Aqua by the Bay approval challenged

Aqua lawsuit
Holding a model of the Aqua by the Bay development, Joe McClash and Kathe Fannon are among the petitioners in a new legal challenge opposing the Aqua by the Bay development. - Joe Hendricks | Sun

BRADENTON – The battle over the Aqua by the Bay development is not over.

On Thursday, Nov. 2, attorney Ralf Brookes filed a legal challenge to the project approval that Manatee County Commissioners granted in October.

“Petitioners file this Petition for Writ of Certiorari pursuant to Florida Rule of Appellate Procedure to quash a decision of the Manatee County Board of County Commissioners (BOCC) made on Oct. 3 approving a rezoning and general development plan for a large development project known as Aqua, in the geographic area commonly known as Longbar Point in western Manatee County,” the petition for writ begins.

The petition names Manatee County as the respondent in regard to Aqua by the Bay. This means Aqua by the Bay attorneys could request to intervene in the legal action and join the county attorney’s office in defense of the claims made and actions sought.

Brookes filed the writ on behalf of Suncoast Waterkeeper and its director, Joe McClash; Cortez charter captain Kathe Fannon and her daughter, Katie Scarlett Tupin; Longboat Key resident Larry Grossman and Legends Bay residents Beverly Hill, Arlene Dukaukas and Lenka Sukova.

The commission’s Oct. 3 meeting was a continuation of the Aug. 16 and Aug. 23 meetings that resulted in developer Carlos Beruff and his attorney, Ed Vogler, offering to remove the 145-foot tall buildings from their plans. Still facing an anticipated vote of denial on Aug. 23, the developers requested more time to address commission concerns about a man-made estuary enhancement area and retaining wall and the natural buffer between the development and the mangrove shoreline. The developers also were asked to provide more details on the locations of the proposed 95-foot tall buildings.

Public comment was concluded and closed on Aug. 23, and it was stated and advertised there would be no public comment when the meeting continued on Oct. 3.

When the Oct. 3 meeting began, it was announced that public comment would be allowed if significant changes were made to the general development plan. The developers then offered to remove the man-made estuary. They also offered to come back to the commission for additional approval for each 750 residential units built after the initial 750 units.

“The Oct. 3 meeting was noticed and advertised for no public comment. The original general development plan submitted was changed during a three-hour break in the meeting and a new general development plan was created. Petitioners were not given a reasonable opportunity to personally review, and have their experts review, the amended, revised general development plan before the BOCC reconvened and voted to the approve the new general development plan on the same day. The hearing should have been continued, re-noticed and advertised to allow public comment,” the petition says.

“Because no public comment was expressly stated in the public notice, many either did not attend or have experts attend, the Oct. 3 hearing. Those interested, affected persons, including petitioners, who did attend were denied a meaningful opportunity to even see, much less review, the amended, revised site plan and stipulations created during a three-hour recess,” the petition states.

The petition claims the approval of building heights over 35 feet did not meet the essential requirements of law, and there was no substantial evidence supporting the height limits granted. It also claims the approved general development plan lacked required details.

“Wherefore, petitioners request an order from this court quashing or remanding the decision below on the grounds that the board 1) failed to provide procedural due process; 2) failed to apply the correct law and comply with the essential requirements of law contained in the Manatee County Land Development Code; 3) the approval is not supported by competent substantial evidence of compliance with all LDC requirements,” the petition concludes.