Hunters Point prevails in dock permitting appeal
CORTEZ – Hunters Point developer Marshall Gobuty and his Cortez Road Investments and Finance Inc. (CRIF) ownership group have prevailed in a dock permit-related appeal filed last year by the Cortez Village Marina ownership group, MHC Cortez Village LLC.
The appeal pertained to the environmental resource permit the Southwest Florida Water Management District (SWFWMD) initially issued to Gobuty and CRIF in 2021.
MHC Cortez Village LLC promptly appealed the water management district’s permitting decision and claimed the Hunters Point docks would impede marina clients’ navigation of the canal.
The environmental resource permit allows CRIF to construct 32 new docks and replace 17 existing docks along the CRIF-owned constructed canal that surrounds the Hunters Point property on three sides. The yet-to-be-built docks are part of the ongoing Hunters Point development that features 86 LEED-certified solar-powered homes.
Built in the 1950s, the canal provides Cortez Village Marina clients and others with their only direct water access to the nearby Intracoastal Waterway. Gobuty purchased the majority of the long-established canal when he bought the Hunters Point property from the Cipriani Family Trust in 2016.
Earlier this year, CRIF purchased from the Cipriani Family Trust an additional portion of the canal located directly in front of the marina. CRIF now owns the portion of the canal that extends from the eastern edge of the marina property to the humpback bridge on 127th Street West near the Seafood Shack. Holiday Cove RV Resort owns the remaining portion of the canal that dead-ends at the east end of the Holiday Cove property. MHC Cortez Village does not own any portion of the canal.
After conducting a multi-day hearing in late 2022, Administrative Law Judge Bruce Culpepper issued a recommended order in March 2023 that concluded: “Based on the foregoing findings of fact and conclusions of law, it is recommended that the Southwest Florida Water Management District enter a final order granting Cortez Road’s (CRIF) application for the permit to build a dock in the canal and issue ERP Individual Construction Major Modification permit 43032468.003.”
In May 2023, the SWFWMD governing board entered the final order recommended by Culpepper. MHC Cortez Village then appealed the governing board’s final order with the Second District Court of Appeal in Lakeland.
During the administrative hearing conducted by Culpepper, there was testimony and discussion about limiting boat traffic on the Hunters Point-owned portion of the canal to alternating one-way travel at specifically timed intervals. It was also noted there are existing pullout areas where one boat can pull over and allow another to pass by. Gobuty and others testified that one-way travel would eliminate the need for two boats to pass each other side-by-side in a narrow portion of the canal, or for one boat to pull to the side to make room for another.
In early 2023, CRIF voluntarily posted signs in the canal that reference one-way travel at 15-minute intervals for inbound or outbound boat traffic, installed mirrors to increase visibility at the dog-legged corners of the canal and installed signs instructing boaters to monitor VHF marine radio channel 9. CRIF also redesigned its docks to meander closer to the shoreline where possible.
When issuing its final order, the SWFWMD governing board did not mandate the dock design modifications or safety enhancements be included as additional permitting conditions.
ORAL ARGUMENTS
On April 23, the attorneys representing MHC Cortez Village and CRIF presented their oral arguments to the three-member panel of Second District Court of Appeal judges that consisted of Judge Stevan Northcutt, Judge Nelly Khouzam and Judge Robert Morris.
Attorneys Susan Roeder Martin and Thomasina Moore represented CRIF and attorney David Nordby represented MHC Cortez Village during the virtual oral argument session conducted via Zoom, with each side given 20 minutes to address the judges, including rebuttal time.
When addressing the appellate judges, Nordby said, “I’d like to focus on two errors that independently require this court to reverse the order on appeal. The first is the district’s conclusion that the proposed new dock will not significantly impede navigability. The second is the district’s failure to amend the permit after the hearing to reflect the design changes and other concessions made by the applicant during the course of the administrative hearing.”
Judge Morris noted Judge Culpepper was presented with testimony and evidence that led him to recommend the permit be issued without any additional stipulations or concessions.
