Twelfth Circuit Judge Gilbert A. Smith Jr. presides at a Dec. 6 hearing about his pending decision on a challenge brought by environmentalists, Suncoast Waterkeeper and former Manatee County Commissioner Joe McClash. The decision was handed down Dec. 21. Islander Photos: Kathy Prucnell
Packing up after the Dec. 6 hearing in a Manatee County courtroom are Ralf Brookes, attorney for environmentalists and Suncoast Waterkeeper, Anne Morris, attorney for the Manatee County Board of County Commissioners, and Ed Vogler II, attorney for Aqua by the Bay developers Carlos Beruff and Larry Lieberman.
Former Manatee County Commissioner Joe McClash watches the Dec. 6 court proceeding beside his attorney, Ralf Brookes of Cape Coral. Brookes also represents neighbors and environmentalists who challenged a county commission October 2017 decision to rezone and develop Aqua by the Bay at Long Bar Point.
There’s a difference between applying the correct law and correctly applying the law.
In a new Long Bar Point development challenge, it wasn’t the circuit court’s job to review the latter.
Twelfth Circuit Judge Gilbert A. Smith Jr. ruled Dec. 21, 2018, against environmentalists in a 21-page decision, prefacing his opinion saying circuit courts can’t “weigh or reweigh evidence” or it would be a “reversible error.”
Smith upheld the Oct. 3, 2017, decision of the Manatee Board of County Commissioners to approve a general development plan and rezoning for developers Long Bar Pointe LLLP and Cargor Partners VII — a Carlos Beruff and Larry Lieberman partnership — for a large-scale, mixed-use development on 529 acres southeast of Cortez and north of IMG Academy.
The commissioners’ decision came after a three-hour break in a public hearing. During the break, developers eliminated their plans to build a 2-mile lagoon and retaining wall between a mangrove fringe on the shoreline and upland terrain.
Represented by Cape Coral attorney Ralf Brookes, the petitioners/environmentalists filed a writ of certiorari in November 2017, asking the judge to review the commission’s decision, claiming it “violated due process rights to a correct notice and meaningful opportunity for review and comment.”
The writ also alleged the county failed to abide by “the essential requirements of the law” and failed to support their approvals with competent evidence, including:
• Building heights exceeding 35 feet, and
• A general development plan, without first holding a public workshop, which failed to include upland habitat and archaeological sites, building setbacks, native upland vegetation, endangered or threatened species habitat, a wetland study, a wetland buffer and a plan to remove nuisance plants.
The challengers are Manatee County Commissioner Joe McClash, the nonprofit Suncoast Waterkeeper, and Cortez Capt. Kathe Fannon and Katie Scarlett Tupin, Larry Grossman, Beverly Hill and Arlene Dukauskas, all neighbors to the development site.
McClash labeled the judge’s order “pretty poor” and blamed it on misinformation tendered by Manatee County and Long Bar attorneys — such as a reference in the decision to one eagle nest, when, in fact, even the developer at the hearing acknowledged there were two nests.
Brookes wrote Dec. 28 of his clients’ disappointment in Smith’s decision, as well as the original county approvals, saying they “will forever change the last remaining unspoiled coastline north of Long Bar Point.”
He said the group is evaluating the decision and may appeal.
Brookes complained the developers’ changes to their plan made less than an hour before the commission’s approval gave petitioners no notice or time for review before commenting. The county’s prior notice stated public comment was closed, but, in fact, was reopened after the revision.
The public had sufficient notice, according to Smith, who reasoned the petitioners were “participants” and “not parties for the purpose of due process.
“While participants have a due process right to attend and provide comment at open public hearings, the court is not persuaded that they have a right to have an expert review and provide testimony on elements of a GDP,” Smith wrote.
And because the changes invoked a less intensive land use, the judge ruled they were minor and the petitioners were not entitled to another hearing.
Brookes criticized the reasoning as giving “politically powerful developers an unfair advantage.”
The decision also dismissed the petitioners’ argument that the commissioners engaged in illegal ex-parte communications when county staff brought information from the developer, while the petitioners had no such access.
The judge found there was “no evidence” and “no authority” giving the petitioners the right to meet with county staff.
Addressing criticism that the commissioners failed to follow the correct law and base findings on competent evidence, the judge cited the land-development code, the developers’ application and staff analysis and, without specifics, concluded “competent substantial evidence” supported the approvals. In Smith’s opinion, the existence of such evidence was sufficient.
The commission’s approvals followed protests, which began after Beruff partnered with Lieberman in 2012, and more than 1,000 people attended a 2013 meeting at the Bradenton Area Convention Center in Palmetto.
There, commissioners rejected the developers’ attempts to change the county zoning map to build a hotel convention center, dredge a canal leading to Sarasota Bay and construct a marina and boat basin.
In a 2014 suit against Manatee County, the Beruff-Lieberman team challenged the coastal policies of its comprehensive plan. The developers lost in circuit court and lost again in February 2017 on appeal. Suncoast Waterkeeper was an intervenor on the side of Manatee County in that action.
Pete Logan, the developers’ representative and Medallion Home Building Group vice president, said in a Dec. 28 email he had no comment.
Commissioner Carol Whitmore also had no comment, texting Dec. 28, “It could be appealed, so we can’t comment.”