Case comes up during county’s Comprehensive Plan review, as a Planning Commission member seeks to prevent ‘the county being sued’
A mediation conference has been set for May 27 in the legal case filed by environmental organization ManaSota 88 to stop Whole Foods from building its second Sarasota store on University Parkway, The Sarasota News Leader has learned.
The session has been set for 9 a.m. at the law offices of Blalock Walters on North Tamiami Trail in Sarasota, according to a notice filed on April18 in the 12th Judicial Circuit Court in Sarasota.
Scott A. McLaren of Hill, Ward & Henderson in Tampa — one of the attorneys representing the group of property owners and a lessee of the site proposed for the Whole Foods/Wawa project (the Intervenors) — told the News Leader in an April 26 telephone interview that Judge Rochelle Curley indicated to the attorneys at a hearing in late March that she wanted them to schedule the conference.
Her March 23 order setting an Aug. 22 start of a two-day trial in the case also directed counsel to “read and comply with the court’s Pre-Trial Procedures and Protocol for Non-Jury Trials and Referral to Mediation,” as posted on the 12th Judicial Circuit Court’s website. The website explains that “mediators are trained and certified by the Supreme Court of Florida and are appointed to a case by the court.”
Asked if he felt he and the other attorneys for the Intervenors have a good chance of reaching a settlement with ManaSota 88 during the conference, McLaren told the News Leader, “That’s totally unpredictable, [but] we’re always hopeful going into mediation.” If no resolution is reached, he added, “We’ll certainly proceed to trial.”
Ralf Brookes, the Cape Coral attorney for ManaSota 88 and three individuals who are also plaintiffs in the case, did not respond to the News Leader’s requests for comment.
Even though Curley encouraged the parties in late March to pursue mediation, McLaren said, it took awhile for all the parties to settle on a date that was workable.
Sarasota County is the defendant in the case, given that the County Commission voted 4-1 on Jan. 26 to allow the rezoning of about 8.24 acres of property on University Parkway for the Whole Foods project. Commissioner Charles Hines was the only board member to voice concern about allowing further development on a site where, county staff had testified, rare hardwood wetlands remain functional.
Comprehensive Plan issues
The ManaSota 88 lawsuit also was alluded to last week during a Sarasota County Planning Commission meeting to consider revisions to the county’s Comprehensive Plan. That board will meet again at 6:30 p.m. on May 4 in Sarasota to review all the work it has accomplished thus far in crafting the proposed draft.
On April 21, Jack Bispham, vice chair of the Planning Commission, questioned proposed new language for a section of the Wetlands Management Guidelines. The paragraph in the current version of the Comprehensive Plan says, “[I]n cases where no other reasonable alternative exists other than disrupting a wetland, as determined by the County, some alterations may be allowed.” The proposed revision would add this sentence: “In determining whether a reasonable alternative exists, the County will consider landscape context and long-term viability of the native habitat.”
“What I’m trying to avoid is the county being sued,” Bispham told Deputy County Attorney Alan Roddy. Bispham then asked whether the “will” should be changed to “may” or “shall.”
He sought Roddy’s advice about what would work best “so the county doesn’t get taken to court.”
“It takes a couple of hundred dollars and a map to the courthouse to sue somebody,” Roddy replied.
“It’s our money, though,” Bispham said, referring to taxpayer dollars to fight a lawsuit.
“I don’t know that it’s really been a problem,” Roddy told him. “Obviously, we have a suit now …”
“And I know we can’t talk about that,” Bispham responded.
“I think this language has substantially existed for a long time,” Roddy continued. “I don’t think we’ve been sued very much.”
The language in the Comprehensive Plan related to wetlands on a site where development is proposed is at the crux of the ManaSota 88 lawsuit. The environmental organization argues that the County Commission violated the Plan in allowing the Whole Foods project to proceed. However, in their answer to the lawsuit, the Intervenors point to the fact that the Comprehensive Plan was amended at one point to give the County Commission more flexibility in allowing a project to go forward if no reasonable alternative exists to disrupting wetlands.
The language the Planning Commission was reviewing on April 21 further amends the Comprehensive Plan.
During the Planning Commission session, Roddy referred Bispham’s question to Assistant County Attorney David Pearce, who handles environmental law for the county. Pearce explained that he has worked in the Office of the County Attorney for 11 years, and he could not recall a situation where that particular part of the Comprehensive Plan had come up in any legal complaint other than the current one.
Then Bispham cited the sentence preceding the proposed new language — “[S]ome alterations may be allowed” — and asked whether it might be better to substitute “can” or “will” for “may.”
“I don’t think it makes a difference,” Pearce told him.
“Just from a legal standpoint,” Roddy added, the type of change Bispham suggested would not make a difference. “‘May’ is a discretionary term, obviously,” Roddy pointed out, “and it seems to be working.”
Accusation and response
During public comments at the start of the April 21 Planning Commission discussion, Jono Miller, the retired director of New College of Florida’s Environmental Studies Program, complained that county staff had not given sufficient legal notice that changes to the Environmental Systems Element of the Comprehensive Plan would be on the agenda that evening.
No mention of it was made on the county webpage devoted to the Comprehensive Plan update, for example, Miller said, and the public advertisement of the meeting did not mention it.
“I really think you’ve done a crummy job of letting people know what’s going on here tonight,” he told the board.
In response to a News Leader request for a comment about Miller’s remarks, Allen Parsons, the county’s Planning Division manager, wrote in an April 26 email, “The Environmental Systems Element was initially discussed by the Planning Commission on April 14th. At that meeting the Planning Commission continued discussion on the Element until April 21st. The continuation was noted at the [commission’s] meeting of April 20th and email updates [to more than 4,000 people who signed up for them] were sent out [regarding] the continued Discussion date and potential additional items to be discussed.”
Parsons added that along with the email blast, a handout with the edits was made available prior to the meeting, it was posted on the website and it was provided within the meeting room. The document with the edits may be found at this web address.
Parsons also explained that the tentative timeline for completing all revisions of the Comprehensive Plan — a process that began in 2015 — calls for public hearings conducted by the County Commission on June 8 and June 10, so the completed draft document can be transmitted to the appropriate state agencies for review. The goal is to see the plan adopted in October, he pointed out.