County Commission took appropriate steps in approving the development, assistant county attorney and Benderson attorney tell Circuit Court judge
Citing a number of court decisions to underscore their arguments, an assistant Sarasota County attorney and an attorney for Benderson Development Co. argued this week that the County Commission took the appropriate steps in approving the Siesta Promenade project.
“They are asking the court to re-weigh the evidence that is in the record,” Benderson attorney Robert Lincoln of Sarasota told 12thJudicial Circuit Court Judge Andrea McHugh on Oct. 14. He was referring to Pine Shores Estates resident Sura Kochman’s challenge of the commission’s Dec. 12, 2018 votes on Siesta Promenade, most of which were not unanimous. However, Lincoln stressed, the law does not allow the court to consider the public hearing record. “The court’s got to deny [Kochman’s] petition,” he added.
After the nearly hour-long hearing in downtown Sarasota, McHugh told the attorneys and approximately 25 members of the public that she would issue a written decision at a later date.
Kochman’s Petition for Writ of Certiorari, which was filed in January, seeks essentially to have the court rule that the County Commission violated county policy and regulations in multiple votes the board members took in approving the mixed-use development planned in the northwest quadrant of U.S. 41 and Stickney Point Road.
At two different points during the hearing, McHugh asked Kochman’s attorney, Ralf Brookes of Cape Coral, if he could cite any judicial precedent to support his argument that the County Commission did not adhere to the formal process required before approving a Critical Area Plan (CAP) designation for Siesta Promenade.
One of Kochman’s primary arguments in the case has been that the County Commission disregarded the county’s order of procedure for a CAP in the handling of Benderson’s Siesta Promenade application.
By seeking the CAP designation, Benderson and its affiliate for the project — Siesta 41 Associates LLP — could seek residential density up to 25 units per acre. Ultimately, they ended up winning commission agreement to slightly less than 21 units per acre.
McHugh told Brookes that she had read the transcript of the daylong County Commission hearing on the various requests Siesta 41 Associates had submitted to the county. “What I’d really like to hear from you,” she added, “is what legal authority this court has to give you the relief that you are requesting.”
Brookes replied that she has the authority to reverse the commission’s votes of approval if she determines the board did not follow the appropriate processes in regard to the CAP, the rezoning of parcels on the approximately 24-acre site to Commercial General, and the granting of Special Exceptions for increased residential density and building height, as well as construction of multi-family buildings on property in a Commercial General district.
Most of the property — about 22.4 acres — was zoned Residential Manufactured Home, which allowed up to nine dwelling units per acre, he pointed out.
McHugh could remand the matter to the commissioners with instructions that they adhere to county policies and regulations, Brookes added.
However, he acknowledged, “There’s been no case law that’s interpreted [the CAP ‘flow chart’ that he had shown the court].”
In Kochman’s complaint, Brookes argues that, according to that CAP flow chart, the County Commission should have set the boundary for the Siesta Promenade CAP before transportation studies were undertaken to determine the impact traffic generated by Siesta Promenade would have on the Stickney Point Road/U.S. 41 intersection and surrounding roadways.
Moreover, Brookes told McHugh, that boundary should have encompassed more territory than just the Siesta Promenade site, as a much wider area will feel the impacts of the traffic from the new development.
Specific concerns about proposed new traffic signal
Using poster board illustrations, Brookes explained to McHugh that if the commission had approved the boundary of the CAP first, then a traffic impact analysis would have been able to consider, for example, how a planned new traffic signal at the intersection of Stickney Point Road and Avenue B and C would affect the flow of vehicles on Stickney Point Road and in Pine Shores Estates.
At the outset of his remarks, Brookes noted that the installation of that traffic signal is a stipulation in the record for the County Commission’s approval of Siesta Promenade. “There would be no construction [without that light], so [the new signal] is a very important requirement of the project.”
The reason the traffic light has to be erected, he added, is because the county’s Comprehensive Plan prohibits a project like Siesta Promenade from putting its traffic on neighborhood streets.
That concern about drivers making their way out of Siesta Promenade through Pine Shores Estates, to get around congestion on Stickney Point Road, is one focus of Kochman’s lawsuit.
Brookes used other poster board illustrations to show McHugh that Pine Shores Estates — a neighborhood of mostly single-family homes — surrounds much of the Siesta Promenade site.
Siesta Promenade has been designed with 414 condominiums/apartments, a 130-room hotel, 133,000 square feet of retail space and 7,000 square feet of office space.
