific requirements :

CHHA (Coastal High Hazard Area),

CEA (Coastal Evacuation Area), and

CPA (Coastal Planning Area) Overlay Districts.

The BOCC approval includes a General Development Plan for the Large

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Project “AQUA” near Long Bar Pointe consisting of:

1) 78,000 square feet of Commercial Retail Neighborhood uses and

commercial retail general (each use limited to 3,000 square feet);

2) 2,894 residential units to include 2,384 multi-family units, and

3) 510 lots for single-family attached, single-family detached and

single-family semi-detached residences;

4) recreational amenities; and

5) private docking facilities.

STANDING

Common law standing to bring this action is set forth under Renard v.

Dade County, 261 So.2d 832 (Fla. 1972); Upper Keys Citizens Coalition v.

Wedel, 341 So.2d 1062 (3rd DCA 1987); Save Brickell Ave., Inc. v City of

Miami, 393 So.2d 1197 (3rd DCA 1981). To have legal standing to

challenge a rezoning and general development plan, the aggrieved or

adversely affected person having standing to sue is a person who has a

legally recognizable interest which is or will be affected by the action of the

zoning authority in question; the interest may be one shared in common

with a number of other members of the community as where an entire

neighborhood is affected, but not every resident and property owner of

municipality can, as a general rule, claim such an interest. Renard v. Dade

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County, 261 So.2d 832 (Fla. 1972).

Further, “An affected resident, citizen or property owner of the

governmental unit in question has standing to challenge a zoning ordinance

as void because not properly enacted such as where required notice has not

been given.” Renard v. Dade County, 261 So.2d 832 (Fla. 1972).

The test for standing is found in Renard v. Dade County, 261 So. 2d

832 (Fla. 1972), and proximity to a particular use of land has been found to

satisfy this test exceeding the general interest in community good shared in

common with all citizens; however, when determining standing, the courts

should not only consider the proximity of property, but the type and scale of

the challenged project in relation to Petitioners interests. Rinker Materials

Corp. v. Metropolitan Dade County 528 So.2d 904, 906-907 (Fla. 3rd DCA.,

1987). See also, City of St. Petersburg, Bd. of Adjustment v. Marelli 728

So.2d 1197, 1198 (Fla 2nd DCA, 1999).

Petitioner JOSEPH MCCLASH utilizes the area near the subject

development including the area in and around Longbar Point, Sarasota Bay,

and resides and owns real property in Manatee County that is located near

and proximate to the subject development at 7800 Cortez Road and appeared

at the final October 3, 2017 public hearing and prior public hearings held on

May 4 , August 16, August 23, and objected to approval of the subject

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application. See, Transcript October 3, 2017 pp 98-102. Joseph McClash

testified without objection at the meeting and provided documentation to be

entered into the record including, his resume, cited land development code

violations, notifying the County and County Attorney of procedural issues,

ex parte issues and violation of board procedures. Id. McClash owns

property in the immediate area and within proximity to the subject site

located at 7800 Cortez Road and would be considered adjacent in that the

view of the buildings could be seen from this location and along the roads he

primarily travels along El Conquistador Boulevard. Id. He also boats

frequently, fishing and sailing in areas adjacent to the project that the view

on the waterfront vista would be adversely impacted by the approval. Id. The

County has land development regulations that protect waterfront vistas from

any impacts. T. Oct. 3, 2017 pp 98-102.

Petitioner KATHE FANNON and KATIE SCARLETT TURIN

conduct eco-tours that utilizes the area near the subject development

including the area in and around Longbar Point, Sarasota Bay, and resides

and owns real property in the area of Cortez in Manatee County that is

located near and proximate to the subject development and her ecotourism

business in on Sarasota Bay at the docks in Cortez and appeared at the

public hearings May 4, August 16, August 23, and objected to approval of

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the subject application. Kathe Fannon owns and operates a business from the

fishing village of Cortez in the immediate area of the project. The business

conducts nature tours out into Sarasota Bay which is the same bay adjacent

to the project. Captain Kathe Fannon and Katie Scarlett Turin provided

testimony that the height of the buildings approved would have adverse

impacts on her business. Her customers come to see the natural waterfront

vistas for which this approval will impact, having adverse impacts to the

petitioner. The County has land development regulations that protect

waterfront vistas from any such impacts.

