Representatives of Dr. Gary Kompothecras contended that language in the Siesta Key Overlay District part of the zoning code took precedence
It all came down to a question of the correct interpretation of the Sarasota County Zoning Code involving potential commercial redevelopment on Siesta Key. In a case focused on an application from a Siesta Key resident, the county’s Board of Zoning Appeals voted 3-2 to affirm the county zoning administrator’s determination: Taller buildings need greater setbacks from the street.
During a 90-minute public hearing on June 12 at the County Administration Center in downtown Sarasota, Charles Bailey III— the attorney for Siesta Acquisitions LLC — told the five-member board that Zoning Administrator Donna Thompson was wrong in asserting that another section of the Zoning Code overrules the language in the approximately 15-year-old Siesta Key Overlay District (SKOD) part of the code. The SKOD, he said, was created specifically to encourage commercial redevelopment on Siesta Key.
(According to the Florida Division of Corporations website, the manager of Siesta Acquisitions is Dr. Gary Kompothecras; he is a chiropractor best known for his “1-800-Ask-Gary” advertising for medical referrals to his chain of clinics.)
The zoning determination Thompson issued on April 5 — in response to a letter Bailey had sent her — was that in the districts zoned Commercial General (CG) in the SKOD, the minimum street yard setback for a building is 2 feet. By right, under the Zoning Code, the maximum height of a structure in CG is 35 feet, she wrote; however, an applicant may request a special exception for a building to stand as tall as 85 feet on a barrier island in a CG zone. Once a structure proposed to be higher than 35 feet has been approved, she pointed out in the letter, the street yard setback “shall be 25 feet or one-half of the building height, whichever is greater (bold for emphasis).”
It took two votes before the board ultimately sided with Thompson. The first motion — to overrule Thompson’s interpretation of the Zoning Code — failed 2-3. Made by Vice Chair Frank Malatesta, it won support only from Chair Paul Radauskas.
“I found [Bailey]’s argument compelling just because of the cloudiness [of the contrasting Zoning Code language Thompson and Bailey presented],” Malatesta said.
The next motion — upholding Thompson’s opinion — was made by board member Michael Shelton and seconded by board member Thomas Arthur. It also won a “Yes” from board member Nicolas Hemes.
At one point during the hearing, Arthur acknowledged a struggle with which Zoning Code interpretation was correct. However, he continued, the potential for an 85-foot building with just a 2-foot street setback “is a little excessive in promoting an active pedestrian life.”
“I think it comes down to a pretty simple question,” Shelton added: “whether [Article] 6.10.3 [of the county Zoning Code] applies here [instead of the SKOD language]. If it does, then Donna is correct.”
Board member James Piatchuk recused himself from the hearing on the basis of ties to Siesta Key, he said.
Assistant County Attorney David Pearce — who serves as adviser to the Board of Zoning Appeals — explained that Siesta Acquisitions has the right to file a Petition for Writ of Certiorari in the 12th Judicial Circuit Court in an effort to overturn the board’s decision. That action must take place within 30 days of June 12, Thompson noted.
When The Sarasota News Leader asked Bailey for a comment after the hearing, he replied that he would need to check with his client. Bailey had not responded to an email or a voicemail from the News Leader by its publication deadline this week.
A voice from the past
During the June 12 hearing, Bailey told the board, “This [SKOD] district was to promote pedestrian life by encouraging new commercial buildings … to build to the sidewalk.”
Jim Ley, who served as the county administrator from 1997 to 2011 — the period when the SKOD was put into effect — also disputed Thompson’s interpretation of how it should be applied to street setback scenarios. Explaining that he was involved in the “lengthy but well-considered process” to create the SKOD, Ley told the board, “The County Commission knew it was dealing with a limited universe of commercially developable property on Siesta Key.”
Moreover, Ley continued, “given the special nature of the Key,” the county commissioners felt they could and should take on the workload themselves of deciding whether — by granting special exception petitions — deviation from the SKOD regulations should be allowed.
Even if the Board of Appeals ruled that Thompson’s interpretation of the Zoning Code was incorrect, Bailey stressed, that would not guarantee a 2-foot setback for a new building in a CG district: The County Commission could require a greater distance from the sidewalk.
The focus of the discussion
On June 12 — for the first time — Bailey also acknowledged that the focus of his client’s interest in redevelopment is property zoned CG on Old Stickney Point Road.
During a December 2016 neighborhood workshop on Siesta Key, Bailey and Robert “Bo” Medred, a former county planner who heads up his own firm in Bradenton — Genesis Planning & Development — proposed a change in the county’s Comprehensive Plan to allow for property zoned CG on the barrier islands to be redeveloped to provide transient accommodations. At the time, Bailey emphasized that Siesta Acquisitions had not settled on a site for a boutique hotel project it was considering, if the amendment were approved.
