City attorney reports on research related to deed restriction for the park
A coalition of residents of the neighborhoods surrounding Payne Park, tennis players who use the park’s courts and environmental advocates is hoping to fill the Sarasota City Chambers on the evening of May 20. The goal, leaders of the group say, is to convince the City Commission that the public overwhelmingly is opposed to the Sarasota Orchestra’s plan for a new venue in Payne Park.
The last item of business scheduled on the commission’s May 20 agenda reads as follows: “Update on the Sarasota Orchestra’s Vision for a New Music Center at Payne Park.”
The backup material for that item notes, “If the City Commission approves the vision of the Sarasota Orchestra, the City Commission will have to direct the City Attorney’s Office to prepare a lease for a portion of Payne Park that will be used. The Sarasota Orchestra will be required to provide a legal description and sketch of the Leasehold for inclusion into the lease.
“The Orchestra would also be asking the City Commission to authorize the City Attorney’s office to prepare a Relocation Agreement.”
The evening session of the meeting will begin at 6 p.m. at City Hall, which is located at 1565 First St. in downtown Sarasota.
The Payne Park preservationists are asking supporters to wear yellow.
“We think we will fill that room and then some,” one of the leaders of the coalition, Fiona Dias, told The Sarasota News Leader this week, referring to the Commission Chambers.
Her group has been sending out hundreds of postcards to residents and working to reach devotees of the Skate Park in Payne Park, among its efforts.
Dias acknowledges that the leaders of Sarasota Orchestra almost certainly are working equally hard to get a good showing of supporters on May 20.
Still, Dias said during a May 14 telephone interview, “It felt like every human being we’ve talked to has said [of the Orchestra’s plans to relocate to Payne Park], ‘They can’t do that.’”
They were heartily encouraged, she told the News Leader, when Commissioner Hagen Brody released a May 15 letter he had written to City Manager Tom Barwin. Brody noted that, months ago, Barwin was “tasked to collaborate with the Sarasota Orchestra to find a location in Sarasota for their new home. Months passed with no information until just before the plan for Payne Park was unveiled to the public.”
Brody added, “After much consideration, I have grave concerns regarding your support of this site. … We should not be putting supporters of both the arts and public parks, as I am, in conflict.”
Opponents of the Orchestra’s relocation to the park have formally organized their initiative as Preserve Payne Park — with their own website — and they have created a YouTube video and a Facebook page.
Additionally, they are urging supporters to sign a petition they have crafted, laying out their views.
The petition begins [with their emphasis], “We, the undersigned, hereby declare our support to preserve and protect Payne Park in perpetuity as a park, as open public recreational space and green space, as provided for in the DEED restrictions stipulated by the Gift of Calvin N. and Martha E. Payne to the citizens of the City of Sarasota.
“Each of us opposes without reservation the Sarasota Orchestra proposal to construct a concert hall and parking lot on seven (7) acres within any bounds of the Payne Park property. We contend that construction of a 2500-seat theater and parking lot on this rare open space oasis in the middle of the City will cause irreparable harm to the wildlife, environment, urban ecosystem, neighboring residents, and patrons of Payne Park.”
As of 10 a.m. on May 16, 1,227 people had signed the petition, exceeding the goal of 1,000 names, the News Leader found.
Dias pointed out to the News Leader that the coalition members are as diverse as one would expect the users of a major city park to be: all ages, all levels of income, liberals, conservatives, with every political party and persuasion represented.
“Public parks are free for all to use, and I emphasize all,” Dias, told the News Leader.
She called the Orchestra’s plan “an elite grab for land,” adding, “That bothers me deeply.”
“Candidly,” Dias continued, “the whole concept [of an orchestra] is a failing business model” in this modern world. Classical music is not nearly as popular today in the United States, Dias pointed out, as it was decades ago. Yet, the Sarasota Orchestra has proposed a new 2,500-seat venue on public land in Payne Park, she said. Even the Walt Disney Concert Hall in Los Angeles — a city with a population of approximately 4 million — has only about 2,300 seats, she stressed.
“Where are we going to find people to fill this [new Sarasota Orchestra] hall?” Dias asked.
If the City Commission lets the Orchestra relocate to Payne Park, Dias continued, and the organization finds it difficult to fill its seats, the city taxpayers will be the ones shouldering the responsibility of maintaining the facility.
Finally — and of perhaps of even greater import, Dias noted — is the question of destruction of the environment. No one is talking about how the city will deal with the extra stormwater runoff created by the addition of concrete and asphalt on 7 acres of city greenspace, she pointed out. Given the widespread concerns about stormwater runoff feeding the red tide bloom that proved so destructive to the economy last year, Dias asked, does the City Commission want to provide even more fuel for red tide?
