CORTEZ – Several property owners along a privately-owned canal are planning their response to a lawsuit filed against them by Hunters Point developer Marshall Gobuty and his Cortez Road Investments and Finance Inc. ownership group.
Filed with the 12th Judicial Circuit Court in Manatee County on June 3 and assigned to Judge Edward Nicholas, the civil lawsuit names canal-side property owners Jonathan Graham, Sheila Graham, Mark Ibasfalean, Jacquelyn Shepard, Timothy Fitzpatrick, Mary Norman, Wendy Kokolis and George Kokolis as defendants. Around July 20, they were served with summons and copies of the lawsuit complaint many of them had already read about in The Sun.
The lawsuit stems from an ongoing dispute over a canal between Cortez Road Investments and the MHC Cortez Village LLC that owns the nearby Cortez Village Marina.
The canal surrounds the Hunters Point property on three sides. Constructed in the 1950s, the portion of the canal owned by Gobuty extends from the humpback bridge at 127th Street West (near the Seafood Shack restaurant) to the western boundary of the Cortez Village Marina property. Another portion of the canal extends southward to the northern boundary of the Buttonwood Inlet RV resort property. The canal is used by homeowners, marina patrons and guests at the Buttonwood Inlet and Holiday Cove RV resorts.
The residential properties involved in the lawsuit are located along 126th Street West and across the canal from the northwestern edge of Hunters Point property where 86 solar-powered, net-zero energy-rated townhomes are currently being constructed. The phase two development plans include a 20-unit hotel/apartment building.
According to Ibasfalean, the defendants have retained an attorney or attorneys in response to the summons.
“We’re going to have to work together on this. We just got served. This battle is between Hunters Point and the marina, but now that we’re involved, we have to react,” he said.
The lawsuit complaint alleges that the property owners previously constructed and are currently maintaining docks, boat lifts and other structures in the privately-owned canal without the authorization of the canal owner.
Gobuty seeks the removal of the structures, but a follow-up letter drafted by Gobuty’s attorney, Susan Martin, clarifies that the lawsuit’s actual intent is to ensure that none of the structures extend more than 25% into the canal that’s approximately 65 feet wide in those areas.
“Unfortunately, one of the main areas of concern identified by MHC (Cortez Village Marina) in its suit against CRIF (Cortez Road Investments & Finance) is the area where you maintain your dock. Your dock, vessels or associated structures exceed 25% of the width of the waterbody. MHC contends that its 350 lessees and other customers will have navigational difficulties in this area. Because of these actions by MHC, CRIF has been left with no choice but to file the attached complaint against you. Additionally, your dock, vessel and associated structures are not in compliance with Manatee County regulations because they exceed 25% of the width of the canal,” Martin stated in her letter.
According to Manatee County’s Land Development Code, “Private residential waterfront structures shall not extend more than 25% of the width of the waterbody. Boats shall not be moored in a manner which impedes navigation or encroaches on an existing channel.”
In conclusion, Martin’s letter says, “We believe that we can amicably resolve this issue without the costs associated with protracted litigation. If you are interested in resolving this lawsuit, please contact me.”
Gobuty purchased the Hunters Point property and canal in 2016. The warranty deed associated with the $10 million purchase from the Cipriani family and Hunters Hill Inc. states the seller assigns forever the property and any rights associated with the property, including any riparian rights associated with the canal.
When appearing before the Manatee County Commission in 2016 as part of the initial Hunters Point permitting process, Gobuty said he would not prevent anyone who already had a county-permitted dock in place from using the canal. Gobuty recently told The Sun that while he still feels that way, he also feels forced into this recent legal action by the actions of MHC Cortez Village.
Ibasfalean said he bought his home in 1985 and there was already a dock in place at the time. Although the lawsuit pertains to docks and boat lifts, Ibasfalean is also concerned about the canal potentially being closed to everyone except the Hunters Point homeowners who also purchased dock slips.
Ibasfalean’s wife, Kim, owns and operates Captain Kim’s Boat Rides and Charters and she stores her boats at the couple’s residential dock.
“We have two or three of them here at any time. We also have our own boat there. I can keep up to four boats there, but none of those boats work out of here. There’s no business activity or parking taking place here,” he said.
Regarding the potential loss of their dock and the use of the canal, Ibasfalean said, “It would be a huge impact. She would have to figure out where to put an entire fleet of small boats.”
