Circuit Court judge rules that County Commission acted appropriately in approving Siesta Promenade plans

Decision does give plaintiff opportunity to file another complaint to target board action that judge legally could not address in this one

A 12th Judicial Circuit Court judge has ruled in favor of the Sarasota Commission on several arguments in a lawsuit filed in January in an effort to prevent the construction of the Siesta Promenade mixed-use development at the intersection of U.S. 41 and Stickney Point Road.

Benderson Development Co., which has offices in University Park, is the developer of the project. It was allowed to participate in the lawsuit as an intervenor.

Circuit Judge Andrea McHugh did give the plaintiff — Sura Kochman, who lives in Pine Shores Estates — the opportunity to file a different type of complaint to deal with issues that McHugh explained should not have been included in the original suit.

McHugh pointed out that Kochman’s Petition for Writ of Certiorari could be applied only to issues of a quasi-judicial nature that the Sarasota County Commission approved on Dec. 12, 2018, to allow plans for Siesta Promenade to proceed.

For example, Kochman argued in her complaint that she was not afforded sufficient time to address the multiple requests before the County Commission during the public hearing. In fact, instead of the standard 5 minutes for public comments allowed during a typical hearing, then-County Commission Chair Nancy Detert reduced the time limit to 3 minutes per speaker because of the number who had signed up to address the board. (Altogether, 69 people made comments.) Detert asked members of the audience to raise their hands if they supported that change, and the majority did.

“[Kochman] had multiple opportunities to provide her input to the County and the Board regarding this project, and participated fully in each one,” McHugh wrote in her Dec. 2 order. Kochman also “attended workshops prior to the Board’s final meeting,” McHugh added, and Kochman provided the county “with copious written feedback regarding the project, including evidence submitted both before and at the final hearing.”

“While the Court is sympathetic to [Kochman’s] argument that three minutes may seem a short time to present her argument, and that ‘justice cannot be “administered arbitrarily with a stopwatch,”’ McHugh continued, “the record is clear that [Kochman] had notice prior to the final meeting that speaking time might be limited. [Kochman] did not raise an objection to the three-minute limit …”

McHugh also cited a number of judicial precedents for her decision on that part of Kochman’s complaint.

McHugh did agree that Kochman had standing “to challenge the actions” of the County Commission. Benderson Development had argued that she did not, McHugh noted, because “she has not established ‘special damages’ rather than the more lenient ‘affected person’ standard …”

Kochman’s neighborhood is immediately adjacent to the Siesta Promenade site. She made it clear during a number of public meetings that she did not oppose development altogether on the Benderson property at U.S. 41 and Stickney Point Road. Rather, she said, it was the intensity of the Siesta Promenade plans to which she objected.

The fact that Kochman is “an adjoining property owner” affected by the zoning change the County Commission approved for Siesta Promenade was sufficient to give her standing, McHugh wrote.

After reviewing the ruling, Kochman’s attorney, Ralf Brookes of Cape Coral, provided the following statement to The Sarasota News Leader: “Of course, we are disappointed we lost. The court did not rule in our favor because the court held that the CAP was legislative and not quasi-judicial, and therefore the court did not have jurisdiction to consider the heart of our case. We are considering appealing, or filing a declaratory judgment to seek judicial review of the legislative CAP decision, within the next 30 days.”

Brookes was referring to the Critical Area Plan (CAP) that the County Commission approved for Siesta Promenade.

A CAP designation allows up to 25 dwelling units per acre, instead of the standard 13 per acre in a Commercial General zoning district. The 414 apartments/condominiums Benderson plans for Siesta Promenade would put the residential density slightly above 20 units per acre, Todd Mathes, director of development for Benderson Development, pointed out during public meetings.

In response to a News Leader request for comments, Mathes offered the following: “We are very pleased with Judge McHugh’s decision and the court’s thorough written order.“ He added, “Benderson Development remains focused on delivering a top-quality project that will revitalize and enhance the area. We also remain steadfast in our commitment to be a good neighbor as we move forward with construction.”

When the News Leader contacted Sarasota attorney Robert Lincoln, who represented Benderson in the litigation, Lincoln said of the ruling, “It was not unexpected.”

From 2016 through this year, U.S. News & World Report named Lincoln’s firm one of the best in the nation in land use and zoning litigation.

Differentiating between the claims

In her order, McHugh noted all the petitions the County Commission heard from Benderson on Dec. 12, 2018 during the public hearing.

Along with the request for the CAP designation, the commission was asked to approve the rezoning of a portion of the approximately 24-acre site and to approve a Special Exception for a 130-room hotel on the property.

Because the rezoning and Special Exception decisions of the board were considered to be quasi-judicial, McHugh explained, those were the only ones she could address in Kochman’s Petition for Writ of Certiorari.

County attorneys and the commissioners have pointed out that quasi-judicial proceedings are so called because they involve the consideration of evidence and testimony — similar to the process of a court proceeding — to determine whether requests for specific actions would comply with county policies.

In contrast, a legislative hearing establishes a policy for future application. For example, the adoption of an ordinance is a legislative matter, the Community Planning and Zoning page of the National Cooperative Extension of the U.S. Department of Agriculture explains.