Summing up the reason she became involved in the coalition, Dias said, “I have never been more outraged about anything I have seen in the recent past.”
Action and reaction
During a Feb. 26 City Commission workshop, Joseph McKenna, president and CEO of Sarasota Orchestra, reprised many of the arguments he made to the board members in June 2018 as he discussed the proposed relocation of the organization.
McKenna explained the constraints with which the Orchestra contends in the six venues it uses. All of them have acoustical shortcomings, he pointed out, and their full calendars for events deny the Sarasota Orchestra the flexibility it needs for programming. He said he and his staff “have seen increased difficulty” with trying to schedule performances.
“A thoughtful, bold and courageous vision is necessary,” he told the commissioners, to ensure the Orchestra’s financial sustainability.
McKenna then revealed that the search the Orchestra had undertaken for a new home had led to Payne Park.
Sea level rise, he stressed, “is on the mind of philanthropists.” Those “considering a transformational gift,” McKenna added, want to make sure the Orchestra moves to an area with a high enough elevation to assuage their concerns. In Payne Park, he noted, the elevation is more than 22 feet.
Matt Clear, principal and regional director of the consulting firm HKS, which has been working with the Orchestra, explained that a site close to U.S. 301, “near the core [of the park] would be probably the best location.”
Siting the new facility and 200 parking spaces in the area of the tennis courts would “minimize any impact to the park,” he said.
The Orchestra proposes moving the courts to the southern area of the park, Clear noted.
McKenna and Clear also talked of the fact that the Sarasota County Parking Garage, standing at the corner of School Avenue and Ringling Boulevard, has close to 1,000 spaces. They said their research showed the facility is nearly empty on evenings and weekends, when the Orchestra would schedule most of its events.
Second, the county is working on the construction of a new Central Energy Plant on the surface lot adjacent to the garage. Therefore, they said, the potential exists for negotiating an agreement with the county for use of the parking garage for Orchestra patrons and for buying energy from the new plant.
Jeff Lowdermilk, director of the county’s General Services Department, indicated to the county commissioners last year that the design of the Central Energy Plant likely would enable the City of Sarasota to use some of its capacity.
Having spoken with colleagues about paying for new facilities, McKenna told the city commissioners on Feb. 26, he knows that if potential donors are assured that the overall project cost will not encompass parking and energy considerations, people will be more inclined to make contributions.
“We have two significant elements adjacent to this park,” McKenna continued, that could help transform the city and the Orchestra.
He added that designs for facilities such as the new music center typically take two years, with another three necessary for construction. That timeline was another reason the Orchestra’s board decided not to plan for a new venue as part of The Bay on the city’s 53 waterfront acres, McKenna said. The build-out of The Bay project is likely to take much longer than five years, he indicated.
Again, he noted the struggles of scheduling in the six venues the Orchestra uses, calling that an “epic crisis [with a] small ‘c.’”
Deed restriction concerns
Another significant concern that has arisen since the Feb. 26 presentation regards a deed restriction involving Payne Park. City Attorney Robert Fournier explained in a May 7 memorandum to the City Commission, “[T]he 1925 deed from C.N. Payne and Martha Payne conveying the property now known as Payne Park to the City of Sarasota” has a restriction that limits the use of the tract “for park, playground and kindred uses and for no other use or purpose.”
His research, Fournier continued, led to his conclusion that “Florida case law … could support a potentially successful legal argument that the Sarasota Orchestra could be re-located in Payne Park consistent with the deed restriction.”
Although he had found no judicial precedent directly applicable to the situation, he explained, he saw “the question presented” as whether a Florida court would be likely to rule that the deed restriction precludes a use in the park such as the Sarasota Orchestra, “or whether the restriction might be construed more broadly so as to allow a facility devoted to entertainment within the scope of permitted uses in the park.”
Citing a 1932 U.S. Supreme Court case and a 1957 Florida Supreme Court case, Fournier pointed out that both opinions talked of the evolution of the concept of parks. The Florida Supreme Court decision noted that “‘the trend is certainly toward expanding and enlarging the facilities for amusement and recreation found therein …’”
Therefore, Fournier wrote, “It seems … there is a reasonable connection to be made between the concept of ‘amusement’ and the concept of ‘entertainment.’ That is, if facilities that provide ‘amusement’ are allowed within a park and could be considered park uses, then it seems logical to conclude that such uses could include a facility devoted to entertainment.”
Fournier did point out in his conclusion that he was not advocating for the proposed relocation of the Orchestra to Payne Park. His memorandum, he stressed, came in response to a request for the research he had conducted.