Jim Wallace reviewing legal options with attorneys
On Jan. 25, Florida’s Second District Court of Appeal ruled in favor of the Florida Department of Transportation (FDOT) in a case filed to try to prevent the erection of a stoplight at the Avenue B and C intersection of Stickney Point Road, between U.S. 41 and Siesta Key.
The decision came just eight days after oral arguments, which were conducted in Tampa.
Officially, the Appeal Court issued a per curiam ruling, which upheld the findings of the administrative law judge who handled a Florida Division of Administrative Hearings (DOAH) case that south Siesta Key resident James P. Wallace III filed in early 2021.
The three judges who heard the Court of Appeal case were Morris Silberman, who has been on the bench since January 2001; Susan H. Rothstein-Youakim, a Pine View School graduate who has served on the Court of Appeal since May 2016, having been appointed by former Gov. Rick Scott; and Suzanne Labrit, whom Gov. Ron DeSantis appointed to the court in July 2020.
Attorneys have explained to The Sarasota News Leader that it is practically impossible to appeal a per curiam decision, as it offers no details about the reasoning behind the judges’ decision. Even so, attorneys also have pointed out that the Florida Supreme Court exercises considerable discretion in deciding which appeals it will accept. In other words, even with a written opinion, it is not easy for the losing party in a Florida appeals court case to win agreement from the Supreme Court that it will review the decision.
In response to a request for comment on the ruling, the News Leader received the following after contacting Wallace’s attorneys, David Smolker, of Smolker Matthews in Tampa, and Ralf Brookes, whose eponymous firm is in Cape Coral:
“Dr. Wallace is still very concerned that the additional signalized intersection will impede safe access to and from the barrier island for EMS vehicles and is currently reviewing legal options with his attorneys.”
In his DOAH filing in 2021, Wallace alleged that FDOT had not considered the potential for exacerbated traffic congestion if the stoplight were installed at Avenue B and C. Wallace cited traffic back-ups that commonly occur on Stickney Point Road during the height of tourist season. In recent years, residents routinely have talked about — and posted photos on Facebook of — lines of vehicles east of the intersection of U.S. 41 and Stickney Point Road, as visitors and residents seek to reach the barrier island.
The regular openings of the Stickney Point Road drawbridge already are a deterrent to smooth traffic flow to and from the Key, Wallace also has argued, contending that the necessity of drivers to stop for the traffic signal at Avenue B and C would make the situation that much worse.
In December 2020, FDOT issued the necessary permits for the stoplight, whose installation was a stipulation that the Sarasota County Commission included in its split decision in December 2018 to allow Benderson Development Co. to construct the proposed mixed-use Siesta Promenade project in the northwest quadrant of U.S. 41 and Stickney Point Road.
As approved, Siesta Promenade would have 414 apartments/condominiums, a 130-room hotel, 133,000 square feet of retail space and 7,000 square feet of office space on approximately 24 acres.
During the 2018 public hearing, Wallace was among multiple residents who stressed to the commissioners that the traffic study undertaken as part of the Siesta Promenade application process did not include Siesta Key as part of its focus. County staff had identified a number of roads and intersections that had to be reviewed for the project, but staff did not propose a thorough analysis of the potential effects of Siesta Promenade on traffic heading to and from the Key, Wallace has emphasized.
The staff of the Kimley-Horn consulting firm in Sarasota, which handled the traffic analysis for Benderson Development, maintained in its findings that the stoplight would be necessary to ensure smooth traffic flow for people living in Siesta Promenade and for those wishing to access the hotel, as well as the retail and office space, on the site.
The decision in the DOAH case
On March 26, 2021, Administrative Law Judge Linzie F. Bogan wrote in her opinion in Wallace’s DOAH case that “the undisputed facts demonstrate that [he) lacks standing” to pursue his challenge of FDOT’s decision to allow the stoplight to be installed.
She cited sections of the Florida Statutes and a 1994 Florida Supreme Court opinion as the basis for her decision.
Thus, Bogan continued, “[T]here are no disputed issues of material fact that need to be resolved in order to dispose of this matter. Accordingly,” she added, she was relinquishing jurisdiction to FDOT “for final disposition with the recommendation that [Wallace’s challenge] be dismissed for lack of standing.”
As Cornell University’s Legal Information Institute defines it, a person has “standing” in a case if the person can show that he or she has “sustained or will sustain direct injury or harm” from a specific action and that the harm can be remedied by a court.
In her March 26, 2021 order, Bogan also pointed out that in an amended petition filed with FDOT in early February 2021, Wallace offered details about “how his substantial interests will be affected by the issuance of the Promenade [stoplight] Permit.” Among them, she noted, is the fact that Wallace reported that he uses Stickney Point Road “daily and sometimes multiple times per day.”
If the traffic signal were installed, she continued, Wallace contended that “the additional traffic [generated by Siesta Promenade] will cause [him] to become stuck in additional traffic congestion and during season, maroon [him] and his family making it more difficult for him to leave and return to Siesta Key to access medical care, goods and services that he needs and utilizes on the mainland. These services are located beyond the proposed intersection and traffic signal and [Wallace] will have to go through the proposed new traffic signalized intersection to access these mainland services.”
Further, Bogan explained, in his petition, Wallace argued that Florida Statutes 335.182 and 335.184 were applicable to his challenge of FDOT’s decision to approve the permit for the Avenue B and C traffic signal.
Those sections of state law, Bogan continued, “comprise what is commonly referred to as the ‘State Highway System access Management Act.’ ”
Section 335.181(2), she noted, “provides that it is the policy of the Legislature that:
“(a) Every owner of property which abuts a road on the State Highway System has a right to reasonable access to the abutting state highway but does not have the right of unregulated access to such highway. The operational capabilities of an access connection may be restricted by the department. However, a means of reasonable access to an abutting state highway may not be denied by the department, except on the basis of safety or operational concerns as provided in [Section] 335.184.
“(b) The access rights of an owner of property abutting the State Highway System are subject to reasonable regulation to ensure the public’s right and interest in a safe and efficient highway system. This paragraph does not authorize the department to deny a means of reasonable access to an abutting state highway, except on the basis of safety or operational concerns as provided in [Section] 335.184. Property owners are encouraged to implement the use of joint access where legally available.”
“It is undisputed that [Wallace’s] residence on Midnight Pass Road does not abut the proposed new access connections from Stickney Point road to the Promenade Development,” Bogan added.
Moreover, she continued, in a 1994 case, Department of Transportation v. Gefen, the Florida Supreme Court “held that ‘[n]o person has a vested right in the maintenance of a [particular traffic pattern on a] public highway.’”
Furthermore, Bogan wrote, “Consistent with Gefen is the fact that there are no provisions in the State Highway System Management Act which extend the scope of the Act to members of the general public who have complaints about possible traffic congestion resulting from the planned installation of a traffic light. Simply stated, [Wallace’s] purported injury of being ‘stuck in additional traffic congestion’ is not of the ‘type or nature’ that chapter 335 is designed to address.”
Over the past months, contractors working on behalf of Benderson Development have completed other traffic adjustments and access work necessary for the project.
Todd Mathes, director of development for Benderson, did not respond to a News Leader request for comment this week on how soon construction will begin on Siesta Promenade. As the News Leader has reported, the site was cleared in late 2022.