James P. Wallace III continuing to seek state administrative hearing on the issue
The attorney for south Siesta Key resident James P. Wallace III contends that Wallace and the other “uniquely situated residents of Florida’s offshore barrier islands … who depend almost exclusively on a single roadway” between their homes and the mainland should be entitled to challenge Florida Department of Transportation decisions that affect them.
On Dec. 15, 2021, Attorney David Smolker, of the Smolker Matthews firm in Tampa, filed the initial brief in Wallace’s case before the Second District Court of Appeal, which Wallace has initiated in an effort to prevent the construction of the mixed-use Siesta Promenade project.
As approved by the Sarasota County Commission on Dec. 12, 2018, Siesta Promenade would contain 414 apartments/condominiums, a 130-room hotel, 133,000 square feet of retail space and 7,000 square feet of office space on approximately 24 acres in the northwest quadrant of U.S. 41 and Stickney Point Road.
One stipulation that the commissioners imposed on the owner of the site — Siesta 41 Associates LLP, a subsidiary of Benderson Development Co. — is that a traffic signal must be erected first at the intersection of Avenue B and C and Stickney Point Road. The Florida Department of Transportation authorized that signal in late 2020. After Wallace challenged that decision through the Florida Division of Administrative Hearings (DOAH) last year, and lost, he filed an appeal with the Second District Court of Appeal.
The issue at the heart of Wallace’s case, Smolker points out, is an important one, as Wallace and his fellow residents of south Siesta must travel to and from their homes and the mainland “to conduct their daily lives and receive emergency medical services.” The issue is that the Florida Department of Transportation (FDOT) says they have no legal “standing” to contest the decision to allow the stoplight project to proceed.
“[A]s this case clearly illustrates,” Smolker adds in the brief, FDOT’s position on the standing issue “is, effectively, that the propriety of its actions regulating the safety and operational integrity of the State Highway System are immune from third party challenge and, ultimately, judicial review.”
Cornell Law School’s Legal Information Institute explains that the issue of standing typically focuses on whether a plaintiff in a lawsuit has sustained or will sustain direct injury or harm “and that this harm is redressable.”
In the Dec. 15, 2021 brief, Smolker contends that “a party whose substantial interest is adversely impacted by final state agency action is entitled to a formal administrative hearing challenging such action. This right reflects a clear Legislative intent to expand, rather than restrict public participation in the decision-making processes of state agencies such as FDOT.”
Yet, Smolker points out, FDOT has denied Wallace that right. FDOT’s decision, he adds, ignores legal precedent “holding that substantially affected members of the public have standing … to challenge [both] FDOT’s discretionary decisions relating to design and construction of improvements to the State Highway System and … permitting agency decisions relating to impacts to facilities and resources” used by members of the public who may be “adversely impacted by the agency’s decision.”
Citing a 1987 Florida First District Court of Appeal case, Village Park Mobile Home Ass’n v. State Dep’t of Bus. Regulation, Smoker argues that, “ ‘When standing is challenged during an administrative hearing, the petitioner must offer proof of the elements of standing, and it is sufficient that the petitioner demonstrate by such proof that his substantial interests “could reasonably be affected by … [the] proposed activities.” ’ ”
“FDOT’s interpretation of the law of standing under the [state’s Administrative Procedures Act and the Florida Statutes] is clearly erroneous,” Smolker contends. “Correct interpretation,” he adds, requires the setting aside of FDOT’s decision in Wallace’s case and remand of the case to the Florida Division of Administrative Hearings “to conduct [a] formal administrative hearing on the merits of FDOT’s intent to permit [the new traffic signal at Avenue B and C].”
FDOT and Benderson subsidiary Siesta 41 Associates have filed motions with the Second District Court of Appeal, seeking a delay until Feb. 14 to file their responses to Wallace’s initial brief.
FDOT past actions contrasted with present view
Smolker points out in his brief that Wallace and his family have owned property on Siesta Key for more than 50 years. “His primary ingress and egress to mainland Sarasota County” is Stickney Point Road, Smolker adds of Wallace.
Yet, even without the traffic signal at Avenue B and C, Smolker continues, the intersection of Stickney Point Road and U.S. 41 has a Level of Service of F during the afternoon peak drive time. “An ‘F’ represents near ‘gridlock’ conditions, where every vehicle moves in lockstep with the vehicle in front of it and traffic nearly comes to a stop. … Due to these conditions, traffic on Stickney Point Road regularly backs up from the Stickney Point Road/U.S. 41 intersection on mainland Sarasota all the way to its intersection with Midnight Pass Road on Siesta Key.”
Smolker explains further that the new traffic signal would be located less than one-quarter of a mile — 1,150 feet — from the Stickney Point Road/U.S. 41 intersection, and it would be about three-quarters of a mile from the Stickney Point Road/Midnight Pass Road intersection.
When Sarasota County staff was reviewing the application materials for Siesta Promenade, Smolker continues, “FDOT expressed serous concerns with the safety and operation of Stickney Point Road and its intersection with U.S. 41.”
That letter, Smolker points out, noted that that intersection was included on the “High Crash Segments” list for Sarasota County and that over the previous five years, “[T]here has been a constant increase in crashes within this segment.” The number had risen about 30% a year, the letter said, “with an astonishing 175 percent total increase between 2010 and 2014. … The high crash rate … encapsulates our concerns for safety,” the letter pointed out.
“In conclusion,” the letter said, “we believe that access type, safety concerns, and operational limitations of this intersection should be given special consideration when determining or planning the future land use in this area.”
Smolker also explains that the Siesta Promenade application called for three new access connections to Stickney Point Road. Among them, he notes, “The existing raised median opposite Avenue B&C would be removed enabling full turning movements into and out of Siesta Promenade as well as [through] movements between Siesta Promenade and Avenue B&C. Two additional unsignalized driveway connections to Stickney Point Road were also proposed to exclusively serve Siesta Promenade.”
Without the stoplight at Avenue B and C, Smolker adds, the average daily count of vehicles accessing Stickney Point Road from Avenue B and C on the south side of Stickney Point Road has been documented as 422. With the installation of the new traffic signal, Smolker points out, the average daily number of vehicles from Siesta Promenade accessing Stickney Point Road “is projected by Siesta Promenade’s traffic consultant to be 6,653 trips,” which would represent an increase exceeding 1,500%.
Moreover, Smolker notes the fact that the Siesta Promenade traffic study “did not investigate the potential traffic impacts” of the Avenue B and C signal on Siesta Key, except at the Stickney Point Road/Midnight Pass Road intersection.
Smolker adds, “Specifically, the analysis did not assess: (1) tourist season traffic impacts; (2) traffic impacts on Siesta Key other than minimally at the Midnight Pass Road/Stickney Point Road intersection; (3) the potential effects on emergency vehicle response times or hurricane evacuation; or (4) the effect of traffic diversion to the north Siesta Key bridge …”
Before the COVID-19 pandemic began, “[T]raffic very frequently backed up on Stickney Point Road all the way to and even onto U.S. 41 severely impeding drivers wishing to make the westbound right turns onto Stickney Point Road,” Smolker continues. “Thus, the insertion of the proposed new signalized intersection would make far worse an already bad situation.”