City Commission was justified in interpreting the regulations differently from city staff, city attorney argues
The Sarasota City Commission was justified in its 3-2 vote to deny a building permit to the Woman’s Exchange for a loading zone on Rawls Avenue because of the commissioners’ interpretation of the city’s Zoning Code, City Attorney Robert Fournier argues in the city’s response to the nonprofit organization’s legal challenge of that decision.
Woman’s Exchange attorney Robert Lincoln contended in a July 29 Petition for Writ of Certiorari in the 12th Judicial Circuit Court that the City Commission vote on April 11 was politically motivated. However, in his Sept. 14 response, Fournier contends that even if the city’s Zoning Code were interpreted to require that the Woman’s Exchange incorporate a code-compliant loading zone in its proposed expansion on Rawls Avenue, the nonprofit “is not entitled to expand at its present location unless it can demonstrate that all of the relevant criteria found in [Section] IV-506 of the Zoning Code have been satisfied.”
Incorporating testimony from a number of people during the two April nights when the City Commission conducted its quasi-judicial hearing on the issue, Fournier continually points to statements indicating the loading zone would not have met Zoning Code stipulations regarding safety and compatibility with the neighborhood.
“Woman’s Exchange witnesses testified that current zoning regulations would not allow a loading zone on the property to be accessed from either Orange Avenue or Oak Street,” Fournier continues, noting that the city had to acknowledge that the only street that would qualify under the code was Rawls.
Nonetheless, he argues, “Just because it is physically possible to construct a code complaint loading zone on [Rawls] … does not mean the site plan must be approved.”
Additionally, he wrote, “In the event that the Zoning Code is ultimately amended to allow a new code compliant loading zone on [the Woman’s Exchange’s Orange Avenue property],” then the structure would have “far less impact on the historic residentially zoned Laurel Park neighborhood.” (See the related story in this issue.)
The Laurel Park Neighborhood Association first filed an appeal with the city’s Planning Board regarding city staff’s November 2015 issuance of a building permit for the 3,524-square-foot addition. When that advisory body upheld the staff decision, the neighborhood group then appealed to the City Commission. As a result, because of judicial rules, the association also is a party to the Woman’s Exchange complaint. In its response to the nonprofit’s Petition, filed on Sept. 15, its attorney said it “realleges and reincorporates” the city’s response.
The Association is being represented by Richard A. Ulrich of Ulrich, Scarlett, Wickman & Dean in Sarasota.
Fournier told the city commissioners on Sept. 19 that the Woman’s Exchange’s answer to the responses is due Oct. 4. He added that he expected oral arguments to be scheduled at some future time.
The background
Members of the Laurel Park Neighborhood Association argued that allowing up to 12 vehicles per day to use the Woman’s Exchange’s proposed new loading zone would threaten the safety of pedestrians and bicyclists who use Rawls on a regular basis. Ultimately, Mayor Willie Shaw, Vice Mayor Shelli Freeland Eddie and Commissioner Susan Chapman sided with Laurel Park residents in an April 11 vote. Commissioners Suzanne Atwell and Liz Alpert supported the issuance of the city permit.
“While the opponents [of the permit] tried to wrap their testimony and objection around ‘facts’ regarding the applicable standards, at its root,” Lincoln wrote of the neighborhood association’s members in his July 29 Petition, “the testimony amounted to ‘we don’t think [the loading zone] is compatible, so you should find a reason to deny it.’”
Digging into the details
In his response, Fournier references testimony by Mike Taylor, who had 30 years of experience on the city staff as an urban planner. Taylor, who participated in the hearing on behalf of the neighborhood association, found that the six conditions city staff attached to the building permit that “mitigated the incompatibility of the loading zone with the area … actually themselves constitute evidence of the inadequate conditions on Rawls Avenue to accommodate a loading zone.”
Among facets of Section IV-506 of the Zoning Code to which he points in the answer, Fournier says that one standard asks whether “‘the proposed development, design and layout (of the site plan) has made adequate provisions for vehicular and pedestrian access, safety and traffic circulation [his emphasis].”
The loading zone was to be constructed on the west side of Rawls Avenue, “indirectly across from its ‘T’ intersection with Cherry Lane,” Fournier writes. The Woman’s Exchange planned to use it for the pickup and delivery of furniture and other large items, he adds.
