Court of Appeal rules for Sarasota County in Siesta Promenade case, but offers no written opinion

Pine Shores Estates resident who filed original suit in Circuit Court says she will keep close eye on construction of the project

This rendering shows one of the proposed residential structures for Siesta Promenade. Image courtesy Sarasota County

Florida’s Second District Court of Appeal has upheld a 12th Judicial Circuit Court judge’s ruling that the Sarasota County Commission did not violate any county regulations or procedures in approving the Siesta Promenade mixed-use project.

The unanimous per curiam decision was issued by the three appellate court judges who conducted June 25 oral arguments in the case.

As Cornell Law School’s Legal Information Institute explains it, “A per curiam decision is a court opinion issued in the name of the Court rather than specific judges. Most decisions on the merits by the courts take the form of one or more opinions written and signed by individual justices. Often, other judges/justices will join these opinions. Even when these signed opinions are unanimous, they are not per curiam, as the judges’/justices’ names still appear.”

Additionally, as legal scholars have told The Sarasota News Leader, with no written opinion, the person who filed the appeal has no means of seeking higher judicial review, because the judges have offered no grounds on which to pursue a further appeal.

The plaintiff in the case was Sura Kochman, a resident of Pine Shores Estates, which is the neighborhood immediately adjacent to the approximately 24-acre Siesta Promenade site at the intersection of U.S. 41 and Stickney Point Road. Kochman led a group called the Pine Shores Neighborhood Alliance. Not only did she represent residents of the community located just east of Siesta Key, but she also had numerous supporters throughout the county — many of whom filled the County Commission Chambers on Dec. 12, 2018, when the board members conducted the public hearing on Benderson Development’s petitions for the project.

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

As planned, Siesta Promenade would have 414 apartments/condominiums, a 130-room hotel standing about 80 feet tall, 133,000 square feet of retail space and 7,000 square feet of office space. Kochman and her allies made it clear during numerous public meetings that they were not opposed to a development on the site; instead, they contended that the plans were too intense for that specific location.

In January 2019, Kochman filed a Petition for Writ of Certiorari in the Circuit Court, which sought to overturn the County Commission’s decision to approve all of Benderson’s applications for Siesta Promenade in a solitary hearing.

In her Dec. 2, 2019 order, Circuit Judge Andrea McHugh wrote that she was unable to address some of the issues Kochman had raised, because they were of a legislative nature, not quasi-judicial. Certiorari petitions, McHugh pointed out, pertain only to quasi-judicial proceedings.

A graphic shows how Benderson Development has planned the transition of building height in Siesta Promenade, which is planned next to Pine Shores Estates. Image courtesy Sarasota County

County attorneys and the commissioners have explained that quasi-judicial proceedings are so called because they involve the consideration of evidence and testimony — similar to the process of a court proceeding — to determine whether requests for specific actions would comply with county policies.

In contrast, a legislative hearing establishes a policy for future application. For example, the adoption of an ordinance is a legislative matter, the Community Planning and Zoning page of the National Cooperative Extension of the U.S. Department of Agriculture explains.

Referring to the Second District Court of Appeal decision, Kochman wrote in a July 1 statement, “This type of ruling is frustrating.”

She added that she had communicated via emails — and in a post on a Facebook page she and supporters had established — her thanks to “all of those who contributed monetarily, those who showed up to the many hearings and neighborhood workshops, who wrote letters/emails to both the Planning and County Commissioners and who signed the petition [opposing the project as planned]. It was a good 6 year fight and we gave it our all, with no regrets.”

She concluded the statement with the following: “Here is hoping that the County will be diligent in monitoring Benderson throughout the development process.  I will certainly be keeping an eye on things.”

Sura Kochman (standing) talks with Siesta Key Association President Catherine Luckner during a public meeting in December 2019. Rachel Hackney photo

Although it made multiple attempts to seek comments from Todd Mathes, director of development for Benderson Development, or another representative of the company, The Sarasota News Leader received no response by its deadline for this issue.

Sarasota County Attorney Frederick “Rick” Elbrecht announced the Appeal Court decision as the county commissioners were conducting a budget workshop on July 1.

In a statement county staff provided to the News Leader, Elbrecht said, “We are very pleased with this decision that confirms that Sarasota County acted properly throughout the approval process. Assistant County Attorney David Pearce did an excellent job representing the county during this litigation.”

Making an effort to make the points

During the June 25 oral arguments — which lasted just under 39 minutes — Ralf Brookes of Cape Coral, Kochman’s attorney, explained that county staff and the commission did not follow the county’s regulations for approval of a Critical Area Plan (CAP) for Siesta Promenade. For example, he pointed out, the boundary of the CAP should have been established well before the final hearing, when the County Commission considered multiple facets of the mixed-use development.

