Session to be held in County Commission Chambers in downtown Sarasota
With the initial hearing having been conducted in late July, the attorney representing the owner of Gilligan’s Island Bar & Grill in Siesta Key Village and an assistant Sarasota County attorney are scheduled to appear again before a Special Magistrate on Oct. 31, in a continuation of the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA) process that Gilligan’s launched in April.
As The Sarasota News Leader has reported, Sarasota attorney Casey Colburn notified County Commission Chair Ron Cutsinger that Gilligan’s is seeking relief as afforded by Section 70.51 of the Florida Statutes in response to the County Commission’s 4-1 vote on Jan. 31 to deny the business’ Special Exception petition to present live music after 10 p.m.
The Oct. 31 mediation session is scheduled for 1:30 p.m. in the County Commission Chambers of the County Administration Center standing at 1660 Ringling Blvd. in downtown Sarasota.
The Special Magistrate, attorney Scott I. Steady of the Tampa firm Burr Forman, has reserved the room for four hours, the official notice says.
“Owners of contiguous properties to the Subject Property and any affected person who submitted oral or written testimony which stated with particularity objections to or support for the development order at issue may request to participate in the proceeding,” that Sept. 25 notice points out. “The participation of such persons shall be limited to addressing issues raised regarding alternatives, variances, and other types of adjustments to the development order which may impact their substantial interests, including denial of the development order. The opportunity to participate will occur at the beginning of [the] proceedings,” the notice adds.
The “development order” in this case, is the County Commission vote of denial. Commissioner Mark Smith, who lives on Siesta Key, was the only board member to support granting the Special Exception.
In agreeing on the denial, other commissioners cited public hearing testimony by residents who live in and close to Siesta Village. Those individuals had complained about the noise that emanates from Gilligan’s up to 10 p.m. and pleaded with the commissioners not to grant the Special Exception.
Sarasota attorney Colburn formally is representing Nocturnal Properties LLC, which is the company that owns Gilligan’s. Scott Smith is the principal of Nocturnal Properties.
In his filing for the FLUEDRA action, and since then, Colburn has maintained that the commissioners were not properly advised on the various facets of the Special Exception petition. He has pointed to sections of the county staff report for the Jan. 31 hearing that he contends were false.
Before the continued hearing on Oct. 31, as indicated in email exchanges that the News Leader received through a public records request, an Oldsmar company — Keane Acoustics — was to have conducted a sound study at Gilligan’s, which Colburn sought, in coordination with Sarasota County staff.
In a Sept. 7 letter to Colburn, Keane Acoustics President Michael Keane laid out the scope of work for that study. It was to include one visit to Gilligan’s to do the following:
- Conduct “ambient sound level measurements when live music is not playing (at 2-3 nearby locations/properties)”; and “sound level measurements when live music is playing (roughly 2-4 hours at 2-3 locations/properties).”
- Compare the resulting data with the stipulations in the Sarasota County Noise Ordinance “to determine current noise impact, and extrapolate data to determine impact from live music after 10 pm.”
- Issue a summary of the findings “and provide noise mitigation recommendations (if needed).”
Keane estimated his fee for an estimated 16 to 18 hours of work to be a maximum of $3,520. If he had to make repeat visits to the business, he added in his letter to Colburn, or attend “Community Meetings or Hearings,” he would charge Nocturnal Properties on an hourly basis.
In a Sept. 15 email to Assistant County Attorney David Pearce, Colburn wrote, “We want [the study] to take place on a date when a multi-piece band is performing. Based upon the firm’s schedule, the study may take place on the 29th of September. If it does, the report will likely be available for circulation later in the following week (i.e., the week of Oct 2). I will update you when things get firmed up.”
The News Leader found no subsequent email in documents that it received on Oct. 10, in response to its public records request, showing that the study had been completed. The request was submitted to the county’s Public Records Division staff on Oct. 5, specifically asking for copies of any records pertaining to the study, if it had been conducted.
A settlement proposal
In early August, Colburn emailed Pearce and Special Magistrate Steady, writing that he had received a call from Gilligan’s owner Smith and Mike Gatz, manager of the business, saying that they wished to propose a simpler solution than one that had been discussed during the July 26 FLUEDRA mediation: No live bands would play on the back patio stage after 10 p.m. , and the live music would end at midnight, every day of the week.
Another point commissioners cited in January for denying the Special Exception petition was the fact that county Planner Keaton Osborn had testified that Gilligan’s generally does not close until around 2 a.m., and the expectation would be that the live music would continue until closing.
“[F]eel free to take [this] up with staff and let me know the County’s thoughts about bringing this simplified approach back to the Commission,” Colburn added in that email.
