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Judge throws out Aqua by the Bay lawsuit. Bradenton development cleared to begin

More than a year after a contentious hearing and subsequent lawsuit over the planned Aqua by the Bay, a Manatee County judge has ruled that the massive housing project may move forward.

Aqua by the Bay is a Medallion Home development that is slated to bring 2,384 multi-family and 510 single-family homes to the area along Sarasota Bay. There will also be 78,000 square feet of commercial space, according to the general development plan. Manatee County commissioners voted unanimously to approve the development on Oct. 3, 2017.

Just one month after the board’s decision, environmentalist group Suncoast Waterkeeper Inc. and a host of other plaintiffs, including former county commissioner Joe McClash, filed a lawsuit against Manatee County, claiming that they were not afforded due process in the approval of the 529-acre development between El Conquistador Parkway and Sarasota Bay.

In a 21-page opinion, Circuit Judge Gilbert A. Smith Jr., however, said there is precedent that the public is not entitled to due process without being a party in the case.

A Medallion Home spokesman could not be reached Wednesday to comment on how the ruling may affect the timing of the project’s construction.

“Contrary to Petitioners’ assertions, courts have held that participants are not afforded the same due process protections as parties,” Smith wrote.

The two parties in the quasi-judicial case were the Manatee County Board of County Commissioners and Long Bar Pointe, LLLP. Smith pointed out that members of the public did participate in public comment.

The crux of the opponents’ argument was that the development, namely two concepts — a sea wall and an estuary enhancement area between the development and a shoreline of mangroves that would be 20 feet wide and 8 feet deep — that did not make it to final approval, would harm the environment.

During the extended recess of the October 2017 hearing, developer Carlos Beruff agreed to strike those plans. Without those elements, the environmental impact of the project shrunk to 7.93 acres.

Thirteen members of the public stuck around to provide public comment regarding the changes they had asked for, but the lawsuit claims they did not have the chance to have an expert review the adapted proposal. Smith said that’s not a right the public is entitled to, either.

“Petitioners present no authority to support their contention that they are entitled to have experts review and present to testimony regarding updates to the [general development plan,]” Smith wrote.

Beruff’s updates to the general development plan were enough to appease commissioners.

“The applicant has done everything I have asked. I have no right to oppose this project based on who the applicant is,” former Commissioner Charles Smith said at the time.

The lawsuit also alleged without evidence that county staff held backdoor conservations with the developers, acting “as a conduit of information from the developer directly to the Commissioner[,] influencing their decision outside the public hearing quasi-judicial proceedings.”

According to court documents, Smith disagreed with their claim of “unfair, unbalanced communication.”

“As members of the public, they are entitled to an opportunity to be heard by the Board, and they did speak at various public hearings. The record also indicates that they submitted written ex parte communication to the Board,” the judge said. “However, Petitioners have presented no authority establishing their entitlement to meet with County staff outside of the quasi-judicial hearing.”

Suncoast Waterkeeper released a statement regarding Smith’s ruling on their Facebook page Wednesday morning.

“(Carlos) Beruff and other politically powerful developers get to run the show at the County Commission,” the post said. “This ruling highlights and gives judicial support to this unfair advantage.”

The Aqua by the Bay community spent more than 10 years working its way through Manatee County government before finally being approved. It was formerly known as Long Bar Pointe, which included plans for condos, hotels, a marina and a conference center.

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