City’s passage of Zoning Code amendments does not change issues in Woman’s Exchange case, nonprofit’s attorney says

But the action might be helpful to a potential future owner of the Woman’s Exchange property and other downtown businesses in historic structures, Robert Lincoln tells the News Leader

The City Commission sits in session. File photo
The City Commission sits in session. File photo

With no comment, the Sarasota County Commission this week unanimously approved new Zoning Code amendments crafted in an effort to make it easier for the Woman’s Exchange and businesses operating in other historic structures to handle traffic and loading issues.

Officially, the second reading of the amendments was part of the board’s Consent Agenda No. 2 during its regular meeting on Oct. 3.

Nonetheless, Robert Lincoln, the Sarasota attorney representing the nonprofit in a legal challenge against the city, pointed out to The Sarasota News Leader on Oct. 4, “I don’t think the Woman’s Exchange sees a great way for them to go and use these changes.” Still, he said, the amendments might help a future owner of the Woman’s Exchange property and other businesses, adding that it has been almost impossible to rebuild or redevelop property in downtown Sarasota because of traffic and loading zone restrictions.

He noted that the work on the amendments has “muddied the issue” of the Petition for Writ of Certiorari he filed against the city on July 29.

Robert Lincoln. Image from his law firm's website
Robert Lincoln. Image from his law firm’s website

Lincoln told the News Leader that the nonprofit consignment shop’s proposed expansion plan — for which the City Commission in April denied a building permit —was consistent with the Zoning Code. Staff had issued the permit in November 2015. He continues to make that argument in his reply to the city’s response to the July 29 petition.

“The city’s trying to fix this … and it doesn’t necessarily fix everything,” he said of approval of the amendments. However, referring to the city attorney, he added, “I think that Mr. [Robert] Fournier has led a good faith effort to try to make these changes to ameliorate what could have been really devastating impacts [from the commission’s April decision].”

On Oct. 4, Lincoln also filed a request for oral arguments to be scheduled in the case in the 12th Judicial Circuit Court in Sarasota.

Because of judicial rules, the Laurel Park Neighborhood Association (LPNA) is a party to the legal challenge, as well. The association’s appeal of the building permit led to the City Commission decision, which was supported by Mayor Willie Shaw, Vice Mayor Shelli Freeland Eddie and Commissioner Susan Chapman. Commissioners Suzanne Atwell and Liz Alpert voted to approve the permit.

Getting to this point

Representatives of the Woman’s Exchange cited the growth of their business — especially with regard to furniture consignments — in seeking city approval for expansion onto Rawls Avenue. The nonprofit donates hundreds of thousands of dollars each year out its proceeds to arts and cultural organizations, and it awards numerous scholarships.

Part of the plan called for a new loading zone to be incorporated into the addition. Because the Exchange is located at the intersection of two streets designated “primary” in the City Code — Oak Street and Orange Avenue — a loading zone was not allowed on either of them under the code at that time. However, the Laurel Park Neighborhood Association — whose residents border the Woman’s Exchange property in downtown Sarasota — and others contended that Rawls is used heavily by people walking, biking and pushing baby strollers. Therefore, they said any increase in traffic on that street would portend a threat to public safety.

City Attorney Robert Fournier. File photo
City Attorney Robert Fournier. File photo

In his response on behalf of the city, Fournier argued that even if the city’s Zoning Code were interpreted to require the Woman’s Exchange addition necessitates a loading zone on Rawls, the commission was not required to approve the building permit. Instead, he wrote in his Sept. 14 response, the board was entitled to consider safety factors, as indicated by the Zoning Code.

In his Oct. 4 reply to the city’s response, Lincoln cites a Florida Third District Court of Appeal decision in 1967 in making his case that “The City is bound by the express terms of its own ordinance.”

Lincoln references Section VII-213(c) of the City of Sarasota Zoning Code, noting that when the expansion of a building requires off-street loading space, “‘the full amount of such space shall be supplied and maintained for the enlarged structure or extended use.’”

