The decision to reduce local wetland buffers to Florida state minimum standards by the Manatee County Commission has been challenged by former commissioner Joe McClash.
The policy couched by commissioners as ending a “taking of public property” was approved in a 5-1 vote on Oct. 5 despite strong opposition from the citizens of Manatee County and a “no” vote from the Manatee County Planning Commission.
Commissioner George Kruse voted against the change.
The rules change allows construction to occur closer to wetlands and, despite the commission’s claim (since debunked) that the current rules negatively affect 66,000 property owners in Manatee County, only two people with ties to development interests spoke in favor of the change.
Previously, environmental groups would have immediately challenged the ruling except for the recent passage of Senate Bill 540, which would make litigants in a case pay court costs if they lose. In the past, the prevailing party could ask for court costs, but this bill makes that automatic. The bill in effect limits public access to the courts.
According to McClash, “Challenging the elimination of our wetland policy by our county commissioners is a huge undertaking that needs community support. The decision is so wrong in many ways. There was no science to support the decision. The disrespect shown by the commissioners to the public at the meetings could only be described as surreal. The biggest reason is the unknown impacts on our coastal environment. We know certain trends are evident. Our water quality trend is not great; with excessive fish kills, excessive Lyngbya (poopy algae), and even people getting severe infections from swimming in our waters. We know the sea level is rising. We know wetland buffers, especially in the coastal areas, are critical to mangrove adaptation and the so-called “engineering solution” can’t replace the value of the current 50 feet of land required for mangroves to survive. Without mangroves, our whole coastal ecosystem collapses.
“I did not want to challenge the county’s action,” McClash continued. “However, the state changed the rules last year to require if you don’t win, you have to pay all the cost of the challenge. The environmental groups that normally challenge the absurd actions of the government are now having to make a financial decision. We have our local state representatives Will Robinson and Jim Boyd to thank for this favor to the developers. However, this decision by the county was so egregious it needed to be challenged. If our citizens can’t afford to challenge the wrong decisions of our government then we become a dictatorship. The county’s decision to eliminate our wetland policies and wetland buffers was not done in the best interest of the public, it certainly was done in the best interest of the developers.”
McClash is to be applauded for this decision and this action must be supported by members of the public who understand the importance of protecting the natural environment that brought us here, who love to fish and who support the economy. Stay tuned for more information as this process unfolds. McClash can be reached at joemcclash@gmail.com.
CORTEZ – U.S. Magistrate Judge Anthony Porcelli has ruled against the four plaintiffs opposing the Florida Department of Transportation’s (FDOT) plans to construct a fixed-span bridge between Cortez and Bradenton Beach, granting FDOT’s motion for summary judgment.
With construction slated to begin as early as 2026 according to FDOT officials, the fixed-span bridge will provide 65 feet of vertical clearance for vessels passing under it.
The new bridge will replace the aging drawbridge that currently provides 17 feet of vertical clearance when the bridge is down.
As noted in Porcelli’s order, “The existing Cortez Bridge was constructed in 1956 to replace the original 1921 wooden bridge connecting Anna Maria Island with the mainland in Manatee County. As constructed, the existing Cortez Bridge consists of an undivided, two-lane, low-level bascule (drawbridge) structure. The results from several bridge inspection reports conducted since 2008 show that the Cortez Bridge has become functionally obsolete and structurally deficient.”
Built in 1956, the Cortez Bridge drawbridge is slated to be replaced with a higher fixed-span bridge. – Joe Hendricks | Sun
In the United States District Court Middle District of Florida’s Tampa Division, Porcelli issued his 57-page written order on Aug. 5. The order pertains to the complaint for declaratory and injunctive relief the plaintiffs filed in 2020.
The plaintiffs in the legal action are former Manatee County Commissioner Joe McClash, former Manatee County Commissioner and Cortez resident Jane von Hahmann and Cortez residents Linda Molto and Joe Kane. The complaint names FDOT and FDOT Secretary Kevin Thibault as defendants.