“The Court finds that the CAP approval was legislative, not quasi-judicial, leaving the Court without jurisdiction to issue a writ of certiorari in regard to the CAP,” McHugh wrote.

Kochman argued in her complaint that the County Commission did not follow the prescribed county process for approving the CAP for Siesta Promenade.

During an Oct. 14 hearing before McHugh, Kochman’s attorney, Brookes, presented a CAP flow chart to underscore that argument.

Other facets of the ruling

In her order, McHugh also pointed out that Kochman had argued that the County Commission did not meet “the essential requirements of the law” and that it lacked “competent, substantial evidence” to support its decisions on Siesta Promenade. “Competent substantial evidence” is a term used in regard to quasi-judicial proceedings.

McHugh explained, “Competent evidence is evidence sufficiently relevant and material to the ultimate determination ‘that a reasonable mind would accept it as adequate to support the conclusion reached,’” citing a 1957 Florida Supreme Court decision.

Moreover, she concurred with an argument that Lincoln, the Benderson attorney, made during the Oct. 14 hearing. “The Court cannot reweigh the evidence or substitute its own judgment for that of the [County Commission],” she wrote, citing another judicial precedent. “If the Court determines the Board observed the essential requirements of the law and there was any [her emphasis] competent substantial evidence in the record to support its decision, then the Court must deny the petition for writ of certiorari, even if the Court would have reached a different conclusion,” McHugh added, citing a 1990 Florida Fourth District Court of Appeal decision.

Addressing Kochman’s contention that the County Commission “failed to consider the health, safety, and welfare impacts of installing a new traffic light at Stickney Point Road west of US 41 and east of the Stickney Point Road bridge,” McHugh pointed out, “The record is contrary to this claim. County staff submitted maps and graphic depictions to the Board, as well as testifying before the Board, all of which may be considered competent substantial evidence.”

Kochman maintained that the commission did not have the authority to agree to the new traffic signal at the intersection of Avenue B and C “without an adequate study of the impact that the light would have on traffic,” as McHugh noted.

Further, McHugh pointed to a traffic analysis undertaken by Benderson’s consultant, Kimley-Horn and Associates of Sarasota, “by which County Staff determined that the traffic light was warranted.”

McHugh also addressed Kochman’s claim that no steps were taken in the planning of Siesta Promenade “to prevent traffic from discharging into surrounding residential neighborhoods.” McHugh noted that this claim referred to a county Comprehensive Plan policy. However, McHugh continued, the plan “does not prohibit such traffic diversion …” Instead, she wrote, the Comprehensive Plan “merely discourages[her emphasis] land uses that generate traffic on abutting streets ‘in amounts that would substantially and adversely affect traffic flow, traffic control, and public safety.’”

As for the claim that the County Commission failed to require a traffic study involving 5% of the surrounding neighborhood, as provided for in the County Code, McHugh again concurred with Lincoln, the Benderson attorney, in his assertion that “this claim was not raised at the [Dec. 12, 2018 public hearing] … Moreover,” McHugh wrote, “[Kochman] does not cite to what code or ordinance was violated. However, in considering this claim, the [Critical Area Plan] resolution makes clear that the County Development Review committee [DRC] requires that ‘the roadway capacity analysis shall be based upon a traffic impact assessment methodology approved in writing by the Transportation Department as part of the DRC conference on the [CAP] Scope of Work.’”

Therefore, McHugh pointed out, because the Scope of Work won County Commission approval, “there was no need for further study by the Board in this regard.”

McHugh also found no support for Kochman’s claim that the County Commission failed to consider the impact Siesta Promenade would have on vehicular access to Siesta Key.

First, she noted, attorney Brookes did not cite “any law or ordinance that requires the Board to consider ‘Sarasota area-wide impacts’ of the project.” Nonetheless, McHugh continued, the commission did consider the traffic impact on the surrounding area, “through examination of the submitted written materials” and by discussing it “at length.”

She added, “The record is replete with input and comment from numerous witnesses and commenters, both in favor of and in opposition to the project. The Court concludes that the evidence presented was competent and substantial, so as to support the Board’s decision.”

Finally, McHugh agreed with Benderson attorney Lincoln on one further point. Kochman claimed that competent substantial evidence was insufficient to show that Siesta Promenade would be compatible with the surrounding neighborhood. All of her arguments “lack any legal authority requiring the Court to act,” McHugh wrote. Kochman’s “assertions in this claim do not contain any reference to any code or law requiring such compatibility.”

However, McHugh continued, “it is clear to the Court that the Board considered [traffic, height of the proposed buildings and the buffer zones] when deciding upon the matter.”

She also pointed to the fact that the county required Benderson to relocate the intersection of U.S. 41 and Pine Shores Drive and add a right-hand turn lane into the development. Additionally, she wrote, during the Dec. 12, 2018 hearing, the commission changed the access plan for Siesta Promenade and directed Benderson “to construct traffic-calming on the neighboring streets and take other measures for pedestrian and bicycle safety.”