City commissioners voted 4-1 in January not to accept settlement offer from EDM-Sarasota, with city attorney saying he expected city would prevail in litigation
In late January, Sarasota City Attorney Robert Fournier told the city commissioners that he felt the city would prevail in the appeal of a lawsuit over ownership of a 30-foot-wde parcel adjacent to the Northern Trust parking garage, alongside Paul Thorpe Jr. Park in downtown Sarasota.
As it turned out, Fournier was correct in his view of how the case would end.
In an Aug. 26 email to the commissioners, Fournier wrote, “Today we learned that the Second District Court of Appeal has entered an Order affirming the Summary Judgment in favor of the City without an opinion.” (“Summary judgment” is a ruling “entered by a court for one party and against another party without a full trial,” as Cornell University’s Legal Information Institute points out.)
Called a per curiam ruling, the order from the three judges who handled the appeal offered no details about their ruling. As attorneys have explained to The Sarasota News Leader, a per curiam order gives the appealing party — in this case, EDM-Sarasota LLC — no grounds for trying to persuade the Florida Supreme Court to hear the case.
Therefore, Fournier continued in his Aug. 26 email, the February 2021 finding of 12thJudicial Circuit Court Judge Andrea McHugh that the city owns the disputed parcel of land “will stand.”
The Second District Court of Appeal also entered an order denying EDM-Sarasota’s motion for attorneys’ fees related to the appeal, Fournier added in his email. That decision referenced the applicable Florida Statute in noting the court’s decision on that point.
“Great news!” Commissioner Jen Ahearn-Koch responded to Fournier the same day.
The News Leader found no other responses from board members in the city email folder, except automatic replies from Mayor Erik Arroyo and Vice Mayor Kyle Battie that directed the correspondent to contact their assistant for any further help.
In its Circuit Court case, EDM-Sarasota objected to the city’s 2016 conveyance of the land in question to State Street Partners LLC, Fournier had explained to the commissioners. The city reacquired the property two years later, Fournier has pointed out.
On Dec. 6, 2021, Fournier discussed the litigation with the City Commission, noting that McHugh had found that the city “holds clear title to the subject property …”
In a March 4, 2021 email to the commissioners, Fournier explained that her ruling “places the City in a good position regarding an appeal if one is filed.”
The settlement proposal from EDM-Sarasota included plans for a two-story structure that would have featured a food court with eight dining options and a triangular, upper-story bar next to Thorpe Park.
Members of the public voiced outrage at the prospect of the development’s encroachment into the park. Even though attorney William Merrill III of the Sarasota firm Icard Merrill, who was representing EDM-Sarasota, asserted that the proposal did not constitute encroachment, Fournier disputed that during the Jan. 18 City Commission meeting, calling Merrill’s remark “a disingenuous argument.”
The plans called for the food court structure to stand “in the area generally west and south of the Northern Trust Garage,” Merrill had written in a Nov. 16, 2021 email to Fournier.
(EDM-Sarasota owns the Northern Trust Plaza, which has the address of 1515 Ringling Blvd. county Property Appraiser Office records show.)
During the Jan. 18 meeting, Mary Fuerst, chair of the city’s Parks, Recreation and Environmental Protection Advisory Board (PREP), pointed out that the Thorpe Park swing set, which she noted is quite popular with children, would have to be removed for the food court to be constructed, along with a park trellis.
Residents also emphasized that the city had paid for improvements to the park before dedicating it to Paul Thorpe Jr. in 2017. City Manager Marlon Brown said the city spent $1.3 million on those upgrades.
City resident Barbara Campo was among the Jan. 18 speakers who said they expected EDM’s real goal was to secure ownership of the rest of the park in the future, so it could construct a 10-foot-tall condominium complex, as allowed by the Downtown Core zoning in that area of the city.
Commissioner Ahearn-Koch pointed out that Downtown Core allows 50 dwelling units per acre and “zero setbacks” from the street.
Jonathan Mitchell, the principal of EDM-Sarasota, maintained that he had no such plans in mind.
(Mitchell in years past wrote and co-wrote posts on a website called “Best SRQ” that were critical of city commissioners. This week, the News Leader could find no evidence that that website still exists.)
Ultimately, Mayor Arroyo was the only member of the commission who wanted to accept the settlement offer following the Jan. 18 discussion.