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Aqua by the Bay: So, What Exactly Happened?

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This week, the power of public opposition was on full display as a determined group of citizens took on a politically-connected developer seeking to get approval on an environmentally-disastrous development plan. In a somewhat bizarre outcome, the development was approved–sort of–but not before the most contested elements were dropped.

When Carlos Beruff brought forth Aqua by the Bay to replace his failed Long Bar Pointe development on southwest Manatee County's bayfront, there was every reason to suspect that the Medallion Homes CEO was simply trying to go the long way around the barn to essentially achieve the same outcome: a massive, waterfront development that would require environmentally-destructive dredging at the expense of vital mangroves and wetlands in order to bring a boat-accessible waterfront to the edge of the property.
 
A proposed "estuary enhancement area," would have in fact been a dredged canal nearly two miles long, much deeper than surrounding bay waters–a clear violation of the county's rules, which require a 50-foot wetland buffer and prohibit such dredging. The waterway was almost sure to lead to the demise of the mangroves, separating them from the mainland. Meanwhile, at the state level, Beruff is seeking a controversial mitigation bank, the credits from which could be used to connect the new canal to the bay, paving the way for waterfront docks and possibly even a marina–just like the one Beruff wanted.
 
Back in 2013, Beruff attempted to get a text amendment to the county's comprehensive land use plan that would have allowed the dredging, but it was voted down unanimously by the BOCC. Then he sued the county, arguing that its rules on dredging were unconstitutional, but the county prevailed. This time, he tried to say that he wasn't dredging and county staff somehow initially agreed, telling the board that the proposed GDP conformed with county rules and recommending its approval. When that logic was soundly defeated by public opposition, both Beruff and county staff suddenly seemed to acknowledge that it was dredging, but that it was somehow allowed. At every turn, staff in the county's planning and environmental departments seemed to bend over backward in recommending approval of a project that clearly didn't conform with the comp plan and land development codes.
 
Citizens, however, weren't having it. Meeting after meeting, vastly-credentialed experts from our community disputed the developer's claims that the canal would enhance anything. Despite staff recommendations, commissioners were having a very difficult time ignoring the rational and well-articulated arguments of the public, from groups like F.I.S.H., Sierra Club Manatee and Suncoast Waterkeeper, all of which opposed Beruff's application for a general development plan because of the dredging and other rule violations.
 
The board seemed to be for the most part divided on the issues of environmental concerns and incompatibility with surrounding neighborhoods, most of which opposed the four 145-foot high-rise condos the developer was seeking special approval for, along with 12 mid-rise, 95-foot condos, and an undetermined number between 35 and 95 feet, fearing it would cause a "wall effect," that would effectively destroy the serene waterfront vistas. Nonetheless, anyone who's followed land development in Manatee County knows that Beruff is rarely rebuked by a commission he's been very generous to via campaign contributions.
 
Tuesday's meeting opened under a cloud, after the board seemed to negotiate multiple stipulations from the dais after closing public comment at the last meeting. Opponents argued that the board would essentially be voting on a new plan, one that the public did not have ample opportunity to inspect and weigh in on. Beruff's team and the county went back and forth in the interim, crafting stipulations that sought to limit height and give assurances that the "estuary enhancement area" would never be opened to motorized watercraft and that no building would ever be built higher than 95 feet.
 
The previous meeting had been continued after Commissioner Vanessa Baugh withdrew her motion to approve, followed by Commissioner Stephen Jonsson withdrawing his second. This happened after Commissioner Carol Whitmore, who seemed undecided herself, told the developer she didn't think he had the votes to get the approval and that she'd rather try to sort it out than see the application fail and go back to the drawing board (commissioners Robin DiSabatino, Charles Smith and Priscilla Trace has already indicated that they were not likely to support the application in its current form).
 
When Commission Chair Betsy Benac made it clear on Tuesday that she remained uncomfortable with the estuary enhancement area being within the wetland buffer, Whitmore agreed. That's when things took a weird turn. All of a sudden Beruff and his attorney Ed Vogler, who had staunchly defended and fought for the waterway through the entire process, asserted that they were willing to give it up as well, if it meant they could secure an approval before the end of the day. County attorney Sarah Schenck sternly warned against crafting an approval via stipulation rather than a revised and conforming GDP application, telling commissioners that she felt they needed a new GDP that reflected all of the changes, and that it would have to be opened up for public comment before a vote. Schenck said she didn't see how that could be done the same day.
 