“Only by first approving the CAP boundary impact area can we logically develop a scope of work for the studies on the impacts of the development,” Brookes maintained. In this case, he added, the CAP boundary “was not approved until the very end of the process … [in] one massive, consolidated public hearing …”

If staff and the board had followed the procedure outlined in the CAP regulations, Brookes said, than a separate public hearing would have been held — as required by those regulations — to consider the effects on all the areas surrounding the site. Among those areas, he said would have been Siesta Key, for which Stickney Point Road is the south access.

Moreover, Brookes told the judges, Circuit Judge McHugh should have considered the application of the CAP process to the Siesta Promenade initiative to be a quasi-judicial matter, not a legislative matter.

Referring to the project site, Brookes stressed, “It’s a critical area in Sarasota and should have been treated that way.”

Three judges of the Second District Court of Appeal listen to oral arguments on June 25, with attorneys Steven Brannock (bottom left), Ralf Brookes (center) and Assistant County Attorney David Pearce. News Leader image

Further, Brookes told the judges, another claim in Kochman’s complaint dealt with the county’s requirement for an applicant to apply for Special Exceptions in regard to increased height and density in a project. However, Siesta 41 Associates LLC — the Benderson affiliate named as the actual developer of Siesta Promenade — did not seek those Special Exceptions, even though “these are very clear procedural requirements that are built into the [County] Code,” Brooks contended.

McHugh also ruled that that issue was not appropriate for consideration under Certiorari guidelines.

Appeal Court Judge Matthew C. Lucas indicated that he concurred with McHugh’s finding on that point.

“Why isn’t that primarily brought as a declaratory action?” Lucas asked. He was referring to the type of complaint involving legislative actions of local government bodies.

Certiorari proceedings, Brooks replied, can deal with claims involving essential requirements of law.

They can, Appeal Court Judge Robert J. Morris Jr., responded, “but isn’t it an extremely uphill climb? … You’ve also got to demonstrate that [McHugh’s] order violated a clear and established principle of law, resulting in a miscarriage of justice.”

In the 2003 Florida Supreme Court opinion in Allstate Insurance Co. v. Kaklamanos, Brookes said, the court held that the Second District Court of Appeal “had been perhaps too narrow in its interpretation of what is clearly established law …”

In its decision, the Supreme Court wrote that the cases at the heart of that appeal “illustrate that ‘clearly established law’ can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law. Thus, in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.”

Sura Kochman presented a copy of this document to the county commissioners during a February 2017 discussion about Siesta Promenade to make her point that the commission needed to follow the CAP process outlined in county policy. Image courtesy Sarasota County

Additionally, Brookes continued, in its 1993 decision in Board of County Commissioners of Brevard County v. Snyder, the Florida Supreme Court wrote that quasi-judicial actions affect a specific site,” involving one developer, which is the situation with the Siesta Promenade case.

A Stetson Law Review article about that case says, “Perhaps the most spectacular aspect of Snyder … was the Florida Supreme Court’s announcement that proceedings before municipal and county boards on site-specific rezonings are quasi-judicial. Rezonings are site-specific if the impact is restricted to a limited number of identifiable parties and interests, decision is dependent upon facts determined from alternatives presented at a hearing, and the decision amounts to policy application, rather than the establishment of policy in the first instance.”

“Help me out here,” Judge Lucas told Brookes, “because it does seem like this CAP process kind of has factors of both, legislative and [quasi-] judicial.”

“There are many different types of CAPS under the Sarasota County CAP enabling ordinance,” Brookes explained — corridor plans, sector plans, town and village plans, among them. CAPs often entail many different landowners, he added. The Siesta Promenade CAP, however, involves “one landowner on one parcel, for one particular development.”

A graphic shows road segments and intersections targeted for traffic analyses as part of the CAP scope of work; the plans won approval from the County Commission in January 2017. Image courtesy Sarasota County

Brookes also argued that Circuit Judge McHugh mistakenly thought that the Special Exceptions related to height, density and inclusion of multi-family housing in the Siesta Promenade plans were all covered by the CAP process.

Referring to the case files, Appeal Court Judge Daniel H. Sleet noted that, in 2005, Siesta 41 Associates bought the property where Siesta Promenade is planned. Based on the county’s Future Land Use Maps, he added, “This property was automatically eligible for upzoning.”

