With mediation in legal case still set for May 27, County Commission approves mitigation plan for second Whole Foods site on University Parkway

County staff says the action on the agreement was necessary to proceeding with processing the project application

A graphic shows the wetlands on University Parkway. Image courtesy Sarasota County
A graphic shows the wetlands on University Parkway. Image courtesy Sarasota County

Three days before a scheduled mediation conference in a legal case over the matter, the Sarasota County Commission voted 4-1 on May 24 to approve the mitigation agreement necessary for a Whole Foods and Wawa development to proceed on an 8.24-acre site on University Parkway.

The only public comment offered about the agenda item came from Dan Lobeck, president of Control Growth Now. During the Open to the Public comment period at the start of the regular meeting in Sarasota, he chastised the board over what he anticipated would be its approval of the “paving of valuable wetlands at University Station for Whole Foods in return for wetlands in Manatee County that are already protected and are under a conservation zoning designation.”

On Jan. 26, the board agreed on another 4-1 vote to a rezoning of the University Parkway site and authorized an amendment to its Comprehensive Plan so S.J. Collins Enterprises of Fairburn, GA, could pursue the development on behalf of Whole Foods. However, because the board action also will allow destruction of what county staff has called “rare wetlands,” the environmental group ManaSota-88 and three individuals filed suit in the 12th Judicial Circuit Court in late February to halt the project.

An engineering drawing shows the Whole Foods/Wawa site plan. Image courtesy Sarasota County
An engineering drawing shows the Whole Foods/Wawa site plan. Image courtesy Sarasota County

Commissioner Charles Hines opposed S.J. Collins’ requests in January, so he asked that the mitigation agreement be pulled from the board’s Consent Agenda of routine business items on May 24, so he could vote against it for consistency purposes.

A May 24 staff memo to the County Commission explains that the multiple parcels comprising the site where the University Station project is planned consist of pine flatwoods and shady hammock surrounding a 4.49-acre wetland swamp and head. “Swamps and heads (e.g., forested wetlands) are relatively rare in the County,” the memo continues. “These wetlands have a high degree of environmental importance for water filtration, assimilation of nutrients, floodwater storage and refuge, and habitat for a wide variety of species that rely on this urban environment.”

During the Jan. 26 public hearing on the University Station proposal, Jeff Garrison of S.J. Collins Enterprises and Dana West, senior vice president of Environmental & Technological Consulting (ETC) of Sarasota, explained that the development team had worked out an agreement with owners of what they called a “doughnut hole” in the middle of the Rye Preserve in Manatee County, which Whole Foods would donate to Manatee County to mitigate the loss of wetlands on the University Parkway parcels.

The Rye Preserve is in Manatee County. Photo courtesy Manatee County
The Rye Preserve is in Manatee County. Photo courtesy Manatee County

The May 24 staff memo provided to the County Commission says the approximately 40 acres in Manatee County — which is actually about 34.5 acres, excluding sovereign submerged lands of the Manatee River, the memo noted — was purchased from Beverly Bidwell on July 31, 2015 and transferred to JDL Development II on Dec. 16, 2015. That firm is one of four Intervenors in the legal case; it was incorporated on July 21, 2015, according to the state’s Division of Corporations website. Its principal palace of business is on North Honore Avenue in Sarasota, the state records say. The registered agent of JDL Development II is Cross Street Corporate Services LLC in

Sarasota, whose manager is James-Allen McPheeters, state records show. McPheeters is an attorney with the Williams Parker firm in Sarasota.

Of the four Intervenors, only JDL Development II was not an applicant for the rezoning of the site for University Station, court records say.

Charles Bailey III, another attorney with Williams Parker, was part of the development team representing Whole Foods during the public hearing before the County Commission in late January and before the Planning Commission in December 2015. He also is one of the attorneys representing the Intervenors in the legal case.

On May 24, the County Commission formally approved the Interlocal and Donation Agreement with Manatee County for the mitigation property, which is in the same water basin as the University Parkway wetlands slated for the Whole Foods project, Dana West explained to the County Commission in January.

The May 24 county staff memo says, “Within one year of execution of the [agreement], the property owner of the mitigation site will transfer ownership of the entire purchased mitigation land to Manatee County for future land management as an addition to the Rye Preserve.” That schedule, the memo continues, “allows the applicants time to meet obligations associated with State and Federal permit mitigation requirements related to [successful] removal of nuisance/invasive species.”

