Hour-long hearing focuses on judicial precedents and City of Sarasota policies and regulations
After an hour-long hearing on Tuesday, Oct. 27, 12th Judicial Circuit Judge Andrea Johnson, told the attorneys for the Sarasota Alliance for Historic Preservation (SAHP), the developer of the proposed Lumor mixed-use project in downtown Sarasota, and the City of Sarasota that she “should have a decision” for them within the next 60 days in litigation involving the planned demolition of the historic U.S. Garage building in downtown Sarasota.
“I understand this is important to you all,” she said.
Johnson is charged with deciding whether the Alliance has the legal right to make a case before the City of Sarasota’s Board of Adjustment that the demolition should not proceed.
(Gov. Ron DeSantis appointed Johnson to the bench in late April. She had worked as partner and chair for the firm of Barnes, Walker, Goethe, Perron, Shea & Johnson since 2025,” the Florida Bar noted. The firm has offices in five locations, its website says, including Sarasota and Bradenton. Previously, Johnson was a solo practitioner in her own firm.)
The Lumor developer, DT Sarasota Development LLC — which is associated with the Lutgert Companies of Naples — needs to tear down the U.S. Garage structure to construct the Lumor on downtown Sarasota property formerly owned by the Church of the Redeemer.
On April 29, the City of Sarasota Board of Adjustment members agreed that the Alliance did not have “standing” to even participate in a hearing over the future of the U.S. Garage building. As the Cornell Law School’s Legal Information Institute explains it, standing “is the capacity of a party to bring a lawsuit in court. To have standing, a party must demonstrate a sufficient connection to and harm from the law or action being challenged.”
The Alliance’s attorney — Morgan Bentley, a partner in the Sarasota firm Bentley Goodrich Kison — and the developer’s attorney — Robert Lincoln, whose eponymous firm is located in Sarasota, as well — had approximately 30 minutes apiece during the hearing to explain their interpretations of judicial precedents and sections of the city’s Zoning Code and state law to try to influence Johnson’s decision.
Lincoln did reserve part of his time to allow the attorney formally representing the city — Jay Daigneault of the Clearwater firm Trask Daigneault — to make remarks, too.
Judge Johnson interrupted both Bentley and Lincoln numerous times to ask questions and to seek clarifications of points they made.
Importance of the city’s Zoning Code language
Bentley filed the formal Amended Petition for Writ of Certiorari with the Circuit Court on June 24, asking the court to overrule the Board of Adjustment (BOA) and grant the Alliance standing.
He explained in that brief that the city’s Zoning Code authorizes the BOA “to hear and decide appeals where it is alleged that there is error in any order, requirement, decision, or interpretation made by the Director of Development Services in the enforcement or interpretation of Zoning Code regulations, including approval of Demolition Permits. Any aggrieved person to such decision may initiate an appeal after the order, requirement, decision, or interpretation is issued in writing by the Director of Development Services,” Bentley added in the complaint.
The Alliance is an aggrieved party, he has maintained, pointing to Section II-201 of the Zoning Code, which defines an aggrieved person as “Any person or entity which will suffer to a greater degree than the general public, an adverse effect to a legally recognized interest protected or furthered by the land development regulations or the comprehensive plan.” (The comprehensive plan — referred to as the City Plan — guides growth in the community.)
In his Amended Petition, Bentley explained that the Alliance is a nonprofit, “publicly supported 501(c)(3) organization whose mission is to ‘preserve and enhance our historic places through advocacy, education, technical and financial support, and celebration.’ ”
He added in the petition, “Unlike a member of the general public with only a generalized interest in historic preservation, SAHP’s purpose and activities are specifically directed toward the preservation of historic resources threatened by alteration, neglect, or demolition.”
Further — a point he made to the judge this week — the Alliance annually conducts a Six to Save program. Through that, he continued in the petition, the Alliance “evaluates historic resources throughout Sarasota and identifies properties that are historically significant and particularly vulnerable to loss.”
The U.S. Garage was one of the properties on the 2025 Six to Save list, he noted in the amended petition.
Bentley also told the judge that the U.S. Garage building is on what is called the Florida Master Site File, a list of historic properties in the state.
Moreover, Bentley pointed out during the hearing, the City of Sarasota has “an entire ordinance devoted to historic presentation.” That is Section IV, Division 8, of the Zoning Code, which says the following, he wrote in the petition: “It is hereby declared as a matter of public policy that the protection, enhancement and perpetuation of structures, sites and districts of historical, architectural or archaeological merit, including archival and artifacts is in the interest of the health, prosperity and welfare of the people of the city.”
Thus, he told Johnson, historic preservation within the city is “recognized and protected and furthered by the land development regulations.”
Bentley also cited judicial precedents that he contends make it clear that the Alliance has what he called “associational standing” to participate in a BOA hearing.
The Florida Supreme Court, he told Judge Johnson, recognized associational standing in 1982 in the case of Florida Home Builders Ass’n v. Department of Labor. That court said “that if a group has enough specialized interest in the subject matter of a zoning decision or a land use decision, they can have independent standing in and of themselves.”
When Johnson asked Bentley what he believed to be the judicial precedent most related to the argument before the court that day, Bentley replied, “Probably [Stranahan House, Inc. v. City of Fort Lauderdale],” a 2007 Florida Fourth District Court of Appeal decision regarding an historic preservation case.
That city also had an historic preservation ordinance, he noted. “The Stranahans, by the way,” he pointed out, “were considered the founders of Fort Lauderdale.” Thus, he added, their house “was deemed to be historic.”
