Oral arguments requested in Avenue B and C case pending before Second District Court of Appeal

Judges to decide on in-person or video proceeding

The south Siesta Key resident seeking to prevent the installation of a stoplight at the Avenue B and C intersection with Stickney Point Road has asked that a panel of judges with Florida’s Second District Court of Appeal allow oral arguments in the case.

Tampa attorney David Smolker, who is representing James P. Wallace III in the case involving the Florida Department of Transportation (FDOT), filed the request on July 18, The Sarasota News Leader has learned.

The action followed late May and June actions by attorneys for FDOT and Siesta 41 Associates LLP, an affiliate of Benderson Development Co.

As part of its Dec. 12, 2018 approval of plans for the mixed-use development Siesta Promenade, which Benderson plans to build in the northwest quadrant of the intersection of U.S. 41 and Stickney Point Road, the Sarasota County Commission stipulated that construction could not begin until after a stoplight was erected at Avenue B and C, to facilitate traffic flow on the southern approach to Siesta Key.

Formally, Siesta 41 Associates is the developer of Siesta Promenade.

The project has been planned with 414 apartments/condominiums, a 130-room hotel, 133,000 square feet of retail space and 7,000 square feet of office space.

“Oral Argument will enhance the Court’s consideration of the issues raised,” Wallace’s attorney, Smolker, wrote in his July 18 request.

Smolker is an attorney with Smolker Matthews in Tampa.

In response to Smolker’s filing, the Second District Court of Appeal gave all of the parties — including FDOT and Siesta 41 — five days from July 18 to file a request for the arguments if they wanted the arguments to be conducted by video. However, the court’s order added, “The manner of oral argument will be decided in the court’s discretion.”

On July 25, Smolker filed another brief, writing that he had consulted with the attorneys for FDOT and Siesta 41, “who have advised that they have no substantive objection to conducting oral argument by video,” though he added that they would prefer holding the proceeding in-person. Nonetheless, Smolker continued, they agreed to “leave the matter to the discretion of this Court. Dr. Wallace concurs in [their] position.”

As of the deadline for this issue of the News Leader, the Second District Court of Appeal had yet to set a date for the proceeding.

Additionally on July 18, Smolker filed a reply to the briefs that FDOT and Siesta 41 had submitted to the court in late May, as well as to the filing in the case of supplemental materials regarding the transfer to Sarasota County’s jurisdiction the portion of Stickney Point Road west of the U.S. 41 intersection.

Smolker then recapped the nature of the case, explaining that it “raises the important issue of whether, under the Florida Administrative Procedures Act (“APA”), a uniquely situated resident of Siesta Key, an offshore barrier island, who depends almost exclusively upon a single roadway for access to and from his home and the mainland to conduct his daily life, receive emergency medical services and evacuate in the event of a hurricane,” is entitled to challenge FDOT’s decision to issue a permit for the Avenue B and C traffic signal.

FDOT’s action, Smolker contends, will result in negative consequences in regard to the “safety and operational integrity” of the affected roadway.

Wallace has argued that the County Commission should have required the traffic analysis for Siesta Promenade to include a focus on how its development would affect residents on Siesta Key. In the filings in the case, Wallace has pointed out that — especially at the height of tourist season — he effectively is marooned in his home on south Siesta Key for hours during the day. That fact, he says, is a direct result of the traffic congestion on Stickney Point Road. FDOT’s drawbridge on that road exacerbates the situation, Wallace stresses, because of the bridge’s regular openings.

Residents routinely have documented the clog of vehicles in the area of the Stickney Point Road/U.S. 41 intersection, as drivers — including those in emergency vehicles — try to reach their destinations.

The attorneys for FDOT and Siesta 41 Associates contend that Wallace does not have “standing” to challenge the department’s decision in late 2020 to allow the stoplight to be erected at Avenue B and C. “Standing” is a legal term referring to whether a person can demonstrate that he or she will be affected more adversely by a specific action than other members of the public.

In his July 18 reply brief on behalf of Wallace, Smolker refutes the assertion of FDOT and Siesta 41 that Chapter 335 of the Florida Statutes does not give Wallace the right to fight the stoplight permit. “The plain language of section 335.184 [of state law] precludes issuance of [such a permit] if it ‘would jeopardize the safety of the public or have a negative impact upon the operational characteristics of the highway’ and sets forth specific factors to be considered in making this determination,” Smolker writes.

Further, Smolker cites parts of the Florida Transportation Code, including a section that says the code “is necessary for the protection of the public safety and general welfare and for the preservation of all transportation facilities in the state.” He adds, with emphasis, “The Code imposes upon FDOT the express duty to regulate ‘ingress to and egress from, the State Highway System … to ensure the safe, efficient, and effective maintenance and operation of such facility[y].’ ”