Seven days later, on Aug. 15, Pearce replied, also via email:
“I spoke with County planning staff about this matter yesterday, and with our Zoning Administrator Donna Thompson earlier. None of them are comfortable recommending your client’s proposal to the Board of County Commissioners. I do not support it, either,” Pearce added. “It does not adhere to the approach we discussed earlier at mediation, which is to find a scientific approach from a sound engineer. Also, we indicated during the first part of the mediation that staff could not support additional hours for live entertainment beyond that allowed by the last special exception granted by the Board, which would be 11 p.m. on weekdays, and midnight of weekends and before holidays.”
Points of contention
In earlier correspondence with Pearce — following the July 26 mediation hearing — Colburn provided a copy of the Jan. 31 county Planning staff report in regard to the Special Exception petition. Colburn highlighted sections that he contended contained false information.
He also included the following statements in the body of his email, which he wrote were false, denoting them with underlining:
- “… the Applicant has not provided information identifying the area(s) for live entertainment, expressing a desire to utilize the entire property for live entertainment possibilities. Due to the lack of specificity, Planning and Zoning Staff does not support the proposed binding development concept plan, as submitted, due to lack of detail pertinent to the special exception request”;
- b) “Without specifying the areas for live entertainment, the Applicant would be able to provide live entertainment at any location on the properties, including the parking lot that is adjacent to the residential neighborhood. With the lack of screening and landscape within the parking lot, sound would travel a lot easily to these dwelling units.”
Colburn pointed out, “The sole option provided by staff to find the application inconsistent with the [county] Comprehensive Plan” referred to the fact that the “whole site” would be available for live music. Yet, he continued, that fact “was made moot by the removal of the parking lot.”
Colburn told both the county’s Planning Commission members and the county commissioners that Smith, the owner of Gilligan’s, had agreed not to provide live entertainment after 10 p.m. in the parking lot, if the Special Exception were to be granted.
Reference to use of the “whole site” was included three times in the Findings of Fact provided to the commissioners, Colburn continued. “Each of these false statements of fact were, we believe, unintentionally carried-over from a pre-Planning Commission draft of the Staff Report,” he added. “When we removed the Parking Lot from the application, Staff represented to our team, verbally and in writing, that all of its concerns about any ‘lack of mitigation’ were resolved. Notably, the agreed-upon stipulations, the proposed Resolution for Approval, the graphics and a few sentences at the beginning of the Staff Report were, in fact, updated, and accurately reflect the [Binding Development Concept Plan shown to the Planning Commission] and the unanimously recommended conditions of the Planning Commission. However, the inclusion and repeating of these material false statements appears to have overshadowed the correct information and, ultimately, obscured the true facts from, and may have even prejudiced the County Commission against the application, who expressly relied upon them to deny the application,” Colburn wrote.
Pearce responded via email the same day, “I do not consider these statements to be ones which affected the outcome of the hearing. The County provided all necessary procedural due process. Other crucial portions of the record, particularly the depiction of the binding development concept plan [in the staff report for the County Commission] show the area where live entertainment would be allowed as within the area outlined in red, which included the entirety of Lots 22 and 23 [on the Gilligan’s site]. Staff’s presentation to the [County Commission also made that clear.
“If your client had issues with the staff report,” Pearce continued, “your client had every opportunity to correctly identify the location of the live entertainment during the presentation to the [commission]. In fact, your client’s presentation did not use the entirety of the allotted time.
“It is still true that your client did not specify the exact location for the live entertainment, but rather instead relied on a ‘bubble plan’ that included the entirety of Lots 22 and 23,” Pearce added, with emphasis. “Given that lack of detail, each of the findings of fact relating to inconsistency with the approval criteria, which articulate that not enough had been done to provide ‘effective mitigation efforts to ensure compatibility with adjacent land uses,’ is still a possible finding given the competent, substantial evidence in the record.
Pearce also addressed a reference Colburn included in his email, in which Colburn pointed out — with emphasis — that, in making the Jan. 31 motion to deny the petition, Commissioner Michael Moran included as one of the Findings of Fact, “[T]he applicant wants to utilize the whole site.“
In his email, Colburn contended, “The [above] underlined false factoid cited by Commissioner Moran is absent from the denial resolution eventually passed by the board. However, that deletion doesn’t mean it was immaterial.”
Typically, following hearings when the commission majority denies a petition, the Office of the County Attorney drafts a formal resolution of that decision for the board members to vote on during a subsequent meeting. The adoption of that resolution “starts the clock,” so to speak, for any appeal process.
It was after the commissioners approved the formal resolution of denial regarding Gilligan’s that Colburn filed the FLUEDRA action on Gilligan’s behalf.
“As articulated in the County’s response to the [FLUEDRA] petition for relief,” Pearce continued in his response, “the Board voted to deny the special exception by a 4-1 vote. Thus, even assuming that Commissioner Moran was confused about the location of the live entertainment (which the County does not concede), his vote would not have controlled the outcome of the … proceedings.
“These complaints about the alleged errors in the Staff Report do not help your client during mediation,” Pearce further noted. “All they do is try to stick a proverbial finger in the County’s eye. Rather, the focus should be on scientific solutions.”