If Second District Court of Appeal does rule in James Wallace’s favor, attorneys contend, then future legal proceedings should involve Sarasota County as a result of ‘road swap’
In a late-May brief filed with Florida’s Second District Court of Appeal, the assistant general counsel for the Florida Department of Transportation says a south Siesta Key resident who has challenged the department’s decision to allow construction of a traffic signal at the Avenue B and C intersection on Stickney Point Road has “no legal right to free-flowing traffic.”
Yet, that resident, James P. Wallace III, claims that the new stoplight “ ‘will make it more difficult, and time consuming, to access his home’” and that it “ ‘will cause [him] to become stuck in additional traffic congestion,’” Florida Department of Transportation (FDOT) attorney Marc Peoples writes.
Without that stoplight in place, Benderson Development Co. cannot proceed with construction of its Siesta Promenade mixed-use complex on approximately 24 acres in the northwest quadrant of the intersection of Stickney Point Road and U.S. 41. The signal’s erection was a stipulation that the Sarasota County Commission agreed to when it voted on Dec. 12, 2018 to approve the Binding Development Concept Plan for Siesta Promenade.
In a 33-page answer filed on May 26, at the direction of the Second District Court of Appeal, Peoples explains state judicial precedent regarding the legal issue of standing: “ ‘[B]efore one can be considered to have a substantial interest in the outcome of [a] proceeding he must show 1) that he will suffer injury … of sufficient immediacy to entitle him to a [hearing], and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect.’” Peoples was citing the 1981 Second District Court of Appeal case Agrico Chem. Co. v. Dep’t of Envt’l Reg. In that ruling, he adds, the court wrote, “The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.”
Peoples contends that the stoplight at Avenue B and C would not affect Wallace “differently than anyone else on the road. [Wallace’s] general concerns are not a special injury that confers standing.”
Moreover, Peoples writes, “An injury in fact must be based on a legal entitlement, not a mere unilateral expectation. Wallace is not legally entitled to favorable traffic conditions. Nor is he legally entitled to prevent the installation of a traffic signal.” Because Wallace has not sought to prove a legal entitlement, Peoples continues, “[H]e does not allege an injury in fact.”
Additionally, the attorney for the Benderson affiliate that is the official owner of the Siesta Promenade site — Siesta 41 Associates LLP — has asserted that Wallace’s “alleged injury is … shared by every other driver on [the affected] segment of the road, regardless of destination.” Susan L. Stephens of the Tallahassee firm Stearns Weaver adds that Wallace “himself has stated that everyone in the county would be affected [by the stoplight],” not just persons on Siesta Key.
Further, Peoples and Stephens contend that if the Fourth District Court of Appeal should rule in Wallace’s favor, then Wallace’s opposition to the new traffic signal would become a legal matter involving Sarasota County. Both attorneys point to the “road swap” that the County Commission and FDOT approved in 2020, which gave the county jurisdiction over Stickney Point Road west of the U.S. 41 intersection, along with other road segments on Siesta Key and portions of routes leading to the island.
The background and state law
Peoples explains in his brief that Siesta 41 proposed a modification to “the existing intersection of Stickney Point Road and local Avenue B & C to include a north leg …” FDOT was willing “to approve Siesta 41’s application for a driveway connection permit consistent with the proposed modification of the intersection,” Peoples adds. “Although the ostensible subject of Wallace’s challenge [of the FDOT permit] was the driveway connection,” Peoples writes, Wallace “focused on a new traffic signal.”
Moreover, Peoples points out, “The State Highway System Access Management Act requires [FDOT] to grant a connection permit unless the connection would jeopardize safety or operational characteristics.” He adds that state law says FDOT “may, but is not required to,” consider the current state and [forecast] effect of the connection” on the number and severity of accidents, operational speed, location, operational characteristics, and level of service. The last phrase refers to how drivers perceive traffic to flow on a given road segment. Level of Service A denotes the least congestion.
Further, Peoples notes, “The authority to place and maintain traffic signals on state roads ‘is solely within the jurisdiction and discretion of the Department of Transportation,’” quoting form a 1983 Florida Supreme Court case, Harrison v. Escambia Cnty.
Moreover, Peoples contends, because of that authority, “ ‘[a] person does not have the right to require … the state to maintain any particular type of traffic light at a given time or place.’” He was quoting a 1978 Florida First District Court of Appeal case, Ferri v. City of Gainesville. “It follows,” he writes, “that a person does not have the right to prevent the state from installing or maintaining a particular traffic light at a given time or place.”
Additionally, he points out that, for more than 50 years, “Florida’s courts have declined to involve themselves in these kinds of planning and technical judgments.”
Wallace has maintained that Sarasota County staff should have included Siesta Key in studies regarding the effects that Siesta Promenade would have on traffic flow in the area surrounding the development. Along with 414 apartments/condominiums, the complex would include a 130-room hotel, 133,000 square feet of retail space, and 7,000 square feet of office space.
Stickney Point Road is the southern access to Siesta Key, Wallace has stressed. In that capacity, it also is a hurricane evacuation route.
