Agreeing with need for flexibility in Siesta Key commercial redevelopment, County Commission asks staff to work on amendment to island’s zoning code

Proposal for a hotel on Old Stickney Point Road the focus of speakers’ July 12 comments

The site of the former Fandango Cafe on Old Stickney Point Road is zoned Commercial General. Image from the Sarasota County Property Appraiser’s Office

A June 12 vote by the Sarasota County Board of Zoning Appeals has prompted not only legal action but also a proposal for an amendment to the county’s Zoning Code that governs all of Siesta Key.

With the consensus of the Sarasota County Commission on July 12, County Administrator Tom Harmer will work with the county’s Planning and Development Services Department staff on language that would provide flexibility in the Siesta Key Overlay District to allow commercial buildings taller than 35 feet to be set back less than 25 feet from the street.

Several speakers from Siesta Key — including a chiropractor who has proposed building a hotel on Old Stickney Point Road — implored the County Commission to facilitate commercial redevelopment on the island.

In comments to the commission during the Open to the Public period on the morning of July 12, long-time Siesta architect Mark Smith explained what he called the “unintended consequences” of the June Board of Zoning Appeals decision. On a 3-2 vote, the members supported the interpretation of county Zoning Administrator Donna Thompson that 25 feet would be the minimum setback for structures taller than 35 feet in commercial zones on Siesta Key. Her determination regarding the Siesta Key Overlay District (SKOD) included the interpretation that the street setback for structures up to 85 feet tall — the maximum height allowed on a barrier island in the county — would be half the height of the building.

“The intent of the Siesta Key Overlay District,” Smith told the County Commission, “was to keep the commercial district pedestrian-friendly,” with buildings close to the sidewalk. “Unfortunately, in the district ordinance,” he continued, “it isn’t clear what happens when a building height is above 35 feet.” What should happen, Smith said, is that the County Commission should consider a special exception petition from an applicant seeking a smaller setback than the standards Thompson outlined.

The building that once housed Fandango Cafe stands on part of the acreage zoned Commercial General on Old Stickney Point Road where a hotel possibly could be built. File photo

Therefore, he continued, he wanted to propose an amendment specifying that in Commercial General, Commercial Intensive and Office, Professional and Institutional districts in the SKOD, buildings taller than 35 feet, up to 85 feet, be considered under the special exception process and that 2-foot setbacks be allowed for them by special exception.

“That would tie the building height with the setback,” Smith pointed out.

He would not want to see an 85-foot-tall commercial building standing 2 feet from the sidewalk, he added, but he also did not want to see “a building just over 35 feet need [a setback of] 25 feet … That wasn’t the intent of SKOD.”

He drove by the Terrace building that morning, he continued, referring to a condominium complex next to Beach Access 5 on Siesta Key, and he estimated the street setback of that 170-foot-tall building is 40 feet. “That’s twice the height we’re looking for in any [Commercial General] district,” he pointed out of the Terrace.

Thompson’s determination about the SKOD setbacks in commercial districts came in response to a query from Charles Bailey III of the Williams Parker law firm in Sarasota. Bailey was acting on behalf of Siesta Acquisitions LLC, whose principal is Dr. Gary Kompothecras, the chiropractor known for his “1-800-Ask-Gary” advertising. Bailey informed the County Commission on July 12 that he would be filing a petition in 12th Judicial Circuit Court, seeking to overturn the Board of Zoning Appeals (BAZ) decision on June 12. While neither the county nor the board would be named as a defendant in the case, Bailey said, the county typically handles litigation for the BZA.

Addressing the commission himself, Kompothecras decried Thompson’s interpretation of the SKOD and the June 12 vote, saying the latter “was supposed to be a formality.” Instead of being able to put more money into plans for the hotel he proposes, Kompothecras added, “now I got to fight you guys, which I don’t want to do.”

The threat of litigation

Former County Administrator Jim Ley (left) and attorney Charles Bailey III try to convince the Board of Zoning Appeals on June 12 that their interpretation of the Siesta Key Overlay District setback regulations is correct. Rachel Hackney photo

During his comments, Bailey stressed, “We have no application pending [for a hotel on Siesta Key].” However, he said, the commercial property Kompothecras owns on the island is like that of most other commercial parcels on the Key: It contains “old, non-conforming structures,” and it is fairly small and “uniquely configured.”

“Our redevelopment effort was thwarted on June 12,” Bailey continued. As the project team was looking into the feasibility of constructing a hotel on Old Stickney Point Road, he said, it sought Thompson’s confirmation that a 2-foot street setback would be all that was required for buildings taller than 35 feet in SKOD commercial zones. Because of the BZA vote, Bailey said, “you’ll see simply bars and restaurants replacing bars and restaurants in old, non-conforming buildings. … My client is now in the unenviable position of having to challenge the BZA action …”

After Bailey completed his 3 minutes of remarks allowed under county policy, Commissioner Michael Moran acknowledged to County Attorney Stephen DeMarsh, “I’m super confused by this.” Moran then asked if the only recourse for Siesta Acquisitions in regard to the BZA decision is litigation.

The company could request a Zoning Code amendment to resolve the SKOD issues, DeMarsh replied, or it could file a Petition for Writ of Certiorari, asking the court to overturn the zoning board’s decision.

