BRADENTON BEACH – The city is not joining a federal lawsuit that opposes the replacement of the Cortez Bridge drawbridge with a higher fixed-span bridge.
The city commission reached this 3-2 decision on Thursday, Aug. 5 in response to plaintiffs Joe McClash and Jane von Hahmann’s final pleas for the city to join the lawsuit filed in March 2020 with the United States District Court for the Middle District of Florida, Tampa Division.
The lawsuit names the Florida Department of Transportation (FDOT), the Federal Transportation Authority and the U.S. Department of Transportation as defendants. The federal agencies were later dismissed from the lawsuit and FDOT is the lone remaining defendant.
McClash and von Hahmann are former Manatee County commissioners and von Hahmann is a longtime Cortez resident. Cortez residents Linda Molto and Joe Kane are also plaintiffs in the lawsuit. During Thursday’s commission meeting, McClash and von Hahmann said the Cortez-based Florida Institute for Saltwater Heritage (FISH) – which von Hahmann is a member of – is joining the lawsuit as an additional plaintiff.
Mayor John Chappie and commissioners Ralph Cole and Marilyn Maro opposed the city becoming a plaintiff in the lawsuit. Cole said he didn’t think taxpayer funds should be used to oppose a replacement bridge that some taxpayers might support. Chappie again expressed his belief that the plaintiffs should have first sought assistance from the Manatee County Commission. McClash said the county commission has never expressed interest in joining the bridge lawsuit.
The city commission previously agreed to join the lawsuit at a cost not to exceed $15,000. The commission later lowered its not-to-exceed figure to $5,000, but never officially joined the legal challenge.
During Thursday’s meeting, commissioners Jake Spooner and Jan Vosburgh voted in favor of the city joining the lawsuit. Vosburgh expressed her continued support for the city joining at a cost not to exceed $15,000.
Spooner asked whether the city could join the suit without financial exposure to the city and its taxpayers. City Attorney Ricinda Perry said joining any lawsuit could potentially expose the city to attorney fees of an undetermined amount.
McClash again expressed his belief that the plaintiffs’ case would be strengthened by the support of a city government – and that actually was more important than any financial support provided by the city.
McClash and von Hahmann said FISH recently initiated an online fundraising effort in the form of the “Stop the Mega Bridge from devastating Cortez” GoFundMe page. The donated funds will be administered by FISH and be used to help cover attorney fees associated with the legal battle.
Although they did not feel the city should join the lawsuit, Cole and Chappie said they individually oppose the fixed-span bridge and would contribute to the fundraising efforts. Vosburgh and Spooner said they would also contribute.
FISH will host a bridge-related town hall-style meeting at Fishermen’s Hall on Thursday, Aug. 12 at 7 p.m. The meeting is open to the public. Fishermen’s Hall is located at 4511 124th St. W. in the village of Cortez.
Mediation pending
McClash said a mediation session with the plaintiffs and FDOT is scheduled for Wednesday, Aug. 25. Stephen Tabano will serve as the mediator at a cost of $350 per hour to be shared by the plaintiffs and defendants.
Tampa-based attorney Matt Farmer will represent the plaintiffs at the mediation session and as the case moves forward. McClash said Farmer estimated his legal representation would cost approximately $25,000 in total.
McClash said the administrative record that details at great length FDOT’s bridge selection process was filed by FDOT on June 30. The plaintiffs were then given 45 days to amend their complaint and add additional plaintiffs. According to McClash, the plaintiffs’ amended complaint was to be filed by Tuesday, Aug. 10.
Regarding the standards of law that apply to this case, McClash said, “We have to find the actions of the FDOT to be arbitrary, capricious, abuse of discretion and otherwise not in accordance of law. That’s a pretty high standard, but I believe we have two major winning points.”
McClash referenced a law that changed in or around 2018 regarding categorical exclusions to the bridge replacement process that began nearly a decade ago.
“FDOT approved this 65-foot bridge in what they call a Type 2 categorical exclusion. There’s an environmental standard they have to comply with. Usually, they have to do an environmental study. They chose to do an exception. It’s important to note the law changed and they can’t take advantage of this exclusion if there’s a bridge permit required – and they need a bridge permit. Also, if there’s encroachments into the flood plain, they’re not supposed to take advantage of this exclusion,” McClash said.
“When they made their decision in 2019, this rule was in effect. The attorney agrees. They might have really screwed up. That would be to our advantage,” he added.
After Thursday’s meeting, McClash said he understood the city commission’s financial concerns but he was disappointed with the decision to not join the lawsuit.
Settlement offer
In August 2020, the plaintiffs proposed a settlement agreement that called for FDOT to rescind its plans for a fixed-span bridge and instead replace the existing bridge with a new drawbridge that would provide 35 feet of clearance when the bridge is closed. FDOT has not accepted that offer.
Built in 1956, the existing drawbridge provides between 17.5 and 21 feet of clearance when the bridge is closed, depending on the source cited.
In January, FDOT officials said the state agency plans to put the bridge replacement project out to bid in late 2025 and construction is expected to begin in 2026.
