Attorney for Sura Kochman argues that complexity of the issues necessitates a hearing, so judge can ask questions and seek points of clarification
In a July 31 motion, the attorney for Sura Kochman, Ralf Brookes of Cape Coral, explained, “This is an extremely complex rezoning [case],” involving multiple issues and numerous votes of approval by the Sarasota County Commission. “The court would benefit from the presentation of oral argument in this case and the opportunity to ask questions and [seek] clarification …”
Benderson Development Co. and its affiliate for the mixed-use project — Siesta 41 Associates LLP — sought County Commission approval for rezoning of most of the 24-acre site of Siesta Promenade, which is in the northwest quadrant of the intersection of U.S. 41 and Stickney Point Road. The companies also petitioned for Critical Area Plan (CAP) approval for the project, to enable them to build more dwelling units per acre than traditional county Commercial General zoning would allow. The CAP designation permits up to 25 units per acre.
Further, they needed approval of a Special Exception for a hotel in the development, because of county regulations governing transient accommodations.
Additionally, the companies sought the vacation of a portion of a county road to create Siesta Promenade, as planned.
Altogether, Benderson has said it will construct 414 apartments/condominiums, a 130-room hotel and 140,000 square feet of office and retail space on the property, which sits immediately adjacent to Pine Shores Estates, a community of mostly single-family homes.
Brookes argued in his reply brief in the case that Benderson should have applied for commission approval of other aspects of the proposed project. For example, the company plans to erect standalone multi-family residential structures amid the other uses. While county regulations allow such construction, Brookes pointed out, a Special Exception is required; yet, Benderson never even sought one.
Further, he argued, the hotel is slated to be 80 feet tall, but no board approval was sought for the increase in allowed height from the 35-foot maximum in a Commercial General zoning district, which is the designation the commission approved for the Siesta Promenade site in a Dec. 12, 2018 vote.
Brookes asked the court “to either quash and reverse or remand the development approvals for additional hearings on the site-specific CAP, the rezoning, and the additionally required special exceptions.”
Among issues on which Kochman has focused in her Circuit Court complaint is the process by which the County Commission approved the CAP. If county staff and the County Commission had followed the procedure outlined in county regulations for winning a CAP designation, Brookes contended in the reply brief, the traffic analysis for Siesta Promenade would have been much wider in scope. He pointed to the potential for a significant exacerbation of traffic flow in the Stickney Point Road/U.S. 41 vicinity. That already is one of the busiest intersections in the county, the county’s Transportation Planning Division manager acknowledged during the Dec. 12, 2018 public hearing.
Finally, Brookes wrote that Benderson’s response to Kochman’s complaint “stretches credulity to the limit [in] arguing that Ms. Kochman, whose home is directly across a narrow residential street from the subject development,” has no legal standing to bring the suit in the first place.
Writing as the attorney for Benderson and Siesta 41 Associates, Sarasota attorney Robert Lincoln cited a 2008 Florida Second District Court of Appeal case in asserting that Kochman had not established that she would suffer “‘special damages,’” which is a criterion for the Petition for Writ of Certiorarithat she filed against the county in January. In seeking to overturn the County Commission’s split votes of approval that cleared the path for construction of Siesta Promenade, Lincoln continued, Kochman needed to show that she could meet the Court of Appeal standard, instead of “the more lenient ‘affected person’ standard” she has asserted.
Lincoln added that a Florida Supreme Court case in 1972, building on a 1958 decision by the same court, made it clear that she had to prove that the damages she would suffer were “‘peculiar to [herself]” and distinguishable from the degree of damage that would be “suffered by the community as a whole.’”
CAP contentions
Much of Brookes’ 18-page reply brief in the case deals with the Sarasota County ordinance detailing the CAP process. Brookes included a copy of a county flowchart “expressly indicating the steps that must be taken for CAP approval and in precisely what order. “By ‘touching the bases’ in the wrong order,” he added, Benderson and Siesta 41 Associates “violated the essential requirements of law.”
First, he pointed out, the County Commission should have approved the boundary for the Siesta Promenade CAP. “[T]hen and only then” should the scope of work — necessary for county staff to assess the project’s expected impacts on the surrounding area — have been approved, Brookes added.
Traffic studies, for example, he wrote, were supposed to have been dependent upon the CAP boundary.
Because the County Commission in October 2016 chose not to approve the boundary “after a contentious public hearing,” Brookes continued, “the full geographical extent of impacts was not included or studied … [T]his includes the failure to adequately study the impacts of the proposed new traffic signal on Stickney Point Road.”
