Bay Plaza residents continue to fight Special Magistrate’s recommendation of approval of mediation results reached through state dispute resolution process
Having twice denied the proposed construction of the proposed 18-story, 14-unit condominium tower called the 1260 N. Palm Residences — previously the Obsidian — the Sarasota City Commission will be asked once again, on Nov. 2, to consider allowing the project to proceed.
During the board’s regular meeting that day, it is scheduled to conduct what is called a quasi-judicial hearing on the appeal of the developer, 1260 Palm Properties LLC, of the board’s second denial, which occurred on May 4.
“Quasi-judicial” refers to the fact that the proceeding must be handled akin to a court hearing, with the commissioners directed to rely upon evidence and testimony, instead of opinions or their feelings about the project, in making their decisions.
Commissioner Liz Alpert has been the sole member of the board to agree that the development should go forward, as The Sarasota News Leader has reported.
The May 4 hearing that the commission conducted focused on the recommendations of Mark Bentley, the attorney who served as the Special Magistrate in a Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA) proceeding that the developer pursued after the commission’s first denial of the project, in May 2025. That mediation adhered to the guidelines of Florida Statute 70.51.
At the conclusion of the hearing this spring, Commissioner Jen Ahearn-Koch made the motion to deny approval of the proposed settlement, “based on the [city’s] Standards of Review,” she said, “which … speak mostly to compatibility.”
Well before she made the motion, however, she 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 — replied. “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.
Morgan Bentley, the Sarasota attorney who has represented the Bay Plaza Owners Association, has maintained that the design of the 1260 N. Palm Residences project does not comply with the Standards of Review, especially in regard to the height, bulk and setbacks of the proposal.
Bay Plaza residents have stressed the close proximity of the tower to their building, as well as its bulk and height. The structure would be 327 feet tall.
Following the City Commission’s May 4 vote, Robert Lincoln, a Sarasota attorney who was one of the representatives of developer Kihnke, told the News Leader that the next step in the FLUEDRA process would be an informal hearing before the Special Magistrate. Its focus, Lincoln added, would be on whether, based on the evidence, the City Commission’s action was “unreasonable” or “unfairly burdened the property,” phrases that reference state law in regard to private property rights.
In a 141-page document that is included in the backup agenda materials for the Nov. 2 hearing, Special Magistrate Bentley wrote that the City Commission’s denial this spring was “substantively unreasonable,” as “it was excessive and went beyond what a fair-minded person would consider sensible”; and that it was “inconsistent with the governing legal standards.”
He explained of the first reason: “[T]he record shows that the Project met all published standards, including compatibility, and that 1260 Palm did everything reasonably possible to minimize the Adjustments and mitigate their effects. [He was referring to adjustments to city Zoning Code regulations that city staff had granted the developer]. Bay Plaza and other opponents asserted that the building was incompatible because of its height,” the Special Magistrate continued. “The height complies with the Sarasota Zoning Code … and Bay Plaza presented no evidence that the building height would adversely affect Bay Plaza or the surrounding community. They also urged that 1260 Palm needed to ‘do better’ on pedestrian frontage, parking, loading, and trash service to justify the Adjustments. The record, however, shows that 1260 Palm had taken all reasonably available measures to address those issues.”
As to his second reason, Mark Bentley wrote that the project team “established through competent substantial evidence (that is, reliable evidence that a reasonable person could accept as adequate support for a conclusion), including the findings and testimony of the City’s planning staff … throughout the review process, that the Site Plan and Adjustments met all of the publicly stated criteria in the Zoning Code. Under the applicable legal standards, that ‘shifted the burden’ to Bay Plaza and the opponents to enter competent substantial evidence that the Site Plan and Adjustments failed to meet the Zoning Code criteria.”
Further, the Special Magistrate explained, the City Commission’s denial “prevents 1260 Palm from constructing the Project and exercising development rights that are available under the Zoning Code to other downtown properties, and the denial of both the Site Plan and the Adjustments leaves the Property without an economically reasonable short-, medium-, or long-term use. Individually and together, these effects unfairly burden the Property.”
The hearing is scheduled as item XI on the commission’s Nov. 2 agenda, the last item before remarks of the board members and staff. The meeting will begin at 9 a.m. at City Hall, which stands at 1565 First St. in downtown Sarasota.
The Bay Plaza stance
During the City Commission’s regular meeting on Oct. 19, Ron Shapiro, who for years has been a spokesman for the Bay Plaza residents fighting the 1260 N. Palm Residences development, explained that he had attended a mediation session that was conducted on Sept. 4 between representatives of the developer and the city, with the Special Magistrate presiding.
“I had two key observations from that meeting that I want to share with you,” Shapiro continued, addressing the city commissioners:
- “The developer offered no changes to plans that you have already seen and rejected.
- “Secondly — and quite surprisingly — the Magistrate raised the question as to whether or not you — the Commissioners — were sufficiently knowledgeable and capable of making the ‘right’ decision when you rejected the [last] proposal. Specifically, whether or not you had sufficient technical skills to fully understand the project proposal.”
Shapiro added, “Where I come from, we call this ‘chutzpah.’
“Fortunately,” he continued, City Attorney Joe Polzak “responded to this question both promptly and strongly. He defended you — the Commissioners — as being fully qualified and dedicated to understanding the project details in order to reach a valid and well-justified decision.”
Ultimately, Shapiro contended, “We have a developer who is still unwilling to make any changes to address the reasons that the project was rejected. We have a Magistrate who still thinks this project is just fine and should be approved, despite its noncompliance. And we have the residents — who have elected you to do the right thing and carry out the will of the people — who strongly believe that this project should be rejected (again).”
He added, “We trust you, the commissioners, to make the right decision and reject this project, again.”