Opponents of Siesta Promenade raise due process issue, saying Planning and County commissions will not give them sufficient time to address facets of each project petition

County already contending with lawsuit that includes allegation of due process violation in similar situation

A graphic in a March 2018 Kimley-Horn traffic analysis shows the site where Siesta Promenade is proposed to be built and the adjacent road network. Image courtesy Sarasota County

With the first public hearing on the Siesta Promenade development less than two weeks away, one concern that has arisen among project opponents is the length of time they will be given to address the Sarasota County Planning Commission and the County Commission.

During an Aug. 23 Neighborhood Workshop, conducted under county guidelines, Todd Dary, manager of the county Planning Department, indicated the boards could decide not to allow the traditional 5 minutes accorded to speakers during public hearings. Instead, he suggested, if the number of speakers is especially large — which staff has indicated is its expectation — then both the Planning Commission and the County Commission could decide to limit each person to 3 minutes.

Such a scenario arose recently during a County Commission meeting.

On Oct. 9, that board was scheduled to conduct the remainder of a public hearing continued from Aug. 28. The hearing involved multiple petitions regarding plans for a new Venice Regional Bayfront Health Hospital on property located on the south side of East Venice Avenue, about half-a-mile east of Jacaranda Boulevard.

The number of speakers on Aug. 28 — Primary Election day — prompted the County Commission to vote for the continuation of the hearing until Oct. 9.

Then, on Oct. 9, as she looked out at the number of people in the Commission Chambers at the R.L. Anderson Administration Center in Venice, Chair Nancy Detert asked Deputy County Attorney Alan Roddy for legal advice. “Does the [relevant state] statute talk about exactly how many minutes” the board has to give each speaker?

“It does not,” Roddy replied. “The board has traditionally used 5 minutes, and the board can adjust that as needed for due process to make sure everyone’s heard.”

Roddy added of the hospital issue, “It’s a multiple-part petition, but 5 minutes has been acceptable all along. I don’t know that there’s anything wrong with 4.”

“I do think it’s sensible for this size crowd,” Detert responded, to limit each person to 3 minutes. “I think that’s fair to all.”

Deputy County Attorney Alan Roddy. File photo

When Detert asked her colleagues for their views, they concurred with her about the 3-minute limit.

Then Detert told the audience members, “You probably lose votes by repeating things.” She suggested people planning to come up to the podium say, “‘I’m for this’ or ‘I’m against this’ … and then you’re heard as a ‘Yes’ or ‘No.’”

Yet, with the Siesta Promenade hearings ahead, the County Commission already is embroiled in one lawsuit that includes time limitation as an argument. In that case, opponents of the proposed Grand Lakes development east of Interstate 75 and south of Clark Road say they were denied due process when they addressed the board earlier this year and were limited to 5 minutes each.

In early August, a number of homeowners in the area around the site planned for the Grand Lakes community filed suit against Sarasota County. That followed the County Commission’s July approval for up to 1,097 homes in the development.

On May 23, Mary Anne Bowie of Sarasota, an expert planner hired by a group of nearby residents to address the County Commission about their concerns, complained that 5 minutes would not allow her to present all the evidence and testimony she had prepared to make her case that Neal Communities’ petitions regarding Grand Lakes should be denied.

The Circuit Court complaint points to a Florida Third District Court of Appeal decision in 2007 — in Hernandez-Canton v. Miami City Commission — which made it clear, the plaintiffs argue, that “8 minutes was insufficient and too short a time allotment for [objectors’] expert witnesses to make their presentations in a quasi-judicial hearing …” The plaintiffs in the Grand Lakes case add in their complaint, “The denial of a meaningful opportunity to be heard and present expert opinion evidence before the quasi-judicial [Sarasota County Commission] violates fundamental procedural due process.”

A rezoning is an example of a quasi-judicial hearing.

Even before the May hearing on Grand Lakes, a county resident had written to Deputy Attorney Roddy, arguing against simultaneous hearings on Neal Communities’ petitions for Grand Lakes to be designated a Development of Critical Concern and for the rezoning of the site.

Mary Anne Bowie. Image from the Institute of Certified American Planners

R.N. Collins pointed to the board’s traditional imposition of the 5-minute limit, even during simultaneous hearings. “Speakers have been free to comment on the [individual Grand Lakes petitions],” Collins wrote, “but they have been required to divide their allotted five minutes among the separate items.”

Yet, Collins continued, the hearing rules for legislative issues “differ greatly from those of a rezone hearing. When a legislative hearing is combined with quasi-judicial hearings, speakers are forced to declare which hearing(s) they are speaking at and forced to use extreme care to signal which evidentiary rules apply to their testimony or part thereof.”

He added, “The record produced at simultaneous hearings … comingles testimony and evidence about unrelated matters. Should someone challenge either [the legislative or quasi-judicial decision of the board], the applicable testimony and evidence from the simultaneous hearings record will be difficult and expensive to untangle. That seems to be an undue burden.”

In the case of Grand Lakes, Collins suggested separate hearings on each petition, with each speaker then allowed 5 minutes to address each issue.

