FDOT’s filing of ‘road swap’ documents leads to Second District Court of Appeal giving Siesta Promenade attorney more time to file answer in litigation over stoplight planned at Avenue B and C

South Siesta resident Wallace has been fighting traffic signal for years as means of trying to prevent construction of Siesta Promenade

Avenue B and C is shown in proximity to the intersection of Stickney Point Road and U.S. 41. Image from Google Maps

Florida’s Second District Court of Appeal has given a Benderson Development Co. affiliate until May 27 to file its answer in the litigation over the Florida Department of Transportation’s plans to allow the erection of a traffic signal at the Stickney Point Road intersection of Avenue B and C.

The primary reason, as indicated by the case docket, is the fact that the Florida Department of Transportation (FDOT) filed a document in mid-March regarding the “road swap” it concluded with Sarasota County in early 2020. In exchange for FDOT’s assuming authority over North River Road, the county has taken control of the roads on Siesta Key, plus Stickney Point Road west of U.S. 41.

In an April 13 motion unopposed by the other parties in the litigation, the lead attorney for Siesta 41 Associates LLP — the formal owner of the approximately 25-acre Siesta Promenade site on Stickney Point Road — pointed out that the court previously had given her until April 16 to file the answer. (The docket said the date was April 15.)

The court already had directed the attorney for FDOT to serve the department’s answer brief 45 days from April 12, to address “the issue raised” by the road swap documents, the Siesta 41 attorney pointed out.

Additionally, the court gave south Siesta resident James P. Wallace III, who has been fighting the stoplight plans, until April 22 to address the FDOT notice, the docket says. “Otherwise,” the docket notes, “this matter shall proceed on the initial brief filed December 15, 2021.”

The Sarasota News Leader has seen nothing on the docket to indicate that Wallace’s attorney, David Smolker, of the Smolker Matthews firm in Tampa, filed another brief.

Susan Stephens. Photo from the Stearns Weaver Miller website

The lead attorney for Siesta 41 is Susan L. Stephens of Stearns Weaver Miller Weissler Alhadeff & Sitterson, which is in Tallahassee.

(On the Stearns Weaver Miller website, Stephens’ biography says she has more than 25 years of experience “practicing environmental & natural resource and administrative law, including rulemaking practice and procedure and administrative litigation. Her practice focuses on balancing property and resource use with competing private, governmental and citizen interests.”

Stephens already had requested earlier extensions of time to file the company’s answer to Wallace’s initial brief with the court. The docket shows the first came on Dec. 28, 2021. The court granted that motion, allowing a delay to Feb. 14.

Then a second motion, filed on Feb. 9, won court approval for an extension to March 16. Next, on March 10, Stephens won court approval yet again, to file the answer brief on April 15. The docket includes the notation “Last request” with that entry.

In the meantime, Sarasota County’s April 25 Construction — One Week Look Ahead report included this information about FDOT work in the vicinity of the Siesta Promenade site: [State Road] 72 Clark Road at Stickney Point from west of US 41 to Glencoe Avenue: Permit project: Crews will be installing a concrete median and milling and resurfacing existing pavement for a traffic signal. Motorists can expect nighttime flagging operations with intermittent lane closures from Monday, April 25, through the end of August, between 8 p.m. to 5 a.m. Please use caution and watch for lane shifts.”

That information has remained in the succeeding Construction One Week Look Ahead reports that the county has issued. The Capital Projects Department is responsible for those advisories.

A fight against Siesta Promenade

This Binding Development Concept Plan for Siesta Promenade shows the layout of the buildings next to Pine Shores Estates, which borders the site on the west. Image courtesy Sarasota County

Since the majority of the Sarasota County commissioners voted on Dec. 12, 2018 to allow the mixed-use Siesta Promenade project to be constructed in the northwest quadrant of U.S. 41 and Stickney Point Road, Wallace of Siesta Key has been trying to prevent the development from becoming a reality.

The plans call for 414 apartments/condominiums, a 130-room hotel, 133,000 square feet of retail space and 7,000 square feet of office space.

Wallace has complained that the County Commission did not direct county Planning Division or Transportation Division staff members to study the potential impacts that Siesta Promenade’s traffic would have on Siesta Key residents and visitors, even though Stickney Point Road serves as the southern access to the barrier island.

For years, Siesta residents have pointed to the stop-and-go traffic on Stickney Point Road during the height of tourist season, especially. Wallace and other homeowners on the southern end of the island have talked of being forced to stay off the roads during most of the day, regardless of whether they might have to conduct business — or go to doctors’ appointments — on the mainland.