In part, the plaintiffs sought from the federal court:
A declaratory judgment that FDOT, when deciding on a fixed-span bridge, violated the National Environmental Policy Act (NEPA) and the Administrative Procedure Act.
An order to vacate the acceptance/approval of FDOT’s Location and Design Concept Acceptance for a 65-foot-high fixed-span bridge that would have significant impacts on the surrounding community.
An order to vacate FDOT’s Type 2 categorical exclusion determination.
The plaintiffs also sought a 35-foot drawbridge option as a viable bridge replacement alternative that would not cause the same significant impacts as a 65-foot high, fixed-span bridge.
According to Porcelli’s order, the plaintiffs challenged FDOT’s decision to replace the existing 17-foot-high drawbridge with a 65-foot-high, fixed-span bridge, and FDOT’s decision to forgo an environmental impact statement or an environmental assessment and proceed instead using a categorical exclusion to the National Environmental Policy Act.
The plaintiffs contended FDOT violated the act by arbitrarily and capriciously relying on
an inapplicable categorical exclusion to exempt a major federal action – the construction of the new bridge – from FDOT’s obligation to perform either an environmental impact statement or an environmental assessment. Case law cited in Porcelli’s order
notes the National Environmental Policy Act establishes procedures for agencies to follow when addressing environmental impact issues and procedures.
“NEPA regulations authorize the use of exclusions for those categories of actions which do not individually or cumulatively have a significant effect on the human environment, and which have been found to have no such effect in procedures adopted by a federal agency in implementation of these regulations,” according to Porcelli’s order.
“Plaintiffs contend the Cortez Bridge Replacement Project does not qualify for a categorical exclusion, but FDOT disputes that contention. FDOT contends that the Cortez Bridge replacement project satisfies the criteria for a categorical exclusion,” according to Porcelli’s order.
Plaintiff reactions
When asked about continuing to challenge to fixed-span bridge, McClash said a potential appeal is possible.
Joe McClash led the legal challenge to FDOT’s proposed fixed-span bridge. – Joe Hendricks | Sun
When contacted by email, von Hahmann was more animated in her response to Porcelli’s ruling.
“Very sad and very discouraged,” von Hahmann wrote in her response to The Sun. “I feel like there is no road for the general citizenry to take to have their voices and concerns heard at any level of government anymore. I say that because we were involved as citizens from the get-go. In this last go-around, which started in 2013, we continually and consistently voiced our concerns and objections to a high-level fixed-span bridge.
“In fact, during public meetings held regarding this bridge, the vast majority of those who have to live with this atrocity asked that a lower level, less impactful choice be made. All total, there were 1,229 public comments received on the bridge. Of those, 863 citizens (70%) chose the no-build/rehab option or a 35-foot bascule bridge (drawbridge) replacement and 366 citizens (30%) chose a 65-foot, high-fixed bridge. The bottom line is residents of Cortez and Anna Maria Island, especially Bradenton Beach, be damned,” von Hahmann wrote in her response.
In 2021, McClash and von Hahmann asked the Bradenton Beach City Commission to join the legal challenge as co-defendants. The city commission declined that request.
In 2021, Cortez resident Jane von Hahmann encouraged the city of Bradenton Beach to join the legal challenge. – Joe Hendricks | Sun
In response to Porcelli’s order, Von Hahmann was asked if she’ll continue challenging the fixed-span bridge.
“No, I am done. I no longer believe we as citizens can challenge the government at any level and win,” she responded.
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.
Bradenton Beach Commission members Jan Vosburgh, Marilyn Maro, John Chappie, Ralph Cole and Jake Spooner were divided regarding the city joining the federal lawsuit. – Joe Hendricks | Sun
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.
Fixed-span bridge opponent Joe McClash made a final plea for the city of Bradenton Beach to join the lawsuit. – Joe Hendricks | Sun
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.
