Beruff: County favored Manatee Fruit Co., IMG over Long Bar Pointe in Urban Service Area

March hearing to decide if Manatee erred in removing Long Bar Pointe from Urban Service Area

cschelle@bradenton.comFebruary 16, 2014 

MANATEE -- The developer of Long Bar Pointe has accused the county of favoritism in exempting his development from the county's new Urban Service Area.

In an appeal against Manatee County, developer Carlos Beruff said he believes the county was playing favorites with IMG Academy and Manatee Fruit Farms when it left Long Bar Pointe out the Urban Service Area.

Beruff contends that the county was picking winners and losers by pulling him out of the Urban Service Area. He contends that rather than deal with political pressure from certain constituents, his project was unfairly left out.

"Inside the county (there was someone) that felt that we didn't want to impede the success of the other projects, and that somehow in the future I would be taken care of," Beruff testified. "...The future would hold big things for me."

Beruff contended in a two-hour deposition to chief assistant county attorney James Minix that Manatee County Planning Official John Osborne was directed to exclude Long Bar Pointe because of controversy surrounding the project so progress for developments at IMG Academy and Manatee Fruit Farms would not be slowed. A final hearing through the Division of Administrative Hearings, an appeals system used in Florida to challenge decisions made by commissions, school boards and state departments, is slated next month.

"It was the county's perspective that they didn't want to slow down so that IMG can move forward and Manatee Fruit Co. can move forward and not worry about a challenge," Beruff said. He added that he doesn't believe the county started out with that mindset, but the situation evolved to that conclusion.

The revelations, Beruff said, came during a phone conversation with Osborne. Beruff decided to take notes, saying that the county attorneys were concerned about opponents filing an appeal on the Urban Service Area if Long Bar Pointe was included.

Manatee County Government declined to comment to the Herald because of the active court case, county spokesman Nicholas Azzara said.

Beruff's deposition transcript was removed from public viewing Wednesday, ordered by Administrative Law Judge Bram D.E. Canter because "there is no pending matter for which the transcript must be considered." The Herald was able to download it before its removal.

The final hearing is scheduled for March 18 and 19 at the Manatee County Public Works Department, 1022 26th Ave E. Osborne has yet to be deposed. An administrative law judge can file an order to overturn the county's decision or agree with the county. If that decision is appealed and mediation fails to bring a resolution, a decision could reach Gov. Rick Scott and the cabinet that forms the governor's Administration Commission, which oversees the Division of Administrative Hearings.

The county commission voted 4-3 on Nov. 7 to approve the creation of an Urban Service Area. The designation aims to promote redevelopment in areas that already have infrastructure by limiting state review and speeding up the approval process.

Projects that meet certain building thresholds trigger additional state review, and the USA designation is a way to eliminate the state-required Development of Regional Impact review. It's not clear why the county chose to exclude the vacant Long Bar Pointe land as opposed to developed parcels in the Coast Evacuation Zone that could be slated for more intense development in the future.

However, in its vote, the commission took staff recommendation to exclude Beruff's project Long Bar Pointe after it was initially included by the Manatee County Planning Commission, an advisory body.

Clear as SWFWMD

Osborne's justification was based on a letter from the Southwest Florida Water Management District stating that the designated area has too much land in the Coastal Evacuation Area, which is prone to flooding during tropical storms. When staff made changes to the USA, they removed Long Bar Pointe, a housing project that had intentions of filing a new plan to turn the 463 acres along Sarasota Bay into a resort development with a high-end hotel, conference center, expanded office and retail center.

Shortly before the Planning Commission met Oct. 10, Beruff got wind that Long Bar Pointe could be removed. He said he had a second conversation with someone in Manatee County Government staff or an elected official, but could not recall who.

Beruff would not enter his notes during deposition as evidence, saying the notes are confidential between him and his attorney, even though he testified about the notes.

"I just don't feel it's something I want to share at this moment," he said during his Jan. 29 deposition.

No evidence in forms of memos, emails or other communication has been offered to prove his theory, but Beruff stood by it. Beruff would not identify his source before he called Osborne.

During the county commission meeting in November, Osborne did use IMG Academy as an example of an expanding business that can trigger a DRI threshold based on its multi-phase master plan, but didn't say the county was favoring IMG.

"I thought it was just discriminatory -- just discriminatory against us quite frankly," Beruff said. He also offered that he would have felt better if, during his conversation with Osborne, he would have mentioned that the county would base its reasoning for the exclusion on a SWFWMD letter.

In June, the county had received comments from state and regional agencies after transmitting the USA ordinance for review.

Beruff serves as chairman of SWFWMD, and his term ends in May. He said he didn't speak to anyone at the agency concerning his issue with the Urban Service Area and Long Bar Pointe, but Minix noted Beruff's colleagues interacted.

Connor Chambers, a consultant for Beruff, contacted SWFWMD planner Melissa Dickens about Long Bar Pointe's removal. Beruff said he didn't know about the conversation until afterward.

"I had no direction in this," he said.

Bordering Prestons' acres

Beruff said he wasn't able to connect with Chip McCarthy, vice president of finance and operations of IMG Academy, to try to get support for his project, but when he talked to Whiting Preston of Manatee Fruit Company, the conversation didn't go in his favor.

