Attorney calls for county staff to continue upcoming public hearings on proposal for Siesta Promenade

Opponents of the project plan a Nov. 11 demonstration next to the site

(Editor’s note: This article was updated late on the morning of Nov. 9 to add in comments from county staff.)

A graphic in materials submitted to county staff in June 2017 shows the proposed boundary for the Siesta Promenade Critical Area Plan. Image courtesy Sarasota County

With no response from the Office of the Sarasota County attorney to earlier letters, attorney Morgan Bentley of Sarasota made one more attempt this week to point out problems related to the process the county has been following on Benderson Development Co.’s application for Siesta Promenade, The Sarasota News Leader has learned.

As a result of lingering concerns, Bentley has suggested that the Office of the County Attorney advise county staff that both the Nov. 15 public hearing before the Planning Commission, and the Dec. 12 County Commission hearing be continued. Otherwise, Bentley alludes to the fact that the county can expect legal recourse.

Bentley is representing the Best Western Plus Siesta Key Gateway Hotel, which is located at 6600 S. Tamiami Trail — close to the Siesta Promenade site on the northwest corner of U.S. 41 and Stickney Point Road.

Among his latest concerns, Bentley has argued that Benderson has not petitioned for the Special Exceptions required for it to exceed the county’s height limit for commercial development; nor has the company submitted a separate petition for a Special Exception allowing it to construct standalone residential buildings within the mixed-use development.

In response to a News Leader request for comment on the letter, Ashley Lusby, the county media relations officer for Emergency Services, wrote in a Nov. 9 email, “Planning staff is in receipt of the letter and will be adding it to the correspondence portion of the developing staff report.” She added that the Planning Commission is still scheduled for Nov. 15. That will begin at 5 p.m. at the County Administration Center in downtown Sarasota.

In the meantime, opponents of Siesta Promenade are preparing for a demonstration on Sunday, Nov. 11. It will be held at 4 p.m. on public right of way adjacent to the project site.

Additionally, Sura Kochman, leader of the Pine Shores Neighborhood Alliance, issued a Nov. 7 press release noting that an online petition opposing the project had, as of that writing, 1,164 signatures.

This is the cover photo on the new Facebook page seeking support for Siesta Promenade. Image from the page

At the same time, Benderson Development has continued to use a website and Facebook page it created several weeks ago in an effort to garner public support for its plans to build 414 condominiums/apartments, a 130-room hotel, 133,000 square feet of retail space and 7,000 square feet of office space on the approximately 24 acres. The hotel would stand 80 feet tall, close to the Pine Shores Estates neighborhood, which is next to the project site. (Todd Mathes, director of development for Benderson, confirmed that planned height during an Aug. 23 Neighborhood Workshop that county staff required the firm to hold before the public hearings begin.)

On the Shop Dine Live Siesta Key Facebook page, for example, a Nov. 5 Benderson post noted that Siesta Promenade had been scaled back “4 times over 10 years. The current mixed-use Critical Area Plan (CAP) proposal reduces impacts compared to a retail-only proposal …”

A post in late October said, “Siesta Promenade will create hundreds of full- and part-time employment opportunities.”

Nevertheless, members of the public have continued to offer negative comments on the posts. In many cases, the News Leaderfound, Benderson has replied, “If you would like to discuss any of this in greater detail,” the writers could send messages with their contact information.

Different interpretations of the Critical Area Plan process

This shows the expanded notification area for Siesta Promenade potential impacts, released buy county staff in December 2016 The site of the proposed development is in green. Image courtesy Sarasota County

Winning Critical Area Plan (CAP) designation is integral to Benderson’s design of Siesta Promenade. Most of the land is zoned for manufactured housing, which allows up to 9 dwelling units per acre. County Commercial zoning districts allow up to 13. A CAP designation enables an applicant to build up to 25 units per acre. Since the Siesta Promenade plans call for 414 condos, and the hotel rooms represent a total of 65 units — one-half unit per room, under the county formula — Benderson would well exceed the 13-unit limit without the CAP approval.

