Resumption of mediation expected, with court case a future potential
Exactly mirroring the 4-1 vote they took in May 2025, the Sarasota city commissioners this week denied the plans for what would be one of the tallest buildings in the municipality: the 327-foot tower called the 1260 N. Palm Residences.
Only Commissioner Liz Alpert supported the project.
The development also has been advertised on Realtors’ websites as the Obsidian. It would front on North Palm Avenue in the space where several retail operations exist, with the Bay Plaza condominium complex immediately behind it.
Commissioner Jen Ahearn-Koch made the May 4 motion of denial, “based on the [city’s] Standards of Review, which … speak mostly to compatibility,” she noted.
Vice Mayor Kathy Kelly Ohlrich seconded the motion.
At one point during the hearing, Ahearn-Koch inquired of the developer’s representatives whether they believed that Matthew Kihnke, the principal of 1260 Palm Properties LLC, would be willing to reduce the height of the structure.
“The ceiling heights are 14 feet,” George Scarfe of Hoyt Architects in Sarasota — the designer of the building — told her. “And I do believe that that is what [they need to be] for this market and what Mr. Kihnke is doing … “I don’t believe that we would be able to reduce the height,” Scarfe finally said.
As The Sarasota News Leader has reported, the hearing followed mediation that Kihnke had pursued through a process provided for by the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA); it is detailed in Florida Statute 70.51.
Formally, the hearing focused on the revised plans for the building planned on North Palm Avenue in downtown Sarasota. The modified proposal would settle the FLUEDRA action, attorney Mark Bentley of Tampa, who presided as the Special Magistrate in the process, explained to the commissioners at the outside of the May 4 proceedings.
He told the board members, “Hopefully, [this will be the] conclusion of the case.”
Yet, Sarasota attorney Robert Lincoln, who was one of the developer’s representatives during the hearing, stressed during his rebuttal, “We did everything we absolutely could to reduce the amount of adjustments here. Any project … on this site is going to require the same or more adjustments. … We satisfied the [city] staff that we had done everything possible to maximize the space and opportunities” for use of the site.
Turning to the persistent issue cited by opponents that the tower would be too tall for the location, Lincoln emphasized during the development team’s rebuttal that, given the fact that the City Code allows 18-story buildings in that part of downtown Sarasota, any structure placed on the site proposed for the 1260 N. Palm Residences “is going to be substantially taller than Bay Plaza. In fact, there are a number of 10-story buildings in the city that are taller than Bay Plaza.”
He added that the city’s Zoning Code, Comprehensive Plan and the Downtown Master Plan “all contemplated that there would be buildings of various heights in downtown.” The 1260 N. Palm Residences structure would be consistent with all of the above, Lincoln pointed out.
In response to a News Leader request for a comment about the developer’s next steps, Lincoln wrote in a May 6 email, “Based on the City Commission’s decision not to accept the settlement, the next step in the FLUEDRA process is the (informal) hearing before the Special Magistrate. The focus on that hearing is whether, based on the evidence, the City Commission’s action to grant the appeal/deny the Site Plan in May 2025 was “unreasonable” or “unfairly burdened the property.”
The latter references were to state laws regarding property rights.
Lincoln was noting the fact that the Bay Plaza Owners Association had appealed to the City Commission the decision of the city’s Planning Board in February 2025 to allow the 1260 N. Palm Residences to be built.
Lincoln added, “Based on the evidence, we expect the Special Magistrate would make both findings and recommend (again) to the City Commission that it change its decision. That order also could include a recommendation for changes to the plans agreed on by 1260 Palm. The City Commission would then have to act on that order — which it could accept or reject.”
By count of the News Leader, 21 members of the public testified during the hearing, and only two of them expressed support for the 1260 N. Palm Residences.
Citing a failure to meet most of the city’s Standards of Review
In prefacing her May 4 motion to deny Kihnke’s revised plans for the North Palm Avenue structure, Commissioner Ahearn-Koch pointed out that the city’s “Standards for Review [for construction] are quite clear,” After she then began to read the Standards, Commissioner Alpert tried to interrupt her, waving a hand just as Ahearn-Koch reached No. 4 on the list.