“I will commend your client and the [Pine Shores] residents on how they handled this,” Sleet continued. “They held everybody accountable. They were polite; they were professional. Sometimes, in other cases, it goes south.”

Still, Sleet said, from his reading of the 4,000 to 5,000 pages in the case file, it appeared that “the CAP is a planning tool,” whose adoption is not a guarantee for approval of the requested rezoning or redevelopment. “That seems to be a fluid type of tool that depends on the unique nature of each piece of [property]. … This doesn’t appear to be a fixed regulation that’s going to apply to every piece of property.”

Moreover, Sleet pointed out, the County Commission continued an Oct. 16, 2016 public hearing on the Siesta Promenade CAP boundary, “based on the public’s comments, rather than the county not having their balls in order … It appears to me that this particular development was put under some screws to get the things right.”

The other side of the issue

During their arguments, Steven L. Brannock of the Tampa firm Brannock Humphries & Berman — who was representing Siesta 41 Associates — and Assistant Sarasota County Attorney David Pearce sought to refute Brookes’ claims on behalf of Kochman.

As a couple of the Appeal Court judges had mentioned, Brannock noted, “You have to show a miscarriage of justice” to overturn the Circuit Court decision. “There was no showing in this case that there was any harm … from alleged technical missteps.”

People stand at the rear of the County Commission Chambers on Dec. 12, 2018, trying to spot places to sit for the Siesta Promenade public hearing. File photo

For one thing, Brannock continued, Kochman did not raise any points about the Special Exceptions regarding height, density and multi-family residential housing during the Dec. 12, 2018 public hearing on the Siesta Promenade application. Therefore, Brannock continued, it would be inappropriate for the Court of Appeal to consider that issue.

Further, he maintained, “The CAP process is legislative.” He cited a 1995 Second District Court of Appeal decision in Board of County Commissioners of Sarasota County v. Karp. In regard to the Siesta Promenade hearing, he continued, “This was quintessentially policy making by the board.”

“There is at least an intuitive appeal,” Judge Lucas responded, “when you’re talking about property rights of one person or one entity …”
“We’re talking about one quadrant,” Brannock said, referring to the Siesta Promenade site at the intersection of U.S. 41 and Stickney Point Road. “It could just have easily been owned by 80 people as opposed to one person.”

The CAP process was developed, he added, “for a particularly important piece of property.” It enables the commission to say, “We’re going to decide what sort of development is appropriate [for this site]. … This is exactly what legislative action is.”

Lucas pointed out that the site is private property “owned by an individual that has rights … The default normally is private property owners can do what they want to their land.”

In the summer of 2019, fencing went up around the Siesta Promenade site, as Benderson Development planned to begin clearing it. This is a view across the street from the Avenue A intersection with Stickney Point Road. File photo

The CAP process, Brannock responded, allowed for “far more scrutiny for this project than just a rezone would. … You end up with a far more appropriate development that balances the rights of the landowners that are close by, the rights of the developer, and you end up with something that you think Sarasota County’s going to be proud of going forward.”

Brannock added, “What did the county not study that it was supposed to study?” Through the CAP process, he said, “it looked at everything.”

“In the CAP ordinance itself,” Assistant County Attorney Pearce explained, “there is [a flowchart] that describes all the different things that the [County Commission] looked at [in regard to the impact of the development on the U.S. 41/Stickney Point Road intersection].”
The board’s decision to approve the project, Pearce added, “was the formulation of policy.” The commission, he continued, set guidelines for buffers, for example, between the site and the neighboring residential area.

“There was no need to go through a Special Exception process,” he pointed out, for the separate facets of the project entailing additional density, height and multi-family housing.

Pearce cited both a county Future Land Use Policy — 1.2.15 — and Section 6.10.1 of the county’s zoning regulations to emphasize his points.

A graphic in Benderson Development materials submitted to the county in September 2017 shows how Siesta Promenade buildings would be separated by a street, landscaping and a pedestrian walkway. Image courtesy Sarasota County

His understanding of the CAP process, Judge Sleet told Pearce, was that “the county and the staff must have some discretion to adjust a plan and formulate a plan and modify it for a unique piece of property.” The Siesta Promenade proposal, he continued, ended up being different than the original plan put forth by Siesta 41 Associates, as a result of the hearing in December 2018.

“It was, your honor,” Pearce replied.

“It seems to me, if you’ve got a tool like [the CAP], county agencies should have a level of discretion when implementing it or using it,” Sleet told him.

“The board has that discretion,” Pearce responded. “Even the CAP procedural ordinance recognizes a certain amount of discretion,” he added, in regard to how the commission “executes the legislative process.”