Long Bar Pointe vote split: Commission OKs map amendment, rejects text amendment

cscelle@bradenton.comAugust 7, 2013 

MANATEE -- After more than 13 hours of presentations and public comment -- drawing more than 1,000 people to observe and weigh in on the debate -- the vote was split.

Manatee County Commission voted unanimously against a countywide text amendment tied to Long Bar Pointe, but then voted 4-3 in favor of a map amendment -- only after removing language referencing a 300-berth marina. Commissioners Robin DiSabatino, Michael Gallen and John Chappie dissented.

A large crowd showed up at the Bradenton Area Convention Center to watch the great land-use debate in Manatee County swirling around Long Bar Pointe, some sporting green baseball caps with "Yes" on them, others with inflatable dolphins with phrases such as "Save Our Shores" written on their bellies.

Commission Chairman Larry Bustle told the Bradenton Herald after the meeting’s adjournment at 1:56 a.m. Wednesday that there was no option in his mind that the commission would not leave without voting. The meeting started at 1:30 p.m. Tuesday.

“We had all of them here, and we wanted to try it now to get it done,” Bustle said of the crowd.

The crowd's energy and patience waned as eight hours into the hearing, about 100 people remained waiting for a conclusion or at least a chance to speak, as the public got to speak starting at 5:30 p.m. Tuesday. The public comment period ended at 11:44 p.m., more than 10 hours after the meeting began.

It took 6 hours to get through everyone who wanted to speak, with many leaving before their name was called. A final vote on the map amendment was not taken until a little before 2 a.m.

Two items were up for a vote:

• A map amendment to the comprehensive land-use plan, with the developer's request to change the use from residential-9 to mixed. Some of the developer plans could be considered.

• A text amendment to the comprehensive plan's coastal and conservation elements, designed to open certain coastal areas to more development. Any plans for the Long Bar Pointe site could not be considered because this change would affect similarly defined properties across the county.

The 463-acre property considered for the map amendment included plans by developers Larry Lieberman and Carlos Beruff for a waterfront resort with a hotel, conference center, upland marina/boat basin and office and retail space. A parcel owned by the developers that is zoned residential-6 was not part of the map amendment request, but would be affected by the countywide text amendment.

The developers had to prove either a change in circumstances, a mistake in the language or that the policy is no longer in the best interest of the public for both comprehensive plan changes to be approved, according to staff.

With the commission voting to deny the text amendment, the developers will have to start from scratch and reapply, said John Osborne, planning and zoning official for Manatee County.

The developer wouldn't have an opportunity to challenge any issues until a state land planning agency review.

The map amendment now goes on for state review before an adoption process kicks in with additional hearings. State planning agencies have 30 days to comment and review the request. The land is already approved for 258 homes and 150,000 square feet of neighborhood retail space so developers could start construction.

Marina Confusion The hang-up for several commissioners over the proposed map amendment was reference to a 300-berth marina, and whether it was legally entitled or if language staff proposed to state that any marina or other use would need subsequent approval would be enough.

Ed Vogler, attorney for the developer, told the commission he would be willing to have the commission vote on the map amendment as the discussion moved past 12:30 a.m. Wednesday, and have the county consider the text amendment another time.

"There's no way we could rebut these things so we're going to focus on what is right and what we are asking for," Vogler said. Deputy County Attorney Sarah Schenk told commissioners that the map amendment should be all or nothing and staff shouldn’t tinker with the language.

Citing a Supreme Court case that recently affected the Bert Harris Act, Schenk said case could be made that the county is placing too much of a burden on one piece of privately owned property.

“If you want to avoid lawsuits, the easier way is to deny the whole thing,” Schenk said. “If you want to take the next step, we'll hire experts to defend your actions.” Commissioners and Vogler expressed concern that Tuesday, near the start of the meeting, was the first time they heard about those concerns raised by the attorney. “Board members said you learned it tonight from county attorney's office,” Vogler said. “I learned it tonight, too, and I don't agree with it at all.” More than 12 hours after the marina issue was broached by county attorneys, Assistant County Attorney Bill Clague clarified that the concern over removing the marina from the map amendment was with commissioners motioning to take out marina. Clague said he was fine with the applicant requesting to remove it.

That comment visibly changed the demeanor of commissioners weighing the map amendment, particularly of Commissioner Carol Whitmore, who implored Beruff to create Long Bar Pointe without a marina.

“Carlos, I know everything you do is first-class, but it’s 1 a.m. I just can’t support the map amendment with the marina,” Whitmore said, praising the developer who is suing the county over a land rights issue related to El Conquistador Parkway.

Commissioners DiSabatino, Whitmore and Vanessa Baugh all expressed concerns of having the marina mentioned in the map amendment.

“I'm not crazy about a marina,” Baugh said. “I can't believe everything after I investigated and heard that I don’t know that I could handle dredging.” Baugh added that the measures make sure that Sarasota Bay isn’t disturbed by dredging for a marina. “We're not approving anything pertaining to the water. We don't want the water touched. It's beautiful, we love it," Baugh said. "At the same time, we can have a very beautiful place built there on the water for not only people coming in and staying at the hotel but also for Manatee County residents to enjoy.” Whitmore said what the developers propose doesn’t fit with her vision of the waterfront. “I did not want to interrupt that shoreline,” Whitmore said. “There are other ways you could work with that property.”

