City Commission to discuss issue during its regular meeting on Dec. 6
Community outrage has arisen over a proposed settlement of a lawsuit against the City of Sarasota that would entail the city’s selling part of Paul Thorpe Jr. Park to the plaintiffs for $275,000, so a food court could be created, The Sarasota News Leader has learned.
As City Attorney Robert Fournier explained the situation on the formal agenda request sheet for the Dec. 6 City Commission meeting, a 12th Judicial Circuit Court judge earlier this year granted a city motion for summary judgment in a lawsuit “regarding the dispute over the ownership of the 30-foot-wide parcel of land adjacent to the Northern Trust parking garage alongside Paul N. Thorpe, Jr. Park.”
“Summary judgment” is a ruling “entered by a court for one party and against another party without a full trial,” as Cornell University’s Legal Information Institute points out.
That order, Fournier continued, found that the city “holds clear title to the subject property …”
In a March 4 email to City Commissioner Jen Ahearn-Koch, Fournier discussed the case and Circuit Judge Andrea McHugh’s ruling for the city. “[T]his Order places the City in a good position regarding an appeal if one is filed,” Fournier wrote.
Although the ruling indeed was appealed to Florida’s Second District Court of Appeal, Fournier received a Nov. 16 email from attorney William Merrill III, a partner in the Icard Merrill firm in Sarasota, outlining details of a proposed settlement. That email is part of the backup agenda material for the Dec. 6 commission meeting.
Merrill wrote that the plaintiffs — including EDM-Sarasota LLC — had proposed purchasing city property “located generally along Lemon Avenue … Such an arrangement will allow EDM to build a liner building in the area generally west and south of the Northern Trust Garage and will result in settlement of the pending litigation.”
The Florida Division of Corporations lists the principal address for EDM-Sarasota as 1605 Main Street, Suite 905, in Sarasota. Two of the “title managers” of EDM —Michelle Mitchell and Howard Brumer — have the same address, the state records note. The third title manager is Jonathan Mitchell, grandson of the founder of EDM Realty Partners, who is chair and CEO of that company, according to its website. Brumer is chief operating officer of EDM Realty Partners, the firm’s website adds.
Jonathan Mitchell also has written and co-written posts on a website called “Best SRQ” that have been critical of the city commissioners.
The News Leader found that Provenance Wealth Advisors of Sarasota is located at 1605 Main St., Suite 905, according to its website.
Attached to Merrill’s email to Fournier was a formal letter outlining details of the proposal. The letter said that EDM would pay $275,000 in cash for the property that was the focus of the lawsuit, which included land the city initially sold to State Street Partners. The settlement would encompass adjacent property, as well, as shown on a map that Merrill included with the correspondence.
A portion of that property is within the Paul N. Thorpe Jr. Park. As the city’s website notes, the site formerly was known as Pineapple Park. In 2017, it was dedicated and named in honor of Thorpe — known as “Mr. Downtown” — for his many contributions to the city.
EDM-Sarasota or an affiliate would be entitled to construct retail buildings and other improvements on the land, Merrill continued. “The Development currently contemplated will comprise a portion of a one- and partial two-story, multi-tenant food court with rooftop customer seating, pursuant to a plan and design concept to be prepared in conjunction with the Ringling College of Art and Design. EDM would have the use of a designated area in front of the Yellow Parcel for outdoor cafe and outdoor seating, as was contemplated by the plans submitted by [State Street Partners] for the Yellow Parcel [as shown on the attached map]. The Development will incorporate seating for all tenant patrons and will include (a) restrooms for employees and patrons of the Development and (b) two restrooms for the general public to be available to the public only during operating hours of the City’s Farmer’s Market.”
Merrill added, “The remainder of the adjacent park will be owned by the City and continue to be used as a public park. EDM and the City will cooperate with one another on issues related to maintenance and security of the park.”
The item on the Dec. 6 agenda, XII.3, is the last one under New Business.
As word spread this week about the planned settlement discussion, city residents voiced outrage on Facebook pages devoted to community issues, and they contacted the city commissioners to urge them to reject the plaintiffs’ proposal.
On one Facebook page, Kelly Franklin posted a synopsis of the litigation and the settlement proposal, adding, “Having lost in court, [EDM] is now offering the city $275,000 for this land, and threatening to appeal the circuit court decision, wasting more taxpayer dollars, if the city does NOT agree to break the deed and sell it this park land. Talk about can’t take ‘no’ for an answer! On what planet does anyone think this is something this city or any city should agree to?”
Three people copied the News Leader on their emails to the city commissioners.
One of them, Ronald Kashden, who lives in Laurel Park, used public records from the city to prepare the following:
“I am a certified public accountant, and my focus here is on the obligation of elected officials to serve as stewards of public assets, including our parks, parking lots, roads, sidewalks, and greenspaces.”
He then pointed out, “The City of Sarasota has invested over two million dollars to create this public park:
- “Buyback of land from State Street Partners: $300,000.
- “Mermaid Fountain refurbishment: $150,000.
- “Build-out of Paul Thorpe Park: $1,346,469.
- “Litigation costs defending against nuisance suit by EDM: $425,000.
“Total City of Sarasota investment in Paul Thorpe Park: $2,221,469,” Kashden added with emphasis.