“I have to read these into the record, please,” Ahearn-Koch told Alpert.
“Are you, like, just reading it in?” Alpert asked.
“I am reading them into the record because nobody has read the Standards for Review into the record, and I’m basing my decision on the Standards for Review, and I’d like to read them into the record,” Ahearn-Koch added.
When Alpert pointed out that Ahearn-Koch was not referencing any specific ones on the list, in regard to whether the project details complied with them or not, Ahearn-Koch told Alpert she would make such remarks after she had completed reading them.
Alpert could be heard sighing after Ahearn-Koch’s response. At that point, the hearing had been going on for nearly four hours, albeit with a couple of 10-minute breaks.
After she completed reading the Standards into the record, Ahearn-Koch said she did not believe the project met Nos. 1, 2, 4, 5 and 6.
Vice Mayor Ohlrich pointed out that the commissioners had been told that buildings planned to front on city’s primary streets — such as Palm Avenue — “are to be held to a higher standard in support of pedestrian activity …” She added that she found that the revised proposal “does not meet … Standards 2, 4, 5, 6 and 7.”
Mayor Debbie Trice told her colleagues, “One of the things that I find quite distressing is we are building for the future …” Yet, she noted some of the remarks that attorney Lincoln and architect Scarfe had made during their presentation that afternoon. For example, Trice paraphrased comments that the plans for garbage pickup at the street had been the standard in the city for decades and “ ‘We couldn’t handle it any other way; we haven’t come up with any creative alternatives, so we’ll just put the trash up on the sidewalk.’ And I don’t think that’s what we want to be doing, moving forward,” Trice stressed.
“I don’t see that it’s really following the spirit of the [City Zoning] Code,” Trice noted of the revised project. “We’ve written that we want [the city’s appearance] to be better. We want to activate the streetscape; we want greenspace, and I don’t see that we’re getting that.”
She added, “In order to shoehorn this building into the limited space, you’re going to have to sacrifice something that’s in the Code, and I have a problem with that.”
Special Magistrate Bentley had told the commissioners that the settlement as a result of the mediation “hit all the points,” Trice continued, “but I’m just really uncomfortable that this is not what Sarasota wants to be.”
Alpert reminded her colleagues that she supported the project after hearing the details during the May 2025 hearing, because “I felt like it met the [city Zoning Code] criteria. She added, “Whether you like it or you don’t like it, that’s not our decision … And putting the trash out on the sidewalk is how everybody else does it. They offered to put it in an alley,” Alpert continued, looking toward Trice, “and people didn’t like that.”
Moreover, Alpert pointed out, “The Code provides for an 18-story building at that location.” If that was not a good idea, she said, “Then the zoning should have been changed.”
Commissioner Kyle Battie initially expressed the view that he and his colleagues had no choice but to approve the revised plans, based on the requirements for judging evidence and testimony presented during quasi-judicial hearings. Then he asked several questions of Jay Daigneault, special counsel for the city, in regard to those requirements. (A Clearwater attorney, Daigneault leads Trask Daigneault’s Litigation and appellate practices,” the firm’s website notes.)
During such a hearing, local government leaders must base their decisions on what state law characterizes as “competent substantial evidence” and testimony of persons with expertise on the issues they address. The proceedings resemble court hearings.
At one point, Dagineault told Battie, “If it’s conjecture, speculation, opinion, I would suggest that you ignore it. If it’s specific facts testified to, relative to the criteria for approval, then you can give that the weight and credibility you deem appropriate.”
Battie ended up supporting Ahearn-Koch’s denial motion.
Following the vote, Alpert said she “might as well” change her decision to “Yes.”
After City Auditor and Clerk Shayla Griggs cleared the voting results and told the commissioners to vote again, Alpert still had not cast her vote almost 35 seconds later. “It doesn’t really matter,” Alpert said.
“It matters how you vote for yourself,” Mayor Trice told her.
“I agree,” Griggs added: “You vote how you want to vote.”
Finally, 35-and-a-half seconds after the others had voted, Alpert’s decision showed up as “No” on the city monitor.
