Attorney warns that county staff has not followed county procedure for approving Critical Area Plan designation Benderson seeks for Siesta Promenade

Representing the Best Western Plus Siesta Key Gateway Hotel, Morgan Bentley makes argument for separate public hearings on project issues

In January 2017, a Sarasota County resident with years of expertise as a planning board member and a consultant who served as a senior Sarasota County planner for 22 years first raised an issue about Siesta Promenade that never has been addressed.

In August 2016, Benderson Development Co. filed papers with the county’s Planning and Development Services Department staff, outlining its proposal for the mixed-use project at the northwest corner of Stickney Point Road and U.S. 41. To enable the firm to build up to 600 condominiums/apartments — as initially announced — the company applied for a Critical Area Plan (CAP) designation for the project. That would allow it to construct 25 dwelling units per acre. The county’s Commercial General Zoning District provides for up to 13 dwelling units per acre.

Later, Benderson revised its plans to call for 414 condominiums/apartments. Still, the current zoning for most of the approximately 24 acres of the Siesta Promenade site would allow only up to 300 mobile homes, Todd Mathes, director of development for Benderson, explained to about 110 people packed into the Parish Hall of St. Boniface Episcopal Church for the June 2, 2016 meeting of the Siesta Key Association.

The company also has proposed a 130-room hotel — with each room counting as half a dwelling unit — plus 133,000 square feet of retail space and up to 7,000 square feet of office space.

Both Sura Kochman, leader of the Pine Shores Neighborhood Alliance — who has had years of planning board experience in New Jersey — and Brian Lichterman, the former county planner, have explained that establishing the boundary for a CAP should be the first step in the process for an applicant to win approval for that CAP designation.

In an interview on Jan. 25, 2017, Lichterman told The Sarasota News Leaderthat the purpose of establishing that boundary is to insure that all of the important changes a proposed development will bring to a specific area will be addressed. The boundary not only is intended to encompass the area of the project, he pointed out, but also the most affected surrounding areas. Yet, Benderson Development has sought a CAP boundary that just circles its site at Stickney Point Road and U.S. 41, Lichterman said.

During a Jan. 25, 2017 County Commission discussion focusing on the scope of work for the Siesta Promenade CAP application, Lichterman told the board, “I’m here to respectfully but strongly urge you to significantly expand the boundaries.”

A failure to look at all four quadrants of the Stickney Point Road/U.S. 41 intersection as part of the CAP boundary for Siesta Promenade, Lichterman said, “is like looking through a hole in a wooden fence: You’re not seeing the whole picture.”

“This is a critically important, regional intersection,” Lichterman stressed.

When she addressed the commissioners, Kochman, a Pine Shores resident who has lived part- or full-time in the county for the past 60 years, held up a copy of what she called the “flow chart” designed to lead to approval of a CAP. “It clearly notes that there should be a decision by [the commissioners] on a CAP boundary before the application can proceed,” she said.
Pine Shores Estates abuts the Siesta Promenade site.

Yet, with the first public hearing on Benderson’s petitions for the Siesta Promenade project about six weeks away, nothing has been done to resolve the CAP issue, Kochman pointed out to the News Leaderthis week.

The county’s Planning Commission is scheduled to consider the Siesta Promenade proposal during its regular meeting on Nov. 15. The County Commission has set aside its entire Dec. 12 meeting for a public hearing on the Benderson applications.

Representing the Best Western Plus Siesta Key Gateway Hotel, which is located at 6600 S. Tamiami Trail — close to the Siesta Promenade site — Sarasota attorney Morgan Bentley of Bentley & Bruning wrote a letter to Deputy County Attorney Alan W. Roddy on Sept. 12 regarding the CAP issue.

Roddy typically represents the Office of the County Attorney during hearings related to issues such as rezonings and Critical Area Plans. He was present on Jan. 25, 2017 when the commission approved a scope of work for the Siesta Promenade process, which included an analysis of traffic on the roadways and at the intersections in close proximity to the project site.

In the first paragraph of his Sept. 12 letter, Bentley pointed out that “what are usually housekeeping matters” may, in this case, “be much more important from both a procedural standpoint and substantively for the parties involved.”

