Hunters Point dock permit challenge begins
CORTEZ – A hearing is underway to decide whether Hunters Point can build 49 docks in the canal bordering the new development.
The case pertains to the environmental resource permit that the Southwest Florida Water Management District (SWFWMD) issued Hunters Point developer and property owner Marshall Gobuty in June 2021.
The permit allows Gobuty to build 49 docks – or one continuous dock with 49 slips – along the privately-owned canal he purchased when he bought the Hunters Point property in 2016. Construction is well underway on many of the 86 three-story, net-zero energy rated solar powered townhomes, but the docks will not be built until the permitting challenge is resolved. Many who pre-purchased Hunters Point homes did so with the understanding that their home would include a dock.
In July 2021, MHC Cortez Village LLC, the Cortez Village Marina ownership group, filed a petition for an administrative hearing naming Gobuty’s Cortez Road Investments ownership group and SWFWMD as respondents and asking that SWFWMD be ordered to revoke the approved permit or modify it in a manner that further protects navigation.
The petition claims the Hunters Point docks would increase traffic on the canal, impair vessel traffic by narrowing the navigable portions of the canal, negatively affect the marina customers’ safe use of the canal, limit the size of the vessels that can use the canal and negatively impact the profitability and ongoing operations of the Cortez Village Marina. The marina is located along Cortez Road West, less than a half-mile east of the Hunters Point property and upstream of the canal owned by Gobuty’s Cortez Road Investments and Finance Inc. The canal borders the Hunters Point property on three sides.
The Buttonwood Inlet and Holiday Cove RV parks are also located along the canal, east of the Hunters Point property, as are several privately owned homes. The west end of the canal passes under the humpback bridge at 127th Street West, where it connects with the Intracoastal Waterway near the Seafood Shack restaurant.
Administrative law judge Bruce Culpepper presided over the June 14-15 hearing at the SWFWMD office in Tampa on behalf of the State of Florida’s Division of Administrative Hearings. The next hearing date has not yet been scheduled.
Attorneys Susan Martin and John Fumero represented Cortez Road Investments at the hearing. Attorneys Megan Albrecht and Elizabeth Fernandez represented SWFWMD and attorneys Matthew Chait, Devon Woolard and Dan Norby represented the Cortez Village Marina.
Culpepper said the sole intent of the hearing is to determine whether the water district properly issued the environmental resource permit that allows the Hunters Point docks to be built. All parties involved agreed that the riparian rights – the right to continue using the canal for navigational purposes – of the marina, the marina customers, the RV resorts and those who own homes along the canal are a matter to be decided in a circuit court.
Hearing Testimony
After opening arguments by the three parties involved, Martin began presenting Cortez Road Investment’s case, joined at times by SWFWMD attorneys, with cross examination by the Cortez Village Marina’s attorneys.
While testifying and being cross-examined, Gobuty said the Hunters Point docks are designed to accommodate boats no longer than 25 feet, while the marina accommodates vessels as long as 35-38 feet. It was also noted the marina and storage facility accommodates approximately 350 vessels.
On June 15, Captain Dane Fleming was called as a witness for Cortez Road Investments. Fleming said he navigated and measured the canal on two different occasions prior to the hearing. Fleming expressed his opinion that the canal is wide enough to accommodate the Hunters Point docks without hindering or impeding navigation.
Fleming called into question a video previously provided on behalf of the marina owners. He noted the captain of the boat from which that video footage was filmed was navigating on the wrong side of the canal while filming. Fleming said this resulted in camera angles that “skewed” the marina’s claims regarding visibility and the canal being too narrow for safe navigation in some areas. Fleming noted there are some areas that are too narrow for two boats to pass side-by-side, but one boat can wait in the wider area until the other boat navigates the narrower area.
Stantec ecologist and permit expert Elizabeth Eardley helped Gobuty’s development team acquire the environmental resource permit granted in 2021. While testifying Wednesday, Eardley said the state permitting process did not require a navigational impact study because the canal is privately owned. She also testified the Hunters Point docks are designed to allow adequate remaining navigational space in the canal and are not expected to impede navigation.
When the hearing continues, SWFWMD attorneys will present their arguments regarding the environmental resource permit being properly issued. After that, the Cortez Village Marina attorneys will present their arguments.
Ownership and riparian rights
Even though riparian rights will not be determined during the administrative hearing, testimony was still given pertaining to the history and ownership of the canal.
When testifying on behalf of Cortez Road Investments, attorney and property title expert Adron Walker said the man-made Hunters Point canal did not exist when Florida was granted statehood in 1845, thus the canal’s submerged lands are privately owned and are not state-owned submerged sovereign lands. Walker also testified that the man-made canal did not exist when the property now known as Hunters Point was first platted in 1921.
During Walker’s testimony, property cards and images from the Manatee County Property Appraiser’s Office were displayed. One property card shows the Hunters Point-owned canal that extends from 127th Street West to the western boundary of the Cortez Village Marina property. Walker said he could not locate any easements or usage agreements ever granted to the marina or any other potentially impacted upland property owners regarding their right to use the privately-owned Hunters Point canal.
Walker referenced another property card which revealed the portion of the canal located directly in front of the marina is not owned by the marina but is owned by the Cipriani family trust that previously owned the Hunters Point property and canal. Walker also said he’s not aware of any use agreement between the marina and the Cipriani family trust for the use of that portion of the canal.
Walker said the only existing right the marina and the other upland owners might have would be a prescriptive easement granted by a court. Walker said a declaration of that nature usually requires an existing historic use of at least 20 years.
Martin noted the original petition for hearing states the Cortez Village Marina has operated in its current configuration since 2008. The petition also notes that site has been used as a marina since at least the 1990s.
Recent lawsuits
In late May, Cortez Road Investments filed a civil lawsuit in the 12th Judicial Circuit Court in Manatee County seeking to prohibit the marina and its clients from using the Hunters Point canal.
The lawsuit seeks a permanent injunction that would prohibit Cortez Village Marina clients and employees from using the privately owned Hunters Point canal. The lawsuit notes the canal was constructed in the 1950s.
In early June, Cortez Road Investments filed a separate lawsuit against upland canal-side property owners Jonathan and Sheila Graham, Mark Ibasfalean, Jacquelyn Shepard, Mary Norman, Timothy Fitzpatrick and Wendy and George Kokolis. That lawsuit complaint states those property owners have constructed and are maintaining docks, lifts and other structures on and in the Hunters Point canal without the property owner’s authorization. The complaint notes that the Cortez Village Marina petition contends, in part, that the existing docks that extend into the Hunters Point canal could impede navigation for the marina customers.
“This has left plaintiff (Gobuty/Hunters Point) with no choice but to file this suit against defendants,” according to the lawsuit complaint.
The lawsuit seeks the removal of the named property owners’ docks, lifts and other structures located in the canal.