BRADENTON BEACH – The city of Bradenton Beach is joining plaintiffs in a federal lawsuit that opposes replacing the existing Cortez Bridge drawbridge with a fixed-span bridge.
On Thursday, March 18, Mayor John Chappie and Commissioners Marilyn Maro, Jan Vosburgh and Jake Spooner voted in favor of the city becoming the fifth plaintiff in the federal lawsuit. Commissioner Ralph Cole did not attend Thursday’s meeting.
The commission-approved motion states the city’s legal costs are not to exceed $15,000. At the request of City Attorney Ricinda Perry, attorney Chuck Johnson will provide the city’s outside legal counsel in this matter.
In 2019, the commission unanimously adopted a nonbinding resolution opposing the proposed fixed-span bridge. The city will now join former Manatee County Commissioner Joe McClash, former Manatee County Commissioner Jane von Hahmann, a longtime Cortez resident, and Cortez residents Joe Kane and Linda Molto as plaintiffs in the federal lawsuit filed in March 2020 in the U.S. District Court for the Middle District of Florida in Tampa.
The lawsuit names the Florida Department of Transportation (FDOT), FDOT Secretary Kevin J. Thibault, the U.S. Department of Transportation and Federal Highway Administration Administrator Nicole R. Nason as defendants.
The lawsuit challenges FDOT’s plans to replace the existing Cortez drawbridge, built in 1956, with a fixed-span bridge that provides 65 feet of vertical clearance. According to a 2015 FDOT case study, the existing drawbridge provides 17.5 feet of vertical clearance when the bridge is down. As a compromise, the lawsuit’s plaintiffs support a new drawbridge with 35 feet of vertical clearance.
The Cortez Bridge drawbridge was built in 1956 and the aging bridge now needs to be replaced. – Submitted
FDOT spokesperson Brian Rick said in February that the fixed-span bridge originally estimated to cost $66.5 million is now expected to cost $77 million due to inflation. FDOT District Secretary L.K. Nandam also cited that $77 million figure during a presentation he gave in January. Both FDOT representatives indicated the bridge replacement project is currently moving forward as planned. The project is now expected to be put out to bid in late 2025, with construction to start in 2026.
Seeking city assistance
On March 4, von Hahmann asked the city commission to consider joining the lawsuit. On March 18, McClash made his plea to the commission.
“It’s been a little over a year since we filed our claims against the 65-foot fixed bridge,” McClash said.
He noted the plaintiffs are not trying to prevent the existing drawbridge from being replaced, but feel it’s important to the Cortez community to challenge FDOT’s plans to replace it with a much larger fixed-span bridge.
The Cortez drawbridge is in need of replacement, according to FDOT. – Submitted
McClash said the lawsuit includes five claims for relief that question whether FDOT followed federal rules during its decision-making process. The legal challenge was filed according to the federal Administrative Procedure Act. McClash said the plaintiffs originally attempted to challenge the bridge planning process at the state level, but because FDOT assumed the responsibility of the federal government for the project, the challenge must be filed in federal court.
“It’s a review of the record. It’s not a typical lawsuit. We’re at a point now where DOT is responsible for producing the administrative record – everything they did to follow procedures required to comply with the federal rules. Once we receive that, we’ll be able to determine what specific rules they did violate. We have reason to believe there were a few,” McClash said.
Claims for relief
The first claim for relief alleges FDOT failed to comply with the National Environmental Policy Act (NEPA) regarding the evaluation of the potential socio-cultural effects a fixed-span bridge could have on the impacted communities.
McClash said these concerns include community cohesion, local plan consistency and mobility.
“There was a list of things FDOT was supposed to do during this evaluation that we feel they failed to do,” he said.
The second claim for relief alleges FDOT failed to comply with NEPA requirements when reviewing the bridge’s potential aesthetic effects.
