Chalk up a win for Manatee County and the coastal environment.
Twelfth Judicial Circuit Judge John Lakin upheld the constitutionality of county policies aimed at preserving the coastline over the private property arguments from the developers of Long Bar Pointe.
Cape Coral attorney Ralf Brookes, who represents two environmental groups, said he was “delighted” about the decision that “will help to protect the seagrass beds near Long Bar and elsewhere in Manatee County.”
The Jan. 5 decision cuts short the case before the planned trial date in February. The developers’ decision on a possible appeal is expected this week.
In a suit filed by Long Bar Pointe LLLP and Cargor Partners VIII, local developers Carlos Beruff and Larry Lieberman challenged four comprehensive plan policies, claiming they were unconstitutional takings of private lands.
The policies seek to protect wetlands, shorelines and submerged lands and limit the dredge-and-fill policies of the 1970s and ’80s. They restrict dredging of channels, canals and basins and prohibit construction of new boat ramps.
Since 2004, developers had been seeking county approvals for a commercial and residential subdivision on 463- to 529-acres along Sarasota Bay, including submerged lands, less than 5 miles east and south of Cortez. The adjacent area of the bay waters is known as Long Bar. The Beruff/Lieberman entities took ownership of the property in 2012.
Brookes intervened in the case in November 2015 on behalf of Suncoast Waterkeeper Inc., a nonprofit dedicated to protecting Sarasota and Manatee waterways, and the Cortez-based nonprofit, Florida Institute for Saltwater Heritage.
“It’s saying that before taking out wetlands they have to comply with these policies,” he said.
One policy precludes development in coastal areas if there are available uplands. “They have uplands to build on,” Brookes added.
The Long Bar developers filed the case in October 2014 after the county turned down the developers’ request to change its zoning to allow boat ramps, docks, walkways and commercial uses, such as a hotel, boat basin and marina on the Sarasota Bay shoreline.
In August 2015, the plaintiffs submitted the latest plan, calling for 3,200 homes and 78,000 square feet of commercial space. According to the recent decision, Manatee County previously approved the construction of 458 residential units on a portion of the upland property.
In Lakin’s 11-page opinion, the judge sided with “all points” in the county’s proposed order and “all of those reasons were in the order of the judge,” said Christopher DeCarlo, the lead attorney for Manatee County.
“We’re very happy, of course, about the court’s decision,” DeCarlo said, crediting “lots of work, concerted team efforts, not only from the county attorney’s department but from folks in other departments.”
At the beginning of the case, the county attorney petitioned for federal review. However, a U.S. District judge sent the case back to the 12th Circuit to resolve state law claims.
In a February 2015 order, U.S. District Judge Steve Merryday ruled “a property owner may not claim a violation of the federal takings clause until the owner has exhausted the state’s procedure and the state with finality has denied just compensation.”
S. William Moore of Brigham Moore of Sarasota, attorney for the developers, said Jan. 8 he expects his clients to decide soon on whether they will appeal.
The judge ruled the developers’ complaint would need to have been filed more than 20 years ago due to the four-year county limitation period when the comp plan originated in 1989.
The judge also rejected Moore’s arguments that the policies were vague and an illegitimate means to protect coastal resources and that the developers were deprived of property rights.
“We’re disappointed. We respectfully disagree. We have a legal disagreement about everything in it,” Moore said about Lakin’s order.
Lakin told the attorneys Dec. 4 the case represented “a collision course” between the state’s role to protect the environment and private property rights in a state with a growing population.
In addition to resolving all claims, Lakin’s summary judgment orders the Long Bar Pointe developers to pay the county’s court costs, still to be determined, plus statutory interest.