Ibasfalean said he’s navigated the canal for 55 years and he doesn’t think the Hunters Point docks would impede navigation.
“I’ve built docks all my life. Those docks will fit in there. I don’t have a problem with the docks or any boats coming up and down the canal. On weekends, we’ve probably got 500 or more boats coming in and out of there. It’s probably one of the busiest canals in the county,” Ibasfalean said.
“I believe the canal was built in 1959 and Eddie Cipriani and his son Frank did the work. We live in one of the original houses that Cipriani built. They wanted to go in the house building business. He was planning on building a lot of homes, but they stopped after that one strip of homes on our street,” he added.
Lawsuit origins
The canal dispute began in July 2021 when MHC Cortez Village LLC initiated an administrative challenge to the environmental resource permit Cortez Road Investments received from the Southwest Florida Water Management District that June. The state-issued permit allows Hunters Point to install 32 new parallel mooring slips and replace 17 existing slips for a total of 49 slips.
MHC Cortez Village’s petition for hearing alleges the Hunters Point docks would increase traffic and narrow the navigable portions of the canal, limit the size of the vessels that use the canal and negatively impact the profitability and operations of the marina. MHC Cortez Village seeks an order for the permit to be revoked or modified in a manner that lessens the docks’ impact on the canal.
Held at the Southwest Florida Water Management District office in Tampa, the first two days of the administrative hearing took place on June 14 and 15. The hearing is scheduled to resume on Tuesday, Aug. 16.
When the hearing started, administrative law judge Bruce Culpepper said the recommended order he will issue after the hearing concludes will only pertain to whether the water district’s environmental resource permit was properly issued. Culpepper said riparian rights and the continued use of the canal by others are issues to be decided in a circuit court.
Stantec ecologist Elizabeth Eardley helped Gobuty’s development team acquire the environmental resource permit needed to build the docks. On June 15, she testified that the water district’s permitting process did not require a navigational impact study because the Hunters Point canal is privately owned. She also testified that the Hunters Point docks would not impede navigation.
Attorney and property title expert Adron Walker testified the man-made canal did not exist when Florida was granted statehood in 1845 and therefore the privately-owned canal’s submerged lands are not state-owned sovereign lands. He also testified the canal did not exist when the property was platted in 1921.
This canal area highlighted in blue is owned by developer Marshall Gobuty and Cortez Road Investments, according to the Manatee County Property Appraiser’s Office. – Manatee County Property Appraiser’s Office | SubmittedWhen referring to Manatee County Property Appraiser’s Office records and images, Walker testified that the Hunters Point-owned canal extends from 127th Street West to the western boundary of the Cortez Village Marina property. He also testified that the portion of the canal located directly in front of the marina is owned by the Frank Cipriani Jr. and/or the Cipriani family trust.
According to property appraiser records, the marina basin is owned by the marina and the most easterly portion of the canal is owned by the Holiday Cove RV resort.
Walker testified that he could not locate any written agreements that grant the marina, its predecessors or any other upland property owners the use of the portions of the canal owned by Gobuty or the Cipriani family.
Additional legal action
On May 26, Cortez Road Investments filed a lawsuit against MHC Cortez Village LLC alleging the marina and its patrons are using the canal without authorization. The lawsuit seeks a court-ordered injunction that would prohibit the marina and its patrons from using the canal. Separate from the lawsuit filed a week later against the canal-side homeowners, that case has been assigned to Judge Charles Sniffen.
On June 6, an attorney representing MHC Cortez Village filed a response that stated the navigable canal has been used for more than 25 years by the marina, the marina’s predecessors and those who own homes along the canal.
A counterclaim filed by Martin, Gobuty’s attorney, states, “By calling the waterbody the ‘navigable canal,’ MHC implies that the canal is navigable under the law and legally open to public use. However, this is not the case.”
On May 17, Martin sent a letter to the Kokolis’ regarding the boat lift being installed in front of their undeveloped canal-side property near the humpback bridge.
“This letter is to advise you to immediately cease construction and to remove the works that you have already placed on my client’s private property. If you fail to do so, we will be forced to seek immediate injunctive relief and damages in circuit court,” Martin stated in her letter.
Wendy Kokolis told The Sun a permit was obtained from Manatee County for the installation of the lift.
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