Resident Group Litigating East County Auto Dealership Approval

BRADENTON – After nearly two years of litigation, a group of east Manatee County residents are looking forward to a July 13 hearing that could end its long dispute with the county. Members of Save Gates Creek & Its Neighborhoods Inc. filed a civil complaint against the county related to a 2020 rezoning approval of 18 acres for a future automobile dealership at the corner of 117th Street East and SR64.

The original civil complaint, filed by the group in November of 2020, alleged that the board’s approved rezoning of the parcel conflicted with the county’s adopted comprehensive plan for future development. In the 20 months that the case has been ongoing, the group has amended its original complaint to include a request for summary judgment seeking a declaration of rights and affirmation that the prior rezoning approval should be voided on statutory, constitutional, and due process grounds.

The rezoning approval was the result of an application submitted to the county by the family that owns Cox Chevrolet. In order to develop the land, the applicant needed a rezoning of approximately 18 acres from General Agriculture and Suburban Agriculture to Planned Development Commercial at the corner of 117th Street East and SR64, just east of the Walgreens at Upper Manatee River Rd. The rezone would allow for 150,000 square feet of commercial development for an automobile dealership.

In an October 2020 land use meeting, Manatee County Commissioners voted 4-3 in favor of the controversial rezoning, despite significant opposition from residents who live in the immediate vicinity of the site.

More than a hundred residents attended the October 2020 meeting in person and also submitted to the county a petition signed by nearly 5,000 additional area residents who opposed the rezoning. While Commissioners Betsy Benac, Vanessa Baugh, and Priscilla Trace cast votes against approval of the rezoning, Commissioners Stephen Jonsson, Carol Whitmore, Misty Servia, and Reggie Bellamy voted to approve.

In a court filing by the attorney representing the Save Gates Creek group, the suit alleges–among several arguments made in the case–that commissioners who voted for approval of the rezoning failed to follow the county’s comprehensive plan and may have voted to approve the rezoning without being provided all necessary information to inform their vote. The group also claims to have recently discovered material evidence, public record emails, that support its argument.

In a recent update to the members of Save Gate’s Creek, the representing attorney and group President, Jay D. O’Sullivan, summarized the amended complaint against the county. O’Sullivan wrote in part:

Save Gates Creek & Its Neighborhoods Inc is a 501c(3) nonprofit that was formed by area residents who spoke in opposition to the rezoning. In the weeks following the board’s vote, the residents incorporated its group and filed a legal challenge to the board’s land-use vote as a legal entity.

According to the group’s website, its main initiative is, "É overturning the flawed commercial rezone vote and saving Gates Creek to avoid the serious flooding issues facing our neighborhoods if an 18.2-acre auto dealership is allowed to be built."

The incompatibilities cited by the group include flooding due to paving over designated wetlands, a planned re-route of a creek on the property, as well as noise, traffic, and the property’s proximity to residential neighborhoods.

Attorneys representing the county argue that the group was formed after the approval of the rezone and that the resident members who form the group have no "legal interest or rights" to the property owned by the Cox family. The county has also pointed to the fact that the initial challenge brought by the group argued only against an incompatibility issue with the county’s comprehensive plan as the basis for its complaint, and that over the months of litigation, the group has amended its original complaint to include a motion for summary judgment.

The attorney for Save Gates Creek responded to the county’s position by telling the courts that residents and the Save Gates Creek members are legal "parties" based on both Manatee County’s legal definition and its written procedure.

In legal response to the county’s motion to dismiss the case, O’Sullivan wrote:

O’Sullivan included in his written response to the county’s request for dismissal:

Aside from the debate over whether or not Save Gates Creek & Its Neighborhoods has any legal authority to challenge the county’s decision, O’Sullivan also argued that by allowing only commissioners or representatives of the applicant to cross-examine witnesses at the hearing, the county denied residents who opposed the rezone their legal rights in the hearing.

Counsel for the county has denied that assertion in its filings, writing that the county and attorney in attendance the day of the land use meeting followed the law and procedure and that residents–"a non-party"–did not have a legal right to cross-examine witnesses at the quasi-judicial proceeding.

O’Sullivan detailed for the courts the "genesis" of the initial complaint and the group’s subsequent amended complaint. According to Save Gates Creek’s attorney, public records uncovered by the group display evidence of "problematic procedures and processes being utilized by Manatee County's Building and Development Services Department."

Several public record emails between county staff, former Building and Development Department Director John Barnott, and representatives for the applicant (Cox Chevrolet) have been submitted as exhibits in the case by O’Sullivan. He contends the emails raise questions as to whether county staff may have originally taken a position against the recommendation of the rezoning, but then later changed that position potentially under pressure from the applicant and the then-department director. If established as fact, O’Sullivan argues that commissioners who approved the rezoning may have done so without all relevant and necessary information.

To review the plaintiff’s exhibit numbers 40, 41, 42, and 43 of public record emails between staff and representatives of Cox submitted in this case, click here.

In a written response filed in the case, O’Sullivan referenced the current county administrator’s own statements about a confirmed "culture of misconduct and favoritism" uncovered by a recent Inspector General's investigation into the Building and Development Department’s process and the actions of its then director.

John Barnott, the former director of the department, was placed on administrative leave while the IG investigated allegations of favoritism within the department, and ultimately resigned from the county before the conclusion of the investigation. Since that time, both current County Administrator Scott Hopes and County Commissioner Vanessa Baugh have made numerous public statements stressing the depth of "misconduct" and "favoritism" alleged to have existed within the department. Speaking to The Observer, Baugh referred to a need to put a stop to the county’s "culture of corruption."

Save Gates Creek points to the recent findings of the IG investigation into the Department of Development Services and the comments from Hopes and Baugh as further confirmation that its legal complaints have merit.

While it is common that county staff would be in communications and meetings with land development applicants, O’Sullivan argues on behalf of Save Gates Creek, that communications may have occurred outside of common procedure and with the effect of influencing staff recommendations.

The county has requested the 12th Judicial Circuit Judge Edward Nicholas dismiss the case on several technical grounds, but Save Gates Creek is hoping the upcoming July 13 hearing will result in a summary judgment that will ultimately nullify the rezoning on legal grounds.

Although the county views the question before the court as a policy matter, not a legal one, Save Gates Creek strongly believes laws were violated and residents' rights were denied.

Vice President of Save Gates Creek Walter Wulczak told TBT in an email that the group is seeking to protect its neighborhood from negative impacts from commercial development of flood-prone areas.

"We hope the judge would rule that a commercial zoning can never exist between the two residential uses on both sides," Wulczak wrote in an email to TBT. "Any verdict overturning this faulty rezoning and hopefully getting the judge to rule against Manatee County on violations of rights to cross-examine, Sunshine Law, and others would go a long way to having fair hearings on this matter or any other in the future," Wulczak explained.

TBT reached out to the Manatee County Attorney’s Office for comment on the case and was informed that the County Attorney’s Office does not provide comments to the press regarding ongoing litigation.

The hearing, scheduled for July 13, will take place by zoom video conference.

To view all publicly available filings in the case, visit the Manatee County Clerk of Court records portalCase: 2020CA004515AX Save Gates Creek and Its Neighborhoods INC vs Manatee County.