City Attorney Fournier wins City Commission approval for setting out ‘roadmap’ to guide process for One Park application
After controversy erupted recently over the scheduling of a special meeting of the City of Sarasota’s Development Review Committee (DRC) the Wednesday before Thanksgiving, City Manager Marlon Brown ended up announcing the canceling of it during a Nov. 21 City Commission meeting.
However, Brown explained that his decision was not based on contrasting public comments during that regular session. Instead, he told the commissioners, he had learned that the attorney representing parties on one side of an issue involving construction within the Quay Sarasota mixed-use development in downtown Sarasota would not be available for the Dec. 14 city Planning Board meeting. As a result, Brown added, the special DRC meeting would not be necessary.
The purpose in the Nov. 23 scheduling, he pointed out, was to comply with city policy requiring that the DRC consider the development proposal prior to the Planning Board hearing.
Nonetheless, the public comments prompted about 20 minutes of commission discussion later that day, with City Attorney Robert Fournier voicing surprise that a special DRC meeting had been planned in the first place.
“There has not previously been a special DRC meeting,” Fournier told the city commissioners, “so it is unprecedented, and it does, I think … have a tendency to undermine public trust in the process because the perception is that … some applicant got special treatment absent any particular special justification for calling a special meeting.”
Brown concurred with Fournier’s statement about the fact that no special DRC meeting ever had been conducted.
Brown ended up agreeing that the Quay issue be placed on a regular DRC agenda, with the Planning Board hearing likely to be held in January 2023. That would allow Fournier time, as Fournier noted, to speak with the attorneys on both sides, as well as with the appropriate city staff members, “and then come out with a full process that everybody may not like but that has to be the process that’s followed after input from everyone concerned.”
A change in plans for One Park
On Nov. 14, William Merrill III, a partner in the Icard Merrill law firm in Sarasota, had a letter hand-delivered to city staff. It explained that his client, a Delaware company called Quay 1 and 9 LLC — which he described as “the contract purchaser of what are commonly known as ‘Block 1’ and ‘Block 9’ ” of the Quay Sarasota — wanted to amend the development agreement for the Quay that the City Commission approved in October 2016.
By “contract purchaser,” Merrill meant that the company planned to buy the section of the Quay Sarasota where the new residential building would stand. Quay Venture LLC, also a limited liability company registered in Delaware, is the owner of the property, as noted in another document that Merrill attached to his letter.
Merrill then explained, with emphasis, that Lucia Panica, director of the city’s Development Services Division, had determined that all of his client’s proposed changes to the Quay’s General Development Plan were minor, “save for and excepting only the fact that a building is proposed that will span over Quay Common …”
Quay Common is the street that runs between Blocks 1 and 9 and links U.S. 41 to the Boulevard of the Arts. Condominium structures would stand on each of those blocks. The development would be called One Park, according to Merrill’s letter.
In July 26 correspondence to another member of the One Park project team, Panica noted that the One Park buildings would be connected above the first story. She added that she had determined that the proposed changes to the commission-approved General Development Plan for the Quay Sarasota had to be considered during public hearings before the city Planning Board and the City Commission.
Attorney Robert Lincoln, whose eponymous firm also is in Sarasota, is representing the residents of the Block 6 Condominium Association, who live in the new Ritz-Carlton Residences at the Quay. They are opposed to the One Park plans, Lincoln pointed out in a Nov. 18 email to the city commissioners and city planning staff.
If Merrill’s clients won approval for One Park to span Quay Commons, Lincoln added, “One Park would become what may be the single-largest massing building in the downtown — approximately 375 feet wide and about 300 feet in height. “One Park, he continued, “would span the entire north end of the Quay and block views of The Bay Park from Quay Commons and from the other buildings within the Quay, including the Ritz-Carlton Residences, Bayso, and the Lennar apartments.”
As Panica explained to the City Commission in October 2017, the Quay Sarasota project entails a 14.65-acre site south of Boulevard of the Arts, north of Second Street, and west of U.S. 41.
Documents provided to the City Commission in 2016 said that the mixed-use development would encompass up to 695 residential units, 175 hotel rooms, 38,972 square feet of office space and 189,050 square feet of commercial space.
During the Oct. 17, 2016, commission meeting, Panica talked about the fact that those details had been approved for the previous owner of the site, and they still were valid. However, with a new owner, she continued, the city for the first time would be moving to use of what she called a General Development Plan (GDP), which would have to be submitted with a development agreement. GDPs, she said, “are applicable to properties over 7 acres in area …”
Panica added that the GDP for the Quay Sarasota would lay out a master plan and the location of the utility lines. The project would be developed block by block, with the city’s Planning Board fist conducting a hearing on the site plan for each of the 10 blocks. During those public hearings, she continued, the applicants would have to show that each block design met all of the parameters of the development agreement and the applicable city Zoning Code requirements.
“We thought this was a big thing that [the new owners] agreed to do and something that we were pushing for a lot,” Panica pointed out.
In his Nov. 18 email to the commissioners and city staff, attorney Lincoln explained that Panica had determined that the changes Merrill and another partner at Icard Merrill — Matt Brockway — were seeking for One Park would constitute a major change to the General Development Plan for the Quay. Thus, Panica had noted, a full set of public hearings — before the Planning Board and the City Commission — would be necessary to make that change possible.