The changes since the May 2025 hearing
During his and architect Scarfe’s presentation this week on behalf of the developer, attorney Lincoln pointed out to the commissioners that Kihnke has been a city resident for 14 years and has been involved with other projects, including Sansara. “He understands the challenges of building a zero lot-line project … and how to hire the right quality contractors,” Lincoln added. Kihnke is “sensitive to the city and the neighbors’ needs,” Lincoln said.
Architect Scarfe used renderings to explain the changes to the project as a result of the mediation.
The first, which “was a concern of the Bay Plaza,” Scarfe noted, were “additional setbacks along their driveways.” The revised setbacks would be 1 foot, 6 inches and 2 feet, 7 inches, a slide showed, “to accommodate the green-walls.”
Alison Christie, general manager of the city’s Development Services Department, told the commissioners that those green-walls would be installed on the first and second stories of the structure, “along the northwest and southeast facades.” She added that they would “soften the building for the pedestrian.”
Later, Commissioner Ahearn-Koch asked whether the project team would be willing to increase the setbacks from the Bay Plaza building.
“There are technical requirements, and it would need to be certain things,” architect Scarfe responded. “If we were able to not have the … required ceiling height throughout the entire retail space,” reducing it from 12 feet to 10 feet, some of that space could be used for greater width between the building and Bay Plaza’s driveway area, Scarfe did note. Nonetheless, he said, “It wouldn’t be substantial.”
In representing the Bay Plaza Owners Association, attorney Morgan Bentley, of the Sarasota firm Bentley Goodrich Kison, referenced Scarfe’s remarks that his clients had asked for greater setbacks from the driveways. “We never asked for setbacks from the driveways! We asked for setbacks from the building.”
Further, during his and Lincoln’s presentation, Scarfe told the board members that, the new plans called for 12 non-residential or retail parking spaces, 13 spaces for guests of residents and 14 assigned residential spaces. The loading area, which would be located on the street, would be limited to morning use, he stressed. Any member of the public could use that space the rest of the day, he added. That loading space will measure 10 feet by 26 feet, another slide showed.
He did point out that the loading area could be used for garbage collection. However, if the commissioners preferred, he said, 1260 Palm Properties LLC could have employees place the garbage containers at the curb, where the containers would stand on pavers. He acknowledged concerns about lack of sufficient public parking in downtown Sarasota.
Scarfe further explained that, while the mediation was underway, the Downtown Improvement District (DID) added a mid-block crosswalk on Palm Avenue. That precludes the construction of other public spaces that the project team had considered, given city regulations regarding the distance that parking spaces must be from crosswalks, he noted. If the crosswalk were removed, Scarfe’s relevant slide said, two more public spaces could be provided in front of the building.
The next modification involved the historic palms along that section of Palm Avenue, Scarfe continued. After the construction was completed, he said, the palms would be replaced on North Palm, in similar fashion to their original, 1951 configuration. Moreover, a canopy street tree would be provided “at the corner” of the tower.
Further, he said, the two-story green-walls would “enhance the pedestrian experience,” and the project would maintain the 8-foot width of the sidewalk, which would be covered.
Moving on, Scarfe explained, “People don’t like unknowns” during construction. Therefore, he said, Kihnke and his contractor would schedule monthly meetings with Palm Avenue residents and business owners, coordinated with city staff, while construction was underway. Additionally, either Kihnke or the contractor would make available electronically — or in hard copies, by request — the quarterly staging plan updates that are required by the city for the residents and businesses within 500 feet of the property.
Further, Scarfe pointed out, 1260 Palm Properties would work with both city and Sarasota County staff on plans to improve Gulfstream Park and update the City Commission regularly on those efforts.
However, that condition ended up being removed from the proposal, attorney Lincoln later reported, because the city’s attorneys did not believe it would be appropriate for inclusion.
As for the controversy over the planned height of the 1260 N. Palm Residences: Scarfe showed the board members slides depicting the height of the planned Mira Mar Towers on Palm Avenue: 301 feet, 8 inches; and the redevelopment of the Zenith building into the Waldorf Astoria Residences, which has been proposed at 355 feet, 6 inches. “These things are happening within the city,” he pointed out.
