City of Sarasota has greater legal latitude to regulate street setbacks than sidewalk width, city attorney advises

City staff to present more information on the issue within 30 days of release of new proposed zoning regulations, which is expected March 9

The Vue Sarasota Bay has been the focus of widespread resident complaints about insufficient front setbacks. Rachel Hackney photo

Because of federal case law that has been incorporated into state regulations, the City of Sarasota will have more latitude in seeking greater setbacks for buildings than it will in imposing rules requiring wider sidewalks.

That was the essence of a presentation City Attorney Robert Fournier provided to the City Commission on March 5. His research followed discussions during a special meeting on Feb. 22, when the board first addressed sidewalk and setback issues in terms of the new form-based code a consultant has been working to complete.

As long as new setback requirements are not imposed on a development already in process, Fournier told the commissioners, he believes the city has leeway under the state’s Bert J. Harris Jr. Private Property Rights Protection Act to call for construction to be further back from the right of way line on a street. However, he also advised the commissioners that the city would have more protection from legal complaints under the Harris Act if it sent a notice by mail to property owners after new setback requirements were implemented in the city’s zoning regulations. (The form-based code, which is due to the commissioners March 9, is a comprehensive revision of those regulations.)

Any property owner who wished to file a claim for compensation under the Harris Act would have to give the city 150 days of notice about that intent, Fournier explained. That would enable the city to try to settle the case before it went to trial.

“I don’t consider the Harris Act as an absolute barrier at all,” he said, if the board wants to increase setbacks.

Nonetheless, Deputy City Manager Marlon Brown voiced the view that because of the zero setback requirement in the Downtown Core zoning district — which has been the focus of much of residents’ complaints — legal action against the city would be more likely to follow any attempt to implement new setback regulations in that district.

City Attorney Robert Fournier. File photo

As for sidewalks: Fournier explained that a 1987 U.S. Supreme Court decision in Nollan v. California Coastal Commission — which was codified into state law via Florida Statute 70.45 — would make it necessary for the city to demonstrate a “legitimate government purpose” in requiring a developer to build a wider sidewalk. For example, Fournier said, city staff would have to demonstrate that the development would increase usage of the sidewalk, so a wider width would be necessary.

The state statute says, “‘Prohibited exaction’ means any condition imposed by a governmental entity on a property owner’s proposed use of real property that lacks an essential nexus to a legitimate public purpose and is not roughly proportionate to the impacts of the proposed use that the governmental entity seeks to avoid, minimize, or mitigate.”

“I don’t think I would be giving you correct advice if I told you that you could [require wider sidewalks] across the board,” Fournier added.

In the past, City Manager Tom Barwin noted, the sidewalk width requirement was 4 feet. “Currently, [it is] 5. FDOT is recommending in [its] planning at least 6.” He added that a new city standard of 8 or 10 feet would be preferable.

The FDOT standard could serve as a basis for justifying new width requirements in the city, Fournier responded.

The nonprofit organization STOP!, which was organized in 2016, has been an advocate for both wider sidewalks and greater setbacks. It has asked the City Commission to ensure those provisions are part of the new form-based code.

“Fixing our sidewalk and setback problem obviously is going to have to be addressed in multiple ways,” Kate Lowman, a Laurel Park resident who is a STOP! steering committee member, told the commissioners on March 5.

In the aftermath of the Feb. 22 special meeting, she continued, residents have heard no timeline for the city’s Planning Department to address sidewalks and setbacks. “And that concerned us because we really want to do everything we can to keep moving this conversation forward.”

She did acknowledge that STOP! members recognize that “creating a whole new template for the entire city isn’t reasonable, at least not overnight.” However, she asked that staff put its initial focus on South Palm Avenue, U.S. 41, Fruitville Road and the Rosemary District.

The commissioners took no vote after devoting slightly more than an hour on March 5 to Fournier’s presentation and discussion. However, Mayor Shelli Freeland Eddie emphasized that the board members have to decide, based on community concerns, how they want particular areas of the city to look in the future, and they need Fournier’s ongoing advice regarding potential legal ramifications.

Kate Lowman addresses the City Commission on March 5. News Leader photo

City Manager Barwin told her staff members could come back to the commissioners with more information within 30 days of the March 9 release of the new code. Then the commissioners could consider how to proceed, he said.

Staff members would consult with representatives of STOP!, he added, before preparing their report, and they would use graphs Fournier and his staff had provided to the commission in advance of the March 5 meeting. Those compare current setbacks in zoning districts to the setbacks proposed in the form-based code.

“We’ll get more specific with those corridors” STOP! suggested, Barwin added.

Freeland Eddie at first told Barwin she did not want to impose a 30-day timeline then added, “Quicker is better.” Later, she agreed on the 30-day period for staff members so they could work with Karin Murphy, the consultant preparing the form-based code, and STOP! leaders.

Lowman also had asked for the staff report within 30 days.

Furthermore, Freeland Eddie called for staff to make certain that members of the public receive notices about when specific aspects of the new zoning regulations will be addressed during the commission meetings scheduled over the remainder of the year. “We get asked all the time, ‘When’s this part of the code going to be discussed?’”

Delving into the legal issues

A graph prepared by the City Attorney’s Office compares current and proposed front setbacks for downtown zoning districts. Image courtesy City of Sarasota

As he talked about his legal research, Fournier explained that setback is “a function of each [zoning district], and there are a lot of zone districts in the city.”

Each will need to be addressed separately, he continued.

“The primary question that has come up,” he pointed out, is whether stipulations for greater setbacks in the new form-based code “would … be an unlawful so-called ‘taking’ of someone’s property.”

Government entities often take property through eminent domain actions, he noted, but “that’s not what we’re talking about here.”

In this situation, he continued, the issue is the regulation of the use of property to such an extent that the government essentially would be taking the property, in which case the government would have to compensate the property owner.

The law is “pretty clear,” Fournier said, that the regulation “has to be so onerous that it deprives the property owner of all economically beneficial uses of his or her land” to be considered a “taking.”

For example, he noted, if the city adopted a rule that said the front yard setback had to be 90% of the depth of a lot, that most likely would be considered a taking.

In terms of the discussions about the form-based code, he added, setbacks of 10 or 20 feet have been mentioned. Such a regulation potentially could reduce the fair market value of a parcel, he explained, but that would not be a certainty in every case.

A graph compares current and proposed front setbacks for commercial zoning districts. Image courtesy Sarasota City Attorney’s Office

Under the Harris Act, Fournier continued, a taking would apply if a property owner were permanently unable to attain his or her reasonable, investment-backed expectation for the existing use of the land, or a vested right to a specific use of the property.

If, for another example, a site plan had been approved for implementation within two years, he pointed out, and the city imposed new setback regulations just two months before the site plan period was to end, a property owner could claim that the city had impaired the owner’s vested right in that property.

The Harris Act does cover “reasonably foreseeable, non-speculative uses” of land, he added. In the case of setbacks, he continued, “What I think we’re really talking about” are probable or highly probable land use changes relative to the value of the property.

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