Hearing to be conducted in February 2025
The item on the Dec. 11 agenda of the City of Sarasota’s Planning Board meeting was supposed to focus solely on whether the Bay Plaza Association had standing as an “aggrieved party” to appeal city staff’s approval of the final plans for construction of the 327-foot-tall 1260 N. Palm Residences building in downtown Sarasota.
Yet, the members of the board took multiple opportunities during the approximately two-hour-long hearing to offer their views of the project. Ultimately, on a 3-2 vote, they agreed that the Bay Plaza Owners Association met the criteria as an aggrieved party. Therefore, the appeal could proceed.
The majority consisted of Vice Chair Daniel DeLeo, Dan Clermont and Shane LaMay.
Chair Michael Halflants and Terrill Salem were in the minority.
Deputy City Attorney Mike Connelly had explained at the outset that if the Planning Board members agreed that the Association was not an aggrieved party, then the staff decision would stand. The Association, Connolly pointed out, was the only party seeking a decision on status as an aggrieved party.
Given the outcome of the Dec. 11 hearing, the board members agreed to conduct the formal hearing on the appeal starting at 1:30 p.m. on Feb. 12, 2025.
The Bay Plaza Owners Association attorney, Morgan Bentley of the Sarasota firm is Bentley Goodrich Kison, told The Sarasota News Leader in a Dec. 12 telephone interview, “We had so much of the legal discussion already,” so he is “a little bit hopeful” that the February hearing will “not [be] as long as we might worry about …”
The 1260 N. Palm Ave. project has been controversial since the first application was filed, primarily because of the proposed height. The initial plan was for a 342-foot-tall building encompassing the space on North Palm Avenue where a number of retail businesses long have been located.
On Dec. 11, Planning Board member LaMay, an architect with the Sweet Sparkman firm in Sarasota, suggested that the tower, as built, would loom well above the city skyline, akin to the Empire State Building in New York City.
The focus of the height controversy has been what is known as “interstitial space,” which is the room above ceilings, between floors, where mechanical equipment and recessed lighting elements are installed.
George Scarfe, associate principal of Hoyt Architects in Sarasota and a member of the 1260 N. Palm Residences project team, said during the Dec. 11 hearing, “Nobody else in town has done 14-foot ceilings,” but the city’s Zoning Code allows that. In fact, he said, the Code encourages variety in building design, including multiple ceiling heights.
“I generally don’t have a problem with tall buildings,” Planning Board member Clermont said at one point. “But in this case, I think it’s stretching credulity …”
Clermont talked of having worked in interstitial space, making repairs to fans and ductwork. “Isn’t this basically just a workaround to make the building taller?”
Sarasota attorney Robert Lincoln, who was representing the applicant, 1260 Palm Properties LLC, told him that city staff will review the plans for the interstitial space at the time an application is submitted for a building permit. Moreover, Lincoln pointed out, the Zoning Code says “that interstitial space is not regulated. … Regardless of that,” he continued, “the interstitial space and the use of interstitial space was addressed substantially with staff during the approval process, to make sure that it was appropriate.”
Scarfe explained that, because the 1260 N. Palm Residences will share three of four property lines with Bay Plaza, the opening to the planned parking garage has to be mechanically ventilated. “It is not like most garages that are wide open and naturally ventilated.”
The extra interstitial footage for the fan that will have to be used might end up being less than the 5 feet planned, Scarfe pointed out.
“This is a very reasonable use for the life/safety of the building,” he added. “We do not want to have undersized fans …”
Each of the upper floors will have 2 feet of interstitial space, Scarfe continued, but he indicated that that would be barely sufficient for equipment such as that needed for recessed lighting.
“That is the type of building we have,” Scarfe said. “We don’t believe we have excessive interstitial space.”
Clermont told Scarfe, “Somebody could come along” and design a building with a total of 40 feet of interstitial space, which Clermont characterized as “a ridiculous number.”
“There isn’t a 40-foot fake interstitial space in this building,” Lincoln emphasized.
“I do believe that we have demonstrated to the satisfaction of staff that there are needs for the interstitial space that we have,” Scarfe added.
Moreover, Scarfe pointed out, “The Code as it’s written today” requires justifications for extra interstitial space. “We’ve met a number of those justifications.”
At one point, Clermont asked, “Can a group of residents or landowners be aggrieved simply because the city got it wrong?”
Deputy Attorney Connolly replied, “No,” in his opinion.
Lincoln emphasized that “the staff’s interpretation is presumed reasonable and correct unless it’s proven wrong.”