“How will the bridge affect vistas and viewsheds and blend visually with the area adjacent to many community focal points?” McClash said.
The plaintiffs believe FDOT failed to make the public aware that a fixed-span bridge will require noise barrier walls near the touchdown points on the Cortez and Bradenton Beach ends of the bridge. McClash said the proposed touchdown area in Cortez would extend approximately 200 yards farther east than it does now.
“There has to be a wall-like structure built to hold up the dirt. You’re creating this wall that divides Cortez, which is something that’s not allowed in our opinion,” McClash said.
The third claim for relief alleges FDOT used inaccurate survey data that demonstrated a bias for a fixed-span bridge, and thus failed to comply with its own policies regarding NEPA compliance.
McClash disputes FDOT’s claim that a fixed-span bridge would increase the level of service for motorists using the bridge from a level D to a level B.
“Whether the bridge is up or not, you’re not going to improve it to a level B. If you have a fixed bridge, there are more cars parked on top of the bridge,” he said.
The fourth claim alleges FDOT failed to comply with NEPA flood plain requirements.
“They didn’t do any flood plain analysis,” McClash said.
The fifth claim alleges FDOT failed to satisfy NEPA requirements about informing elected officials and community members of the details included in the Project Development and Environment review.
“They’re supposed to look at the unique characteristics of the geographical area such as proximity to historic or cultural resources, wetlands and also the effect on human environments,” McClash said.
He also said he’s not aware of a light pollution analysis being conducted.
McClash believes the city joining the lawsuit would give the plaintiffs a stronger position in a courtroom setting or during a review of the case conducted by a judge.
“We asked for a judge to provide some type of judgment that they did, in fact, violate some of these rules. What you’re debating with the federal court is that the records exist and FDOT violated the rules of picking this bridge,” McClash said.
“We also provide that they consider the 35-foot bridge is a viable option compared to the 65-foot bridge. The 35-foot bridge would fit between the shorelines of where the existing bridge is,” McClash said, noting that option would not require noise walls.
“Hopefully, we could convince FDOT that’s still a viable option,” he said.
McClash proposed starting a GoFundMe fundraising effort to help offset future legal costs incurred. He also said he could continue to do most of the “heavy lifting” in this case.
Commission consideration
Perry said the city doesn’t want to be seen as leading the charge for the original pro se plaintiffs, who are representing themselves. She also said she doesn’t currently have time to represent the city in this case, which is why she recommended Johnson.
Vosburgh said she lived in Utah when a new highway was built to accommodate the winter Olympics. Vosburgh said the noise walls associated with that project had the unintended effect of creating more noise.
“It was horrible,” she said.
Spooner said he likes the idea of starting a GoFundMe account to help offset the legal costs incurred.
Maro said she supports joining the lawsuit because she doesn’t want to see Cortez – one of the last working fishing villages in Florida – negatively impacted by a fixed-span bridge.
“Yes, it is about the village of Cortez, but it’s also about the Island and Bradenton Beach and what we are struggling to preserve and enhance. This doesn’t enhance anything,” Chappie said, adding that a fixed-span bridge is not going to reduce the traffic congestion motorists encounter on Gulf Drive after crossing the bridge.
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According to McClash, “Challenging the elimination of our wetland policy by our county commissioners is a huge undertaking that needs community support. The decision is so wrong in many ways. There was no science to support the decision. The disrespect shown by the commissioners to the public at the meetings could only be described as surreal. The biggest reason is the unknown impacts on our coastal environment. We know certain trends are evident. Our water quality trend is not great; with excessive fish kills, excessive Lyngbya (poopy algae), and even people getting severe infections from swimming in our waters. We know the sea level is rising. We know wetland buffers, especially in the coastal areas, are critical to mangrove adaptation and the so-called “engineering solution” can’t replace the value of the current 50 feet of land required for mangroves to survive. Without mangroves, our whole coastal ecosystem collapses.
