County zoning change proposed to make mixed-use developments more marketable to residents

With Planning Commission’s approval of the amendment, two County Commission hearings have been scheduled

A rendering included with the Cassia Cay application filed earlier this year shows a concept for the mixed-use center. Image courtesy Sarasota County
A rendering included with the Cassia Cay application filed earlier this year shows a concept for the mixed-use center. Image courtesy Sarasota County

Developers are having difficulty in finding people who want to live above stores and shops in mixed-use developments in the county, a Sarasota attorney — acting as the agent for one developer — recently explained to the Sarasota County Planning Commission.

As a result — on a unanimous recommendation of that commission — the County Commission will hold a public hearing on Dec. 14 to consider a zoning text amendment that would make it possible for developers to pursue mixed-use projects with freestanding structures containing apartments and condominiums, as well as those above commercial units. The change would apply to the county’s Commercial General (CG) zoning districts, and approval of a special exception would be necessary. At the suggestion of the petitioner, the residential dwelling units would be restricted to 30% of a project.

A second public hearing, by law, will be required on the measure, Zoning Administrator Donna Thompson explained to the Planning Commission on Nov. 3. That tentatively has been set for Jan. 25, 2017.

Brenda L. Patten of the Berlin Patten Ebling firm in Sarasota — acting as an agent for the proposed Cassia Cay development south of Holiday Drive and adjacent to the county’s Bayonne Preserve — has worked with the county on the zoning text amendment, Thompson said.

The measure would not increase the density of projects, Thompson explained. That would remain at 13 dwelling units per acre.

Brenda L. Patten. Photo from the Berlin Patten Ebling website
Brenda L. Patten. Photo from the Berlin Patten Ebling website

“Everyone talks about mixed-use development,” Patten told the board. “It’s a pillar of New Urbanism. … It’s actually a common planning technique that’s been around a long time.”

However, Patten continued, “There’s virtually no market in Sarasota County for this type of housing development.” She added that many people would like to live in close proximity to shops and restaurants, but they do not want to actually live in a building with commercial businesses. “They don’t want the noise, the odors, the trash, the customers of [those] businesses in the same building where they live.”

Furthermore, Patten continued, concerns about the need to carry extra insurance to guard against problems that might arise for the residents “would prevent most businesses from even considering such a situation.”

Reaching this point

In her discussions with county staff, Patten said, no one could recall a building that had been developed or was being constructed with upper residential stories over commercial uses as provided for in CG zoning.

Therefore, she told the board, her client — Core Development of Wichita, Kan. — was seeking the zoning text amendment.

To ensure that a development would remain mixed-use, Patten also proposed that the residential part of it be limited to 30%.

The developer could design shops, restaurants, fitness centers — all sorts of commercial uses, she said — alongside freestanding apartment or condominium buildings. Open space or walkways could be placed between structures, she noted.

“This can only be done by special exception,” she stressed.

“Several of us commissioners have expressed concern about where we’re getting rid of some commercial zoning,” Chair Jack Bispham told Patten. If an area were zoned CG, he asked, “could you fill it up with residential?”

Planning Commissioner Philip Kellogg. News Leader photo
Planning Commissioner Philip Kellogg. News Leader photo

“No,” Patten responded. “Not under this proposal.” Any development still would have to be mixed-use.

When Commissioner Philip Kellogg asked how she settled on the 30% figure, Patten replied that she found that in researching the county’s CG zoning districts. “It’s been used before in the county.” Nonetheless, she added, “You don’t have to use that number.”

“I sort of like that,” Bispham said of the 30% restriction.

Commissioner Kevin Cooper then pointed out that the board recently considered a petition for residential development in an Industrial Light Warehousing (ILW) zoning district. Concern arose among the commissioners, he added, that residential projects would “eat into” districts normally zoned for commercial uses.

“Explain how this isn’t just a ‘Trojan horse’ … to provide ease for this commission,” he told Patten.

“I don’t think it’s a ‘Trojan horse’ to try to turn commercial into something that it isn’t,” she replied.

County staff is not suggesting the board “totally wipe out all the commercial districts,” Thompson said, “but this would allow some flexibility.”

The issue arose as Core Development began working on the Cassia Cay proposed mixed-use project on 18 acres adjacent to U.S. 41 south of Siesta Key, Patten noted. The site is zoned CG, and it is next to a 13-acre parcel zoned Residential Multi-Family. (See the related story in this issue.)

She and others with the development team have filed an application with the county to amend a binding concept plan for the mixed-use project, Patten added. However, that project is on hold pending further discussions with representatives of the Florida Department of Transportation (FDOT), she pointed out.