“The judge is certainly in the position to analyze this navigability issue. It would be difficult for us to supplant ourselves in his role and say we don’t see it that way. You’ve got an expert administrative law judge, you’ve got Swiftmud, who’s certainly an expert on this, and they all agreed based on the evidence they had before them that this was a navigable canal. It would be sufficient to sustain these docks as built. Why should we even make any effort to challenge that?” Morris said.
Morris also noted that CRIF owns the majority of the canal.
Judge Khouzam noted SWFWMD Lead Environmental Scientist Lauren Greenawalt previously testified about the canal’s already-existing pinch points and her belief that CRIF provided reasonable assurances that the dock project was not contrary to SWFWMD permitting standards.
“We have to be careful not to be sitting as the seventh juror in this case,” Khouzam said of the appellate judges’ duty to review the case without retrying it.
“The standard is not that you must be able to pass during all portions of the canal,” Martin told the judges. “The standard is there cannot be a significant impediment to navigation. There are currently areas where boats can pull out and there will be areas after the docks are built where boats can pull out.”
Moore noted Greenawalt also testified that the portion of the canal located under the bridge at 127th Street West is only wide enough for one boat to enter or exit the western end of the canal at a time; the height of the bridge further limits vessel size.
“They (SWFWMD) look at this as an existing impediment. Using this as a baseline, will this dock be more of an impediment than what’s already existing? There’s already this impediment in the form of the bridge and there are areas already existing where the boaters have to go one boat at the time,” Moore argued.
APPELLATE RULING
On May 3, the appellate judges collectively issued a two-page per curium affirmed document that listed the parties and attorneys involved in the case and stated, “Per Curium Affirmed. Northcutt, Khouzam and Morris concur” with no additional legal opinions expressed.
After learning of the ruling, Martin provided The Sun with her comments and additional insights.
“Today, the 2nd DCA ‘per curium affirmed’ the decision of the Southwest Florida Water Management District and the administrative law judge in favor of CRIF. When a case is per curium affirmed, it means the case was so clearly correct that it was not necessary for the court to write a longer opinion,” she said.
Martin noted that Cortez Village Marina is part of the Loggerhead Marinas company whose website lists 25 Loggerhead Marinas throughout Florida, South Carolina, North Carolina and Ohio. The Chicago-based MHC Cortez Village LLC lists Chicago-based MHC Aquamarina Ultimate Holdings LLC as a title member.
“CRIF is successful in another step of the continuing saga of the goliath MHC marina, a Loggerhead Marina, against Cortez Road (CRIF) over the use of the canal owned by CRIF. MHC and its patrons utilize the canal without authorization from CRIF. Despite the fact that MHC and its patrons are trespassers on the canal, MHC sued CRIF in 2021 to prevent CRIF from building 32 new docks as amenities to the Hunter Point residences. This appeal action no longer prevents the docks from being built. Of course, we do not know if MHC will attempt to appeal further,” Martin said.
When asked which court MHC Cortez Village could appeal to next, she said, “The Florida Supreme Court, but the court would need to have a reason to accept jurisdiction such as a matter of great public importance or a conflict between the rulings of different district courts of appeal.”
When commenting on the Second DCA ruling, Gobuty said, “I am still hesitant to build the docks at this time due to the fact that MHC and its customers may appeal again. They have no standing yet they continue to waste the court’s time as well as restrict our abilities to build our homes.”
CIVIL LAWSUIT PENDING
In response to MHC Cortez Village’s initial permit challenge, CRIF, in 2022, filed a still-pending civil lawsuit with the 12th Judicial Circuit Court in Manatee County.
“The saga between MHC and CRIF continues in the circuit court where CRIF has filed a complaint to prevent MHC and its lessors and patrons from trespassing on CRIF’s privately owned canal,” Martin said.
A preliminary hearing is scheduled for Thursday, June 27 before Circuit Court Judge Ryan Felix.