Commissioner Betsy Benac, a former county planner and past consultant for Lieberman, said she “doesn’t necessarily support a marina” and doesn’t support the text amendment, but is comfortable with the language by staff that says uses are subject to regulatory approval. “I think changing to mixed-use is a good thing and that we will not be violating any of our comprehensive plan policies to do so,” Benac said. Before the commissioners reached the vote, DiSabatino put up a motion to deny the map amendment, but that failed 3-4, with DiSabatino, Gallen and Chappie voting in favor. "I'm very cautious about putting in jeopardy a way of life we have in the village area with the commercial fishing community out there,” Chappie said.

The county is already being sued over a land taking by the same developers over building the $2.2 million El Conquistador Parkway extension. The suit was filed July 25 in Circuit Court. While the lawsuit is not supposed to affect Tuesday's proceedings, according to county attorneys, a local development agreement tied to the project and referenced in the suit would not be used as a supporting document, Schenk said.

One key stipulation for the approved Phase One of Long Bar Pointe included prohibition of docks and mangrove trimmings. However, county staff said kayak launches and observation decks could be constructed.

Jane von Hahmann, a former commissioner and a main organizer against development of Long Bar Pointe, said the developer could come back and not have restrictions against docks and mangrove trimmings in a local development agreement for later project phases.

Countywide effects

County staff unveiled Tuesday 42 properties in Manatee County possibly affected by the proposed Long Bar Pointe text plan amendment.

The properties include land on Cortez Key; Terra Ceia; freshland waters inland north of Parrish on the Hillsborough County line, east to Lakewood Ranch; Myakka City; Duette along the Manatee River; Little Manatee River; Gamble Creek; and even smaller bodies of water.

The proposed text amendment aimed to limit development in environmentally sensitive areas to mixed-use projects on lands 200 acres or more next to arterial roads, along a coastal line and navigable waters.

Doug Means, planning division manager, said the map is open to interpretation because of vague text amendment language for the terms "coastal line" and "limited exception." Staff used the federal standard for "navigable waters" since the waterways were not defined.

"Some navigable waters are literally streams," Means said.

Vogler, attorney for Long Bar Pointe LLLP, said changing the language to "a bay" to define the water would limit it further.

"If it was a bay 500 feet wide, it would dramatically change," Vogler said. He said he would be open to working collaboratively with staff on changing language earlier but was not afforded that opportunity.

Means countered that staff identified nine policies that would be affected by Vogler's vision, but those policies were apparently dropped. "The language we see now we never collaborated on that," Means said.

Traffic impact

Long-term traffic plans for El Conquistador Parkway call for an additional two lanes for the road. The traffic impact statement provided to the county is based on a four-lane El Conquistador, according to county staff.

DiSabatino wanted to know when the road would be built in relation to the phasing of the project and who would pay -- taxpayers or the developers.

"You're going to have all that traffic on that one lane," DiSabatino said.

The developer submitted the following maximum intensities for the traffic report:

• 1,086 single-family homes.

• 2,351 condos/apartments (high-rise and low-rise).

• 300-room hotel.

• 300-berth wet slip marina.

• 72,000 square feet of office space.

• 120,000 square feet of commercial space (half shopping center, half specialty retail).

• 84,000-square-foot conference center.

Bob Argusa, project engineer manager for Manatee County, said while 11 roadway links would be deficient with the proposed use, only one would be considered critically deficient: 34th Street West.

"How much they are exceeding is not significant on the whole," Argusa said.

Vogler said staff told his client to submit maximum uses, which is a misrepresentation of their proposal, which has not been submitted yet for county review.

"Traffic has been a question this morning and that really surprised me," Vogler said. "We didn't believe a traffic study should have been done at this stage."

Roads are paid for by a mixture of impact fees and taxes, but Vogler trumpeted all the revenue the county could net by the development. Annual sales tax could generate $335,000, he said, in addition to more than $925,000 in bed taxes paid by hotel guests.

Schenk said the mixed-use Manatee Fruit Co. land to the north has language referencing to "water-enhanced" and "water-related" uses but no mention of a marina. If the commission opted to use that language instead, "it may not be the type of uses the applicant has a vision of intent for."

The mixed-use plan also calls for a water taxi service, which would open the coast to commercial water uses instead of the residential water uses allowed today, according to county staff.

Mitigation arguments

The developers came with scientists and planning experts in tow to support their arguments.

Doug Robison, senior vice president of water and environment for Tampa-based Atkins Global, addressed key issues regarding seagrass and mangrove mitigation.

Beruff acknowledged some seagrass would be dredged to create a 60-foot-wide channel 2,100 feet long, as well as trimming several acres of mangroves to cut into the land for an 80-boat basin. Mangroves would be trimmed in measured steps, and the taller, black mangroves would be left alone, according to the developers.

"We can absolutely guarantee it's going to work," Robison said about mangrove mitigation, citing a 90 percent success rate.

"Seagrass is not so easy," he said.

Extensive studies of nitrate content, existing seagrasses and other water studies would determine the viability of transplanting seagrass that would survive, he said.

Robison said the developer could salvage and transplant the seagrass, create a tidal lagoon and establish a pole-and-troll zone to prevent propeller scarring to offset the dredged seagrass.

These strategies are similar to what Port of Manatee uses, which exceeded state mitigation credits. But the state rewards mitigation credits whether seagrass grows naturally or is transplanted, opening up a cycle for developers to replant seagrass to replace other failed seagrass.

John Henslick of Eco Consultants pledged 98.5 percent of existing coastline and 90 percent of all existing mangroves of Long Bar Pointe would be protected.

Much of what the consultants said is moot, according to county policy. Clague, one of the county's staff attorneys, said the comprehensive plan states the county will not approve development requiring dredging along that area, and it's a policy other counties along the Gulf and Central Florida have adopted.

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