Beruff and Vogler were clearly exasperated and insisted that if "words" were the only thing preventing the approval, they should be willing and able to insert "the right ones" necessary to get the votes. Commissioner Whitmore also lobbied fiercely to take a vote that day, no matter what had to be done, while Benac expressed interest in putting it to bed as well. Ultimately, a new GDP was hustled together during an extended intermission and a vote was approved unanimously. But what exactly did Beruff get?
 
The canal is gone from the plan, and the approval stipulates that there will be a maximum of sixteen 95-foot buildings, but it also requires board approval of his preliminary site plan once 750 units are completed (a process that is normally conducted only with staff approval and no public input), so that placement of the buildings and the avoidance of that "wall effect" can be assured by the board. It also stipulates that he has to come back after each 750 units are completed for approval of the next 750 (the first 750 will be done with a site plan approved by staff in the typical fashion).
 
So while opponents didn't get the denial they were looking for, they did manage to block the canal and at least the tallest buildings. There's just something odd about the preoccupation Beruff and his team seemed to have about simply getting an approval, any sort of approval, at all costs. Without the canal, the improved waterfront, and potential bay access, it wouldn't seem that there would be a market for a project of anywhere near the scale of what he had intended. Aqua by the Bay would be surrounded, it would seem, by other equally or more attractive developments in both the near area and at other better-situated waterfront parts of the county, none of which are exactly selling like hot cakes at the moment, in a somewhat tepid condo market.
 
I get the feeling that there may be more to the strategy than meets the eye. Perhaps there are financing benchmarks, investor agreements, or legal strategies to be considered that we're not privy to. Whatever the case, it was clear that an approval of any kind was suddenly of critical importance to the applicant–more so than any individual element of the plan, regardless of how paramount it might seem.
 
I still think the board should have followed the advice of Schenck–who should be commended for doing an excellent job–and voted on the plan they had before them at the opening of the meeting. They should have denied the application and required the new GDP to go back through the prescribed process, if only to minimize the exposure of potential lawsuits from both sides for reasons I've already described.
 
That said, Tuesday's proceedings may not have been perfect, but the result was far better than is usually the case when regular people go up against powerful special interests. Yes, the height of the buildings will still up the ante on coastal height in Manatee County. For this reason, the public must hold the county to ensuring that the design and placement of those buildings are done in the most thoughtful manner possible, in order to minimize the effect on vistas.
 
Meanwhile, commissioners and the county administration should recognize that a transparent and inclusive process that allows for respectful dissent and the free-flowing exchange of ideas is the one most likely to yield the best results for all involved. It would be nice to see staff become more accessible to the public, who would ideally be able to communicate concerns and present data that runs counter to the applicant's narrative much earlier in the planning process. Such collaboration could serve to make the process much less adversarial, while improving efficiency and decreasing litigation. Such a process would also offer more conformity with the quasi judicial process, as opposed to this case, where you essentially had the developer's team convincing county staff behind closed doors as to why they should recommend approval.
 
If we've learned something from this project, it's that had the chummy back-room process dominated by county staff and the applicant not been subject to intense public scrutiny, commissioners would have likely felt assured that a good project that conformed with all of the county's rules was being proposed. Staff dropped the ball several times in failing to fully and correctly inform commissioners on issues that are supposed to fall under their collective areas of expertise, and it was the public that refocused attention to the elements that fell short.
 
The opposition will surely need to remain vigilant as this mammoth project continues through the development process in order to ensure that the spirit of what was agreed upon Tuesday is withheld. Still, it feels pretty good to see the democratic process prevail, at least at this juncture. Hats off to all of the citizens for putting in the hard work that a well-functioning democracy requires, the county commissioners for listening to your constituency, and even the developer for seemingly recognizing that when it comes to large-scale, moon-shot projects, compromising with the host community is required.
 
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Dennis Maley is a featured columnist and editor for The Bradenton Times. His Sunday opinion column deals with issues of local concern. He is the author of the novel, A Long Road Home, and the short story collection, Casting Shadows, which can be ordered in paperback here, or in the Amazon Kindle store here.
 
 
 
 

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