Petitioner Larry Grossman utilizes the area near the subject

development including the area in and around Longbar Point, Sarasota Bay,

is a Manatee County citizen who resides in Manatee County directly across

the Bay from Long Bar Pointe and the project and the petitioner appeared at

the public hearings and objected to approval of the subject application.

Transcript October 3, 2017 pp.91-93. Petitioner objected to, and was

affected by, the due process violations, supra, that occurred at the October 3,

2017 quasi-judicial hearing. The height of the buildings approved will have

adverse impacts to the waterfront vista he currently enjoys and the County

has land development regulations that regulate building height and are

intended to protect waterfront vistas from any such impacts.

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Petitioner SUNCOAST WATERKEEPER, INC. provided comments

during public hearing including written objection presented by SCWK

director Joseph McClash, and Suncoast Waterkeeper provided oral and

written comments to the Manatee County (Exhibits I, J and D) objecting to

due process and failure to meet essential requirements of law, including the

following objection which identifying the significant impacts to members of

Suncoast Waterkeeper:

Written Objections presented by Joe McClash for Suncoast Waterkeeper at

the prior public hearings on May 4, 2017, August 10, 2017 and August 23,

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2017 quasi-judicial hearings demonstrate that Suncoast Waterkeeper is a

registered Florida not for profit corporation for which McClash was.granted

permission to speak on their behalf as a representative, and provided a letter

of authorization as required for procedures to speak on behalf of an

origination.. Exhibit P and Q. The mission of Suncoast Waterkeeper is “to

protect and restore the Suncoast’s waterways through enforcement,

fieldwork, advocacy, and environmental education for the benefit of the

communities that rely upon these precious coastal resources.” Petitioner

Suncoast Waterkeeper, Inc.’s mailing address has been registered as a non-

profit corporation in Florida in good standing since 2012. Corp. Document

# N12000010248. Suncoast Waterkeeper has maintained its good and

current standing in Florida since that time and has filed annual reports as

required by state law. The geographical area of interest of the Suncoast

Waterkeeper is the coastal area of Manatee and Sarasota Counties, including

the waterways and coastline in the immediate area of the project site.

ExhibitcD The subject approval affects a substantial number of petitioner’s

members use or enjoyment of scenic, natural resources in and surrounding

the subject area near Longbar Point coastal area. Exhibit I and J.” The

“Suncoast” is synonymous with the coastal waters of Manatee and Sarasota

Counties, including the waterways and coastline potentially impacted by the

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proposed project. Suncoast Waterkeeper has over 50 members in Manatee

County. ExhibitO Suncoast Waterkeeper members residing in Manatee

County who use the Long Bar Point, Sarasota Bay and would be affected by

the activity to be permitted or authorized. Exhibit I and J. A substantial

number of SUNCOAST WATERKEEPER, INC.’ members, (including, but

not limited to, the members listed above who reside in Manatee County as

well as members who travel to Manatee County) utilize the area and

nearshore waters near the permitted activity for nature based activities

including observing native flora and fauna, (including trees, birds and

wildlife along natural areas and shoreline including the ecological areas and

transitional eco-tones between ecosystem types), and nature-based

recreational activities, such as fishing, kayaking, wading and boating along

mangroves and native shorelines of Long Bar Point, Sarasota Bay to observe

native flora and fauna on Long Bar Point, Sarasota Bay. A petition that

contained 1022 signatures that gave permission to have Suncoast

Waterkeeper represent their concerns and enter the petition signatures into

the record. Joe McClash entered the petition into the record which contained

Suncoast Waterkeeper members. Exhibit O. The relief requested is

appropriate to receive on behalf Suncoast Waterkeeper’s members.

Petitioners meet the test for standing set forth in Renard v. Dade County,

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261 So.2d 832 (Fla. 1972); Upper Keys Citizens Coalition v. Wedel, 341

So.2d 1062 (3rd DCA 1987); Save Brickell Ave., Inc. v City of Miami, 393

So.2d 1197 (3rd DCA 1981).

