Formal resolution of denial on March 7 agenda prompts latest effort
He tried it the first time more than a month ago, and he was rebuffed. On March 7, he tried it again — and no one even responded.
Early in the evening of Jan. 31 — at the conclusion of a day-long Sarasota County Commission meeting — the attorney representing Gilligan’s Island Bar on Siesta Key urged the board members to reconsider the vote they took earlier that day on a petition his client had submitted to county staff.
Lakewood Ranch attorney Casey Colburn pleaded with the commissioners not to make his client, Gilligan’s owner Scott Smith, wait a year or more to try again to get them to grant a Special Exception so the Siesta Village business could present live music — indoors and outdoors — beyond 10 p.m. each day.
During the Jan. 31 public hearing, the commissioners heard a number of Siesta Key residents testify that the music at Gilligan’s already is disruptive to them before it ends at 10 p.m.
Moreover, county Planner Keaton Osborn, who handled the application, reported that staff’s expectation would be that the live music could continue until the business had to stop serving alcoholic beverages, which is 2:15 a.m.
In his motion to deny the petition, Commissioner Michael Moran pointed out, “It’s not consistent with the [county’s Comprehensive] Plan goals, objectives and policies” regarding compatibility with neighbors. He referenced comments speakers had made during the public hearing in regard to their difficulty in sleeping as they contend with the existing county noise regulations.
“The 2 o’clock [factor] has just been the deal-breaker, I think,” Commissioner Nancy Detert said before joining the majority of the board members in a 4-1 vote of denial.
Only Commissioner Mark Smith, a long-time leader of the Siesta Key Chamber of Commerce over the years, expressed support for the application.
When Colburn returned to the podium after the commission’s final public hearing on Jan. 31 — it was nearly 8 p.m., and the meeting had begun at 9 a.m. — Colburn said he was appealing to the board members’ “good nature” and providing them “an opportunity to do some justice …”
Several pages of the county staff report on the Gilligan’s application had errors, he contended, and commissioners had referenced incorrect information during their discussion earlier in the day.
Among the inaccurate information he alluded to was a statement that the applicant wanted to allow live music even in the parking lot behind the business, he pointed out.
The county staff report provided to the county’s Planning Commission for its Dec. 1 2022 public hearing on the Special Exception petition included the information that county Planning Division staff did not offer support for Gilligan’s proposed Binding Development Concept Plan. That was because Nocturnal Properties — the formal name for the company Smith created as the owner of Gilligan’s — “has not provided information identifying the area(s) for the live entertainment …” Instead, the company had “[expressed] a desire to utilize the entire property for live entertainment possibilities.”
Further, the application did not “place any limitation on hours in which live entertainment may occur.”
That language was in the staff report in the Jan. 31 agenda material for the county commissioners, as well, but Colburn testified during the hearing that day that the music would not be played in the office and gift shop on the property or in the parking lot, which backs up to a residential area. He also pointed out that the draft resolution in the agenda packet contained that stipulation.
Further, the Binding Development Concept Plan in the Jan. 31 staff report showed that the area where the music would be allowed past 10 p.m. did not include the parking lot.
County Planner Osborn also showed the County Commissioners a PowerPoint presentation that depicted the Binding Development Concept Plan. He, too, testified that no performances would take place in the parking lot.
“I’ve never seen this before,” Chair Ron Cutsinger said of Colburn’s Jan. 31 request for reconsideration of the vote at the end of the board meeting.
Deputy County Attorney Joshua Moye did explain — in response to the board members’ request for help — that a commissioner who had voted to deny the application could make a motion to reconsider the issue. Otherwise, Smith, the owner of the business, would have to apply again for the Special Exception at some point in the future. Moye said he believed the mandatory waiting period is a year.
(Michele Norton, assistant director of the county’s Planning and Development Services Department, confirmed that waiting period for The Sarasota News Leader: “Per Section 124-43 (4) [of the county’s Unified Development Code, under] Expiration and Limitations, the applicant would need to wait for a period of 12 months before the County can accept further Special Exception applications for the property.”)
Commissioner Detert ended up making a motion, seconded by Commissioner Smith, to call for reconsideration of the vote of denial. It failed 2-3.
