10 days from March 3, all parties in the case — including Benderson Development affiliate — must submit written arguments for judge’s consideration
On Feb. 22, a Florida administrative law judge issued a notice that a formal hearing would be conducted on April 15 to determine whether a Siesta Key resident has “standing” to challenge plans for the installation of a traffic signal at the intersection of Avenue B and C on Stickney Point Road.
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.
Yet, nine days later — on March 3 — Administrative Law Judge Linzie F. Bogan issued a Show Cause order that gives all the parties in the Florida Division of Administrative Hearings (DOAH) case the opportunity to offer arguments in regard to whether that April 15 proceeding should take place after all.
“Procedurally,” she wrote, “it appears that it is premature for the [DOAH] to consider the … dispute.”
In late December 2020, Ralf Brookes, a Cape Coral attorney representing south Siesta resident James P. Wallace III, filed a petition on Wallace’s behalf with the Florida Department of Transportation (FDOT). It was Wallace’s effort to persuade FDOT to revoke a permit it issued to a Kimley-Horn consulting firm employee last year, so the stoplight project could proceed.
Kimley-Horn has handled traffic-related issues for Benderson Development Co. as the firm has worked on its Siesta Promenade project planned for the northwest quadrant of the intersection of U.S. 41 and Stickney Point Road.
FDOT dismissed Wallace’s petition without prejudice on Jan. 28, giving him 10 days to address deficiencies FDOT cited in it. Brookes filed an amended version for Wallace on Feb. 4.
The latter document, Bogan wrote in her March 3 order, “seems to set forth additional information related to the alleged deficiencies …”
However, she continued, on Feb. 15, FDOT referred the Wallace case to the DOAH “for a ‘limited’ disputed fact hearing,” in lieu of entering an order in response to Wallace’s amended petition.
Therefore, in accord with guidelines in Florida Statute 120.569(2)(c), Bogan gave the parties in the case 10 days from March 3 “to show cause in writing why this case should not be closed and jurisdiction relinquished [to FDOT] so as to allow the Department an opportunity to comply with the requirements of section 120.569 [of the statutes].”
The statute she cited says that after receiving a petition or request for a hearing, the affected agency must review it carefully to determine whether it contains all of the required information. If it does not, then the petition should be dismissed.
However, Bogan pointed out, “This section also states that ‘[t]he agency shall promptly give written notice to all parties of the action taken on the petition, shall state with particularity its reasons if the petition is not granted, and shall state the deadline for filing an amended petition if applicable.’”
Bogan added that she is “unaware of any authority” that relieves FDOT from its responsibility to review Wallace’s amended petition for “‘substantial compliance’ within the meaning of section 120.569 [of the Florida Statues].”
Wallace has been making every possible attempt to halt the construction of the Siesta Promenade mixed-use development since the Sarasota County Commission approved it on split votes after a December 2018 public hearing. As designed, 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.
Wallace contends that the traffic associated with the development will exacerbate congestion in the vicinity of the U.S. 41/Stickney Point Road intersection and on Stickney Point Road, especially during the height of tourist season.
He has pointed out that Stickney Point Road is one of only two accesses to Siesta Key. Yet, Wallace has stressed, the traffic analysis that Kimley-Horn undertook for Benderson Development Co. in regard to the Siesta Promenade plans failed to take into account any impact Siesta Promenade would have on Siesta residents.
The regular openings of the FDOT drawbridge on Stickney Point Road already cause vehicle backups through the U.S. 41 intersection during periods of heavy traffic, Wallace has emphasized. Siesta residents for some time have voiced significant concerns about emergency vehicles being able, in a timely fashion, to reach persons in need of immediate medical attention when the annual tourist season is underway.
Further, during a December 2019 hearing held at Siesta Key Chapel, numerous island residents stressed to an FDOT representative that Stickney Point Road is their hurricane evacuation route. The threat of even greater congestion could put their lives at risk, they said, if Siesta Promenade were built.
In approving the development more than two years ago, the county commissioners stipulated that the traffic signal at Avenue B and C must be installed before construction of Siesta Promenade can begin. Kimley-Horn recommended the light, saying it would be critical to traffic flow associated with the development. Additionally, in a Nov. 17, 2017 letter to FDOT Traffic Services Engineer Nathan Kautz, Christopher Hatton, senior vice president of Kimley-Horn, wrote that the firm’s traffic studies indicated that, with the stoplight in place, westbound traffic at the intersection of Stickney Point Road and Avenue B and C “is not anticipated to back up into the signal at the intersection of [Stickney Point Road] & US 41.”
Benderson affiliate joins the DOAH case
Subsequent to Brookes’ filing of Wallace’s amended petition with FDOT, Siesta 41 Associates LLP, the Benderson Development affiliate that formally is listed as the developer of Siesta Promenade, filed a petition to intervene in the case. After the company was allowed to become a party, documents show, Siesta 41 filed a Feb. 11 motion seeking the dismissal of Wallace’s petition.
