Lawsuit filed on Feb. 25 seeks to keep the project on hold until the case is settled; owners of the property in question have filed to intervene
On Jan. 26, Jeff Garrison of S.J. Collins Enterprises in Fairburn, GA, told the Sarasota County Commission that Whole Foods already had signed a 20-year lease for the 8.24-acre site on University Parkway where the company planned to open a new store by the summer of 2017.
That timeline may prove a bit ambitious. ManaSota 88, a 48-year-old nonprofit organization based in Nokomis that is “dedicated to protecting the public’s health and preservation of the environment,” as its website explains, filed a lawsuit on Feb. 25 in the 12th Judicial Circuit to protect a 4.5-acre wetland where Sarasota’s second Whole Foods store and related development would stand.
The complaint says the Sarasota County Commission violated the county’s Comprehensive Plan in voting 4-1 on Jan. 26 to allow the wetlands to be destroyed.
Matt Osterhoudt, senior manager of the county’s Planning and Development Services Department, told both the Sarasota County Planning Commission — which unanimously approved the Whole Foods plan — and the County Commission that the type of wetlands on the site has become rare in the county.
With the Whole Foods project team vowing to undertake more mitigation than required to proceed with construction — but in Manatee County — only County Commissioner Charles Hines voted against the rezoning petition requested by Whole Foods.
Hines based his decision, he said, on testimony during the public hearing that made it plain the wetlands “still has value; it still has use.”
However, Commissioner Christine Robinson pointed out that the board wanted to encourage urban infill so it could preserve large spaces. The mitigation plan encompasses 41 acres in the same watershed, she added, and it is in the middle of the Rye Preserve in Manatee County.
Referring to the site envisioned for the new Whole Foods store, Ralf Brookes, the Cape Coral attorney for ManaSota 88, told The Sarasota News Leader this week, “We don’t think this wetlands should ever be developed.” Instead, he said, it should be “preserved in perpetuity.”
The complaint Brookes filed says, “A substantial number of Manasota 88, Inc.’s members enjoy observing flora and fauna in this wetland, which is easily visible from Honore Avenue near University Parkway, and these members will be adversely affected by destruction of this wetland in a manner that is inconsistent with the Comprehensive Plan.”
Along with ManaSota 88, the plaintiffs are Andre Mele, Larry Grossman and Geraldine Swormstedt. Mele and Swormstedt are Sarasota residents, the suit says, while Grossman, a Longboat Key resident, “utilizes [the wetlands] and will continue to utilize [it] for birdwatching and observation of flora in and from the nearby shopping areas and medical offices while attending family medical appointments …”
Grossman and Swormstedt pleaded for denial of the rezoning petition during the Jan. 26 County Commission public hearing.
Asked about the Whole Foods project timeline that Garrison of S.J. Collins announced to the County Commission, Brookes told the News Leader on March 1, “I never oppose motions to expedite.”
Typically, he continued, because of case management practices in the circuit courts, he would anticipate the case being resolved in 12 to 18 months.
The ManaSota 88 complaint seeks “a de novo trial applying strict scrutiny [emphasis in the document] on the merits of whether the [County Commission decision] violates the Comprehensive Plan …”
It adds that it seeks “if necessary, an order of this court requiring restoration, demolition or removal of any and all inconsistent development,” based on precedent set in Pinecrest Lakes, Inc., v. Shidel, which was decided in 2001 by the Fourth District Court of Appeal in Florida.
In that case, the court found that a developer “had acted in bad faith” by continuing construction and leasing before the matter was settled. “The court found that the developer ‘acted at [its] own peril in doing precisely what this lawsuit sought to prevent and now [is] subject to the power of the court to compel restoration of the status prior to construction,” according to the FindLaw website.
Motion to Intervene
On March 2, the owners of the property slated for the Whole Foods project — which includes a Wawa — filed a Motion to Intervene in the case. BW University Honore LLC, JDL Development LLC and JDL Development II LLC identify themselves in the document as current or past owners of the parcels, while University-Honore LLC lists itself as the lessee of one of the parcels. According to Florida Division of Corporations records, the registered agent for University-Honore is Paracorp Inc. of Tallahassee, whose manager is Stephen J. Collins of Fairburn, GA. Collins is the principal of S.J. Collins Enterprises.
Of the four firms, only JDL Development II LLC was not an applicant for the rezoning petition, the motion says.
“Intervention is properly granted when the intervenor has an interest in the litigation that is of ‘such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment,’” the motion points out, citing a 2006 decision of Florida’s Second District Court of Appeal.
Those four firms are represented by Scott A. McLaren and Shane T. Costello of Hill, Ward & Henderson in Tampa, court documents say.