The formal vote of denial
After the Gilligan’s public hearing ended on Jan. 31, County Attorney Frederick “Rick” Elbrecht reminded the commissioners that a formal resolution, laying out their vote of denial of the Special Exception, would be on a future agenda. That is in accord with county regulations.
That resolution ended up being an item on the board members’ March 7 Consent Agenda of routine business matters. Since that agenda involves no public hearings — and the commissioners usually approve the items as a group — anyone wishing to address them about a matter on that agenda has the opportunity to do so only during the Open to the Public comment period at the beginning of the regular meeting.
Thus, shortly after 9 a.m. on March 7, Colburn walked up to the podium in the Commission Chambers of the R.L. Anderson Administration Center in Venice.
Reminding them that he represents Nocturnal Properties/Gilligan’s, Colburn said, “It’s been a while that we’ve tried to figure out how you all took action on an application that wasn’t even before you.”
During the Jan. 31 hearing, Colburn pointed out that his client, Smith, had agreed to eliminate the potential of live musical performances in Gilligan’s parking lot, which is behind the business fronting on Ocean Boulevard. That was a proffer he made on Smith’s behalf during the Dec. 1, 2022 Planning Commission hearing on the Special Exception, he reiterated.
Yet, Colburn stressed again on March 7, the staff report the commissioners had in their Jan. 31 agenda packet did not include that information.
“What comes to mind,” Colburn continued, “is that fable about the Emperor’s new clothes. … I kind of felt like the innocent child in that story, when I called out, ‘Hey, hey, hey, there’s something wrong here!’ ”
He indicated that the commissioners failed to understand the situation with the staff report on Jan. 31.
Colburn did acknowledge that they allowed him to address them at the end of the Jan. 31 meeting during Open to the Public.
However, he maintained that the resolution of denial in the March 7 Consent Agenda contained some of the same inaccuracies that were in the staff report.
“I’d like you to pull this item from your Consent Agenda,” he added, and “reopen the public hearing at a later date …”
“Staff’s been honest with us that they made a mistake,” Colburn pointed out. When he and Smith asked the staff members to convey that information to the commissioners, Colburn said, “They refused, or they declined. So let’s have a chance to have an open, honest conversation about this.”
The county commissioners’ other alternative, he added, would be to remand the issue to the Planning Commission. As he began talking about direction the commissioners could give members of that advisory board, the timer beeps began, letting everyone know that Colburn’s 3-minute comment period had ended.
Chair Cutsinger interrupted Colburn to thank him.
No other board member offered a comment.
Then, when the commissioners addressed the Consent Agenda, no one pulled the resolution for discussion. On a motion by Commissioner Detert, seconded by Commissioner Moran, they approved the items on a 5-0 vote.
The resolution
Section 2 of the resolution of denial for the Special Exception that Gilligan’s had sought said the following, with some emphasis:
“The petition is not consistent with Article 5, Section 124-43 of the Unified Development Code. [That document contains all of the county’s land-use and zoning regulations.) The applicant has not demonstrated compliance with the following findings of fact:
- “The proposed use is not consistent with the intent, goals, objectives, policies, guiding principles, and programs of the Comprehensive Plan: Future Land Use Policy 1.2.17 – Mitigation of potential incompatibilities between land uses.
- “The proposed use is not compatible with the existing land use pattern and designated future uses: The proposed Special Exception is not providing effective mitigation efforts to ensure compatibility with adjacent land uses.
- “The proposed use, singularly or in combination with other special exceptions, will be detrimental to the health, safety, morals, order, comfort, convenience, or appearance of the neighborhood or other adjacent uses by reason of any one or more of the following: the number, area, location, height, orientation, intensity, or relation to the neighborhood or other adjacent uses: The proposed Special Exception is not providing effective mitigation efforts to ensure compatibility with adjacent land uses, specifically the relationship to adjoining businesses and residences, and hours of operation proposed.
- The proposed use will not be adequately buffered to effectively separate traffic, visual impact, and noise from existing or intended nearby uses: The proposed Special Exception is not providing effective mitigation efforts to ensure compatibility with adjacent land uses, specifically no enhanced buffers, noise mitigation or set location areas for music outdoors.”
Then Section 3 said, “Based on the evidence and testimony presented, as contained in the record of this application, Special Exception Petition No. 1856 is hereby DENIED.”