Photos show the Core Development mixed-use project in Naples. Images courtesy Sarasota County
Photos show the Core Development mixed-use project in Naples. Images courtesy Sarasota County

She represented the former developer in 2006 when the binding concept plans for both the mixed-use and residential Cassia Cay proposals won county approval, Patten continued. “One reason why [Cassia Cay] was never built is because they wanted to do the [CG parcel] as mixed uses … and there was a stipulation … there had to be at least 45 residential units.” When the developer began trying to market the commercial units, she noted, retailers were not willing to agree to the concept.

The necessity that the county will have to approve a special exception for the freestanding dwelling structures, Patten pointed out, “will give you the controls you need …”

When Commissioner Ron Cutsinger asked Thompson for clarification that the county’s 2050 Plan for developments east of Interstate 75 necessitates mixed-use development, Thompson replied, “I believe it does.”

Thompson said she also believes that some of the county’s approved Critical Area Plan developments include freestanding residential structures, such as the situation proposed in the zoning text amendment.

(Benderson Development is seeking approval of a Critical Area Plan for its proposed mixed-use development on the northwest corner of the intersection of U.S. 41 and Stickney Point Road, just a few miles north of the property slated for Cassia Cay.)

John Ask. File photo
John Ask. File photo

Thompson then emphasized that if the Planning Commission recommended the County Commission approve the zoning text amendment, no project such as Patten had described could proceed without agreement by the County Commission for a special exception.

That process “does protect the public … from something happening against our best interests,” Commissioner John Ask pointed out. However, he continued, “I would be very reticent to cap [the residential portion] at 30% … I would want some flexibility going forward.”

Staff supported Patten’s proposal for the amendment, Thompson added.

Then Commissioner Robert Morris asked Thompson for some help as he tried to recall the history of the live/work concept of New Urbanism. It was created to help spur redevelopment, was it not, he said. “Strip malls are a perfect example. You’ve got tons of strip malls. Instead of adding to urban sprawl … you could just put some residential [units above the commercial, ground-floor businesses].”

“Is that where this all came from?” Morris asked.

“I believe that’s where it came from,” Thompson responded.

Young people seem to like the live/work concept better than other types of homeowners, she added.

Public comments and a vote

A graphic shows the plans for the mixed-use and residential developments on the Cassia Cay site, as proposed earlier this year. Image courtesy Sarasota County
A graphic shows the plans for the mixed-use and residential developments on the Cassia Cay site, as proposed in late 2015. Image courtesy Sarasota County

During the public hearing, Ruth Brandwein, a resident of the Pelican Cove community south of the Cassia Cay site, told the board, “I think that mixed-use can work” without the separation of the residential units from the commercial ones.

After Core Development hosted a neighborhood workshop in December 2015 on its Cassia Cay plans, she said, she drove to Naples to see the firm’s project there. It has buildings that are very attractive, she added, with upscale boutiques and office space. “Young people or retired people … would enjoy an apartment up above a boutique or a bank.”

Ruth Brandwein. News Leader photo
Ruth Brandwein. News Leader photo

Her primary concern was the traffic that the residential components of the entire Cassia Cay project would generate, she told the board. Other Pelican Cove residents share that concern, she pointed out.

Bispham reminded her and the other three speakers that the board was addressing just the zoning text amendment and not the mixed-use project for Cassia Cay.

Another speaker, Richard Weingarten, characterized the proposal for the zoning text amendment as a “bait and switch” effort, adding that Core Development was trying to move from a live/work concept to something completely different.

Patten called the public testimony “awkward, because this is a legislative hearing [on a zoning text amendment].” Yet, she said, the board had heard remarks about a commercial development whose petition had been withdrawn from consideration on the Nov. 3 agenda.

“I understand,” Bispham replied.

Ultimately, Morris told his colleagues, “I’m in favor of this because I think that we need to have as much flexibility as possible. … I love it when government tries to create the market. … We shouldn’t be in that business.”

Morris joined Ask in proposing the elimination of the 30% restriction from the proposed amendment.

“I disagree,” Bispham said.

Commissioner Laura Benson sided with Bispham as “one more commissioner,” she said, “who’s afraid of the residential creep in commercial [districts].”

Cooper said he also supported the 30% cap, “since we are allowing this as a test.”

Morris pointed out that, in consideration of an application for a special exception, the Planning and County commissions could agree to a different level of residential mix in a project. Developers might be reluctant to pursue a concept with the 30% restriction, he said.

Nonetheless, Kellogg made the motion to recommend the County Commission approve the zoning text amendment as brought forth, with the 30% restriction. Cooper seconded it, and it then passed unanimously.