Board of Zoning Appeals votes 4-3 in ruling against county zoning administrator
(Editor’s note: This article was updated on the morning of Nov. 29 to correct a comment one of the speakers, Tom Matrullo, made. He questioned attorney William Merrill’s credentials as a stormwater expert, not those of Board of Zoning Appeals member Jon Mast.)
At the outset of a Nov. 18 Sarasota County Board of Zoning Appeals hearing, attorney Kelly M. Fernandez — outside counsel representing county Zoning Administrator Donna Thompson — explained one key consideration to the board members.
They should keep in mind, she said, that “Ms. Thompson’s interpretation [of county zoning regulations] is entitled to weight. … There’s a long line of cases,” Fernandez continued, that have made it clear that the board must defer to a zoning administrator’s interpretation “as long as it is not clearly erroneous.”
At the conclusion of all the testimony pertaining to proposed stormwater facilities changes for a waste transfer station in the eastern part of the county, Fernandez again appeared before the board. “There’s nothing you heard tonight,” she said, “that would indicate that [Thompson’s] interpretation … is clearly erroneous.”
Yet, two members of the board who are former Sarasota County employees argued that Thompson had incorrectly interpreted the nature of the proposed changes on property owned by James Gabbert of Sarasota.
What was identified as a “strip parcel” partly contiguous to the site of Gabbert’s Palmer Road waste transfer station could be used for stormwater purposes, those board members said, even though it was not part of the Binding Development Concept Plan the County Commission approved for the project in October 2015.
Jon Mast, former manager of land development for the county, made a motion that deemed the proposed modification of the stormwater facilities on the waste transfer station site to be “minor.” That language referenced a section of the county’s Unified Development Code that was at the heart of the hearing. Second, Mast said, the use of the contiguous property — which Gabbert also owns — for stormwater purposes should be deemed a modification to the Binding Development Concept Plan. Thus, Thompson would not need to participate any further in the process, and construction of the stormwater facilities could proceed, Mast indicated with his motion.
Chair Paul Radauskas, who retired from county employment after serving as the Building Official, seconded the motion. It passed 4-3.
First, however, in their discussions, the majority of the board members indicated their willingness to support Thompson’s interpretation of the applicable section of the Unified Development Code (UDC), which combines the county’s zoning and land development regulations.
Board of Zoning Appeals (BZA) Vice Chair Frank Malatesta told his colleagues that he typically sides with appellants in hearings, because he is “a zealous advocate of private property rights.” However, in this case, he continued, he did not believe the BZA had the authority to approve the proposed stormwater modification including the strip parcel, since that was not part of the original Binding Development Concept Plan. “I just don’t see how it could be ‘minor,’” he added.
“I believe this is outside of our scope,” BZA member Justin Powell added.
BZA members Thomas Arthur and James Piatchuk also voiced willingness to support Thompson’s view.
Yet, Mast explained, “To me, it’s incorrect to deny this applicant” the opportunity to use that adjacent property as proposed.
Radauskas emphasized that, in many situations, stormwater facilities are well removed from the developments they serve. “I think this is really a minor modification.” If the additional stormwater site were to be 5 miles away, he continued, “That would be a different story.”
Nonetheless, Powell made a motion to uphold Thompson’s interpretation. Finally, at Mast’s urging, that motion was tabled.
“It’s done over and over and over and over and over again, this type of construction, this type of stormwater utility,” Mast insisted. “We’re not here to talk about emotions about it.”
Mast was referring to some of the 10 people who spoke during the public hearing. All of them urged the board members to side with Thompson.
As he opened his remarks, Tom Matrullo — who lives near the site of the Palmer Transfer Station — noted questions Mast had asked Gabbert’s attorney, William Merrill III of the Icard Merrill firm in Sarasota. “I’m not aware of Mr. Merrill’s credentials as a stormwater expert,” Matrullo said.
Mast is the CEO of the Manatee-Sarasota Building Industry Association (BIA), Matrullo pointed out.
“Stick to the case,” Chair Radauskas interrupted Matrullo.
“This is all about the case,” Matrullo replied.
“Mr. Chair, please call to order,” Mast interjected.
Matrullo then ceased his comments on Mast’s involvement with the BIA.
Continuing with the rest of his statement, Matrullo suggested that if the County Commission long ago had required that one or two members of the public serve on each of its advisory and other boards — to represent the interests of residents — and duly reported on the boards’ actions to the public, “that might have closed the gap between self-interests of businesses as usual and the larger shared values of the public.”
“With the Great Recession of 2008 came pressure to grant a kind of emergency welfare to developers,” Matrullo continued. “The delicate balance between community and developmental interests went sideways and leans very heavily today to the developers.”
Another speaker, Adrien Lucas of Sarasota, told the BZA, “People should be able to trust that due diligence is applied to all developmental projects of such importance, especially with this waste transfer facility being on top of the headwaters of Phillippi Creek.”
