Will the DOT settle down?
Legal representation for a group of five complainants — including the Florida Institute for Saltwater Heritage, a Cortez nonprofit — and the Florida Department of Transportation will meet with mediator Stephen Tabano, a Tampa attorney, Aug. 25 to attempt to resolve a legal dispute related to the size of a replacement for the Cortez Bridge.
FISH joined the suit Aug. 13 with four complainants, former Manatee County Commissioner Joe McClash, former County Commissioner Jane von Hahmann — a Cortez resident and FISH treasurer — and Cortez residents Linda Molto and Joe Kane, to challenge the DOT’s decision to replace the 17-foot-clearance Cortez drawbridge with a 65-foot-clearance fixed-span structure in 2026-27.
The anti-megabridge coalition advocates for the construction of a 35-foot-clearance drawbridge and will be represented at mediation by Matthew Farmer, a criminal defense and plaintiff’s rights attorney based in Tampa.
According to McClash, the dispute hinges on whether the DOT followed federal guidelines during the bridge selection process.
During mediation, Tabano will assess the strength of each side’s case and make recommendations about how the issue can be resolved before the final phase of the lawsuit — summary judgment, in which a federal magistrate will have the final say.
At a Bradenton Beach City Commission meeting Aug. 5, McClash outlined two “major winning points” the anti-megabridge coalition uncovered while reviewing the administrative record — a document detailing how the DOT came to its decision to build the high bridge.
First, the DOT approved the bridge in 2019 under a “type 2 categorical exclusion” one year after the legal conditions under which the exclusion could be used were changed.
He said the DOT broke the law by using the exclusion even though the high bridge would require a bridge permit, encroach into the floodplain, require changes in access control and necessitate more than a minor amount of right-of-way acquisition.
“If you have a smoking gun, or a straw that breaks the camel’s back, this might be the issue,” McClash said.
McClash’s other “major winning point” was the DOT’s decision to build the high bridge, which would impact the floodplain, despite having the option to build the 35-foot bridge, which would not impact the floodplain.
According to McClash, the DOT was required to choose the option that least impacts the floodplain.
“It doesn’t take a whole lot of common sense to figure out that if you put a new ramp with a wall 20 feet high in the middle of Cortez, 300 feet into it, impacting the floodplain, it’s not the alternative that has the least impact,” he said.
McClash told The Islander Aug. 10 he hopes Tabano will see things the same way and advise the DOT to settle the suit by constructing the 35-foot bridge.
If the DOT refuses to settle, the department risks losing the case at summary judgment, which would prompt the agency to repeat bridge selection procedures, processes that could take two years and still result in the selection of a 35-foot bridge, McClash said.
Of note, Bradenton Beach declined to join the anti-megabridge suit, although the city adopted a resolution against the construction of the high bridge in late 2019.
City commissioners unanimously voted to join the suit in March but reversed course in April after city attorney Ricinda Perry reported legal fees could rise to six figures and that the DOT had reached out to enter settlement negotiations.
According to Perry, the agency rejected her $4.8 million proposal in June to provide underground utilities on Gulf Drive near the bridge.
Commissioners directed Perry to scale back the utility request July 1.
At the Aug. 5 city commission meeting, McClash and von Hahmann entreated the city to formally join the suit before the Aug. 15 mediation deadline.
Commissioners reached a 3-2 decision to avoid the suit and continue discussions with the DOT.
Mayor John Chappie said the city needed more time to negotiate with the DOT and cited budget constraints and a lack of support from the county, which had not been asked to join the bridge lawsuit.
Despite missing the deadline to join the suit, Bradenton Beach still has bargaining chips in its negotiations with the DOT, Perry said Aug. 10, because the city can provide monetary or legal aid to the anti-megabridge complainants.
Bradenton Beach was the only Anna Maria Island city to pass a resolution against the high bridge, though Mayor Dan Murphy of Anna Maria and Mayor Judy Titsworth of Holmes Beach maintain the megabridge is a bad fit for the adjoining communities.
McClash said he didn’t ask Anna Maria or Holmes Beach to join the suit because it would have been difficult for the municipalities to prove they had legal standing.
According to McClash, Farmer estimates the cost of the case through summary judgment will be approximately $25,000.
The anti-megabridge coalition recently created a fundraising campaign, including the “Stop the Mega Bridge from devastating Cortez” gofundme.com page, to offset legal fees.
As of early Aug. 16, the group had raised $7,015 of its $25,000 goal.