Florida Division of Corporations records show BW University Honore’s registered agent is Timothy Simmons of Tampa, manager of Brightwork Real Estate. For JDL Development, the registered agent is Corporate Creations Network of Palm Beach Gardens, managed by Johndaniel Lemp of Sarasota. JDL Property Holdings of Sarasota is the manager of Cross Street Corporate Services LLC in Sarasota, which is the registered agent of JDL Development II, the Division of Corporations records show. JDL Development II just filed its incorporation papers on July 21, 2015, according to the Division of Corporations website.
The Office of the County Attorney had no comment on the lawsuit, county spokesman Drew Winchester told the News Leader on March 1. That is standard practice with pending litigation, Winchester said. As of March 1, Winchester added, the county had not been served with the complaint. After that takes place, he said, the county will have about 20 days to file a response.
After the News Leader attempted this week to reach Garrison of S.J. Collins, Candice McElyea, president of THREE SIX OH Public Relations in Sarasota, responded with an email. Her firm represents S.J. Collins, she explained, so she could provide the following statement:
“After lengthy presentations to both the planning commission and county commission detailing the positive economic impact and extensive mitigation efforts which will result in a net environmental gain for the region, both boards supported this project. These decisions are best decided by our planning and county commissions and not in the court system. Fighting this frivolous and unfounded complaint through the court will be a waste of taxpayer dollars and resources when both boards clearly and overwhelmingly supported this project and with enormous community and neighborhood support.”
During his presentations to both the Planning Commission — in December 2015 — and the County Commission, county planner Jack Wilhelm explained that the wetlands on the 8.24-acre site the Whole Foods team had chosen was rezoned in 1997 and in 2006. The earlier action included a stipulation that the wetlands and the buffer around it would be preserved, he said.
The ManaSota 88 complaint points out — as county staff did in presentations to the Planning and County commissions — that the County Commission’s 1999 denial of a rezone petition that sought “impacts to the entire wetland and to mitigate those impacts in Manatee County” was challenged in Circuit Court, and the court upheld the denial.
Osterhoudt, the senior manager in Planning and Development Services, also discussed staff’s finding that allowing destruction of the wetlands would not be consistent with the Comprehensive Plan. A PowerPoint slide he showed both boards noted, “County approval of previous rezone petitions have provided reasonable use of the collective properties while protecting the values and functions of the on-site forested wetlands.”
Moreover, Ostherhoudt said, the mitigation plan proposed by the Whole Foods team “does not provide any substantial connectivity with the protected native habitats or wildlife corridors in Sarasota County.”
The ManaSota 88 complaint references the staff findings, noting they are “[b]ased on the development history of the subject property and proposal to impact 100% of the native habitats on-site …”
During the March 1 telephone interview with the News Leader, Brookes noted “so much development pressure in that area” where the Whole Foods project is planned. The Mall at University Town Center opened in late 2015, for example, he added, and it “has become now a magnet for ancillary development.” Strip shopping centers and “big-box” stores abound in that area, he said.
That makes it all the more important, he continued, to preserve the wetlands, “not just for the wildlife, the birds,” but to enhance water quality, as the wetlands serves as a filter for stormwater flowing into the ground and, ultimately, into the county water system.
Garrison, the S.J. Collins Enterprises representative, told the Planning Commission that he and his staff started out with 12 locations in Sarasota County and narrowed the sites for a new Whole Foods to the property on University Parkway. His firm, he explained, is brought in by Whole Foods to deal with projects in areas with environmental sensitivity. In the fall of 2015, the firm completed a Newport News, VA, Whole Foods complex on a wetlands site similar to the one at the focus of the Sarasota rezoning petition, he added.
Dana West, senior vice president of Environmental & Technological Consulting (ETC) of Sarasota — a member of the Whole Foods project team — told the Planning Commission on Dec. 17, 2015, “Nothing that crawls, slithers or walks has the opportunity to move from [the wetlands parcel] to other native habitat without crossing University [Parkway] or Honore [Avenue] or other major roadway systems.” He argued that the mitigation plan would be of tremendous benefit to the watershed.
Alice Womble, a Center Ring Road resident who has lived close to the proposed Whole Foods site for about 30 years, spoke during both the Planning and County commission public hearings. She said the wetlands has changed dramatically over time, adding that she and her husband do not see nearly as much wildlife or as many birds there as they did in the past; she attributed that to earlier development nearby.
During the County Commission discussion before its vote, Commissioner Christine Robinson also pointed out that the property was “designated for a very intense use” on long-range county land use maps.
Nonetheless, attorney Brookes emphasized to the News Leader the county staff’s findings about the wetlands. “The Sarasota County commissioners ignored their own experts,” he said.