Following Lincoln and Scarfe, Christie, general manager of Development Services, and Lucia Panica, director of that department, told the commissioners that they had reviewed all of the proposed changes. They recommended approval of the new site plan.
Disputing assertions of Kihnke’s team
Third up was Sarasota attorney Morgan Bentley, on behalf of the Bay Plaza residents. He pointed out, “The main issue here is the kind of 600-pound gorilla in the room: Everyone talks about meeting the concerns of the city.”
Over the seven-and-a-half hours of the May 13, 2025 City Commission meeting, when the board members granted the Bay Plaza Owners Association’s appeal of the city Planning Board’s approval of the project, “Green-walls were never mentioned,” Bentley stressed. “Loading dock was. But the things that are being presented [on May 4] as quote-unquote addressing the concerns of the city weren’t the concerns of the city.”
The concerns of the city, Bentley emphasized, had to do with the adjustments that the project team had requested. Only one of those was addressed, he said: “That’s the loading zone — and we’re appreciative of that; that’s a good thing.”
He showed the commissioners a slide to underscore his statement about the other revisions.
“To come in front of you,” he continued, “and say that this proposal … addresses all the concerns of the City Commission back then — it doesn’t even pretend to touch the things that you articulated” in the formal denial of the project that the board members approved in July 2025.
As for the project team’s revised plans for the palms, Bentley added, “I have to say it is odd to say that we’re going to reinstate the historic location of the palm trees back from 75 years ago. That’s not historic. It’s what’s there is historic.” Nevertheless, he noted, in accord with the city’s zoning regulations, “The developer couldn’t tear those down anyway without … permission from you.”
Moreover, Bentley showed the board members diagrams making it clear that the existing green space on the eight parcels that would make up the tower site comprises 1,662 square feet. What the team proposed last year was 1,422 square feet of green space, he continued. The current plan, Bentley stressed, as detailed in the application, calls for 1,297 square feet of green space in front of the building. That includes the green-walls, he continued. “The actual space upfront is 1,088 [square feet].”
Even counting the green-walls, he stressed, the amount of greenspace would be 25% less than what was in the original proposal.
New project conditions entertained
During an exchange with Commissioner Battie, architect Scarfe said, “We’re not here to tell anyone on the commission what you must do. I know you’ve heard that [from] many people. We’re just bringing ideas.”
“We’re certainly open to hearing [any condition requested during the hearing],” Lincoln added.
Battie responded that he was thinking about the retailers who had been displaced because of the construction plans for the Mira Mar Residences on Palm Avenue. He did acknowledge that it is his understanding that those individuals have been given “first right of refusal, coming back, and keeping their rent at the same rate.”
Scarfe replied that he knew Kihnke had talked with some of the retailers who would be put out of their spaces if the 1260 N. Palm Residences were approved. Those talks included some exchanges about assistance with relocation, Scarfe indicated. “I believe [Kihnke would] be willing to consider if one of ’em wanted to come back.”
No restaurant is planned in the structure, Scarfe noted. What will be featured in the building will be “quality-type retail,” though he was unsure of the specifics, he conceded.
Battie then made it clear that he was concerned about the minority owner of the barbershop who would be put out of business. Scarfe acknowledged that when he walks past that business, “It’s very crowded.”
(Mankind Barber Lounge stands at 1274 N. Palm Ave.)
Lincoln offered to take “a couple of minutes” to try to figure out how a specific request that Battie might make would work. A final resolution regarding all of the conditions, Lincoln said, could be provided to the commissioners at a future meeting.
Scarfe indicated that he could try to reach Kihnke on the phone if Battie wished to propose a specific condition.
Later, when Lincoln sought clarification about Battie’s request, Battie explained that he mostly was interested in Kihnke’s providing the same right of first refusal that the Mira Mar project team is offering tenants of those North Palm spaces
Lincoln added that proffer as, “The developer will offer existing tenants a right of first refusal to lease the new commercial space … at 20% below the market rate.”
Another commission suggestion for modifying the plans focused on the provision of more landscaping elements, “in consultation with staff and as feasible and permissible under City regulations.” That was based on discussion about whether the loading zone, as proposed, should continue to be part of the plans, if the board members voted in favor of the revised application, Lincoln said.