“To get around that determination,” Lincoln continued, “One Park filed an application on Nov. 14 to amend the Development Agreement.” Subsequently, he wrote, the special meeting of the Development Review Committee (DRC) had been scheduled for Nov. 23.
That timing, he explained, would enable the One Park issue to be addressed during the Dec. 14 meeting of the city’s Planning Board.
During the City Commission discussion, City Attorney Fournier provided his own summary of the situation.
“When the [One Park] developer was told that they had to seek an amendment to the General Development Plan,” Fournier said he told city staff that that plan “is tied to the site plan” for that part of the Quay Sarasota. “We have to figure out whether that proposed amendment to the General Development Plan … gets considered prior to the consideration of the site plan [or] concurrent with it, [as well as] the criteria for approval.”
“That’s no different in my mind,” Fournier continued, because the applicant has decided it wants “to seek a way around getting commission approval of the General Development Plan via a development agreement amendment.”
He thought the developer had the right to seek the amendment, Fournier added. Nonetheless, he stressed, “This process should be my decision, as the city’s attorney, and not the developer attorney’s decision.”
Public pleas to the commissioners
During the public comment period at the start of the Nov. 21 City Commission meeting, Lincoln emphasized that the proposal to span Quay Commons is “a big deal.”
His primary goal that morning, he said, was to ask the commission “to just correct the direction that this is going and ensure that [the public has its] full due process rights in any hearings that may go on on this.”
Seven residents — by count of The Sarasota News Leader — joined Lincoln in expressing alarm about the One Park application and requesting that the commissioners halt the review process as Merrill and Brockway had proposed it.
Then, about two hours later, when Mayor Kyle Battie opened another public comment period, Brockway appeared before the commissioners, voicing concern because he had “received an email without notice this morning” that the Nov. 23 DRC meeting had been canceled as a result of the remarks of Lincoln and Lincoln’s clients.
City Manager Brown interrupted Brockway to say that the DRC meeting had not been canceled. However, Battie then interjected that it had been canceled.
Brown apologized, explaining that he had planned to bring up the issue during his remarks to the commission at the conclusion of the business items on the day’s agenda. As a result, Brown continued, he had told staff not to make any formal announcement about the DRC schedule until he had had an opportunity to hear the commissioners’ thoughts on the issue.
Brockway did point out that some of the statements made that morning were “absolutely false,” as One Park was not proposing to construct its building over a public road. “It’s a public easement that is 14 feet in height,” Brockway stressed. “That was an easement executed by Quay Venture, the developer of the Quay”; it had been reviewed by the City Attorney’s Office, Brockway continued, and the City Commission had accepted it.
Five other people joined Brockway in similar protests over the morning comments regarding One Park. Among those was Kim Githler, founder of MoneyShow, and the developer of One Park. “I will tell you,” she said, addressing the commissioners, “I would never do anything that is not out in the public.”
She asked that the DRC meeting remain on schedule for Nov. 23.
More explanation and debate
Following the second set of comments on the One Park plans, City Manager Brown explained that he had asked staff to research whether a special DRC session could be held.
Staff found nothing in the City Code to prevent such scheduling, Brown continued.
Later, he said, he learned that attorney Lincoln would not be able to attend the Dec. 14 Planning Board meeting because of a prior commitment. Yet, Lincoln’s clients are considered an affected party, Brown added. “It’s not unprecedented,” he said, for a Planning Board hearing to be continued to another date when the attorney for an affected party cannot be present.
Therefore, Brown pointed out, if the Planning Board hearing were going to be held on a later date, the DRC did not need to address the One Park application on Nov. 23.
After Brown mentioned that he had talked with City Attorney Fournier about the situation, Fournier replied, “We only talked just before this meeting today. I knew nothing about the scheduling.”
Then, referencing the number of issues related to the One Park application, Fournier proposed that he meet with the attorneys for both sides, plus city staff, and “come up with a schedule,” including the types of hearings that would be conducted, “so that everybody knows at the outset what the process is. I think that’s important, and I think that’s where we should be going with this rather than doing it piecemeal in a hurry.”
Moreover, Fournier noted, Lincoln had made the point that a schedule of DRC meetings has been published.
Commissioner Erik Arroyo did object to the fact that the commission would be setting a precedent by canceling a city meeting as a result of public comments during a regular City Commission meeting.
Brown emphasized that the comments were not a factor in his decision, as he had received Lincoln’s email about Lincoln’s lack of availability for the Planning Board meeting prior to the commission session that day.
“My understanding was this wasn’t an application to do anything differently than what was already approved before with the General Development Plan,” Arroyo said. “It was sort of asking for an interpretation, was it not?”
“No, no, no,” Fournier replied. “There is a change to the General Development Plan, in my view.”
Finally, Arroyo concurred with Fournier about maintaining the published schedule for the DRC.
Commissioner Jen Ahearn-Koch agreed with Arroyo.
At one point, however, Vice Mayor Liz Alpert suggested that no harm would be done by holding the DRC special meeting on Nov. 23.
Fournier repeated his concerns about deviating from that group’s published schedule.
“Even though it was already scheduled and [the date was] published [in a formal city public notice]?” Alpert asked.
“Well, it was scheduled within a day or two after the [One Park] application was filed,” Fournier told her. “That’s not a common occurrence.”
“All right,” she said.