An organization focused on historic preservation was “found to have standing because its preservation interests were protected by the historic preservation element of [Fort Lauderdale’s] comprehensive plan and were adversely affected by [a] proposed development,” he explained in his amended petition.
In a second case — Putnam County Envtl. Council, Inc. v. Bd. of County Comm’rs, a 2000 decision of Florida’s Fifth District Court of Appeal, “the court held that an environmental nonprofit organization qualified as an ‘aggrieved or adversely affected party’ ” under Section 163.3215 of the Florida Statutes “because it alleged injuries to interests protected by the comprehensive plan that exceeded the generalized concerns of the public,” Bentley explained in his amended petition.
In the Putnam case, he wrote in the brief, “The organization had been actively involved in the acquisition, stewardship, and protection of the affected state forest, and its members regularly used the property for educational, recreational, and environmental purposes. … The court concluded that these allegations established an interest greater than the “general interest in community good shared by all persons.”
The Fifth District Court of Appeal, Bentley told Judge Johnson, agreed that the Putnam County Environmental Council was “was more than a group with amorphous environmental concerns. … The Alliance is not a group with amorphous historical concerns,” he emphasized. Its concerns are “fact-specific to [the U.S. Garage] building.”
Emphasizing the need for ‘a legally recognized interest’
During his turn, the developer’s attorney, Lincoln, stressed to Judge Johnson, “The burden of proof was on [the Alliance] to establish that … the facts … would show that they had a legally recognized interest [in the U.S. Garage building].” He added, “Their entire argument was what you heard today: ‘We’re this organization that has a generalized interest in historic preservation and a specific interest in this property,’ and they argued that that created standing …”
Lincoln also contended that Bentley was wrong to rely in any way on the language of Chapter 163 in the Florida Statutes, as that does not apply to the U.S. Garage case. Thus, Lincoln added, the Putnam decision should not be considered.
He stressed that the Alliance does not have “a legally recognized interest” in regard to the demolition plans.
In his brief, responding to Bentley’s amended petition, Lincoln wrote that the Board of Adjustment “applied the correct law — the Zoning Code’s definition of ‘aggrieved person’ — to SAHP’s appeal. [The BOA] reasonably read the undefined phrase ‘legally recognized interest’ to require an interest recognized by law, not merely an interest aligned with the [Zoning] Code’s policy goals.”
Johnson asked Lincoln to give her examples of what a “legally recognized interest” would be.
“Somebody that had a property or contractual interest are the easy ones to come up with,” he responded.
Yet, Johnson told him, the city’s Zoning Code “doesn’t stop at ‘legally recognized interest.’ It goes on to say ‘protected or furthered by the land development regulations” in the Comprehensive Plan.
Lincoln contended that that language “doesn’t expand the scope of a legally recognized interest. [The Alliance has] to prove that they have the interest.”
Moreover, he argued, Bentley had not cited “any particular policies in the comprehensive plan that would give [the Alliance] standing.”
Turning to the historic preservation ordinance that Bentley had cited, Lincoln pointed out that it focuses on public policy; it does not grant “any legal rights to property owners, residents, city, anybody else — anybody other than the general welfare of the city.”
Johnson at one point indicated agreement that the Alliance “is different than the general public,” referencing the nonprofit’s mission and the fact that the U.S. Garage was on the 2025 Six to Save list.
“They are the general public,” Lincoln stressed. “They are no different than anybody anywhere. They’re operating in the county. They operate all over the place. The fact that they have self-selected to be interested in historic preservation and, in particular, buildings, doesn’t … give them any … legally recognized interest that’s different than anybody else in the county. And the fact that they’ve chosen to be interested in somebody else’s property doesn’t give them any legally recognized interest in that property.”
Moreover, he emphasized to the judge, “The Stranahan case actually was three different cases, and they’ve only cited the one that involved the [affected] comprehensive plan. And they basically said that … under the very liberal [Florida Statute 163.3215] standard, [which] does not include ‘legally recognized’ in front of interests, the [petitioner] had standing. And if that’s their best case, it doesn’t help them here because it doesn’t address a generic organization, even if it’s devoted to historic preservation …”
During his portion of the arguments, Daigneault, representing the city, cited part of the Putnam decision, which said, “Prior to the [1985] enactment of Section 163.3215 [of the state statutes], the common law rule for standing applied. Under the common law rule, in order to possess standing to challenge a land use decision, a party had to possess a legally recognized right that would be adversely affected by the decision.”
Like Lincoln, he pointed out, “Section 163.3215 … liberalized the standing requirements and demonstrated a clear legislative policy in favor of the enforcement of comprehensive plans by persons adversely affected by local action.”
During his 5-minute rebuttal, for which he had asked Johnson to reserve the time, Bentley pointed out, “It’s funny how we are so diametrically opposed on this. They’re the ones reading out what the city did. They stop when they say, ‘The city went to the effort of putting in the words ‘legally recognized interest.’ Well, that’s not exactly right because that was the common law rule. [The city] just adopted it.”
“What they’re ignoring,” he said, “is Section Four, Division Eight [of the Zoning Code], Historic Structures, Districts, and Archaeological Sites … which we cited in full.”
He stressed to the judge, “Don’t take my word for it. Look at what the city declared to be the interest. … The city declared … I’m quoting, ‘Protection, enhancement, and perpetuation … of structures, sites, and districts of historical, architectural, or archaeological merit, including archival and artifacts, is in the interest of the health, prosperity, and welfare of the people of the city.’ ”
Therefore, Bentley contended, “It’s the exact opposite of what they’re arguing. The city has declared this to be a legally recognized interest. They’ve set up an entire ordinance to protect this legally recognized interest.”