Petitioners BEVERLY HILL 6229 Signature Pointe Lane; ARLENE

DUKAUSKAS 6225 Signature Pointe Rd.; and LENKA SUKOVA 6256

Champions Row Street own and reside on property in Legends adjacent to

the subject development, attended and objected to the approval at one or

more of the BOCC quasi-judicial hearing dates prior to October 3, 2017,

including August 16, 2017 and attended the October 3, 2017 hearing but

were not provided copies of the revised, amended site plan at the October 3,

2017 hearing impairing their meaningful review of the application and

inability to comment and advertised notice stating that public comment was

closed and there would be no further public comment at the October 3, 2017

hearing.

Petitioners have standing under Renard because their interests will be

affected by the approval which denied procedural due process (Exhibit E ),

was not properly noticed for public comment (Exhibit F- proof hearing was

closed to public comment), and violated essential requirements of law

contained in the land development code that were intended to protect

Petitioners interests that exceed that of the general public because of

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Petitioners actual use of the subject area.

Further, the broadest standing is afforded for notice or violations

regarding enactment of the rezoning ordinance under Renard: “An affected

resident, citizen or property owner of the governmental unit in question has

standing to challenge a zoning ordinance as void because not properly

enacted such as where required notice has not been given.” Renard v. Dade

County, 261 So.2d 832 (Fla. 1972). As the Florida Supreme Court explained

in Renard, “Part (3) of the question certified deals with standing to attack a

zoning ordinance which is void because not properly enacted, as where

required notice was not given. Any affected resident, citizen or property

owner of the governmental unit in question has standing to challenge such

an ordinance. [FN14]

FN14. See e.g., Rhodes v. City of Homestead, 248 So.2d 674

(Fla.App.3rd 1971); Knowles v. Town of Kenneth City, 247 So.2d

748 (Fla.App.2d 1971).”

In this case, proper notice of the amended, revised site plan and notice

of an opportunity to comment on the amended, revised site plan was not

provided as set forth below in this petition, supra.

ARGUMENT

I. VIOLATION OF PROCEDURAL DUE PROCESS

The BOCC approval violated procedural due process rights to a

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correct notice and meaningful opportunity for review and comment on the

application site plan, which was changed during a break in a meeting that

was advertised and noticed for “no public comment” thereby discouraging

interested persons from attending and commenting. In this case, proper

notice of the amended, revised site plan and notice of an opportunity to

comment on the amended, revised site plan was not provided and the

application did not meet all requirements of the Manatee County Land

Development Code (LDC).

The October 3, 2017 BOCC meeting was noticed and advertised for

“no public comment” Exhibit F- proof hearing closed to public comment.

The original General development plan submitted (Exhibit L) was

changed during a 3 hour break in the BOCC meeting on October 3, 2017 and

a new general development plan was created(.Exhibit K) Transcript October

3, 2017 pp.69-65.

Petitioners were not given a reasonable opportunity to personally

review, and have their expert(s) review, the October 3, 2017 amended

revised new general development plan before the BOCC re-convened and

voted to approve the new general development plan on the same day,

October 3, 2017. Transcript October 3, 2017 pp.122.

The hearing should have been continued and re-noticed, and

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advertised, to allow public comment on the amended, revised general

development plan that was created during a recess in the October 3, 2017

BOCC quasi-judicial hearing. This was what was described as the process

by Chairman Benac at the beginning of the meeting. Transcript October 3,

2017 pp 5. Instead, the denial of a noticed, meaningful opportunity to have

experts review and present testimony and evidence resulted in a violation of

procedural due process.

Because “no public comment” was expressly stated in the public

notice, Exhibit F, many either did not attend or have their experts attend the

October 3, 2017 hearing.

Those interested, affected persons, including Petitioners, who did

attend were denied a meaningful opportunity to even see, much less review

the amended, revised site plan and stipulations created during a three (3)

hour recess in the quasi-judicial hearing.

These events denied Petitioners the ability to provide meaningful

comments on the amended revised general development plan before the

BOCC voted to approve the amended, revised general development plan

created during a break in the quasi-judicial hearing. This violated both basic

fundamental procedural due process and the essential requirements of law.