"The substance of those discussions were that I thought it was imprudent for us to be on the same side on this issue because it was good for all of us, and that it was not good for us to allow politics to defer good planning, OK? That's the substance of the conversations," Beruff said. "Mr. Preston was not supportive of our position because quite frankly he didn't care, it wasn't affecting him."

No plans have been filed for Manatee Fruit Co.'s 1,600 acres yet, but Preston's family has created a website called BradentonsFuture.com where they lay out a strategy to develop the land by asking what the community would like to see there.

Preston did not respond to questions about Beruff's assertions of favoritism and their conversation, but released a statement concerning his project.

"The Urban Service Area (USA) plan amendment is a county initiative, not just an individual property one, to help regions foster growth that benefit the community," he said. "It is a result of the How Will We Grow report, the ULI study and a lot of community discussion as to the need for investment in this part of the County. As a family with Bradenton roots dating back more than 100 years, we agree with the need for good sensible growth in this area."

Beruff insisted it would be best to forge an alliance.

"I thought it was better for us as co-neighbors of the largest tracts of property on the west side of Bradenton to have the same mindset of the future, which is why we're doing what we're doing," Beruff said. "I mean, we want something unique for Bradenton and we -- we were led to believe at one time that what we had envisioned was actually great. But unfortunately that's changed in time."

The Long Bar Pointe development is still undergoing changes. The Planning Commission last month approved 200 single-family homes on 61.75 acres, which allows developers to build 1,200 homes in a private, gated community. The County Commission would still have to approve any changes. While Beruff originally withdrew an application for mixed use under the proposed map change, Beruff told Minix he's still "reevaluating our options" for whether he'll try to get approval for the mixed-use project again.

"We have not gone back and re-planned, but the first phase was always a component of the total …" he said.

Moot point?

Beruff's fight with the county could become moot.

State Sen. Bill Galvano, R-Bradenton, has filed Florida Senate Bill 372 that would lower population and population density thresholds that prompt state review for all DRI projects. If passed, the bill would exempt all DRI projects in Manatee, Sarasota, Brevard, Escambia, Lee, Pasco and Volusia counties from state review, he said.

Manatee County's Urban Service Area conflicted with state law because the county did not meet the qualifications of having 1 million or more residents and didn't meet the population density, so nobody with a DRI project could take advantage of the county's new ordinance, Galvano said.

"We're not lowering standards," he said, adding that county oversight is just as good as the state's oversight. Some Manatee County officials have also said during hearings that the state's DRI reviews have been watered down over the years.

Under Galvano's bill, a county would have to have at least 300,000 people and an average of at least 400 people per square mile to exempt a DRI review. For cities inside the county, municipalities must have at least 5,000 residents and at least 1,000 people per square mile.

Hillsborough County is currently exempt from the additional DRI review, which makes Manatee County less competitive when trying to attract businesses near Port Manatee, he said.

Galvano plans to meet with Sierra Club officials about their concerns and gives the bill, which has a sponsor in the House, a good chance of passing.

Beruff said he was aware of that bill, but the hearing for the county USA was filed because he only had 30 days to contest the county's ruling and could not predict what would happen at the state level.

"When you go to Tallahassee, it's a crapshoot," Beruff said.

The Urban Service Area is important for Long Bar Pointe because it would speed the approval process up by nine months, Beruff said, and he expects his project to meet that matrix.

Long Bar Pointe could still be part of the Urban Service Area without an appeal. Property owners can petition the county to become part of the Urban Service Area, Minix said, but Beruff said he wasn't aware of that option until the week before his deposition.

"But, hell, if it -- if it gets us there, I'm OK with it," Beruff said.

Arguments continue

A short paragraph in a SWFWMD letter is creating long arguments. SWFWMD's letter states the USA includes too much land in the Coastal Evacuation Area, and the county decided that taking out Long Bar Pointe was a way to meet that criteria.

In deposition questioning, Minix took each sentence as an individual recommendation, while Beruff sees the sentences as interrelated.

"Do you think it's irrational for land that's located in a Coastal Evacuation Area, such as at least a portion of Long Bar Pointe, to have more stringent requirements on it?" Minix asked Beruff.

"I think it's irrational to put requirements on it that clearly good engineering and planning practices can resolve," Beruff responded.

Beruff offered that SWFWMD says all these issues can be mitigated by the flood evacuation plan.

"I agree they have those comments on anything that has a flood -- an exposure to evacuation zones that have been created by FEMA and Manatee County that are well documented in existing maps," Beruff said. "I had to generate an evacuation map for Fort Hamer Chelsea Oaks because I'm within a mile of the Manatee River. No different. Same thing."

Beruff offered that the county acted irrationally in choosing to remove his property, and Minix wanted to know what would happen if the county removed other land.

"All I want to know is do you think it would be equally irrational for us to not have included any of the other parcels? Or it's you're the only one that it's irrational?" Minix said.

Ed Vogler, Beruff's attorney, objected to the question's form, but Beruff didn't have much to offer in response.

"I don't have an answer for that question, I'm sorry," Beruff said.

Charles Schelle, Herald business reporter, can be reached at 941-745-7095. Follow him on Twitter @ImYourChuck.

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