Court Sides with Manatee County Over Long Bar Pointe Developers in Comp Plan Suit
Posted
Dennis Maley
BRADENTON – Long Bar Pointe Developers Carlos Beruff and Larry Lieberman's lawsuit challenging portions of the Manatee County Comp plan was unsuccessful, with 12th Judicial Circuit Judge John Lakin issuing a ruling in the county's favor on Tuesday.
Beruff and Lieberman, who are building a massive housing development on Sarasota Bay in southwest Manatee County and wanted to include a hotel and marina, were challenging the constitutionality (both state and federal) of the comp plan policies related to dredging of canals, channels and marina basins and the construction of boat ramps and restrictions to protect our coastal wetlands, shorelines and submerged land.
State law requires counties to develop a comp plan and those that are in the state's "coastal zone" (which includes Manatee) must create a separate element addressing coastal management, including restrictions on development to protect "coastal resources."
The plaintiffs first alleged that the county's policies in this arena denied them of due process by depriving "common law rights of owners of submerged land and littoral easement interests." Lakin cited case law regarding Florida common law in ruling that it did not support the notion that dredging uses "constitute constitutionally protected private property rights" but that, rather, "property interests protected by the Florida and Federal Constitutions are determined by the property law of the State of Florida."
"Contrary to the Plaintiff's assertions," wrote Lakin in his order, "Florida property law does not confer upon riparian owners a private property right to dredge channels or basins, but merely confers a constitutionally protected right to access adjacent waters," citing a decision in Graham v. Estuary Props, Inc. in which the ruling stated, "An owner of (submerged) land has no absolute and unlimited right to change the essential character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others."
Lakin further ruled that the Florida Supreme Court has already ruled to separate conditions that exact property to confer a public benefit from legitimate policing powers via regulations that prevent a use of land that is detrimental to public interest–i.e. the developer is not being asked to change the development plan to improve public waters but rather maintain their current condition to prevent them from being diminished.
Lakin called the plaintiffs' allegations that the challenged coastal policies were vague to be "misplaced" and their allegations that the policies have resulted in a "taking" of their submerged lands to fall short of the definition, as the comp plan allows them to access the submerged lands, just not in the way they choose. Lakin ruled for summary judgement in the county's favor and also ruled that they were entitled to recover costs from the plaintiffs.
William Moore of Moore Bowman & Rix represented the plaintiffs, while Chris DeCarlo from the County Attorney's office represented Manatee County. Local environmental groups Suncoast Waterkeeper and F.I.S.H. intervened to join the county in the suit, represented by Ralf Brookes.
"The comprehensive plan policies that were challenged are found in
other coastal counties as well," said Brookes. "We are delighted that
the court found the policies to be constitutional. It important to our
economy as well as our ecology to protect the coastal mangroves and
seagrass beds. These areas provide habitat to sustain our fisheries and
our economy."
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