In his response to the lawsuit, Benderson’s attorney, Lincoln, wrote that the Circuit Court lacked jurisdiction over “Kochman’s complaints relating to the approval of the Project CAP … Simply put,” Lincoln pointed out, the commission’s “decision to approve the Project CAP to allow mixed use development at this busy Sarasota intersection was a legislative decision,” and a Petition for Writ of Certiorari cannot contest such action.
Lincoln also contended that, from 2017 through mid-2018, “Benderson and its experts performed the multiple studies necessary to satisfy the requirements of the Scope of Work [the County Commission approved]. … The County Staff found Benderson’s CAP Application sufficient and provided notice to the nearby property owners.”
Kochman took opportunities to comment on the studies and appear at neighborhood workshops during which the project details were discussed, Lincoln added.
County staff found Benderson’s rezoning and Special Exception requests to be consistent with the CAP, the county Comprehensive Plan “and all zoning code criteria,” Lincoln wrote. Therefore, staff recommended approval of the company’s requests for the project.
Traffic issues
In his reply brief, Brookes also countered arguments Assistant County Attorney David Pearce made in his response to Kochman’s complaint, on behalf of the County Commission.
For example, Brookes pointed out, Pearce wrote that the proposed Siesta Promenade development “is compatible with the commercial characteristics of US 41 through South Sarasota, including the Sarasota Pavilion Shopping Center on the southeast corner of the [Stickney Point Road] intersection and other strip center development along US 41 [Brookes’ emphasis].”
Yet, Brookes argued, Siesta Promenade would be constructed on property that is vacant at “an absolutely critical intersection … that must be maintained for acceptable ingress and egress [for] Siesta Key.” He pointed out that the Level of Service for the afternoon peak drive time at the intersection of U.S. 41 and Stickney Point Road is rated F. (“Level of Service” references a driver’s view of how smoothly traffic flows in a particular area.)
“An ‘F’ represents near ‘gridlock’ conditions, where every vehicle moves in lockstep with the vehicle in front of it and traffic nearly comes to a stop,” Brookes added. “Clearly, this US 41 intersection already has more traffic than it can safely handle and is the subject of [Florida Department of Transportation] FDOT concern.”
He referenced a July 2016 letter, included in an appendix to Kochman’s petition, which discussed department staff members’ concerns about the plans for Siesta Promenade. In that letter, Brookes continued, FDOT representatives wrote, “‘In conclusion, we believe that access types, safety concerns, and operational limitations of this intersection should be given special consideration when determining or planning the future land use in this area.’”
Moreover, Brookes argued, “Despite numerous objections made to the [County Commission], no attempt was made to measure [Siesta Promenade’s] impact on Siesta Key residents, who objected and observed they were already impacted, by onerous stop and go traffic, and must stay at home from about 10 a.m. until around 2 p.m. during peak tourist season or frequently sit in gridlock.” Nonetheless, Brookes added, the commission “treated this proposed development, on this currently vacant parcel … like any other ‘strip center’ corner on US 41.”
Brookes also pointed out that, during the December 2018 public hearing on Siesta Promenade, the commission included FDOT approval of a new traffic light on Stickney Point Road at the intersection of Avenue B and C as a condition of the board’s own approval of the Benderson project. The reason for that action, Brookes asserts, is that without that new signal, “three of the four vehicle traffic flows coming into the proposed development could only get back out to where they came from by going north through the local neighborhood, and then east back to US 41.”
Yet, in his response for Benderson and Siesta 41 Associates, attorney Lincoln argued that Kochman’s assertions about the CAP’s failures in regard to traffic are not an issue for the Circuit Court.
Lincoln explained that a CAP is akin to a comprehensive plan, but on a smaller scale. It is a decision about what sort of development is appropriate in a specific area and what conditions must be satisfied to permit that development to proceed, he added.
Referencing Kochman’s assertions that Siesta Promenade will produce “‘traffic into the surrounding residential neighborhoods,’” Lincoln wrote that the County Commission had the right to determine whether the CAP traffic analysis was sufficient to support its decision on the compatibility issue involving the adjacent neighborhood.
Further, Lincoln wrote, “The law is clear … that the method for challenging whether a land development regulation such as the Project CAP is inconsistent with a comprehensive plan is an administrative proceeding [under the guidelines of Chapter 163 of the Florida Statutes].”