In dismissing James Wallace’s original petition, FDOT allowed amended version to be submitted
In January 2019, James P. Wallace, a Siesta Key resident since 1964, spearheaded the fundraising for a lawsuit that sought to overturn the Sarasota County Commission’s split votes in approving the Siesta Promenade mixed-use project planned in the northwest quadrant of U.S. 41 and Stickney Point Road.
Cape Coral attorney Ralf Brookes was hired to represent Sura Kochman as the lone plaintiff. A resident of Pine Shores Estates, which borders the approximately 24-acre Siesta Promenade site, Kochman for years had led a group of opponents of the Benderson Development Co. project as it had been designed.
As approved by the County Commission on Dec. 12, 2018, Siesta Promenade would encompass 414 apartments/condominiums, a 130-room hotel standing about 80 feet tall, 133,000 square feet of retail space and 7,000 square feet of office space.
The multi-family residential structures had been designed to range in height from 40 feet to 65 feet — towering over the mostly single-family homes in Pine Shores.
Ultimately, Kochman lost at the 12th Judicial Circuit level; the case was appealed to Florida’s Second District Court of Appeal, and that court, too, ruled for the county.
Wallace was one of the 69 people who addressed the commissioners during the December 2018 public hearing; he was among the vast majority opposed to the project.
Since then, Wallace has taken a number of opportunities to complain that the Kimley-Horn consulting firm, which handled the traffic analysis for Siesta Promenade, failed to take into account the impact the development would have on Siesta Key. Stickney Point Road, Wallace has stressed, is one of the two access points to the barrier island. (The other is via Siesta Drive, on the northern end of the Key.)
One facet the county commissioners did make clear during the public hearing on Siesta Promenade was that construction could not begin until after a traffic signal was installed at the intersection of Stickney Point Road and Avenue B and C. Wallace has fought that proposal, as well, contending that the light would further exacerbate the traffic back-ups as residents and visitors head to Siesta’s beaches, especially during the height of the annual tourist season.
On Feb. 4, during a regular meeting of the Siesta Key Association (SKA), Wallace reiterated a number of his concerns about the stoplight, as the Florida Department of Transportation (FDOT) gave that project the proverbial “green light” before the end of 2020. (No construction timeline has been announced.)
Wallace then told the SKA members that he had filed an updated petition with FDOT to try to prevent the traffic signal from becoming a reality.
“If we’re successful with that effort,” he added, Siesta Promenade “will not go forward.”
Should both Siesta Promenade and a 120-room hotel that Siesta Key businessman Gary Kompothecras has proposed on two parcels on Old Stickney Point Road both be constructed, Wallace said, “The Key will never be the same. … People need to know that.”
He reminded the SKA members that several speakers during the Siesta Promenade public hearing showed the commissioners video clips of traffic backed up through the intersection of U.S. 41 and Stickney Point Road and explained that that is a common occurrence during tourist season.
SKA Director Tom Surprise noted that one recent day, he had seen vehicles stacked up as far east as the Swift Road intersection with Stickney Point Road. It took him an hour, Surprise added, to travel from that location to the Stickney Point Road intersection with Midnight Pass Road.
Facets of Wallace’s arguments to FDOT
Brookes, the Cape Coral attorney who handled the Kochman court complaint regarding Siesta Promenade, also is representing Wallace in his petition involving the traffic signal at Avenue B and C.
In the amended complaint Brookes filed on Feb. 4, Brookes wrote that if the stoplight is installed, “Clearly there will be additional lives placed at risk, and even lost, due to emergency vehicle delays to and from Siesta Key and emergency rooms on the mainland,” as the vehicles would have to traverse the section of Stickney Point Road with the Avenue B and C stoplight, plus a drawbridge.
