Court grants Benderson Development another delay in answering lawsuit over Siesta Promenade

Response from Office of the County Attorney rips apart arguments in the case a Pine Shores Estates resident filed in January

An aerial map shows part of Pine Shores Estates next to the Siesta Promenade site. Image from Google Maps

Benderson Development Co. and one of its affiliates have asked a 12th Judicial Circuit Court judge for a second extension of time to file responses to a lawsuit challenging the Sarasota County Commission’s December 2018 approval of plans for the Siesta Promenade project.

In the meantime, Assistant County Attorney David Pearce has filed his response for the county. The initial document numbers 890 pages, according to the case docket, while five supplemental appendices range in length from 133 to 605 pages.

On June 21, Robert K. Lincoln, whose eponymous law firm is in Sarasota, filed a motion with the Circuit Court, writing that the plaintiff in the Petition for Writ of Certiorari — Sura Kochman of Pine Shores Estates — had agreed to allow Benderson and Siesta 41 Associates to wait until July 1 to file their responses. Then, the motion said, Kochman’s attorney, Ralf Brookes of Cape Coral, would file his reply “on or before July 31, 2019.”

Originally, Benderson and Siesta 41 Associates LLP — the actual applicant for the Siesta Promenade project — were to have filed their briefs by May 16. On May 17, Circuit Judge Andrea McHugh agreed to postpone the due date until June 24. That followed Lincoln’s first filing of a motion seeking a delay — again, with Kochman’s approval.

Lincoln offered no reason for either of his extension requests.

On Dec. 12, 2018, in split votes, the County Commission approved the necessary rezoning and Critical Area Plan (CAP) designation — as well as other applications — so Siesta Promenade could be constructed on the northwest corner of the intersection of U.S. 41 and Stickney Point Road. It would comprise 414 condominiums/apartments, a 130-room hotel, 133,000 square feet of retail space and 7,000 square feet of office space.

Members of the public gather in the Commission Chambers on Dec. 12, 2018 before the public hearing begins. File photo

Commissioners Charles Hines and Nancy Detert opposed the CAP designation of the approximately 24-acre site, which allowed Benderson to construct up to 25 dwelling units per acre instead of the maximum of 13 allowed on county property zoned Commercial General. Benderson says its plans call for a density of about 20.5 units per acre.

Kochman, whose neighborhood is immediately adjacent to the project site, argued in her petition filed in January and amended in April that the County Commission allowed staff to consolidate into one public hearing the four applications Benderson Development and Siesta 41 had submitted for the project but gave each speaker just 5 minutes to address all the issues during the public hearing.

Among other allegations in the complaint, Kochman contends that, “even though the approval of this development would significantly impact traffic patterns and safety, the traffic study [undertaken for the project] did not even include an analysis of the impacts on traffic levels and safety of a proposed new traffic light between US 41 and the Siesta Key Bridge.”

Benderson’s traffic consultant, Kimley-Horn and Associates of Sarasota, has called for a new traffic signal to be installed at the intersection of Stickney Point Road and Avenue B and C.

The county’s response

A November 2018 graphic shows the access points for Siesta Promenade, which the development team acknowledged will lead to more traffic flowing through Pine Shores Estates. Image courtesy Sarasota County

In his response to Kochman’s lawsuit, Assistant County Attorney Pearce first points out that only the applications for the rezoning of the Siesta Promenade site and a Special Exception petition are subject to review in the case, because the commission handled them under what is called a “quasi-judicial review.” In other words, the board members conducted a public hearing to weigh whether the facets of the project complied with county policies and regulations for such a development, just as a jury in a trial would consider evidence and testimony.

Regarding Kochman’s allegation that the County Commission did not give speakers sufficient time for the presentation of evidence, Pearce wrote, “The Board, acting in its quasi-judicial capacity, must have the ability to exercise reasonable control over its proceedings, including imposing reasonable time limits.” He cited a 1999 ruling by the Florida Third District Court of Appeal.

Moreover, Pearce pointed out, because Kochman did not object during the Dec. 12, 2018 public hearing to the imposition of the 3-minute limit for speakers, she lost the ability to challenge that issue “for this certiorari proceeding.” Pearce cited several judicial precedents for his argument on that point.

Additionally, he continued, Kochman “specifically alleges she needed more time for her expert engineer, Marla Hough, to present testimony, and that Hough requested more time. … The transcript [of the public hearing] reflects Hough testified during the hearing and requested more time. … However, based on earlier correspondence, Hough anticipated only receiving three minutes to speak. … Additionally, at no time did Hough indicate that she worked for Kochman,” Pearce pointed out, and “Kochman did not disclose that Hough worked for her. … If, as Kochman alleges, Hough worked for her, then Kochman was allowed six minutes of speaking time, or twice what others were allowed.”

This is the binding development concept plan for Siesta Promenade approved by the county Planning Commission and the County Commission. Image courtesy Sarasota County

Pearce also noted that Kochman alleged that she needed more time for her expert planner to testify, but “she does not identify that planner by name anywhere in her brief …” She does reference “expert witness testimony” in the transcript, Pearce continued, and the pages cited include the comments by Brian Lichterman, who — Pearce wrote — “spent most of his time attacking the Critical Area Plan. … Lichterman did not request any additional time. However, the Board accepted his PowerPoint slides as part of the record. … If, as Kochman alleges, both Hough and Lichterman spoke for her,” Pearce added, “then Kochman was allowed a total of nine minutes.”

