Aqua by the Bay Still in Limbo After Another Marathon Meeting

BRADENTON – On Wednesday, the Manatee County Commission buckled in for what looked to be one final marathon meeting on Carlos Beruff’s controversial Aqua by the Bay project. Nearly 10 hours later, the meeting was once again continued.

The special land use meeting to consider a general development plan for the massive coastal development project began with Beruff’s team clarifying changes to its application. This included reigning in the concessions the developer was seeking on coastal height limitations. Beruff was no longer asking for the four buildings that could be up to 145 feet in the general development plan and instead wanted up to 16 buildings that could be no higher than 95 feet, with it noted that he would have to come back for specific approvals in the future for up to four of them that could be considered for a 145-foot maximum. The number of buildings between the coastal development limit of 35 feet and 95 feet would remain "market determined."

This essentially meant that Beruff would either, best case scenario, get what he was originally asking for through approvals received in the future, or, worst case scenario, get sixteen 95-foot max buildings, instead of 12 at 95 and 4 at 145. The developer had also given up his request for a variable-width buffer and would submit to the 50-foot linear buffer required by the comp plan. His plan to dredge a large, 8-foot deep canal behind the mangrove shoreline, however, remained unchanged.

Staff was recommending approval, though commissioners–several of whom complained about not getting advance notice and briefing on staff positions–professed to being less prepared than they would have liked, considering the magnitude of the issue. The fact that several had also acknowledged being "exhausted," "cranky" and more than a bit burned out after a marathon meeting the day before would be revisited by opponents at several points as reason not to approve the application during that day's meeting.

It was hard to get a read on where all of the commissioners were lining up following the applicant presentation. Commissioner Robin DiSabatino clearly felt as though things were moving forward without enough information and clarity and after a long list of questions for both staff and the applicant, she hadn’t seemed to have grown any more comfortable with entertaining a motion. Commissioner Charles Smith seemed similarly weary.

Commissioner Carol Whitmore seemed eager to find middle ground but was clearly uncomfortable with both the height and the canal. She had the most questions for the applicant, including the only direct inquiry as to why Beruff found the canal and sea wall necessary, given their controversy with the public. Beruff claimed that dredging the man-made waterway was the best way to protect the mangrove forest, because the water that would move in and out with the tides would carry nutrients through them and that his "estuary enhancement area" (his name for the canal) was there to make a bigger buffer from "the thing that everyone wants to protect, the mangroves."

Beruff also claimed that by building up the site and using the upland retaining wall, as opposed to putting the homes on stilts, he was taking a more expensive route and following his consultants’ guidance on building the most ecologically-friendly development. However, Beruff’s team also acknowledged that the developer was seeking mitigation credits for the canal that he would use to offset wetland impacts on the development, and that while he has a conceptual permit from Swiftmud (our regional water authority) to do so, he still needs approval from the Army Corps of Engineers.

Commission Chair Betsy Benac, herself a former planner and far and away the commissioner with the deepest understanding of such issues, expressed similar concerns over the protection of the mangrove forest. Benac also echoed opponents' concerns that dredging the canal, which would be much deeper than surrounding waters, could harm local fisheries by providing larger predator fish with access to a place where so many feeder fish spawn.

Beruff’s team claimed that those fish would still have places to hide in the mangrove forest and that the new canal would create "additional hiding areas" in the 9.6 acres of new wetlands. They also boasted that the introduction of new species would have the benefit of increasing diversity.

Commissioner Stephen Jonsson, whose district includes the Historic Cortez Fishing Village, echoed concerns over the fishery.

"Am I to understand that the, quote unquote, kitchen will not be disturbed, correct?“ asked Jonsson.

"Yes. It will not be disturbed, it will be enhanced," said Beruff’s attorney, John Vogler.

When public comment finally opened, local experts lined up to tear those claims down, none better than Dr. Randy Edwards. Edwards, who holds a PhD in Marine Science from the University of Miami and a Bachelor’s of Engineering degree from the University of Florida, has volunteered endless hours toward shooting holes in the applicant’s environmental assertions.

"This is poppycock," said Edwards of the environmental claims in Beruff’s presentation. "This is a ruse, this is obfuscation, and I don't even know what more to say. I'm speechless."

Edwards knows of what he speaks, having over 40 years of professional experience, including about a dozen studies of fish habitat assessment, habitat enhancement, and habitat creation in Sarasota Bay, Manatee County and Tampa Bay while a scientist at Mote Marine Laboratory for 14 years, along with seven years of research on fish habitat biology while a scientist at the US Geological Survey and the University of South Florida. For all intents and purposes, he is the expert on the subject.

Dr. Edwards explained again that by separating the mangrove forest from the mainland with the canal, one would prevent their natural migration, which occurs with rising sea levels.