In his Nov. 6 letter to Deputy County Attorney Alan Roddy, Bentley of Bentley & Bruning pointed out “three legal issues” with Benderson’s interpretation of the county’s ordinance regarding CAP applications.

For any facet of Siesta Promenade to exceed 35 feet in height, Bentley wrote, Benderson must receive a Special Exception from the County Commission. For the project to have standalone residential components in a Commercial General zoning district, he added, the firm also needs a Special Exception. “None has been asked for, nor is one going to be asked for. Applicant appears to be relying on a reference at the end of Section 6.10.1(3) of the Critical Area Plan Ordinance to avoid the need for these two Special Exceptions,” Bentley wrote.

That provision reads as follows, he continued: “An adopted Critical Area Plan may establish a minimum setback below, and a maximum height above, that indicted in [the accompanying] table.”

Based on his reading of that section, Bentley wrote, it does not negate the need for a Special Exception application.

Second, he continued, “a Special Exception is a quasi-judicial determination.” Bentley was referring to a process through which a local government board bases a decision on a petition on “findings of facts” — whether the request complies with the applicable county regulations. As the term implies, a quasi-judicial public hearing is analogous to a hearing in court, with a judge or jury basing a decision on the facts presented in the case.

Morgan Bentley. Contributed photo

“A CAP is legislative,” Bentley added, which entails a different standard of approval. “Therefore, [Benderson’s] interpretation would eliminate all of the procedural safeguards inherent in a quasi-judicial decision and substitute in a much lower legislative review/deference standard.”

Most important of all, Bentley pointed out, “a CAP … cannot permit or prohibit development [his emphasis]. This is reflected (and repeated verbatim) in the CAP Ordinance and regulations themselves.”

Bentley told Roddy that the situation could be reconciled easily “by simply acknowledging that, while height and stand-alone residential [units] can be allowed under the CAP, those requests are still subject to the normal Special Exception requirements and procedures.”

Moreover, Bentley wrote, “The CAP process has never been used as a tool to make quasi-judicial decisions. If that was the case, why would one even need to do a Rezoning or Special Exception for anything within the CAP boundaries?”

A rezoning application also necessitates a quasi-judicial hearing.

Bentley added that Benderson’s “interpretation [of the CAP process] defies a common sense reading of the enabling ordinances.”

If the Nov. 15 and Dec. 12 hearings were continued, Bentley wrote, county staff could ask Benderson to apply for the Special Exceptions for the additional height and for the standalone residential structures and follow the “normal course” with those petitions.

“Alternatively,” Bentley told Roddy, “if you have case law that would allow an applicant to convert a quasi-judicial proceeding into a legislative one, please provide it to me at your earliest convenience.”

The demonstration and the petition

Kochman of the Pine Shores Neighborhood Alliance wrote in her Nov. 7 news release that protestors participating in the Nov. 11 demonstration will meet in the parking lot of Sarasota Pavilion, between Bank of America and Hooters. Then they will walk across U.S. 41 to the sidewalk “at the perimeter of Benderson’s property.”

The demonstration is designed to draw attention, she pointed out, to the “dense and intense use requested by Benderson on the Siesta Promenade application.”

Further, anyone interested in signing the online petition may visit that webpage, she noted:

A June 2018 graphic in an updated Kimley-Horn and Associates traffic analysis for Siesta Promenade shows the project area adjacent to Pine Shores Estates. Image courtesy Sarasota County

Finally, Kochman and other opponents have created a Facebook page themselves: Siesta Promenade: Too high and Too dense. “I think you will find the comments there an indication of the sentiment of those opposed to the application, as presently proposed,” she wrote in the release.

Kochman made it clear during the county-required, Aug. 23 Neighborhood Workshop on Siesta Promenade that she is not opposed to development on the Benderson site. Her arguments, she stressed, are that the project, as planned, is incompatible with the adjoining residential area and should be scaled back.