Further, “Kochman does not specify what information the experts would have presented as part of additional expert testimony on top of that presented to the Board,” Pearce wrote.

Pearce did refer, as well, to Kochman’s argument that a judicial precedent resulting from a Miami City Commission case meant the Sarasota County Commission should have allowed more time for speakers during the Siesta Promenade hearing. The circumstances of that case, he explained, were different from those related to the Siesta Promenade hearing. Even so, he continued, then-Sarasota County Commission chair Nancy Detert told the audience members that she had 90 cards from people signed up to speak on Dec. 12, 2018. If everyone had been given the traditional 5 minutes the board allows for comments during public hearings, Pearce continued, then the Siesta Promenade hearing would have included “seven-and-a-half hours of public testimony. … As a result, the Chair polled the audience to determine if three minutes per speaker would be acceptable, and the majority of the audience agreed.”

Pearce added that the commissioners did not limit the number of speakers. Altogether, he pointed out, more than 70 people testified during the hearing. “Based on the number of speakers,” he continued, “the Board’s decision to allow for three minutes per speaker does not constitute an abuse of its quasi-judicial authority, particularly given the fact that it did not restrict the submission of written material.”

Traffic and other issues

A graphic in a March 2018 Kimley-Horn and Associates traffic analysis shows the site where Siesta Promenade is proposed to be built and the adjacent road network. Image courtesy Sarasota County

Pearce also addressed Kochman’s allegation about the traffic signal planned at the intersection of Stickney Point Road and Avenue B and C. He wrote, “Kochman argues the Board failed to consider ‘the health, safety, and welfare impact of installing [that signal].’” Yet, Pearce continued, in a review of the materials from the hearing, the court will find that “the Board could, and did, consider the location of the intersection in relation to the project in deciding … whether the intersection would require a signal.” Maps and graphics contained in the staff report presented on Dec. 12, 2018 “are competent, substantial evidence,” Pearce added.

Citing from a 1957 Florida Supreme Court case, De Groot v. Sheffield, Pearce noted that that court defined “competent substantial evidence.” That decision said, “‘[I]n employing the adjective ‘competent’ to modify the word substantial, we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. We are of the view … that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.’”

He also referenced the traffic analysis that Kimley-Horn undertook at Benderson Development’s behest, including the resulting report on the firm’s studies for the Siesta Promenade proposal.

Benderson Development Co. has proposed a traffic signal be installed at the intersection of Stickney Point Road and Avenue B and C to help facilitate traffic flow if Siesta Promenade is built. Image courtesy Sarasota County

As for Kochman’s allegation that only the Florida Department of Transportation (FDOT) has the legal authority to approve the new traffic light, Pearce wrote that county staff acknowledged that the addition of that signal “is subject to Florida DOT approval.”

In fact, he added, one of the conditions the County Commission imposed on the rezoning of the Siesta Promenade site “specifies that construction cannot commence on the project unless the signalized intersection is complete.” Moreover, he pointed out, “It is not unusual to have a County approval on a project subject to the further approval of other state or federal agencies.” He cited a Florida statute to underscore his argument.

Additionally, Pearce pointed out, Kochman alleged that the County Commission “ignored ‘the uncontested testimony and evidence that installation of a NEW traffic signal light [his emphasis] on Stickney Point Road at Avenue B/C will have a severe impact on the primary access route to Siesta Key [his emphasis again], and this traffic light would cause terrible incremental problems for access to Siesta Key.’”

She cited testimony and commissioners’ comments to support her argument, Pearce continued.

However, he wrote, “A careful review of the cited pages of the transcript do not support Kochman’s argument.” Referring to testimony by Paula Wiggins, manager of the county’s Transportation Planning Division, Pearce added, “[N]owhere does Wiggins testify that the traffic signal would have a ‘severe impact’ or ‘cause terrible incremental problems for access to Siesta Key.’”

Pearce then referenced three more sections of the transcripts that included exchanges between Wiggins and commissioners. He noted that Commissioner Detert did discuss “her concerns about ‘putting in traffic lights’ that would ‘exacerbate the problem and back up traffic even more.’” However, Pearce pointed out, “The comments of an individual Board member, one of five, are not testimony or evidence.”

CAP and compatibility issues

A graphic shows how Benderson Development has planned the transition of building heights in Siesta Promenade. Image courtesy Sarasota County

Pearce also addressed Kochman’s contentions that the County Commission “did not follow the correct procedure in adopting the CAP boundary and its scope of work. He wrote, “The adoption of a critical area plan is a legislative act and not quasi-judicial,” citing a 1995 Florida Second District Court of Appeal decision. “Thus,” Pearce continued, “the proper remedy to challenge the adoption of the crucial area plan in [this] case would be through [a different type of court complaint].”

As for Kochman’s assertion that the “record lacks competent substantial evidence that the Siesta Promenade project was compatible with surrounding neighborhoods,” Pearce pointed out, “The intensity of use transitions from commercial closer to the intersection of U.S. 41 and Stickney Point Road to residential closer to the adjacent single-family residential areas.”

He added that the analysis in regard to compatibility also focused on buffering and setbacks.

The County Commission, he added, “was entitled to weigh all of the evidence in the quasi-judicial records and to make its own determination as to what measures would best address compatibility.”