South Siesta resident who initiated the case says he and attorney discussing the issue with ‘very top leadership of FDOT’
The Florida Division of Administrative Hearings (DOAH) administrative law judge assigned to the case involving the proposed stoplight at Avenue B and C on Stickney Point Road has figuratively kicked the case back to the Florida Department of Transportation (FDOT), The Sarasota News Leader has learned.
In an order she signed on March 26, Administrative Law Judge Linzie F. Bogan wrote that “the undisputed facts demonstrate that [south Siesta resident James P. Wallace III) 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.”
Brogan then pointed out, “It is the Department’s prerogative to determine if an informal proceeding under [the guidelines of the Florida Statutes] is appropriate.”
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 order, Bogan referenced the March 15 response in the DOAH case that came from the attorneys representing an intervenor — Benderson Development Co. affiliate Siesta 41 Associates LLP. The latter company is officially the developer of the mixed-use Siesta Promenade complex planned on approximately 24 acres in the northwest quadrant of the intersection of U.S. 41 and Stickney Point Road.
At the conclusion of a day-long public hearing on Dec. 12, 2018 regarding the application for the construction of Siesta Promenade, the County Commission made the installation of the Avenue B and C traffic signal a necessity before Siesta 41 could begin building the 414 apartments/condominiums, 130-room hotel, 133,000 square feet of retail space and 7,000 square feet of office space planned at that time for Siesta Promenade.
Wallace has contended that traffic studies undertaken for the project never took into consideration the impact Siesta Promenade would have on traffic heading to and from Siesta Key, especially at the height of tourist season.
In her March 26 order, Administrative Law Judge Bogan pointed out that in an amended petition filed with FDOT in early February, 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.”
Bogan’s decision came 11 days after FDOT Assistant General Counsel Richard E. Shine addressed a letter to DOAH Director and Chief Judge Peter Antonacci, requesting that the DOAH arrange for a hearing on Wallace’s petition for FDOT to reverse its decision to issue the permit for the Avenue B and C traffic signal.
In an accompanying document, FDOT also pointed out that, in accord with a 2004 opinion of Florida’s First District Court of Appeal, Wallace’s assertions that he meets the standing test “‘must be taken as true.’”
Siesta Key Association update from Wallace
During the April 1 Siesta Key Association (SKA) meeting, President Catherine Luckner provided a bit of background on the Wallace case with the DOAH before announcing that the administrative law judge had “moved [it] back to the DOT.”
Discussions among Wallace; his attorney, Ralf Brookes of Cape Coral; and FDOT staff are underway, she added.
“It’s very critical,” Luckner stressed of the situation. If Wallace prevails with FDOT, she pointed out, the construction of Siesta Promenade, as approved by the county commissioners, could be stopped.
Because of spring break visitors, Luckner added, over the past six weeks, “It’s been very difficult” to access the island via Stickney Point Road.
Wallace pointed out that he was not able to say much “about the current situation” with FDOT. “The good news here is that this matter has been removed from the DOAH,” he continued, and turned back over to FDOT. He emphasized the fact that Shine, the FDOT assistant general counsel, had asserted that Wallace has standing to be heard on the issue.
“My attorney and I are in conversation with very top leadership of FDOT on this matter,” Wallace added.
Luckner encouraged SKA members to contribute to Wallace’s legal fees by going to the SKA’s webpage dedicated to his efforts.
An April 2 letter on that webpage reiterates comments Luckner made during the nonprofit’s meeting the previous evening and adds, “Your financial support is still needed. Jim’s efforts will continue to focus on keeping the Stickney Point Road, as the Primary Access to Siesta Key, from getting any worse.”
That webpage further notes that Wallace’s attorney, Brookes, would be putting any donations into his trust account. It does point out that the donations would not be tax-deductible.
SKA Director Joyce Kouba also pointed out during the April 1 meeting that if a person clicks on the “Donate” button at the top of the SKA website, information about how to contribute to the Avenue B and C stoplight challenge is available there, as well.
Then Luckner explained that Wallace is seeking affidavits from persons who have had “specific experiences” of traffic tie-ups and other disruptions on Stickney Point Road. If persons can provide the details of those incidents, including the dates, Luckner said, and include their signatures, those attestations also would help Wallace in the discussions with FDOT.