A rezoning is a quasi-judicial hearing and that Petitioners must be

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afforded quasi-judicial procedures including the right to notice affording

meaningful review of any changes made to the application, and the ability

to call witnesses and present evidence. The basic due process requirements

in quasi-judicial proceedings as follows:

“We note that the quality of due process required in a quasi-

judicial hearing is not the same as that to which a party to a full

judicial hearing is entitled. Quasi-judicial proceedings are not

controlled by strict rules of evidence and procedure.

Nonetheless, certain standards of basic fairness must be adhered

to in order to afford due process . . . . A quasi-judicial hearing

generally meets basic due process requirements if the parties

are provided notice of the hearing and an opportunity to be

heard. In quasi-judicial zoning proceedings, the parties must be

able to present evidence, cross-examine witnesses, and be

informed of all the facts upon which the commission acts.”

Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So. 2d 996,

1002 (Fla. 2d DCA 1993) (Quoting Jennings v. Dade County, 589 So.

2d 1337, 1340 (Fla. 3d DCA 1991)).

Petitioners, including Larry Grossman, testified and made comments

specifically at the October 3, 2017 date the action was approved and spoke

under protest of the procedures failing to provide proper notice. October 3,

Transcript p. 91.

Manatee County acknowledged the hearings were quasi-judicial. The

agenda includes reference to the nature of the hearings as quasi-judicial and

in the October 3rd

notice posted on the County’s website included that the

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subject hearing was a quasi-judicial hearing as shown below.

Quasi-judicial hearings require meeting certain standards of conduct

by staff and the decision body acting in its quasit judicial role.

Manatee County failed to in a manner that meets the constitutional

requirements of procedural due process. The final action to approve

the matter was held on October 3, 2017. The county advertised the

meeting indicating public comment was closed. It was also indicated

by the chairman Benac that the public comment opportunity had been

closed August 23rd

. It was also stated that if a new General

Development Plan was submitted it would have to be advertised

reopening public comment. Transcript October 3, 2017 pp 5.

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No advertising took place for the new General Development Plan

before the Commission took action to approve the project.

The meeting that started in the morning around 9AM was recessed to

later that morning around 11:30 AM and then continued to the afternoon to

around 3PM allowing the applicant to submit a new General Development

Plan. When the meeting was continued to late morning, at that time the

chair indicated she did not know if the matter would be open to the public

when they were to come back at 3PM. Transcript October 3, 2017 pp.63.

Then in the afternoon a new General Development Plan was

submitted, and without advertising the new plan as stated in the procedures

at the start of the meeting by the chair, the Commissioners despite the public

notice stating no public comment decided to take public comment, but

without continuing and re-advertising the matter, violating the procedures

for proper notice.

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Failing to schedule and advertise for a new meeting when the new

General Development Plan was submitted violated due process and the

specific procedure by Chairman Benac and County Attorney Schenk at the

meeting. Transcript October 3, 2017 pp 5-6 and 63.

County Attorney Schenk provided legal advice without curing the

advertising notice for October 3, 2017 stating no public comment. It either

is, or it is not, a meeting noticed for public comment, this one was noticed

that it was NOT for public comment. Transcript October 3, 2017 pp78-79.

Failing to allow reasonable time to review the new information

violated due process. Prior to taking public comment the stipulations offered

by the applicant were not made available for review. Joseph McClash’s

comment proves this as he gets ready to offer public comment he request a

stipulation to be read into the record since he did not have the exact

language in writing and it was not read into the record to know what the

exact contents. Transcript October 3, 2017 pp.98

Chairman Benac restricted the type of public comments McClash was

making on the new Plan. McClash offered comments about what the General

Development Plan still lacked in order for the Board to approve. Citing

several code related issues. Transcript October 3, 2017 pp.100.

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From the time the new plan and stipulation were proffered less than

30 minutes took place to allow the public to comment and provide

testimony. This did not allow reasonable time required for due process.

The County failed to produce the new General Development Plan

except on the monitor. McClash did obtain a new plan just prior to his

comments, but did not have any of the new stipulations to review prior to

commenting. He presented his hand written notes on the plan with other

code related issues. Exhibit H.

EX PARTE COMMUNICATIONS.

Manatee County Commissioners and staff comments indicate ex parte

communication did take place with the applicant and staff and with

commissioners and staff but provided no records of those meetings. To

insure fairness to all parties this disclosure at a minimum should be

produced on the record at the time of the hearing or in advance to allow

parties to properly consider the information and respond.