She was referring to earlier testimony about the fact that Gabbert’s strip parcel is next to what is known as the Main A Canal, which is part of the Phillippi Creek watershed.
Yet, Lucas continued, attorney Merrill was unable to provide details about the stormwater capacity of the ponds.
Moreover, she said, with hurricanes in the past couple of years “having camped out in one place” for up to 72 hours, no one could say with certainty what the stormwater capacity of the Celery Fields is, let alone the facilities Gabbert was proposing. (The Celery Fields is identified as a major Sarasota County stormwater project, even though it has become an internationally known bird-watching area.)
The reason for the hearing
As The Sarasota News Leader reported on Nov. 15, Merrill and Zoning Administrator Thompson exchanged several letters over the course of the summer, as Merrill sought an interpretation that Gabbert could proceed with construction of a second stormwater facility on the strip parcel immediately south of the Palmer Transfer Station site. Part of that strip parcel runs along the southern border of what is known as the county’s Southwest Quad, one of four pieces of property the county owns just west of the Celery Fields.
During her presentation, Thompson explained, “The interpretation requested was specifically to determine that a modification of the size and configuration of stormwater facilities shown on the Binding Development Concept Plan [for the Palmer Transfer Station site] is a minor modification …”
She noted that the County Commission approved a Special Exception in October 2015 for Gabbert’s company, TST Ventures, to construct the station on property comprising approximately 4.27 acres at 6150 Palmer Blvd. and 1099 Porter Road.
As long as it was deemed minor, a change to the Binding Development Concept Plan would not have to go back to the County Commission for consideration, Thompson pointed out.
Then Thompson showed the BZA members the stipulations contained in the Special Exception the commission granted TST Ventures. The very first one on the list said, “Development shall take place in substantial compliance with the Development Concept Plan date stamped June 17, 2015, and attached hereto as Exhibit ‘A.’”
She next showed them that Binding Development Concept Plan, followed by a second graphic that indicated exactly where an underground stormwater facility could be placed on the southernmost section of the waste transfer station parcel. Gabbert’s project team had worked with county staff on that change during the formal site and development approval process, before construction could begin, Thompson noted.
As she understood it, she said, the project team later determined that an underground stormwater vault was necessary so the large trucks that would use the site would have a turning radius of sufficient size.
(Merrill also noted modifications county staff had signed off on during the site and development process, which would have allowed an underground stormwater vault as well as a stormwater pond on the transfer station property.)
Later, Merrill contacted her for the determination about the proposed change involving the contiguous property, Thompson said.
Her interpretation of the UDC, she told the BZA members, did not allow her to give TST Ventures permission to make that adjustment.
“I would point out that the Special Exception does allow for [Gabbert] to proceed with his project as outlined,” Thompson pointed out. If the BZA members upheld her interpretation of the UDC, she said, even if Gabbert chose to request that the County Commission modify his Special Exception, construction of the other facets of the project could proceed.
An alternative view
During his turn at the podium, Merrill showed the board members sections of the UDC that he argued gave Thompson the authority to approve the changes involving the stormwater facilities.
Then, using more slides to illustrate those proposed modifications, Merrill stressed the use of the contiguous property. If the new stormwater facility had been proposed to be a distance from the Palmer Transfer Station property, he added, “We’d have to go back to the [commission].”
He also emphasized that the strip parcel already had been approved as the floodplain mitigation area for the project. The county and the Southwest Florida Water Management District (SWFWMD) both had issued permits for that use, Merrill noted.
Gabbert explained to the BZA that he purchased the strip parcel about a year after he bought the waste transfer station site. Then he consulted with county Zoning Division staff to make sure he could use that land for stormwater purposes as well as floodplain mitigation, he said. Staff gave him verbal approval for those plans, Gabbert added.
His goal, he emphasized, was to “produce a stormwater treatment and attenuation area that was twice as large as what was required [for the transfer station], if we did it on the strip parcel.”
In response to questions from BZA Vice Chair Malatesta, Merrill explained, “Oftentimes, on binding development concept plans, you show the major things that you need to show … But minor utilities are often not shown,” because a lot of the information necessary to their final placement has not become available at that point.
For example, Merrill said, the locations of water and sewer lines are not required on binding development concept plans. “That’s why it’s a development concept plan.”
In his opinion, Merrill added — referring again to the UDC — the use of the strip parcel should not even be considered a minor modification. “I personally think … it’s a permitted use … as an amendment to the site and development plan.”
Yet, Thompson continued to call the changes involving the strip parcel “a substantial modification,” Merrill said.
During his presentation, Merrill also explained that, if the board ruled against Gabbert, an appeal could be filed with the 12th Judicial Circuit Court of Appeals. The issue would not go back to the County Commission, Merrill added.