Moreover, Wallace has emphasized, drivers must contend with a drawbridge that backs up traffic, especially during the height of tourist season. Wallace has complained during Siesta Key Association (SKA) meetings that tourism has been at such a high level on the Key in recent seasons that it is almost impossible for people who live on the southern stretch of Midnight Pass Road to get off the island during most of the day, even in the event of an emergency.
Peoples also writes in his brief that Wallace has noted that FDOT staff has expressed safety concerns about the intersection of U.S. 41 and Stickney Point Road, as made clear in a 2016 letter to county Transportation Planning staff. However, Peoples points out, FDOT decided to install the traffic signal at Avenue B and C “because of, not despite, those concerns. In a letter to Wallace’s attorney,” Peoples continues, FDOT staff “explained that it considered traffic impact, safety, connectivity, adjacent uses, multimodal needs (pedestrians, bicyclists, etc.), and community vision in ultimately determining a traffic signal was warranted.”
Peoples further notes that Wallace lives almost 4 miles from the intersection.
Additionally, Peoples explains that FDOT referred Wallace’s challenge of its permit to the Florida Division of Administrative Hearings (DOAH), for its determination of whether Wallace had standing to even make such a challenge. Ultimately, Peoples points out, the administrative law judge who handled the case recommended that FDOT dismiss Wallace’s challenge for lack of standing. The administrative law judge’s order found that “being ‘stuck in additional traffic’” was not the type of injury that the state law governing access management was designed to address.
Finally, Peoples argues that because the “relevant right of way has been transferred from [FDOT] to Sarasota County,” if the Second District Court of Appeal finds that Wallace has standing, the court should make it clear that Siesta 41 can pursue a challenge before Sarasota County.
In March, as The Sarasota News Leader reported, FDOT filed documents with the Second District Court of Appeal that documented the “road swap.” FDOT accepted jurisdiction over River Road from U.S. 41 to Interstate 75 as part of that process.
County leaders had tried for decades to persuade state leaders of the necessity of improving River Road, as it is a primary South County hurricane evacuation route, and thousands of homes are being built in the vicinity of that corridor. FDOT leaders had maintained that as long as it was a county road, they would be unable to make the needed improvements a priority.
Siesta 41’s arguments
In her May 27 answer to Wallace’s appeal over the stoplight, on behalf of Siesta 41, attorney Stephens puts part of her focus on the road transfer.
She points out that FDOT and Sarasota County entered into the roadway transfer agreement in February 2020. However, the actual change of jurisdiction did not occur until Feb. 23, 2021, she notes.
Because Siesta 41 submitted its application for the Siesta Promenade driveway connection permit prior to that, “FDOT continued to process the … application.”
Stephens adds, “FDOT also determined the current three-legged unsignalized intersection [at Avenue B and C] should be made a four-way signalized intersection.”
“Dr. Wallace,” she continues, “improperly attempted to use the access permit process to revisit local determinations on traffic impacts and challenge [the stoplight plans].”
She emphasized that Wallace “lives nearly four miles from this new signalized intersection and he admits everyone on Siesta Key will be similarly affected [by the stoplight].”
Making some of the same arguments that FDOT attorney Peoples included in his brief, Stephens notes of Wallace, “In essence, his commute would be less convenient. Specifically, he stated that he ‘will have to go through the proposed new traffic signalized intersection to access … mainland services,’” such as routine medical care.
Moreover, she writes that “it is clear” that Wallace’s opposition to the stoplight “relates to the increased traffic congestion as a result of the County’s approval of [Siesta Promenade] and/or the delay caused by inserting a traffic light in the intersection, as opposed to the [development’s] driveway connection itself.”
She also references the same test for standing that Peoples cited — the 1981 ruling in Agrico Chemical Co. v. Dep’t of Enviro. Regulation.
Wallace’s allegations fail the “prongs of the Agrico test,” she points out.
Further, “The statement that additional traffic and/or a traffic signal will make it ‘more difficult and time consuming’ to access his home or the mainland to go about unspecified tasks are vague, speculative, and do not rise to the level of ‘substantial,’” Stephens contends, referencing a 2013 Florida First District Court of Appeal ruling in Off. Of Ins. Regul. & Fin. Servs. Comm’n v. Secure Enterprises, LLC.
Wallace’s arguments, she continues, also are analogous to those of an inmate in a state correctional institution in a 1978 Florida First District Court of Appeal case, Fla. Dep’t. of Offender Rehab. v. Jerry. “[Leroy Jerry] argued that potential actions he might take in the future gave him standing to challenge new [state rules regarding forfeiture of an opportunity to earn a reduction in his overall sentence].”
Stephens points out, “Dr. Wallace’s general allegation that it will be ‘more difficult’ to leave Siesta Key ‘to access medical care, goods and services on the mainland’ at most amounts to a vague suggestion that at some point in the future, he might be late to or miss a doctor’s appointment, the sort of vague, speculative allegation that cannot support standing.” In that instance, she cites yet another judicial precedent, Village Park Mobile Home Ass’n v. State Dep’t of Bus. Regul. That is a Florida First District Court of Appeal decision dating to 1987.
Wallace’s “argument that living on a barrier island somehow elevates the inconvenience of waiting in traffic to a ‘substantial’ and ‘particularized’ injury … must fail,” Stephens argues.