Wallace focused on preventing construction of Siesta Promenade
At 10:30 a.m. on Monday, Jan. 6, 2025 12th Judicial Circuit Court Judge Stephen M. Walker has scheduled a 30-minute hearing on Sarasota County’s motion to dismiss a lawsuit that south Siesta Key resident James P. Wallace III filed in April, in yet another effort to try to prevent the construction of the mixed-use Siesta Promenade development.
The hearing will be conducted via Zoom, as shown in the official notice.
In late August, Deputy County Attorney David Pearce filed the Motion to DismissWallace’s complaint.
As The Sarasota News Leader reported in April, Wallace maintains in his complaint “that the new traffic signal, if made operative, would endanger and over time result in the loss of many human lives …”
Formally, he has asked Judge Walker to do the following:
- Declare that operation of the traffic signal would create “a dangerous condition and is unauthorized …”
- Prevent county staff, including the Transportation Division personnel, from turning on and operating the traffic signal at Avenue B and C on Stickney Point Road, “which is the most critical access road to Siesta Key providing emergency medical vehicle ingress and egress as well as the Key’s most important hurricane evacuation route to the mainland.”
- Award court costs to him, as provided for through Section 86.081 of the Florida Statutes.
In December 2018, the majority of the County Commission approved the construction of Siesta Promenade in the northwest quadrant of the intersection of U.S. 41 and Stickney Point Road. One stipulation that the board also approved was that the Avenue B and C traffic signal had to be operational before Siesta Promenade opened.
Benderson Development Co. of University Park, which is the developer, has taken a series of steps — including construction of other changes on Stickney Point Road that the commission stipulated — to clear the way for work on the project to begin. As approved, Siesta Promenade would have 414 condominiums/apartments, a 130-room hotel, 133,000 square feet of commercial space and 7,000 square feet of office space.
In an April 20 email to the News Leader, Wallace pointed out that if he prevails in this lawsuit, the changes that Benderson already has made on Stickney Point Road will have to be removed, so the roadway can return to its previous appearance.
Since early October, Benderson has been allowing storm debris contractors to use the site as a transfer station for materials resulting from the devastation that Hurricanes Helene and Milton wreaked on Siesta Key, especially.
Earlier attempts to prevent use of light have failed
In his Motion to Dismiss, Deputy County Attorney Pearce noted that Wallace previously pursued litigation over the planned stoplight, as the News Leader also has reported.
In 2019, Sura Kochman, a resident of the Pine Shores Estates community adjacent to the Siesta Promenade site, challenged the County Commission’s rezoning of the property for the development. In that case, Pearce continued, Kochman argued that the board members “failed to consider the health, safety, and welfare impacts of installing a new traffic light, and the County lacked the authority to condition approval of the rezone petition on the installation of the traffic light …”
In ruling for the county on that complaint, Pearce pointed out, Circuit Judge Andrea McHugh found that the record of the hearing was “contrary to [Kochman’s] claim.”
McHugh added in her ruling, “County staff submitted maps and graphic depictions to the Board, as well as testifying before the Board, all of which may be considered competent, substantial evidence …” The last part of that statement references the fact that the Dec. 12, 2018 hearing on the Siesta Promenade application was considered a “quasi-judicial proceeding.” As with a court hearing, the commissioners have to consider testimony and facts presented during a quasi-judicial hearing in making their decision.
Further, McHugh wrote, “A Transportation Impact Area Analysis, which included a study of turning movement counts on an ‘in-season’ weekend, was submitted, by which County Staff determined that the traffic signal was warranted. This constitutes competent, substantial evidence in support of the Board’s decision.”
Additionally, Pearce noted in his Aug. 28 motion that Wallace also had filed a challenge with the Florida Division of Administrative Hearings (DOAH) over the decision of the Florida Department of Transportation to issue a driveway connection to the Kimley-Horn consulting firm, which was acting on behalf of Benderson Development, in regard to the installation of the Avenue B and C stoplight. Wallace lost that challenge, as well.
“Florida courts may take judicial notice of the results of prior administrative proceedings,” Pearce wrote in his Motion to Dismiss the Wallace case. “[T]herefore the County respectfully requests that the [Circuit] Court take such notice of the ‘Order Closing File and Relinquishing Jurisdiction’ from the Division of Administrative Hearings and the ‘Final Order’ from the Department of Transportation.”