Manatee County was made aware of ex parte communication at the

public hearing on August 10, 2017(Exhibit I) and Petitioners objected to on-

going, one-sided, ex parte communications by lobbyists or representatives of

the developer and made these objections in advance in an email to the

County Attorney entitled “SERVICE OF COURT DOCUMENT

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Manatee County Zoning Ordinance No. PDR/PDMU-15-10(Z)(G) and

GDP Fwd: Meeting with John Barnott and Nicole Knapp” on August

28th, 2017 prior to the final approval hearing of the County commissioners.

Exhibit E.

The County staff met with the applicant for more than 100 hours

according to comments made by Ed Vogler the attorney representing the

applicant at the public hearings. Then the County staff briefed

commissioners on the merits of the matter in their offices outside of the

public hearing and provided no record of those meetings. Commissioners

made public statements at the public hearing that the staff and even the

county attorney briefed them prior to the public hearings. Transcript October

3, 2017 pp13.

County staff acted as a conduit of information from the developer

directly to the Commissioner influencing their decision outside the public

hearing quasi-judicial proceedings. The applicant thereby benefitted from

this ex parte communication that was denied to Petitioners when they

requested to meet with County staff and officials.

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The citizens and environmental organizations requested meeting with staff

and was refused similar meetings that the County staff engaged with the

applicant irrevocably tainting the process by an unfair, unbalanced

communication expected during a quasi-judicial hearing.

Petitioners will be harmed by the failure to provide procedural due process

in the quasi-judicial proceedings for this hearings and for future hearings.

The unfair procedures benefit the applicant with ex parte communication

while Petitioners were denied the same opportunities to meet with staff and

Commissioners and were not privy to the contents of the ex parte

communications which the applicant’s lobbyists and representatives were

able to have with Manatee County.

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As the court noted in Jennings v. Dade County, 589 So. 2d 1337

(Fla. Dist. Ct. App. 1991) :

“Ex parte lobbying of an administrative body acting quasi-judicially

denies the parties a fair, open, and impartial hearing. Suburban

Medical Center v. Olathe Community Hosp., 226 Kan. 320, 597 P.2d

654 (1979). Adherence to procedures which insure fairness "is

essential not only to the legal validity of the administrative regulation,

but also to the maintenance of public confidence in the value and

soundness of this important governmental process." Id. 597 P.2d at

662 (citing 2 Am.Jur.2d Administrative Law § 351). The constitutional

compulsions which led to the establishment of rules regarding the

disqualification of judges apply with equal force to every tribunal

exercising judicial or quasi-judicial functions. 1 Am.Jur.2d

Administrative Law § 64, at 860 (1962); City of Tallahassee v. Florida

Pub. Serv. Comm'n, 441 So. 2d 620 (Fla. 1983) (standard used in

disqualifying agency head is same standard used in disqualifying

judge). See also Rogers v. Friedman, 438 F. Supp. 428 (E.D.Tex.

1977) (rule as to disqualification of judges is same for administrative

agencies as it is for courts) (citing K. Davis, Administrative Law §

12.04, at 250 (1972)). Ritter v. Board of Comm'rs of Adams County,

96 Wash.2d 503, 637 P.2d 940 (1981) (same).

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VIOLATIONS OF ESSENTIAL REQUIREMENTS OF LAW

and

LACK OF COMPETENT SUBSTANTIAL EVIDENCE OF

COMPLIANCE WITH CODE REQUIREMENTS

The approval of building heights over 35 feet did not meet the

essential requirements of law and there was no competent, substantial

evidence supporting additional height for buildings over 35 feet.

Building heights were approved over 35 feet but were not supported

by competent, substantial evidence that heights over 35 feet met the

requirements of LDC 402.7 D.9, 402.16 A. and 402.6 M.

LDC 402.6 M. Height: “Height in a specific Planned Development

district shall be determined after review of the nature of surrounding land

uses to ensure that the proposed development will not create any external

impacts that would adversely affect surrounding development, existing or

proposed.”