DeMarsh further clarified that, under the guidelines of the ordinance that established the BZA, that board “has final decision-making authority over the matters brought before it. … It’s been that way for very many years.”

Commissioner Mike Moran. Filephoto

Moran then asked County Administrator Harmer about county staff action, if the board’s consensus was to pursue an amendment to the SKOD.

“We can come back with a recommendation for how the [commission] can deal with those [setback] requests” through a proposed change to the Zoning Code, Harmer responded.

“I personally would like that,” Moran told Harmer.

Chair Paul Caragiulo indicated that was the board’s consensus, so Harmer said, “We’ll take it on as an assignment.”

Reached later that morning by The Sarasota News Leader, Mark Smith said he had to leave right after he made his comments. When told about the commission’s direction to Harmer, Smith replied, “That’s super.”

“Donna Thompson is absolutely correct” in her interpretation of the setback regulations in the Zoning Code, he said, noting she “is a stickler for detail.” That was why he proposed the amendment, he added.

About that litigation …

During discussion later that day, County Attorney DeMarsh asked the commission whether he should hire outside counsel to represent the Board of Zoning Appeals, if Bailey files the Writ.

Commissioner Charles Hines said he did not want to see the county spend money for that purpose. Hoping that Bailey was watching the meeting, Hines continued, “They don’t need to file a lawsuit.” It appeared to him that morning that a majority of the commission was willing to consider an amendment to the SKOD that would make litigation unnecessary, Hines added. “I like the special exception process … because not everything has to fit in this perfect box.” The public has the ability to participate in hearings regarding a special exception petition, Hines pointed out, and compromises can be reached.

Hines was hopeful, he continued, that if the Writ were filed, DeMarsh’s staff could file a response seeking a delay in court action until after the County Commission had an opportunity to consider the SKOD amendment.

County Attorney Stephen DeMarsh. File photo

With no specific board direction, DeMarsh responded, “I would likely try to use my judgment to see if we can … get some additional time for a response [to the Writ],” though one generally is required within 20 days. “But I will use my best judgment to avoid hiring outside counsel.”

When the News Leader contacted Bailey following the conclusion of the County Commission meeting, Bailey responded that he did not hear that last discussion about the litigation and the proposed SKOD amendment.

He wrote in an email, “But, the Commission’s discussion during the open to the public portion of the meeting at which I was present reflected the Commission’s clear concern over the negative, if unintended, consequences of the [Board of Zoning Appeals’] June 12 action. I did glean from that discussion the Commission’s desire to simply amend the Zoning Regulations to clarify its authority to determine the street yard setback for [Commercial General]/SKOD lands during the special exception process.”

Bailey added that while he had not yet filed the Petition for Writ of Certiorari, “we will likely still need to [take that action] for the purpose of preserving my client’s rights while the amendment to the Zoning Regulations is being processed. … Our focus now is to work with and support the County in processing the amendment …”

He also pointed out, “The adoption of such an amendment would likely obviate the need to proceed with the petition and, I would suspect, would allow it to be quickly dismissed.”

Opposing views

Along with Mark Smith, Bailey and Kompothecras on July 12, Clayton Thompson — owner of Clayton’s Siesta Grille on Old Stickney Point Road — and David Stewart — one of the proprietors of Captain Curt’s Crab & Oyster Bar — appeared before the commission to seek a change in the SKOD to allow for smaller setbacks for taller buildings.

Mark Smith. File photo

“I also want to say we really do support Dr. Gary’s proposed hotel,” Stewart told the board, adding that it would replace blight on the street that has “been a problem for years.”

“I see a beautiful resort, possibly, for Siesta Key,” Thompson added. Even though he is a restaurateur, he continued, he did not want to see bars and restaurants as the only commercial redevelopment on the island.

A hotel, Thompson pointed out, also would mean more property tax revenue for the county.

Since word began spreading in late December 2016 about Kompothecras’ plans for a hotel, a number of people have fought the proposal. Former Siesta Key Association and Sarasota County Council of Neighborhood Associations President Lourdes Ramirez has been among the leaders of the opposition.

In response to a News Leader request for comment about the July 12 County Commission discussion, Ramirez wrote in an email, “The residents on Siesta do not want to see our island become as overly built as the City of Sarasota. To have a 2 foot street setback for buildings taller than 35 feet is absurd. We don’t want to see a ‘Vue’ type structure in the [Commercial General] district on Siesta,” she continued, referring to a controversial new condominium tower at the intersection of U.S. 41 and Gulfstream Avenue in downtown Sarasota. “We will fight any attempt to shorten our setbacks.”

Ramirez also addressed the County Commission’s direction to Harmer to work on amending the SKOD: “We will fight this proposed new language. It’s disappointing to hear the chair of the Siesta Key Chamber [Mark Smith], Captain Curt’s and Clayton’s take a position in opposition of residents’ concerns.”

Furthermore, in a recent survey, the Siesta Key Association found that, by a ratio of 18-to-1, its members oppose any increase in intensity or density, beyond what the county’s Comprehensive Plan allows, in regard to proposals for a new hotel on the island.

1 thought on “Agreeing with need for flexibility in Siesta Key commercial redevelopment, County Commission asks staff to work on amendment to island’s zoning code”

  1. Good work by the BCC. For ‘opponents’ to suppose they speak for residents is presumptuous. Nobody even knows what is to be proposed yet.

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