If the public disagrees, Lincoln indicated, “The answer is to change the Code, right? … The default position has been that the … Code means what the staff says the Code means.”
“The way to correct that,” Lincoln added, “is through the political process.”
Adjustments and loopholes
Planning Board member LaMay focused on other issues. “My problem with this project,” he said, “is that it doesn’t meet the intent of the Zoning Code.” Addressing Lincoln and Scarfe, LaMay added, “You had to get adjustment after adjustment to [be] compatible [with the Code].”
If he had bought a condominium in Bay Plaza, LaMay said, he would have had the reasonable expectation that a building would be constructed in the space where the 1260 N. Palm Residences is planned. However, LaMay emphasized, as such a resident, he would not have had a reasonable expectation that the adjacent structure would have 39 parking spaces, for example, with only 14 condos planned in that new building, nor the expectation that the new structure would be “one hundred feet higher than any other building around.”
Further, LaMay objected to the amount of retail space proposed for the project, which has been known, as well, as the Obsidian.
He told Lincoln and Scarfe, “You found loophole after loophole after loophole, and you exploited every one of them, and congratulations on that.”
Chair Halflants, a principal of Halflants + Pichette Architects in Sarasota, said, “I personally don’t have any issues with the height of the building.” Nonetheless, he told Lincoln and Scarfe “You’re stretching credibility,” in regard to the justifications for the extra interstitial space, including Scarfe’s assertion that extra height was needed above the parking garage to accommodate the 5-foot fan.
Halflants also noted that all of the residents in Bay Plaza have windows facing to the west, indicating that they would not have to look at the 1260 N. Palm Ave. building if it were constructed.
Contrary to DeLeo, Clermont and LaMay, Planning Board member Salem stressed, “It is clear that this [project team] has designed the building in accord with the Zoning Code. … Is it their fault that they followed the rules?”
He added, “What this really is, is about the building being tall. … They have to prove that they need that space,” Salem pointed out, and no guarantee exists that staff will agree with the plans after the building permit application has been filed.
The ‘aggrieved party’ issue
During Deputy City Attorney Connolly’s opening remarks, he read from the Zoning Code the definition of an “aggrieved party.”
The Code lists three categories: The city and the applicant for a development permit are the first two. The third definition is “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.”
“If we’re not an aggrieved party,” attorney Bentley told the Planning Board members, “no one is an aggrieved party. … We literally abut the property … on three sides.”
He added, “Obviously, anything that happens on this site, anything that falls off [the proposed building] is going to hit our property. It’s not going to land on Epicure [a nearby restaurant on Palm Avenue],” or down the street, Bentley said.
Moreover, he continued, Bay Plaza is the only party in the world … which is mentioned four times in the applications [for 1260 N. Palm].”
He also noted the “specific setbacks built into the development to accommodate us — again, nobody else; just us.”
Bentley stressed, “If the standard is, is the party in front of you … affected differently and greater than anyone else in the country, the answer is undoubtedly, ‘Yes.’ ”
During his opening remarks, Lincoln contended that the Bay Plaza Owners Association had to prove that one or more of its legally recognized interests would be adversely affected before it could be deemed an aggrieved party. That interest, he continued, must be protected or furthered by the city’s Comprehensive Plan, which guides growth, or the Zoning Code.
He focused on impacts to view, light and air, along with impacts that would obstruct or interfere with Bay Plaza residents’ ability to use their driveway or sidewalks, with none of them applicable in this situation.
Bentley also had asserted that the construction of the 1260 N. Palm Residences would result in damage to trees that are on Bay Plaza property. Yet, Lincoln said impacts to encroaching limbs or branches are not interests that are reasonably recognized, either. A memorandum he provided to the Planning Board members on Dec. 11 pointed out, “1260 Palm has a right to trim back any encroaching roots or limbs to the property line and Bay Plaza has no legally recognized right to prevent the same, even if it results in the death of the tree.”
In response to a question posed by Planning Board member Salem, Deputy City Attorney Connolly said that in cases in which a property owner has cut back trees or the roots of trees that belong to another property owner, and the trees die, then the property owner who did the trimming has to provide mitigation for the loss of those trees.
After Lincoln, Scarfe and Bentley concluded their remarks, Vice Chair DeLeo told his colleagues, “There’s been a lot of talking, OK; a lot of words. … But I don’t think this is that complicated.”
All anyone had to do was look at the definition of “aggrieved party,” which Connolly and Bentley had read aloud, DeLeo added. “I don’t think that there is any doubt that [the Bay Plaza Owners Association is] an aggrieved [party].”