No specific support for any findings for buildings over 35 feet to 75 feet was

provided at the public hearing. The county code LDC section 402.7

D.9_requires 7 specific finding for buildings over 35 feet. The approval

included buildings in a category from 35 feet to 75 feet. The county had no

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evidence for specific finding for increasing the height of buildings from 35

feet to 75 feet. The county code LDC section 402.7 D.9_requires an

applicant requesting an increase in building height over thirty-five (35) feet,

shall provide, at the time of public hearing, conceptual architectural

drawings, elevations and plan views, showing the buildings and their

relationship on the property. No evidence exists for conceptual architectural

drawings for buildings 35 to 75 feet. No Competent Substantial Evidence

supports the finding of fact for increased height and that all criteria for LDC

402.7.D.9 was met for all buildings over 35 feet.

LDC section 402.7 D.9. a :

The county code LDC section 402.7 D.9. a. requires compatibility for

the height of the proposed development creating any external impacts that

would adversely affect surrounding development, existing or proposed,

waterfront vistas. There is no evidence supporting the finding of fact D that

the height of the buildings would not create any external impacts that would

not adversely affect surrounding development, existing or proposed

waterfront vistas.

LDC section 402.7 D.9. b:

The county code LDC section 402.7 D.9. b. requires elevations and

plan views, showing the buildings and their relationship on the property. No

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evidence exists for elevations and plan views, showing the buildings and

their relationship on the property for buildings 35 to 75 feet. .

LDC section 402.7 D.9. e.

The county code LDC section 402.7 D.9. e. requires whether

materials have superior architectural character, selected for consistency and

compatibility with adjoining buildings, Whether materials selected are

suitable with the type of buildings proposed and the design in which they are

to be used. No evidence was submitted as to whether building materials are

compatible and/or complementary with the adjacent existing construction.

No evidence exists for the building materials for any building over 35

feet as required.

LDC section 402.7 D.9. b. i.

The county code LDC section 402.7 D.9. b. i. requires buildings over

35 feet to have a setback equal to the height. There is no evidence the

minimum setback is equal to the proposed height of the building. The

setbacks approved violate the provisions for a specific finding for LDC

section 402.7 D.9. b. i.

The General Development Plan GDP setbacks must contain the

evidence for a specific finding equal to height of building. The evidence

clearly fails to support any evidence required since the setbacks range from

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10 feet to 30 feet that on indicated on the approved general development

plan. Exhibit K.

Stipulation 8 in the ordinance does not meet the setback requirements and

violates LDC section 402.7 D.9. b. i. the code specifically requires buildings

over 35 feet to have a setback equal to the height. Exhibit A.

Setbacks are defined by LDC Section 200(Exhibit C )

LDC Section 200 - Definitions

“Setback shall mean the physical distance which serves to minimize the

effects of development activity on any adjacent property, structure or natural

resource; and within which it is necessary to restrict activities for the area.

Also, a required horizontal distance from the subject land or water area

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designed to reduce the impact on any adjacent land uses or cover types

located on the subject land or water area. The term setback shall include

required yards.

Setback, Front shall mean the physical distance on a lot measured from the

front lot line to the nearest main wall of a principal building or structure.

Setback, Rear shall mean the physical distance on a lot measured from the

rear lot line to the nearest main wall of a principal building or structure.

Setback, Side shall mean the physical distance on a lot measured from the

side lot line to the nearest main wall of a principal building or structure.

Setback, Street shall mean the physical distance on a lot measured from the

right-of-way line to the nearest main wall of a principal building or

structure.”

LDC Section 402.7. D. 7. requires Standards for Yards and Setbacks

and identify requirements for setbacks.

County attorney Schenk instructed Charman Benac that

findings for height must be at the meeting approving the general

development plan and not a future preliminary site plan. Once the Board

makes the specific findings in the approval they are done. Transcript October

3, 2017 pp.37-42.

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Chairman Benac admitted that she did not have the evidence for specific

findings for height over 35 feet, that the plan was a “bubble plan basically”

lacking any details or architectural renderings or depictions of the building

location, height and design. Charman Benac wanted to see what the

building will look at after Benac admits the applicant has not designed the

units. The specific findings for height were never taken out of the approval.

Future preliminary site plan approval is administrative and approved general

development plan creates the entitlements and findings to height over 35

feet yet no competent, substantial evidence was provided as justification

meeting the code requirements for the increased building height.