In regard to that contention, Pearce cited the 2005 Florida Fourth District Court of Appeal decision in Wencel v. State, which said, “A court may take judicial notice of the … [o]fficial actions of the legislative, executive, and judicial departments of the United States and of any state, territory, or jurisdiction of the United States.”
Pearce added, “Thus, Wallace has already lost a case involving FDOT’s authorization to install the traffic signal. The traffic signal is not yet operational, because the traffic at that intersection has not yet reached the volume requiring it to be turned on. Arguably, there is no point in installing a traffic light if not for the purpose of eventually turning it on. Thus, this lawsuit seeks to create a cause of action previously unrecognized by a Florida court.”
Other facts for consideration
Wallace also “lacks standing to seek relief from this Court,” Pearce wrote, referring to the qualifications of a person to file a complaint in a specific situation. “Section 316.0745(3), Florida Statutes, requires all traffic signals or devices installed by a public body, such as a county, to conform with the Department of Transportation’s regulations,” Pearce continued, citing two different judicial precedents, including the 1958 Florida Supreme Court order in Boucher v. Novotny.
The Boucher decision, Pearce noted, made it clear that the “ ‘special damages rule’ requires a plaintiff to show a special injury which is peculiar to plaintiff and differing in kind rather than in degree from the damages suffered by the public as a whole.”
Pearce further explained that ruling, again referencing Boucher: “The plaintiff’s rights must have been injured, and his property must have been materially damaged and depreciated or rendered less desirable and greatly depreciated in value and usefulness; or he must have suffered a special and private wrong. … It is well settled that in cases where individuals have sought to enjoin obstructions in public highways [they] should distinctly allege facts showing the peculiar and special injury.”
Quoting from Wallace’s complaint, Pearce added, “Wallace claims the traffic light would ‘create a dangerous condition by placing human lives on the Barrier Island at significant further avoidable risk involving emergency medical vehicles and hurricane evacuations.’ … Wallace also contends that he ‘owns property and resides on Siesta Key.’ … He alleges he relies on Stickney Point Road to access mainland Sarasota, and that making the traffic signal [operational] would adversely affect his, and [others’], ability to safely enter and leave Siesta Key. … These allegations in the complaint do not articulate a special injury. Rather, it is an injury he shares with all other persons who use the roadway.”
Yet, in a Sept. 23 court document filed on behalf of Wallace, Wallace’s attorney, Ralf Brookes of Cape Coral, contended, “[T]his case is of great public interest and importance concerning issues of public safety on Siesta Key’s evacuation and ingress and egress to the barrier island in medical emergencies …”
Moreover, Pearce wrote in his motion, “The County anticipates that Wallace will insist that his interest is distinct from the general public by alleging that the entirety of the general public does not live on Siesta Key. Accordingly, the County respectfully requests that the Court take judicial notice of the 2020 United States census, which states that Siesta Key had a population of 5,454 residents, with 2948 households.”
“Wallace is no more impeded by the traffic signal than any of the other thousands of residents of Siesta Key or any person that visits Siesta Key,” Pearce contended. “Something that affects traffic flow for one traveler (such as a stop light) affects traffic flow for every traveler along that roadway. These residents and visitors use the same roadway entering and leaving the southern end of Siesta Key. Anyone using the road, regardless of whether they live on Siesta Key, could conceivably get stuck in traffic near this intersection,” Pearce added.
Then, citing a 2017 federal court order in Gagliardi v. City of Boca Raton, Pearce wrote, “When there is an allegation that proposed injuries may affect vast swaths of the surrounding population, then such an allegation represents injuries suffered in common with people generally.”
Further, Pearce pointed out, “Florida courts have consistently held that decisions concerning traffic control device installation are not matters which would subject a governmental entity to liability, because such decisions are basic capital improvements and a judgmental, planning level function for which there is sovereign immunity.” He cited three different judicial precedents in making that assertion.
Moreover, Pearce wrote, Wallace lives on the southern portion of Midnight Road on Siesta Key; his “residence is approximately 3.7 miles from the proposed traffic signal.”