Matt Osterhoudt. File photo
Matt Osterhoudt. File photo

In response to a question from The Sarasota News Leader this week, Matt Osterhoudt, senior manager in the county’s Planning and Development Services Department, wrote in a May 23 email that regardless of the legal challenge over the University Station project, the application for the development has not been on hold. Staff has continued to review the material for consistency with the county’s Land Development Regulations, Osterhoudt added. “[T]he County’s Comprehensive Plan and Land Development Regulations include language requiring an Interlocal Agreement and other legal mechanism(s) acceptable to the County for any off-site mitigation outside of the County,” he continued, and the agreement on the County Commission’s May 24 agenda “[served] to meet these standards.” Therefore, Osterhoudt added, the board’s approval was necessary for the Land Development Regulations review to proceed.

The May 24 staff memo noted that on Feb. 10, S.J. Collins Enterprises submitted concurrent site and development plans and construction plans to develop University Station. Because the Wawa is planned for an outparcel, the memo continues, staff is reviewing it under a separate site and development plan/construction application that was submitted on March 9.

The memo noted that the Wawa application was on hold, too, pending the resolution of the mitigation requirements.

When the News Leader sought a comment from S.J. Collins this week regarding the board action and the status of the University Station project, Candice McElyea of ThreeSixOh PR in Sarasota responded in a May 25 email: “At this point the developer has no comment about status.”

A Whole Foods representative in the company’s Florida regional office had little comment when reached by the News Leader, also on May 25. Briana Madrid, associate marketing coordinator for Whole Foods Market, wrote in an email, “Since Whole Foods Market is a lessee of this project and a bystander in all of this, we support the developer’s efforts in working through the County’s processes.”

The mediation

Ralf Brookes is the attorney representing ManaSota-88. Image from his law firm's website
Ralf Brookes is the attorney representing ManaSota-88. Image from his law firm’s website

In preparation for the mediation conference on Friday, May 27, over the complaint filed by ManaSota-88 and the three individuals, the environmental group, Sarasota County attorneys and attorneys for the Intervenors all filed motions last week in the 12th Judicial Circuit Court certifying who would be representing them during the session. The conference was set for 9 a.m. on May 27 at the offices of the Williams Parker law firm in Sarasota.

Deputy County Attorney Alan Roddy and Osterhoudt will represent the county.

The complaint argues that the County Commission violated provisions of the county’s Comprehensive Plan when it voted 4-1 in late January to allow the destruction of the wetlands on the site proposed for University Station.

Dispute over materials

In spite of the median conference, attorneys have continued to seek documents in preparation for a two-day trial, with Judge Rochelle Curley having scheduled that to start on Aug. 22.

As part of their efforts, on May 17, the attorneys for the Intervenors — Shane T. Costello and Scott A. McLaren of Hill, Ward & Henderson in Tampa; and Bailey of Williams Parker — filed a Motion to Compel Discovery, saying ManaSota-88 waited a week after the deadline to produce documents for which they had filed a request before providing some insufficient responses and objecting to producing other materials. Therefore, the lawyers are asking the court to order that the documents be produced.

For example, in their March 28 Request for Production of Documents, the Intervenors’ attorneys asked that ManaSota-88 identify all of its activities within the past 10 years “related to the protection of wetlands,” and, for each, “identify the location of the wetland, the nature of the activity, the circumstances concerning the wetland, the persons involved, the relevant time frame of the activity, and the results of the activity.”

Among the answers, the Intervenors’ motion says, was the following: “Joe McClash — Representative of ManaSota-88, Inc. Harbor Sound mangrove wetlands site visit. January 19, 2015”

A map shows the area in Manatee County where the environmental mitigation is planned. Image courtesy Sarasota County
A map shows the area in Manatee County where the environmental mitigation is planned. Image courtesy Sarasota County

Another response encompasses the following: “14-005038 MANASOTA-88, INC. vs. LAND TRUST NO. 97-12 AND SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT”

In response to the Intervenors’ request for all documents circulated among ManaSota-88 and its officers, directors, members, and any other plaintiffs — along with documents generated in any meetings — pertaining to the allegations in the complaint filed against Sarasota County, the response, the motion says, was “No such documents exist.”

In another example, the Intevenors’ lawyers sought all documents pertaining to the environmental organization’s “history, mission, purpose, goals and objectives.” The response, the motion points out, was “Objection — Overly Broad, notwithstanding objection, ManaSota-88 will provide Newsletters for 2016 and the 1987 Annual Report of ManaSota-88 for history, mission, purpose, goals and objectives.”

The Intervenors’ attorneys argue that those responses “appear to be insufficient,” adding, “The dearth of emails and other documents pertaining to the [county] rezoning application and the resulting litigation is troubling. Although Intervenors cannot prove at this time that the Plaintiff is in possession of responsive documents, Intervenors reserve their rights to pursue all discovery methods available to obtain all relevant, non-privileged documents.”

The attorneys further seek sanctions — including attorneys’ fees related to their extra work involving the requests and motion — if such materials are discovered later.

A hearing has been set for the afternoon of Friday, June 3, for Magistrate Deborah Bailey to hear the Intervenors’ motion.