Additionally, he continued, the installation of that traffic light “will absolutely affect vehicle traffic flow” to and from Siesta Key.
He pointed out that Stickney Point Road is the south access to the barrier island.
During the height of tourist season, Brookes told McHugh, residents in the area of the U.S. 41/Stickney Point Road intersection — including many on Siesta Key — are effectively “marooned” in their homes between 10 a.m. and 2 p.m., because traffic gridlock is routine.
He also noted that when traffic is backed up on Stickney Point Road, more people use the north, Siesta Drive approach to reach or leave Siesta Key.
“The boundaries for this project were not properly approved at the outset,” he reiterated his earlier point. If they had been, Brookes added, then the potential problems produced by the new traffic signal would have been examined before the Dec. 12, 2018 public hearing.
The Special Exceptions argument
Further, Brookes contended, Siesta 41 Associates should have been required to seek approval of Special Exceptions for several facets of Siesta Promenade. Among those, he noted, is the plan for multiple structures to stand taller than the 35-foot maximum allowed in county Commercial General zoning districts. A proposed hotel, for example, has been designed to be 80 feet tall, while one of the condominium towers would have a height of 65 feet. Only the retail and office structures bordering U.S. 41 would stand at 35 feet, Brookes noted.
Another Special Exception, he said, should have been required for the increased density beyond the maximum of 13 dwelling units per acre allowed in Commercial General districts.
Taking a completely different view
Assistant County Attorney David Pearce told McHugh that Kochman “wrongly argues that the County Commission did not follow the correct procedures …”
The 2001 Florida Supreme Court decision in Dusseau v. Metropolitan Dade County Bd. Of County Commissioners, Pearce continued, underlines Florida courts’ recognition of the expertise of boards of county commissioners in land use planning. “The board knows the character and history of this specific area,” he added in regard to Siesta Promenade.
Further, he said, a CAP procedure can be considered concurrently with a rezoning application. Moreover, Pearce pointed out, the county’s zoning regulations recognize that density, height and multifamily [residential] use “can be set forth in a CAP ordinance.”
A CAP designation can allow up to 25 dwelling units per acre in a mixed-use development, he added, “which is what we have here. … You can have additional height as part of a Critical Area Plan. The zoning regulations recognize that fact as a matter of right.”
Finally, Lincoln — representing Benderson Development and Siesta 41 Associates as intervenors in the case — talked about the requirement that the County Commission consider all the evidence and testimony — similar to a jury during a trial — before making a decision on a development application. (Pearce cited a 1957 Florida Supreme Court decision, De Groot v. Sheffield, in the county’s reply to Kochman’s lawsuit. That decision, he wrote, defined the term “competent substantial evidence.” The court opinion said, “We are of the view … that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.”)
“If there’s an iota of competent substantial evidence,” Lincoln told McHugh, the court has to uphold the board’s decision.”
He added, “You don’t get to decide what was adequate. The issue is whether the boardthought [the evidence and testimony were] adequate. Here, the board did think it was adequate. It approved the [Siesta Promenade] petitions, the applications.”
Additionally, Lincoln told McHugh, Benderson and Siesta 41 Associates included a traffic study in the application for the project that they submitted to county staff in 2016.
And while Brookes “asserts somehow that the new traffic signal … wasn’t properly considered,” Lincoln said, “that’s not true, either.” The traffic study in the application “identified at that point that a new traffic signal was going to be required at Stickney Point Road and Avenue B/C. It was always part of the scope of work …”
In fact, Lincoln pointed out, the traffic study considered effects 2.5 miles north of the Siesta Promenade site, and it looked at the potential impacts up to approximately 1 mile both east and west of the property.
Lincoln also noted that Kochman participated in an Oct. 11, 2016 County Commission public hearing to consider the scope of work for staff’s analysis in regard to the proposal for the Siesta Promenade boundary. In January 2017, he said, the County Commission approved that scope of work. In doing so, he pointed out, the commission added the intersections of Swift and Clark roads and Swift Road and Constitution Boulevard. The impacts on Siesta Key were studied as well, he said.
“Allof the studies that were supposed to have been done [for the CAP process] were done,” Lincoln stressed, “and allof them took into account” the impact the new traffic signal would have on neighboring intersections.
‘There was competent substantial evidence to support the board’s decision, ultimately,” he said, to approve the CAP.