"Every time there's a high tide, a storm, the sediment from the mangroves, the muck, it's gonna be trapped there forever," said Edwards. "Without an upland buffer, every millimeter of sea level rise will cause mangrove flooding and they will begin to die–immediately!"


Andy Melee, representing Sierra Club, called the canal "a deathtrap for fish," reminding the board that in a quasi-judicial hearing such as this one, an application must be compliant with the comprehensive plan, and argued that this one was not, if only because of the lack of a proper mangrove buffer, as described in sections two and seven of the plan.

Melee, an experienced environmental scientist with both a Bachelor’s and Master’s degree from Bard College, also attacked the plan for its lack of clarity. "The land development code requires elevations and plan views of all buildings over 35 feet at the time of the final hearing,“ said Melee. "This application provides neither accuracy, nor completeness.“

For hours, additional experts, environmentalists and just plain everyday citizens bombarded the commissioners with reasons not to approve the application as it was presented. Citizen comments was a veritable parade of degrees and centuries worth of combined relevant experience, nearly all of which pleaded with commissioners to deny the application.

From concerns about the environment and eco-tourism, to the fishing industry, incompatibility with surrounding neighborhoods and the ability for people in the area to evacuate safely during a hurricane, given all the additional density and no increase in road capacity, the complaints poured in. When it came down to deliberations, it looked fairly split with the board seeming to lean toward a denial.

"It's not Manatee County," said Commissioner DiSabatino. "We all moved here because of the slower way of life, not because we wanted something that looked like Miami.

"We don't know how many buildings there are going to be," added DiSabatino, who reiterated her desire not to take a motion that day. "To me, it's just incomplete. It's an incomplete file."

Commissioner Whitmore asked if the applicant would be willing to give up the most egregious height concessions with an added stipulation that runs with the property into perpetuity, stating that no buildings over 95 feet would ever be built, while the up -to-95s would be capped at either 12 or 16 with varying heights and placement to prevent a wall effect. Beruff said he would. She then asked if they would concede to a stipulation that no motorized boats would be allowed in the canal, which he also said he would agree to, though enforcement authority is unclear, as navigable waters are the purview of the state.

Beruff clearly wanted to leave the meeting with an approval, even if he had to fight for some of the things he wanted at some point down the road. But when Commissioner Priscilla Whisenant Trace, who many opponents had already counted as a vote for an approval, made it clear that she would support no motion that included the canal, the math abruptly changed.

"I cannot support this plan with the lagoon or whatever we're going to call it with the 8-foot deep water," said Trace.

Trace took issue with both the canal and upland retaining wall, arguing that the mangroves do not move in deep water.

"This is too important," said Trace, whose background is in agriculture. "I've been working this land all my life, and I’ve seen what happens when you do that. I can't sit with changing a coast line to the White Cliffs of Dover, so to speak."

Nevertheless, Commissioner Baugh made a motion to approve the application and Commissioner Jonsson seconded it.

"I don't think you're going to have the votes," said Commissioner Whitmore, who said she’d hate to see the project get denied and have to go back to the drawing board. Whitmore asked that the motion be withdrawn and nearly before she got the words out, Baugh did so with Jonsson following suit. The meeting was continued until Friday, September 29.


"Commissioners have to remember that the rules they are bound to abide by simply don’t allow for the dredging of the canal," said McClash. "They are also very clear that if you can avoid mitigating wetlands, you have to. Where is the wetland impact study? I haven’t seen one or heard it discussed. Where has it been demonstrated that the rules would infringe on the reasonable development of the applicant’s land? Where has an overriding public benefit been established? We’re putting the cart before the horse on these issues in discussing how to best mitigate impacts that our rules don’t even allow in the first place. Then you get into the issue of the height, which is also against our rules, its incompatibility with surrounding communities, and the fact that it would destroy our waterfront vistas. There are so many things wrong with this application in terms of its compliance with our comp plan, I just don’t see how they could approve it."


"When Commissioner Whitmore asked if the applicant would be willing to make changes because there didn’t seem to be enough votes, that’s called an extraction," explained McClash. "That used to be commonplace and accepted. In fact, when I was a commissioner, I would often tell a developer, ÔI’ll vote for this project if you put in the right buffer, increase the setbacks,’ or whatever. But the courts have since held that you cannot extract concessions from an applicant during these sort of quasi-judicial land use meetings.


McClash referenced an earlier version of this same project to illustrate the point.

"Look what happened with this same developer for Long Bar Pointe and the right of way needed for the road improvements," said McClash. "Before this court ruling, the county requested additional right of way and then Beruff buys the property, sues the county, and taxpayers were forced to pay over $2 million.

"I think the same thing would be likely to happen here. If they approve this horrible site plan with all of these stipulations they’re adding after the fact, he’d take the county to court, and he’d probably win. They’ve got to vote up or down on the application that is before them. And when it’s denied, the developer can put forth a new application based on the denial and the process starts over with public input. It’s the only way to do it."