Bentley then explained that during an Aug. 23 Neighborhood Workshop on the Siesta Promenade — which was required under county guidelines before the public hearings could be held — county staff “indicated that the CAP Boundary, the Scope of Work review, the CAP itself, the rezonings that may arise out of the CAP, two Special Exceptions (height and density) and one street vacation [affecting Pine Shores Estates] are all going to be heard as one hearing.” Bentley added, “While it often makes some sense to do similar requests all at once, here I submit that procedure will cause more, rather than fewer, problems.”

Then Bentley pointed out that the County Commission “has not yet adopted the CAP Boundary. If they choose to expand the Boundary (as we believe they should), then the rest of the issues become moot. Moreover, that discussion alone could take substantial time as there are arguments to be made on both sides of the issue and undoubtedly many people will want to be heard on that alone.”

He continued, “Further, to make that decision, the Commission will necessarily need to review the responses to the Scope of work it approved on January 25, 2017. It has not seen those responses as yet, much less determined if the responses are satisfactory.”

“Given the procedural posture, it seems the better procedure would be to follow the CAP Ordinance and approve the Boundary after reviewing the response to the Scope of Work, then at a separate hearing, consider whatever rezonings the Applicant (or Applicants, if the Boundary expands) may seek inside the CAP,” he added.

Bentley received no answer from Roddy, as Kochman pointed out in an Oct. 2 press release.

In response to a Sarasota News Leader request for comment from county staff, Media Relations Officer Drew Winchester wrote in an Oct. 4 email, “The letter was copied to board members and forwarded to planning staff for inclusion during the public hearing record.”

Another try

Bentley followed up with another letter on Sept. 17. It provided details about CAPs, which — he noted — “serve as a bridge between the broader characteristics of the [county’s] Comprehensive Plan and the specific details of the zoning and land development regulations …”

He pointed out that the process “allows the County to provide specific recommendations for the development of a geographic area to help ensure that it is developed in a coordinated way and is compatible with the surrounding neighborhoods and consistent with the goals, objectives and policies of the county’s Comprehensive Plan.”

Additionally, Bentley lists five CAPs that were initiated by the private sector, including the Fruitville Major Employment Center east of Interstate 75 and the Village Center at U.S. 41 and Blackburn Point Road. Almost all of them, he continued, “included multiple properties, because the intent of the CAP is to examine opportunities for areawide solutions, be it allocation and distribution of land use types, land use compatibility, transportation access management, stormwater coordination, environmental analysis or urban design elements.”

One primary intention with a CAP, he noted, is avoiding “piecemeal decision making.”

He received no response to that letter, either, Kochman said in the news release.

The CAP process and Siesta Promenade, specifically

The Siesta Promenade site has four different zoning categories, Bentley pointed out in the Sept. 17 letter. The property “along with all of the surrounding quadrants [his emphasis] have been designated as a Commercial Corridor on the Future Land Use Map [in the county’s Comprehensive Plan],” he continued. “However, the Future Land Use Map says nothing about which of these zones would be most appropriate or whether it makes sense to plan the entire area with more specificity,” he added. “This is where a CAP comes into play.”

Bentley pointed out, “There is no credible argument that the development of the Promenade site will have no immediate effects to the surrounding properties both residential and commercial. This is the nature of [infill] development versus greenfield development.”

As proposed, Siesta Promenade will do the following, he continued:

• Put traffic from the site into the surrounding residential neighborhoods — “something the Comprehensive Plan bars.”
• Does not take into account the “obvious need for sidewalks and traffic control if the traffic is in fact diverted into surrounding neighborhoods.”
• Lengthen the northbound left-turn lanes on U.S. 41, which would, in turn, shorten the southbound left-turn lanes going into Gulf Gate. “This just swaps one traffic issue for another and benefits [Siesta] Promenade at the expense of everyone else, including Gulf Gate residents and merchants.”
• Does not stipulate that the Avenue A median break on Stickney Point Road remain open. “If not,” he wrote, “then the Promenade site is asking for better treatment than the existing, long standing commercial sites right across the street.”
• Asks for 85-foot-tall buildings (essentially 8 stories) “in an area of single-family homes and even single-story commercial, including the entire Gulf Gate Mall structure directly adjacent to the site. Again, this is not equal treatment, it is preferential treatment.”
• Suggests that the Florida Department of Transportation (FDOT) review of Benderson’s traffic plans have been approved “when in fact there is no submittal before FDOT to review at all. That review will begin later in the process and is not assured.”

Again, he pointed out, “CAPs exist … to plan an area [his emphasis] for the benefit of all those affected.”