However, Kompothecras owns CG property at 1260 Old Stickney Point Road, adjacent to the site of the former Fandango Café, according to the Sarasota County Property Appraiser’s Office.
Bailey stressed on June 12, “To be clear, there’s not a specific project before the Board of Zoning Appeals this evening.”
Nonetheless, board member Hemes asked Bailey, “Do you have a specific address on Siesta Key for the building of a structure?”
Then Bailey explained that on the whole island, only about 30 acres of area zoned CG is available. Siesta Village and Old Stickney Point Road have the majority of that property, Bailey added, noting that a project for his client would “likely not be in the Village. We would likely be down on Old Stickney Point Road.”
(In response to a News Leader request for an update on the status of the proposed Comprehensive Plan amendment, Brett A. Harrington, a county planner in the Long Range Planning Division, reported on June 13 that staff has not received any formal application yet. “I have not heard anything regarding an application submittal in quite a long time,” Harrington added.)
Which part of the code prevails?
During their presentations to the Board of Zoning Appeals, both Thompson and Bailey cited specific sections of the Zoning Code to bolster their arguments. Both also showed the board graphics to underscore their interpretations.
Thompson maintained that Article 6.10.1 in the Zoning Code — Commercial and Industrial District Development Intensity Table — supersedes the street yard setbacks in the SKOD when applied to cases involving increased height allowed by special exception.
In all the years he has known Thompson, Bailey said at the outset of his presentation, this was the first time he had disagreed with her. “She’s been perfect up until now.”
The CG regulations in the SKOD prevail in this case, Bailey told the board. “It really is, truly is, honest to good, that simple.”
The SKOD has “not been widely used for commercial redevelopment,” Bailey pointed out. The new development that has taken place on Siesta Key since the SKOD was put into effect has consisted mostly of “new bars and restaurants replacing old bars and restaurants in existing structures.”
However, he continued, if the board agreed that the SKOD setback rules took precedent, “that does not mean that we have the absolute unfettered right to construct a building over 35 feet that is 2 feet from the sidewalk.” That decision would be up to the County Commission, he pointed out, as it would be the body to make the final decision on how much setback to require.
To grant a special exception for a structure taller than 35 feet on Siesta Key, he added, the commission also would have to take into consideration whether the height of the building would be compatible with the height of nearby structures, the size of the subject parcel, and whether the building would be adequately buffered from surrounding structures. The County Commission could require that a taller building be 20 feet from the sidewalk, he said.
At one point during the discussion, Malatesta questioned whether the Board of Zoning Appeals had the authority to overrule Thompson. “I’m a little confused.”
Assistant County Attorney Pearce assured Malatesta that the board had that authority, citing a provision in the Zoning Ordinance. Pearce also advised the board members not to consider what might take place at a public hearing before the Planning Commission or County Commission if they ruled in favor of Bailey’s client and then Siesta Acquisitions sought a special exception for a building taller than 35 feet in a CG district on Siesta Key.
After further questioning of Bailey, board member Shelton told the attorney, “You’re giving me a headache.”
Chair Radauskas later said, “By the time this is over, all of us will have a headache.”
At another point, Radauskas advised his colleagues, “Don’t get hung up on heights that we really don’t know about,”
“I imagine a Circuit Court judge is going to do a much better job of deciding this,” Malatesta added.
Public opposition
Nine members of the public — all Siesta Key residents or representatives of island property owners — urged the board on June 12 to uphold Thompson’s interpretation of the Zoning Code. Many of them voiced concerns about increasing population density and intensity of uses on the island. Among the speakers were Joe Volpe, a director of the Siesta Key Association (SKA), and Diane Erne, vice president of the Siesta Key Condominium Council.
“Siesta Key’s unique in that it has survived the current threat of ‘Build, build, build,’ without concern for the ambience,” Erne told the board during the hearing, noting that the Condominium Council represents about 90 complexes with approximately 5,000 property owners.
Volpe pointed out that the wording in the SKOD says the County Commission “wants to ‘promote’ commercial business, [but] it does not say ‘shall’ promote.”
Following the board’s decision, some of the Siesta residents embraced in the hallway outside the County Commission Chambers, where the hearing was held.
“I was pleased to represent the SKA board and members in voicing our opinion while presenting our research document in support of Donna Thompson’s decision,” Volpe wrote in an email he sent to the News Leader following the hearing. “This helps protect the density and intensity of development on Siesta Key by maintaining the purity of the CG/SKOD rules that govern the island.”