Siesta 41 noted that the permit FDOT issued for the stoplight project in December 2020 authorizes an access point from Siesta Promenade onto Stickney Point Road at the Avenue B and C intersection, “which the DOT has determined warrants signalization.”
Moreover, Siesta 41 pointed out that after the County Commission approved Siesta Promenade, Pine Shores Estates resident Sura Kochman filed a petition in the 12thJudicial Circuit Court, seeking to overturn the board’s action. Siesta 41 noted that Kochman’s petition came “at the apparent urging of and coordination with Dr. James Wallace, III,” and that Brookes, Wallace’s attorney in the FDOT/DOAH case, represented her.
Wallace has told Siesta Key Association (SKA) members that he spearheaded the fundraising for Kochman’s complaint. She was named the sole petitioner in that case, he explained, because she lives in the neighborhood adjacent to the Siesta Promenade site and, therefore, would have the necessary standing to seek the Circuit Court action.
Siesta 41 further noted in its motion that the Circuit Court ruled for Sarasota County in Kochman’s case, as did the Florida Second District Court of Appeal, after Brookes filed an appeal of the Circuit Court decision.
Nonetheless, the company wrote in its motion, since November 2019, “[b]y his own admission, [Wallace] has [been] repeatedly urging the DOT not to place a traffic control signal [at Avenue B and C] and raising the issue of traffic flow, traffic congestion, and other traffic impacts.”
Further, Siesta 41 contended that the amended petition Brookes filed for Wallace with FDOT failed to “cure” the deficiencies related to Wallace’s standing issue. For one example, the company’s motion cited a paragraph in that amended petition that said Wallace had contacted FDOT representatives, and the Siesta Key Association and the Siesta Key Chamber of Commerce had sent letters to FDOT District One Secretary L.K. Nandam, seeking consideration of the impacts of the planned traffic signal on “Siesta Key safety and traffic issues.”
“Contrary to supporting [Wallace’s] standing,” Siesta 41 argued, that information “does nothing more than prove that [Wallace] has already attempted, unsuccessfully, to influence DOT’s planning-level decision to approve the new signal, and that [Wallace’s] interests are focused solely on the effect a new signal will have on [Wallace].” (The emphasis is in the motion.)
Siesta 41 asked that Wallace’s amended petition be dismissed and that he be prevented from “either formally or informally [continuing] to lobby DOT to change its planning-level decision to include a new traffic signal at the Stickney Point Road Intersection.”
The company cited DOAH and judicial precedents, along with sections of the Florida Statutes, to contend that Wallace’s “allegations of harm associated with traffic flow or traffic congestion” do not meet the standing test.
Attorneys Susan L. Stephens and Felicia L. Kitzmiller of the Tallahassee firm Hopping Green & Sams are representing Siesta 41 in the case.
In the response to Siesta 41’s motion, attorney Brookes wrote that Wallace is seeking “a constitutional right of due process” to be heard on FDOT’s decision to grant the permit for the Avenue B and C traffic signal. “If this Petitioner does not have standing,” Brookes added, “then no one would have standing, not only on Siesta Key but in any other similar case on any other barrier island in Florida.”
Brookes added that, by challenging Wallace’s standing in the case, Siesta 41 is trying to prevent Wallace from having an opportunity to make his arguments about why the traffic signal at Avenue B and C would create more traffic problems.
Referring to the planned traffic signal, Brookes pointed out that Siesta 41 would be “opening up an all-new access never before planned by either Sarasota County or FDOT.”
Moreover, Brookes argued, “Promoting safety on a Barrier Island’s primary access road has to involve residents on the island, and a Petitioner seeks to take on this role” by requesting the DOAH proceeding so he can “bring mistaken facts to light for [FDOT] consideration.”
“Over the past year,” Brookes continued, “via multiple emails back and forth, the truth is that all [Wallace] has ever asked was that FDOT analyze the impacts on safety issues on the Key and yet [Kimley-Horn’s] Traffic Impact Analysis totally ignored Siesta Key.”
Brookes wrote, “The signalized intersection is too close to [U.S. 41] and the Stickney Point [drawbridge] to Siesta Key and the proposed signalized connection will cause traffic back-ups to occur between the short distance between the proposed connection and both [U.S.] 41 and the [drawbridge].”
“[T]here is ample photographic evidence of back-ups that routinely occurred and were particularly severe in pre COVID tourist seasons,” Brookes noted.
Further, Brookes pointed out, the Level of Service for the intersection of U.S. 41 and Stickney Point Road is an “F” during the peak afternoon drive period, as determined by FDOT. “An ‘F’ represents near ‘gridlock’ conditions, where every vehicle moves in lockstep with the vehicle in front of it and traffic nearly comes to a stop,” he added.
Florida Statute 335.182 and other state regulations say FDOT should deny an application when “[the] connection would jeopardize the safety of the public or have a negative impact upon the operational characteristics of the highway,’” Brookes added.