General Development Plan lacks specific details required

LDC 403.8 F.3.b. requires upland habitat to be shown on the

conceptual plan, which is the same as general development plan. No

evidence of upland habitat is shown on the General Development Plan.

LDC 705.4. “Specific Protection Measures. Special Habitat

Delineation. All applications for development approval shall be required to

show the location of certain existing habitats that may be contained within

the proposed development site or within fifty (50) feet of the development's

boundary.” Existing habitats were not shown or provided.

Further, county code LDC section 403.8 F.3.c. requires upland habitat

31

to be preserved as a percentage of open space, requiring a calculation. No

evidence of special upland habitat preservation as a percentage of open

space was provided.

The county code LDC section 403.8 F.6 requires archaeological sites

on the plan. No evidence the archaeological sites known to exist are shown

on the plan.

Petitioners presented evidence as to their objections and included the

following violations of County Code LDC requirements :

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Large Project Application (LPA) failed to meet LDC sections 403.8 F.5.,

705.3 A. f. , and 349.3.B.6. requirements (Exhibit C )

The county code LDC section 403.8 F.5. and 349.3.B.6. Large

Project Application (LPA) requires the location, size and type of native

upland vegetative communities found on the development site. No evidence

exist that all the locations, size and type of native upland vegetative

communities found on the development site were submitted as required.

349.3.B.6. Large Project Application (LPA) requires “An existing

native habitat map or list. Indicate on this map or list, acreage for each

habitat area lying within the project site.”

33

County LDC section 349.3.B.7 also requires “A native habitat

preservation, alteration and mitigation plan. Indicate on this map acreage of

each native habitat area to be preserved, conserved, altered or mitigated, if

applicable. Provide on this map a summary of native habitat acreage to be

preserved, conserved, and mitigated by habitat type.”

The county code LDC section 705.3 A. f. and 349.3.B.7, Large

Project Application (LPA) requires s a map showing the exact location and

an assessment of any habitat of threatened or endangered species, or species

of special concern encountered on the site, and any evidence of habitation of

areas on the site by such species discovered during the field review; and a

habitat management plan describing any measures which are proposed by

the applicant for non-disturbance, or species relocation or other mitigation

measures regarding the protection of any threatened or endangered species

found on the site.

No competent substantial evidence of compliance with these Code

Section requirements for native habitat preservation, alteration and

mitigation planning requirements was presented at the hearing. McClash

offered evidence on October 3, 2017 prior to the County approving the

project. Transcript October 3, 2017 pp 100 line 9-13. The general

development plans submitted show one eagle nest but there is no evidence

34

the second eagle nest shown on any map and identify the area of protection

required.

No Wetland Impact Study

LDC section 706.4. A. requires a wetland impact study for any wetlands

impacts at the time of approval. No wetland impact study was included at

the time of approval. The request to develop within a wetland or wetland

buffer shall be made in conjunction with, or as a component of, the related

development approval for the entire site, such that it can be reviewed and

approved by the approving authority (Department Director, Hearing Officer

or Board) reviewing the proposed development. Petitioners McClash and

Suncoast Waterkeeper submitted objections into evidence and Petitioner

McClash identified the failure to include evidence to meet the wetland

impact study on October 3, 2017 prior to the County approving the project.

Transcript October 3, 2017 pp 99 line 22-23 and submitted the wetland

impact map as evidence.( Exhibit H).

LDC section 706.6:

The county code LDC section 706.6.- requires competent evidence to

support any mitigation for wetland impacts for the new GDP. Tom Pride

provided environmental testimony that concludes he did not have evidence

of mitigation for wetland impacts for a new general development plan that

35

did not include the estuary enhancement area that was removed from what

he reviewed in the prior plan.

The county code LDC section 706.1.A.- Prohibit wetland impacts except

in cases where no other practical alternative exists that will permit a

reasonable use of land or where there is an overriding public benefit No

Competent Substantial Evidence to support approval of wetland impacts

36

was provided. The Ecosystem Management Plan submitted by the applicant

is not Competent Substantial Evidence to support the impacts to wetlands. A

wetland impact study was required under LDC 706.4 Application for

Wetland Impacts. The GDP contained over 7 acres of wetland impacts but

no wetland impact study was produced into evidence and the approval

contained no evidence of mitigation for these avoidable impacts.