Traffic is backed up at the intersection of U.S. 41 and Stickney Point Road on Dec. 30, 2020. Contributed photo

They also stress that regular openings of the drawbridge on Stickney Point Road exacerbate the traffic situation.

One of the stipulations the County Commission agreed to in approving the Siesta Promenade plans was the installation of the traffic signal at Avenue B and C before construction of Siesta Promenade could get underway. Therefore, Wallace began waging a figurative war with FDOT staff, using legal recourse to try to force the department to withdraw its approval of the stoplight.

The state department approved the permits for the traffic signal in December 2020, an FDOT spokesman told the News Leader.

Wallace initially challenged FDOT’s decision to grant the permits by filing for a hearing with the Florida Division of Administrative Hearings. After he lost in that attempt, he filed his appeal with the Second District Court of Appeal.

FDOT has insisted that, under the provisions of state law, Wallace had no standing to contest the installation of the stoplight at Avenue B and C.

Cornell Law School’s Legal Information Institute explains that the issue of standing typically focuses on whether a plaintiff in a lawsuit has sustained or will sustain direct injury or harm “and that this harm is redressable.”

James Wallace addresses Siesta Key Association members in January 2019. File image

Wallace’s attorney, Smolker, of Tampa, wrote in his Dec. 15, 2021 brief in the appeals court case that “a party whose substantial interest is adversely impacted by final state agency action is entitled to a formal administrative hearing challenging such action. This right reflects a clear Legislative intent to expand, rather than restrict public participation in the decision-making processes of state agencies such as FDOT.”

Yet, Smolker pointed out in the brief, FDOT has denied Wallace that right. FDOT’s decision, he continued, ignores legal precedent “holding that substantially affected members of the public have standing … to challenge [both] FDOT’s discretionary decisions relating to design and construction of improvements to the State Highway System and … permitting agency decisions relating to impacts to facilities and resources” used by members of the public who may be “adversely impacted by the agency’s decision.”

FDOT’s Notice of Transfer of Right of Way

In February 2020, FDOT and Sarasota County formally agreed to the road swap, which is detailed in FDOT’s March 15 filing of Notice of Right of Way Transfer, as noted on the Second District Court of Appeal docket.

The goal of county leaders was to achieve improvements to River Road in South County, which they had sought for decades. Even though River Road is a hurricane evacuation route for South County residents, as well as those in northern Charlotte County, then-Sarasota county Commissioner Charles Hines stressed that FDOT officials had told him that as long as River Road was under county authority, the department could not make the improvements a priority.

In early September 2017, then-County Administrator Tom Harmer announced during a County Commission meeting that staff was working with FDOT officials on the potential of the road transfer as a means of resolving the River Road situation.

This map shows the portions of Siesta roads that became responsibility of Sarasota County. Image courtesy Sarasota County

The first among the documents that FDOT filed with the Second District Court of Appeal is dated Feb. 11, 2019. It is a memo explaining that the District One FDOT office was requesting approval of the following “Road Jurisdiction Transfers.”

North River Road between U.S. 41 and Interstate 75 would become part of the State Highway System, the memo said. In return, Sarasota County would take over State Road 758 (Siesta Drive and Midnight Pass Road) from Stickney Point Road to U.S. 41, a distance of 5.761 miles; plus Stickney Point Road from Midnight Pass Road to U.S. 41, a stretch of 0.961 miles.

The memo pointed out, “This transfer is mutually agreed upon, between Sarasota County and [FDOT]. Sarasota County approved the roadway transfer through [a] County Resolution … on October 8th, 2019.”

A Jan. 28, 2020 memo in the materials filed with the Second District Court of Appeal made it clear that FDOT would maintain authority over three bridges on Siesta.

Then-FDOT Secretary Kevin J. Thibault signed the road transfer documents on Feb. 18, 2020, as shown in the materials submitted to the court.

The filing entails 99 pages; most of them are maps of road segments and graphics showing specific engineering details of the affected roads.

The section of Stickney Point Road west of U.S. 41 is shown in this graphic in the documents filed on March 15 with the Second District Court of Appeal. Many of the documents in the packet were crooked, indicating they had been copied from originals for the filing of the materials. Image courtesy FDOT

Even though the formal documents were signed more than two years ago, Spencer Anderson, director of the county’s Public Works Department emphasized at various times to the County Commission and members of the public that it would take some time for the road swap to be concluded.

During a Sept. 22, 2020 discussion with the County Commission, Anderson explained that the road swap would be finalized after FDOT formally filed all of the right of way paperwork linked to the changes in jurisdiction. He expected that to occur before the end of 2020, he added.

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