Woman’s Exchange representatives have said they need to expand because of the growth of their consignment business, especially in regard to furniture. The nonprofit contributes hundreds of thousands of dollars annually to area arts groups — and in the form of scholarships — out of the proceeds of its business.
“This segment of Rawls between Laurel Street on the north and Oak Street on the south is narrow, with only 20 feet of right of way, 18 of which is paved,” Fournier continues. Eighteen residences on the Laurel Park side of Rawls — primarily in the Spanish Oaks Apartments — date to the 1920s and have insufficient on-site parking, he adds. “Consequently, many of the residents are forced to park on Rawls Avenue.” Fournier continues, “Because Rawls Avenue is often ‘fully packed’ with cars belonging to [these residents], this further narrows the space available for the passage of motor vehicles.”
Rawls also lacks standard sidewalks, Fournier writes, and Cherry Lane has none, adding, a “recurring theme of residents familiar with the area was the significant amount of travel on the street (literally) by people who are not in motor vehicles but are either on foot or on bicycles.” He was referring to testimony during the City Commission’s quasi-judicial hearing.
Among specific comments he cites, Fournier includes the statement of Jodi John, who told the City Commission her property is one-and-a-half blocks from the site of the proposed expansion, and she walks and drives Rawls Avenue daily. “I encounter walkers, joggers, dog walkers, young mothers with their baby carriages and even bikers,” John told the City Commission.
Another, Rachel Mann said her “only means of vehicular egress from her [Dolphin Lane home] is Rawls Avenue,” Fournier writes, and she “characterized Rawls Avenue in an email as ‘an active, narrow, pedestrian thoroughfare.’”
Fournier further references acknowledgment by Woman’s Exchange representatives that the use of the current loading area in the nonprofit’s parking lot along Orange Avenue poses safety problems for vehicles and pedestrians. Kate Lowman, a Laurel Park Neighborhood Association member who presented testimony alongside Taylor, told the City Commission that the Woman’s Exchange would be moving those problems to Rawls Avenue, Fournier adds.
Additional arguments
Lincoln’s Petition “argues that there was no competent substantial evidence that the site plan did not make adequate provisions for safety because ‘the lay opinions that the proposed loading zone is not safe did not constitute substantial competent evidence,’” Fournier writes. The “fears of increased traffic or speculation about traffic problems do not constitute substantial competent evidence,” Lincoln maintained. However, that argument and the cases Lincoln cited overlooked “two important points,” Fournier notes.
First, the neighborhood association and other residents did not object to the expansion “based on fears about additional traffic generated by the project,” Fournier writes. As staff testimony made clear, Fournier continues, the number of new trips per day associated with the Rawls Avenue expansion would be limited to 12.
Second, Fournier points out, “testimony, which is entirely factual,” cited the city’s approval of 83 new residences within a three-block circle of the Woman’s Exchange. Two of those border Rawls Avenue, he adds. Therefore, “in addition to the significant amount of bicycle and pedestrian traffic on Rawls Avenue already [Fournier’s emphasis] … there will be some unquantified amount of new bicycle and pedestrian traffic from these new dwelling units when they are occupied.”
In summing up the testimony about the use of Rawls Avenue and the additional impact of the loading zone traffic generated by the Woman’s Exchange, Fourier writes, “The issue then, is whether a person with a reasonable mind who knew that the facts presented … were true would accept them in the aggregate to support a conclusion that the loading zone would not be safe for pedestrians and bicyclists on Rawls Avenue.”
Fournier also notes that Taylor testified that in his 30 years with the city, “he could not provide an example of a location where a loading zone was allowed to be placed on a street like Rawls Avenue.” Additionally, “When current [city Neighborhood and Development Services staff members] were requested to do so, they could not identify a single other loading zone that had been authorized in the past that bordered on a residential street …”
Although city staff recommended approval of the Woman’s Exchange site plan, Fournier writes, “‘it is well settled that such staff recommendations are just that — recommendations.’” He cites a Florida judicial case, Bell South Mobility v. Miami Dade County.
Fournier adds, “The ultimate decision … lies with the governing body … not with its staff.”