Chart from new approved general development plan (Exhibit K):

Grading of wetland buffer prohibited LDC 706.7

General Development Plan item 24 is not supported by any

Competent Substantial Evidence that would allow grading within the

wetland buffer.

37

Count code section LDC 706.7 states the following:.

“Wetland Buffers

A. Prohibited Activities. Prohibited activities in wetland buffers shall

at a minimum include:

1. Development, except as set forth in Section 706.7.B, below; and

2. The removal or other disturbance of any earth, trees, shrubbery

and other plants except as set forth in Section 706.7.B, below……….”

General Development Plan item 24 although approved directly

conflicts with evidence provided at the October 3, 2017 hearing prior to the

County approval when Chairman Benac suggested there would be no

grading in the buffer and staff concurred but attorney Vogler stated it is what

the permit includes contrary to the evidence and Code requirements. General

Development Plan item 24 includes an approval for what was determined by

the county as not being allowed.. Transcript October 3, 2017 pp 100-111.

The county code LDC section 403.8(D)- requires that “All

development approvals within the CH District shall be conditioned to require

the removal of all nuisance exotic plant species.” No evidence all nuisance

exotic plants within the Coastal Hazard Area will be removed LDC section

38

LDC 403.8(D). Stipulation C. 2.a. limits removal exotic plant species to only

upland areas and fails to meet this requirement.

No evidence the required workshop was held LDC 312.1(Table 3-1)

(Exhibit C)

The county code LDC section LDC 312.1. (Table 3-1) requires a

workshop (Table 3-1).No evidence a workshop was held.

Further, notice of a workshop was required but not provided in violation of

Code LDC Section 312.8 (3) which requires “Notices for Neighborhood

Workshops. Public notices for neighborhood workshops, as well as a

mailing list, will be provided by the Department Director to the applicant,

who shall be responsible for mailing the notice.”

39

REQUEST FOR RELIEF

The BOCC approval violated procedural due process rights to a

correct notice and meaningful opportunity for review and comment on the

application site plan, which was changed during a break in a meeting that

was advertised and noticed for “no public comment” thereby discouraging

interested persons from attending and commenting.

In this case, proper notice of the amended, revised site plan and notice

of an opportunity to comment on the amended, revised site plan was not

provided.

WHEREFORE, Petitioners request an order from this court quashing

or remanding the decision below on the grounds that the Board:

1) failed to provide procedural due process, and

2) failed to apply the correct law and comply with the essential

requirements of law contained in the Manatee County Land

Development Code (LDC), and

3) the approval is not supported by competent substantial evidence of

compliance with all LDC requirements.

Respectfully submitted,

/s/ Ralf Brookes

RALF BROOKES ATTORNEY

Florida Bar No. 0778362

Attorney for PETITIONERS

40

1217 E Cape Coral Parkway #107

Cape Coral, Florida 33904

Telephone (239) 910-5464

Facsimile (866) 341-6086 Ralf@RalfBrookesAttorney.com RalfBrookes@gmail.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished by email on or before this November 2, 2017 to the following:

Manatee County Attorney's Office,

Attorney Sarah Schenk

sarah.schenk@mymanatee.org

joann.grace@mymanatee.org

P.O. Box 1000, Bradenton, FL 34206

Attorney for Applicant

Ed Vogler

Vogler Ashton, PLLC

2411 Manatee Ave W Ste A

Bradenton, FL 34205-4948

edvogler@voglerashton.com

/s/ Ralf Brookes

___________________

Ralf Brookes Attorney

Fla Bar No. 0778362

1217 E Cape Coral Parkway #107

Cape Coral, Fl 33904

(239) 910-5464;

(866) 341-6086 fax

Email service:

ralf@ralfbrookesattorney.com

RalfBrookes@gmail.com

41

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this Petition for Writ of Certiorari complies with

the font requirements of Florida Rule of Appellate Procedure 9.1000(1).

/s/ Ralf Brookes

___________________

Ralf Brookes Attorney

Fla Bar No. 0778362

1217 E Cape Coral Parkway #107

Cape Coral, Fl 33904

(239) 910-5464;

(866) 341-6086 fax Email service:

ralf@ralfbrookesattorney.com

RalfBrookes@gmail.com