Long Bar, Manatee County attorneys clash over alleged land taking

BRADENTON — Attorneys representing the developers of a proposed subdivision at Long Bar Pointe and those defending Manatee County faced off in court Friday over a shoreline development issue that has been smoldering since 2013.

Both sides showed for a bench trial in Judge John Lakin’s 12th District courtroom to argue whether county land use regulations deprived the developers of Long Bar Pointe full use of their property.

The plaintiffs, two companies controlled by local developers Carlos Beruff and Larry Lieberman, asked the court to invalidate four land-use rules that preclude them from developing the waterfront on their 522-acre West Manatee property. Barring that, they asked the court to compensate them to the tune of about $20 million for taking away their ability to develop their shoreline and underwater lands.  

County attorneys asked the judge to summarily dismiss both actions. Citing a massive amount of evidence submitted in the case, Lakin declined to make a ruling until a later date.

The plaintiffs’ suit stems from the Manatee County Board of Commissioners’ refusal in August 2013 to amend provisions of the county’s comprehensive plan at the developers’ request. Lacking the amendment, the developers were unable to build a waterfront hotel, marina and shoreline retail as part of a 3,600-home project from the shores of Sarasota Bay to El Conquistador Parkway.

In October, the developers filed a challenge to county code related to developing coastal habitat, dredging restrictions, the construction of waterways and the allowable depth of water needed to build a boat ramp.

Although the two sides came to Lakin’s courtroom after compromising on a format that allowed each set of attorneys to present their cases without interruption, they yielded no ground in their arguments. Plaintiffs’ attorney S. William Moore used more than two hours of the court’s time during the day-long hearing to chip away at the county’s 26-year-old comprehensive land use plan.

Quoting depositions taken with county planning official John Osborne and environmental program manager Joel Christian, Moore painted the shoreline regulations at issue as “preclusive and prohibitory” and “vague and standardless.” He said the rules lack specificity and preclude private business development at the shoreline, even while they allow for industrial development at the water in the case of public ports.

In summarizing his argument, Moore said the county would have been wise to better define its rules.

“To wait until somebody comes in with a big $20 million takings challenge, why, why would you do that?” he said.

When they took their turn before the court, Manatee County’s attorneys sought to swiftly turn the plaintiffs’ case aside.

Assistant Manatee County Attorney William Clague said the plaintiffs filed their challenge outside a four-year statute of limitations. The county’s land use code was approved in 1989, which “set the clock ticking” on challenges to its provisions. The plaintiffs bought their land at Long Bar Pointe in 2012.

Clague then attacked the developers’ standing for bringing the suit on a second front. He said that at the time the board of commissioners rejected changes that would allow waterfront development at Long Bar Pointe, Beruff’s and Lieberman’s development companies, Cargor Partners VIII/Long Bar Pointe LLC of Bradenton, had not actually filed plans with the county for the shoreline aspect of the development.  

“They didn’t apply for anything,” Clague said. “They just put a rendering up on the camera and said this is what we’re thinking about doing.”

Friday’s hearing was attended by more than a dozen members of the public. Attorneys representing several local environmental groups also addressed the court, having intervened in the case to support the county.

Long Bar’s developers are unusual in that they are one of a small number of property owners in Florida who own underwater land. In 1970, the state took sovereign ownership of most submerged lands within approximately three miles of its coast by adding language to Florida’s state Constitution.

Long Bar Pointe was once planned to include up to 3,600 homes, 192,000 square feet of commercial space, a hotel, a conference center and a marina and navigation channel.

Cargor Partners VIII/Long Bar Pointe LLC of Bradenton has since submitted a new general development plan for the property. Named Aqua by the Bay, the subdivision is slated to contain nearly 3,200 homes and apartment units. The new plan deletes the marina, hotel, conference center and much of the commercial development present in the original Long Bar application.

The property rights suit is one of three legal actions the Long Bar Pointe developers are pursuing with the circuit court. In July 2013, they filed suit against Manatee County seeking relief from a $2.35 million “special fee” related to the construction and expansion of El Conquistador Parkway. The road borders the Long Bar Pointe property.

On July 29, Long Bar and Cargor filed a complaint against Florida Power & Light. It alleges that the utility laid  an underground and underwater cable outside its easement and on lands owned by the companies. The plaintiffs seek unspecified back rent and a judgment that the FP&L is “unlawfully in possession of the Plaintiff’s property.”

Matt M. Johnson, Herald business reporter, can be reached at 941-745-7027 or on Twitter@MattAtBradenton.

This story was originally published December 4, 2015 at 6:56 PM with the headline "Long Bar, Manatee County attorneys clash over alleged land taking ."