Several petitions related to Siesta Promenade, as well

This is the proposed Binding Development Concept Plan for Siesta Promenade submitted to county staff in March. Pine Shores Estates is the neighborhood immediately west of the property, with the RSF zoning designations. Image courtesy Sarasota County

As proposed by Benderson Development Co., Siesta Promenade would encompass 414 condominiums/apartments; a 130-room hotel that would stand about 80 feet tall; 133,000 square feet of retail space; and 7,000 square feet of office space. The development is planned at the northwest corner of the intersection of U.S. 41 and Stickney Point Road, just a short distance from Siesta Key.

Benderson has been using a new website and Facebook page to garner public support for the project. Most recently, the company has launched a survey about which organic grocer people would like to see on the site.

During the Aug. 23 Neighborhood Workshop on the Siesta Promenade proposal, Sura Kochman, leader of the Pine Shores Neighborhood Alliance, argued for a process similar to the one Collins suggested to Roddy for the Grand Lakes development.

Along with Benderson’s petition for a Critical Area Plan (CAP) designation for Siesta Promenade, the company is seeking the rezoning of most of the approximately 24 acres, as the majority of the property is zoned Residential, Manufactured Home, Kochman pointed out. (The Residential, Manufactured Home zoning district allows just five units per acre. The company wants the CAP designation because that would allow up to 25 dwelling units per acre on the approximately 24-acre site.)

Benderson also needs a special exception to build its planned hotel.

A revised concept for Siesta Promenade that Benderson Development submitted to the county in June 2017 shows how the buildings would transition in terms of height in certain areas of the project, next to Pine Shores Estates. Image courtesy Sarasota County

Further, the Planning and County commissions will have to address the formal CAP boundary, Kochman said, as well as a vacation of part of Crestwood Avenue in Pine Shores Estates.

“Normally, each one of those gets its own public hearing of 5 minutes,” Kochman told Dary. “It’s the applicant’s decision to move this altogether as one application. It seems like … there’s a due process violation when the public is being limited to speak.”

“The Office of the County Attorney would disagree with you,” Dary, the Planning Department manager, told her. “The policy has always been, if it’s one unified project,” the commissions consider all the facets of the project at the same time. “The [County Commission] has been consistent about that,” Dary added.

The format calls for the applicant to have 20 minutes to make a presentation, he noted, and then the applicant has 5 minutes for rebuttal after public comments have been completed.

In this case, Dary said, if the County Commission were to hold separate hearings on all aspects of the Siesta Promenade application, the commissioners “would have to dedicate essentially three hours to the applicant,” plus time for the public comments. “That is not how business is conducted. It is one project; you can critique it on all [levels at one time].”

A formal communication of concern

Morgan Bentley. Contributed photo

About three weeks after the Neighborhood Workshop, Sarasota attorney Morgan Bentley of Bentley & Bruning wrote a letter to Deputy Attorney Roddy on behalf of the Best Western Plus Siesta Key Gateway Hotel, which is located at 6600 S. Tamiami Trail. The hotel is close to the proposed Siesta Promenade site.

In the Sept. 12 letter, Bentley alluded to Dary’s Aug. 23 comments. “While it often makes some sense to do similar requests all at once,” Bentley wrote, “here I submit that procedure will cause more, rather than fewer, problems.”

Bentley pointed out, “[T]here are some due process issues in placing all the potential changes in as one item. Three minutes to cover what are at least four major substantive issues (CAP Boundary, Rezonings, Height Special Exception and Density Special Exception) seems patently unfair to the public. It even seems unfair to restrict the Applicant to allow only 20 minutes to cover all these items.”

Bentley added, “And it seems really unfair to force the Commission to try and sift through this mountain of information in one sitting. It will be like trying to drink from a fire hose.”

He continued, “I urge you to advise the Commission to take this in a more orderly process. My suggestion is to first take up the CAP Boundary and Scope of Work responses.” In the latter case, Bentley was referring to issues the County Commission agreed staff and Benderson needed to address in conjunction with the project, including the potential for exacerbation of traffic congestion in the vicinity of Siesta Promenade.

After the CAP boundary and the scope of work were approved, Bentley pointed out, then the commission could schedule the rezoning and special exceptions for a separate public hearing.

“This will give everyone the best chance to make the right decision on what is, after all, the gateway to Siesta Key and will be in place for years to come.”

Bentley never received a response to the letter, Kochman of the Pine Shores Neighborhood Alliance told The Sarasota News Leader. When the News Leader asked county staff about that, the News Leader was told that the letter would be made part of the record for the Planning and County commissions to review for the hearing process.

The first hearing

The county Administration Center is located in downtown Sarasota. File photo

The Planning Commission hearing on Siesta Promenade is scheduled for 5 p.m. on Thursday, Nov. 15, in the Commission Chambers of the County Administration Center at 1660 Ringling Blvd. in downtown Sarasota.

An email blast from the county’s Planning and Development Services Department indicates the hearing itself will begin soon after the meeting starts.

“You are invited to appear, be heard, and submit relevant evidence,” the email blast says. “Copies of the petitions and supporting documents are available during normal business hours in the Planning and Development Services Department at 1660 Ringling Blvd., Sarasota, Florida. Copies of the petition and supporting documents will be available to view or download at www.scgov.net … [keyword: Planning Commission] on the Friday prior to the public [hearing].”

The County Commission hearing is set for all day on Dec. 12. Each regular County Commission meeting begins at 9 a.m.

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