Moreover, Brookes pointed out, “There will be more time lost in stop and go Siesta Key related traffic, by persons who reside or work on Siesta Key as they must use the road segment affected by this … new traffic signalized intersection that does not currently exist. More persons will simply be marooned at home and not be willing to endure attempting trips on and off the Key during Post COVID tourist season beach traffic rush hours between 10 AM to 2 PM. These are historical facts, and the result of a future virtual certainty, in the opinion of [Wallace’s] traffic engineering expert.”
Brookes further noted that the Level of Service for the intersection of U.S. 41 and Stickney Point Road during the afternoon peak drive time is F. “An ‘F’ represents near ‘gridlock’ conditions,” Brookes continued, “where every vehicle moves in lockstep with the vehicle in front of it and traffic nearly comes to a stop. The approval of additional development adding to traffic congestion in the area of [that intersection] was already the subject of FDOT concern [in a 2016 letter to Sarasota County’s Transportation Planning Division manager], and as a result Sarasota County conditioned approval of [Siesta Promenade] on FDOT’s review of the [need for a traffic signal at Avenue B and C].”
Brookes emphasized that after the new traffic signal is in place, “[T]here will be No Remedy, no review, no chance for any oversight or citizen participation as contemplated by Florida’s Administrative Procedures Act [Chapter 120 of the Florida Statutes, which] was created to provide for input into agency decision making by affected persons prior to a final agency decision.”
“It would seem prudent,” Brookes added, “that FDOT either rescind its current decision or grant a formal or at least an informal Hearing or meeting with FDOT on the matter. To not do so, is to not grant procedural due process to [Wallace].”
Details of Wallace’s original petition
On Dec. 30, 2020, Brookes filed the initial document in the case, seeking “assignment of an independent Administrative Law Judge” on the Wallace petition. The goal, Brookes pointed out, would be to gain such a judge’s recommendation of denial of the FDOT permit for the stoplight or for a modification of that permit.
In that petition, Brookes explained that no intersection exists at the planned location of the Avenue B and C traffic signal.
Among his arguments, Brookes pointed to sections of FDOT Rules and the Florida Administrative Code in contending that, given “the addition of significant development at the intersection of [U.S. 41] and Stickney Point Road,” plus the “significant role of Stickney Point [Road] as a gateway access to Siesta Key, the scarcity of alternative accesses, and the long-term life of [Siesta Promenade], FDOT should have taken a longer-term and more comprehensive approach to evaluating this traffic signal proposal …”
In an Oct. 26, 2020 letter from FDOT to Brookes — which is included among exhibits with Wallace’s petitions — Mark Mathes, a district traffic operations engineer, wrote, “Based on the traffic analyses and submissions by the applicant, Benderson Development Company LLC, the Department has determined that a traffic signal is warranted at Avenue B & C. The proposed signal met warrants for 8-hour vehicular volume and for 4-hour vehicular volume.”
Brookes responded to that by pointing out, “The flaw in using intersection turning movement count data is that only the vehicles that actually pass through the intersection are counted, but not the vehicles that arrive at the location but cannot pass through due to operational and capacity limitations.” Thus, Brookes continued, the Kimley-Horn traffic analysis for Siesta Promenade “does not address the ‘traffic demand’ issue, even though there is quite a bit of testimonial and photographic evidence from citizens documenting extensive queues and routine congestion. An analysis of traffic demand vs actual ‘constrained’ flow … should have been required,” he added, during FDOT’s review of the Benderson application for the FDOT permit for the traffic signal.
On Jan. 28, Kevin J. Thibault, the FDOT secretary, ordered that Wallace’s petition be dismissed without prejudice, meaning that an amended version of it could be filed.
“The Promenade Permit is for the installation of a traffic control feature or device at a signalized intersection that is under the original jurisdiction of [FDOT] pursuant to [a section of the Florida Statutes],” the order said. “(The Department may place and maintain such traffic control devices upon all highways as it shall deem necessary to regulate, warn or guide traffic),” the order added.
