Attorney for applicant points to city policies, state and federal laws and Robert’s Rules of Order in arguing against proposal
New Sarasota city Commissioner Kathy Kelley Ohlrich was the board member this week who seconded a motion made by Commissioner Jen Ahearn-Koch, calling for the recission of the vacation of Cross Street, which the majority of the commissioners approved on Nov. 4.
Yet, following about 50 minutes of discussion during the commission’s regular meeting on Dec. 2, Ohlrich ended up joining all of her colleagues except Ahearn-Koch in voting against the recission.
Attorney Bill Merrill III, of the Icard Merrill firm in Sarasota, and Philip DiMaria, a certified planner with the Kimley-Horn consulting firm — both representing a limited liability company called Orange Pineapple — stressed a number of reasons why a recission would be in conflict with the city’s Comprehensive Plan, its Zoning Code, the City Charter, state statutes and Robert’s Rules of Order.
As the commissioners wrapped up their comments, Ohlrich noted that she was not on the board when the Cross Street vacation was considered during two public hearings, the second of which took place a day before she won her seat in the November General Election.
“I have to remind myself that whether the street vacation was in the best interest of the city or not is not part of our discussion today,” Ohlrich said. She would not be supporting Ahearn-Koch’s motion for recission, Ohlrich added, because “I don’t think it’s in the best interest of the city.”
Earlier, Commissioner Kyle Battie pointed out, “Let me make it clear: I don’t throw away votes. … My vote is my word, and my word is my bond. … That’s the integrity of this body.”
Referring to the developer and the project team, he continued, “They made decisions based on the word that was given here by this body. That could affect the business going forward. That in itself is a detriment to this community as a whole. … I don’t want anyone out there in the community thinking that that’s the type of business that we do here in Sarasota,” he added.
Near the end of the commission’s regular meeting on Nov. 18, Commissioner Ahearn-Koch announced her intent to bring up the recission proposal during the Dec. 2 regular meeting, as City Attorney Robert Fournier reminded the board members at the outset of the discussion this week; she was required to do under the city’s meeting rules. However, Fournier continued, while it would take just a simple majority of the board to rescind the Nov. 4 vote approving the Cross Street vacation on second reading, if that happened, staff would have to schedule another formal, second reading of the vacation ordinance on a future commission agenda.
Further, Fournier recommended that the board members allow attorney Merrill and planner DiMaria to offer remarks, adding that they “very much want to address this [proposal].”
However, Fournier said, it would not be appropriate to permit members of the public to speak on the issue that day.
Then Fournier suggested that Ahearn-Koch be given a “reasonable amount of time” to explain why she was proposing the recission.
As The Sarasota News Leader has reported, Orange Pineapple LLC had requested the vacation of the approximately 27,073-square-foot Cross Street right of way in downtown Sarasota. The ordinance the board members approved states that the applicant “shall, within three (3) years of the approval of this street vacation” apply for a site plan or building permit “on any portion of the property within the Development.” Moreover, it calls for the applicant to obtain from city staff the first building permit for vertical construction on any portion of the development within six years of approval of the street vacation.
Orange Pineapple owns all of the properties to the north and south of Cross Street, city Planner Rebecca Webster pointed out during the first reading of the ordinance, which was conducted on Aug. 19.
The registered agent of Orange Pineapple is Corporation Service Co. of Tallahassee, and the corporation manger is Steele Interests SOF LLC of Sarasota, whose CEO is Robert Franco, according to records maintained by the Florida Division of Corporations.
The staff report for the Aug. 19 hearing explained, “Cross Street is a somewhat unique right-of-way within the city, because it is lined with large oak trees that provide shade cover to members of the public that utilize the right-of-way. … There is no application for development that has been submitted in conjunction with the vacation application; however, the Applicant is requesting to vacate Cross Street for flexibility within a future development plan that integrates the Cross Street right-of-way into the overall project design.”
One of the proffers from the applicant said the company would provide a minimum of 50 “public parking spaces within the Development. Public parking spaces may be located within the parking garages in the Development and, if feasible, on-street. Final locations of public parking spaces will be identified at the time of Site Plan. The public parking spaces shall be available to the public 24-hours a day in the same manner as similar public parking garages operated by the City of Sarasota.”
Among other proffers were seven easements, including three to be granted to the city to ensure continued pedestrian and motorist access on would has become a 24-foot-wide private roadway.
On Nov. 4, both Vice Mayor Debbie Trice and Ahearn-Koch voted against the street vacation. Trice expressed concern that the applicant had not given city staff or the commissioners any details about the development plans. Ahearn-Koch said she saw no public benefit resulting from the street vacation and bemoaned the plans to cut down trees along Cross Street to facilitate the development.
The city staff report also had noted the fact that Cross Street has a hub for the Veo ride-sharing equipment the city provides the public, along with the fact that the street provides “connectivity to the waterfront via Ringling Boulevard.”