Because of the size of the Woman’s Exchange building following its proposed expansion, he adds, the structure had to have a loading zone at least 12 feet wide by 30 feet deep and 14 feet high. The shop’s current loading area, in its parking lot, is not a “‘required loading space’ under the Zoning Code, nor does it meet the dimensional requirements,” he writes. Furthermore, Lincoln points out, Tim Litchet, director of the city’s Neighborhood and Development Services Department, and Deputy City Attorney Mike Connolly testified in April that the Woman’s Exchange’s proposed loading zone on Rawls conformed with the City Code.

“The Commission, sitting in a quasi-judicial capacity, has no authority to add or rewrite the legislated standards,” Lincoln points out, citing a 1987 Florida Supreme Court ruling. “Longstanding interpretations of the [Zoning Code] should be rejected only when they are clearly erroneous,” Lincoln contends, citing a Florida Second Court of Appeal decision in 2004.

“Moreover,” he continues, “‘[a] decision granting or denying a site plan or plat application is governed by local regulations, which must be uniformly administered,’” citing a 2001 Florida Supreme Court decision.

The Woman's Exchange is located on South Orange Avenue in downtown Sarasota. Image from Google Maps
The Woman’s Exchange is located on South Orange Avenue in downtown Sarasota. Image from Google Maps

Lincoln writes that the interpretation that the Woman’s Exchange did not have to have a conforming loading zone as a condition of its expansion “was foisted on the Commission by [Laurel Park Neighborhood Association] witness Mike Taylor … and was adopted by the Commission” to support the argument that the “‘configuration and intensity of the proposed development, in particular the location of the loading zone, could be changed, which would mitigate or improve the effect of the proposed development on adjoining and nearby properties and on the community.’” He was quoting the resolution the City Commission approved on June 20, making the denial of the building permit a formal decision.

Taylor served on the city staff for 30 years, retiring as general manager of its Neighborhood and Development Services Department.

Lincoln contends, “The true ‘circumstances’ here are clear — the plan language of the City’s own Code requires the conforming loading space, the neighbors do not like what the Code requires, and the City Commission acted contrary to its own Code and the longstanding interpretation of its own Staff (as affirmed by its attorney), not because it was in any way ‘reasonable,’ but in order to politically appease the neighbors.” He adds, “This forced the City Attorney to come up with a tortured new and incorrect legal analysis — one that everyone knows is incorrect — essentially attempting to improperly amend the Code to read in a manner that would assuage the politicians’ desire to re-interpret and apply the law in a fundamentally different manner specifically for this case, yet also try to protect them from being sued for doing so.”

Opinion versus fact

The Woman's Exchange submitted this site plan in its February 2015 application. Image courtesy City of Sarasota
The Woman’s Exchange submitted this site plan in its February 2015 application. Image courtesy City of Sarasota

Lincoln further points to the city response’s extensive use of testimony from the representatives of the Laurel Park Neighborhood Association and other opponents of the expansion project in an effort for the city to show that Rawls Avenue is an inappropriate street for a loading zone. Lincoln argues that the city concedes that its staff members’ report “provided expert support that the configuration of the development made adequate provision for traffic circulation, but then incorrectly asserts that the staff did not consider safety.”

He continues, “The loading area cannot be ‘unsafe’ simply because pedestrians and bicycles use Rawls.” The safety issues came down to visibility of such people, he adds. The response uses “impermissible opinion contradicted by expert testimony in the record” to address that, Lincoln writes.

Citing another legal precedent, he argues that lay opinion testimony is not valid evidence upon which a determination can be made when technical expertise is required. “The City does not and cannot cite a single expert opinion stating that the configuration of the [proposed] loading zone is unsafe,” Lincoln adds. “On the contrary, there is extensive expert testimony that the configuration is safe [his emphasis], including a live demonstration [of its planned use].”

He argues that the city “attempts to characterize all of the expert evidence and testimony as a ‘staff recommendation’ that the City Commission was free to reject,” but the court precedent upon which the city bases that assertion does not apply.