Then the FDOT order said that Wallace’s petition did not comply with all of the necessary facets of a request for a hearing, such as the one Brookes was seeking for Wallace. Further, “[Wallace’s] objections to a traffic control feature and device do not give rise to standing,” the order continued, “and there remain no disputed issues of material fact that need to be resolved in order to dispose of this matter.”
“Standing” is a term that pertains to a petitioner’s right to file suit on the basis of the effects the issue at hand on that petitioner.
The FDOT order further explained that after a 2019 Florida Division of Administrative Hearing proceeding involving FDOT and Sakata Seed Corp., the administrative law judge’s order held the following: “It has long been the case, and the courts have consistently held, ‘that decisions concerning the initial plan, road alignment, traffic control device installation or the improvement of roads … are not matters which would subject a governmental entity to liability, because these activities are basic capital improvements and are judgmental, planning-level functions.’ … A governmental entity’s decision to build or modernize a particular improvement is a discretionary judgmental function with which the courts will not interfere.”
The order gave Wallace 10 days to file a response to the deficiencies it had noted.
More of the amended petition’s arguments
In the amended complaint he filed for Wallace on Feb. 4, Brookes immediately pointed out that FDOT’s dismissal was incorrect in stating that “‘FDOT decided it wanted to change some control features at an existing intersection [his emphasis], and this has nothing to do with access management for a development …’ This statement implies an existing signalized intersection is being modified,” Brookes added.
He again noted that the location has no stoplight.
In yet another argument, Brookes points to the fact that “FDOT [in its Order of Dismissal] omits a pertinent portion [of the Florida Statutes], which conditions installation of traffic control devices to those that ‘conform to [FDOT’s] manual and specification.’ That phrase,” Brookes continued, “should invoke the FDOT’s Intersection Control Evaluation … which is what Petitioners have cited in the original and amended Petition …”
Brookes further contended that the proposed new signalized connection “is too close” to U.S. 41 and the Stickney Point Road drawbridge to Siesta Key … This [type of] concern is prominently referenced in the [Federal Highway Administration’s Intersection Control Evaluation] ICE Manual as an undesirable condition and should not have been approved.”
Additionally, Brookes pointed out, “The Dismissal indicates that we are questioning the propriety of [a] traffic signal installation, which is a traffic control device, and installation of traffic control devices is non-appealable within the ‘planning-level function’ of the FDOT. However,” he wrote, “if the connection permit to serve [Siesta Promenade] is conditioned on the installation of a traffic signal, then the required traffic signal becomes connected to the connection permit …”
Brookes also pointed out that the Order of Dismissal indicates that only an applicant for a connection permit can appeal an FDOT decision on such a permit, “and not a third party who might be adversely affected. Somewhere there ought to be an ability for an aggrieved party to challenge such a decision … if only to ensure that any agency mistakes … can be corrected, before it is too late for circumspection.”
Thus, he wrote, with emphasis, “If FDOT will not, or cannot, refer the case to [the Florida Division of Administrative Hearings] for a formal hearing, [Wallace] requests an informal hearing or meeting with FDOT …” during which Wallace’s traffic engineering expert can be present, “so that these planning level concerns can at least be vetted and addressed …”
Moreover, Brookes noted that both the Siesta Key Association and the Siesta Key Chamber of Commerce sent letters to FDOT District One Secretary L.K. Nandam, imploring him to have his staff “take into consideration Siesta Key safety and traffic issues” in an analysis of whether the traffic signal should be allowed at Avenue B and C. Brookes added that in a 2016 letter, an FDOT engineer warned that the new stoplight “would not be appropriate.”
Nonetheless, Brookes continued, on Oct. 26, 2020, FDOT sent him a letter stating that the new stoplight had been approved based “‘not only on traffic impact analysis but many other factors including safety analyses, roadway connectivity, adjacent land uses … and community vision [emphasis added].’”
Wallace disputes “that any level of Siesta Key community vision involvement and approval was considered by FDOT in its decision,” Brookes added.