‘Poor timing’ and ‘a lot to digest’
During her remarks to her colleagues on Dec. 2, Ahearn-Koch referenced the “complicated application” for the street vacation and talked of what she characterized as the “poor timing” of its consideration.
“There’s a lot to digest with this application,” she added, “and it was discussed during a very difficult time in our city.”
The first hearing came only about two weeks after Tropical Storm Debby inundated the northern part of the county, including parts of the city, while the second hearing followed the devastation resulting from Hurricane Helene in late September and Hurricane Milton’s strike on Oct. 9, Ahearn-Koch pointed out. “Three consecutive devasting hurricanes,” she stressed.
Moreover, Ahearn-Koch continued, the City Commission has authorized work on a new Downtown Master Plan, and the board members recently adopted a new Engineering Design Criteria Manual (EDCM), both of which could result in new considerations of the value of Cross Street to the public.
Vice Mayor Trice asked on Nov. 4 why it was essential to vacate Cross Street then, Ahearn-Koch added. “That was the key question.”
(Trice did tell her colleagues on Dec. 2, “While I appreciate Commissioner Ahearn-Koch’s very good summary of my objections to this particular thing, I think it … would be unfortunate to call for a do-over …” Trice added that that would set a bad precedent by allowing a board member “on a losing side of a vote [to say], ‘Let’s rescind the vote …’ ”)
Continuing her statement, Ahearn-Koch asked, “Why can’t this wait until [the project team members] present a site plan” or until the new Downtown Master Plan has been completed?
Further, she stressed, “What is the insurmountable public benefit that is so grand … that we have to vacate Cross Street now, today?”
After seconding Ahearn-Koch’s motion for the recission of the street vacation, Ohlrich also talked of the hurricanes, saying, “I believe most people in this city experienced PTSD” after all of them. Yet, she quickly added, “I’m not saying that the City Commission was experiencing PTSD when it voted [on the vacation].”
Further, Ohlrich told her colleagues, “It is very rare, in my experience, for staff to recommend denial or for staff to remain neutral on an application.”
The staff report for the August hearing said that city staff believes Cross Street “provides a public benefit.” However, during the Nov. 4 hearing, city Planner Webster told the board members, “Based on the proffers and the standards for review, staff feels it’s, on balance, a public benefit” to vacate the right of way, though she pointed out that the decision rested with them.
On Dec. 2, Ohlrich agreed with Ahearn-Koch in questioning the need for the street vacation to take place prior to the completion of the new Downtown Master Plan and in light of the revised ECDM.
‘Shocked and surprised’
After the commissioners allowed attorney Merrill and planner DiMaria to address them, Merrill told them, “To say that we were shocked and surprised about this [recission proposal] when we first learned about it is an understatement.”
Merrill added, “My clients are very upset and very concerned about this. … This is a highly unusual, irregular approach to take after an ordinance has been adopted that establishes property rights,” he continued. His clients, Merrill said, have “relied upon {those rights].”
Moreover, Merrill pointed out, the project team had worked on the proposal for 16 months before the Nov. 4 vote of approval.
Then he stressed that the project team had proceeded to give the city the three easements staff had sought, and another four easements were provided to private entities — Comcast, Florida Power & Light Co., TECO/People’s Gas Corp. and Frontier Florida LLC — in accord with city staff requirements. “Those things cannot be reversed,” Merrill told the commissioners.
The city accepted the easements, he continued, and those easements had been recorded by the Office of the Sarasota County Clerk of the Circuit Court and County Comptroller. He spread out copies on the table in front of the dais to underscore his comment.
Merrill also showed the commissioners the section of Robert’s Rules of Order that says that an ordinance cannot be rescinded or amended under certain circumstances, including a situation in which something has been done “that is impossible to undo.” The recording of the easements granted to the city perhaps could be undone, he acknowledged, but not those given to the private entities.
Further, he said, the recission would violate the Fifth and 14th amendments to the U.S. Constitution, and it would be inconsistent with the property rights chapter of the city’s Comprehensive Plan.
Such commission action would be seen as a taking of private property and creating a public right of way, he continued. That also could lead to legal action in accord with the state’s Bert Harris Jr. Private Property Rights Protection Act, Merrill said.
If Orange Pineapple does not file its site plan and its application for a building permit within the timelines laid out in the adopted ordinance, Merrill noted, the street vacation would be canceled anyway.
Additionally, he said, in regard to the new Downtown Master Plan and the ECDM, the site plan would have to comply with city regulations and policies in effect at the time the plan was submitted to city staff.
“There are many, many consequences that could result [from a vote to rescind the street vacation],” Merrill pointed out. “This is not so much as a threat,” he added, as information about how the action would violate various laws.
Referring to the development plans, Merrill said, “This is hundreds of millions of dollars we’re talking about here.”
When Mayor Liz Alpert called for the vote, the result was 1-4, with only Ahearn-Koch supporting her motion.