“Given this significant investment, the paucity of greenspace downtown, and the fact that what EDM is attempting here is extortion (threatening to appeal a lawsuit which they clearly lost on 3 separate grounds, thereby wasting more taxpayer dollars to defend the public’s right to public enjoyment of public land), I implore you to decline this ‘settlement’ offer,” Kashden added.
“Hotdog stands where parks used to be are not public amenities, and should EDM appeal the circuit court’s order, I hope that you will seek to recover the attorney’s fees taxpayers have borne because of avaricious actions of the principals of EDM-Sarasota, LLC (Howard Brumer, Jonathan E. Mitchell, and Michelle Mitchell),” Kashden told the commissioners.
“Paul Thorpe helped build this city, and his civic legacy, in the form of this lovely public park, deserves to be cherished and protected,” Kashden added.
Jane Kirschner wrote, “One of the greatest attractions of every city I’ve ever visited around the world has been the large and tiny green spaces, known as PARKS within these tall city walls!
“As Sarasota’s skyline gets ever taller and more congested, we NEED to keep our parks which are within the city limits, not only for the green sanctuaries themselves, but for the enjoyment and cooling breezes they supply to all of us in the middle of our stifling hot summer months. I realize the temperature has gone down seriously in the past week, but I’m sure you all can remember how hot August and September can get downtown.
“After all the efforts that we all put in to save and rehabilitate that wonderful bit of shady greenery, I can’t believe that you folks are even contemplating turning over the Paul Thorpe Park now to a developer to demolish, just for ONE MORE building downtown!!!
“Please, come to your senses and deny this atrocious idea to take hold!
“Paul Thorpe is probably already rolling over in his grave!”
She concluded her email with this: “Do not sell that park!!!! Please!!!”
Kafi Benz, president of Friends of Seagate Inc., told the commissioners the following in her email:
“Please retain the complete configuration of the Paul Thorpe- Pineapple Avenue and Lemon Avenue Park.
“The city has been granted ownership of the disputed land and should not be intimidated by a false claim. The city attorney has advised you regarding the legal probabilities. The commissioners should preserve and conserve every inch of that park area.
“The loss of the area being requested for the proposed building would strip the park of — all — of its trees and eliminate shaded seating,” Benz added with emphasis.
“Placing the planned businesses in that space,” she continued, “would lead to their requesting extended dining space outdoors into the public area that would further reduce the size of any remaining public park.”
Then Benz pointed out, “From north of the park along Lemon, the proposed building would block the vista to the south and create the impression of the downtown ending — instead of providing the current vista down Pineapple that encourages visitors to explore farther and to cross Ringling into the Burns Square area. That interconnectedness encourages existing commerce that the commission ought to support.
“From south of the park driving along Pineapple, the proposed building would block the vista to the north showing the path north of Lemon Avenue into the city. That would have the effect of funnelling all traffic to continue along Pineapple rather than encouraging the use of the grid of streets for alternative routes and access that exists today. That also encourages existing commerce.
“Years of effort has created this charming park,” Benz stressed. “Many people have devoted an enormous amount of time to create it and then proposed the use of it to honor Paul Thorpe, a citizen who devoted so much time to facilitate downtown development that he was described as ‘Mr. Downtown.’ His role in our history is significant.”
Another person who emailed the commissioners, Lisa Olmer — who identified herself as a Registered Sarasota voter” — wrote on Nov. 30, “DO NOT SELL ANY PART OF PAUL THORPE PARK. We Love every inch of that park just the way it is.
“We do not want commercial interests in our little pocket park. We’re the taxpayers who built it and own it and use it. Keep it shaded and quiet.”
A brief history of the litigation
The litigation that will be the focus of the Dec. 6 City Commission began in August 2017, the News Leader found in researching 12th Judicial Circuit Court records.
Originally, State Street Partners LLC filed suit against EDM-Sarasota and several other defendants.
In June 2016, the City of Sarasota deeded to State Street a 0.124-acre portion of the 60-foot-wide Lemon Avenue right of way. However, according to an amended complaint in the case, a dispute arose over other firms’ claims to some of the same right of way. “The claims of the Defendants may cast a cloud, doubt or suspicion on [State Street’s] title to all or a portion of the State Street Property, although such claims are without merit and have long since been cut off and extinguished,” based on Chapter 712 of the Florida Statutes, State Street argued. Therefore, the firm asked the court to rule that it was the owner of the title to the property.
Then, in January 2018, State Street Partners filed a second amended complaint, which added the city as a defendant.
One of the original defendants — NT Air Rights Propco LLC (referenced as NT Owners in the court documents) — had filed a motion to dismiss the initial case. In that motion, State Street Partners wrote that NT Owners had asserted that the city could not legally convey the Lemon Avenue property to State Street Partners because the land was right of way and the city never had properly vacated Lemon Avenue “prior to the attempted conveyance” of it to State Street Partners.
In a June summary judgment motion, the city explained that NT Owners had purchased property next to the parcel that the city sold to State Street Partners and that NT Owners claimed ownership of portions of Lemon Avenue, based on old deeds and common law.
Ultimately, the parcels at the center of the dispute were dubbed “Phase 1” and “Phase 2,” court documents show.
Circuit Judge McHugh issued her final ruling in the case on June 28.
On June 20, EDM — joined by NT Retail Propco LLC and NT Air Rights Propco LLC — filed the appeal with Florida’s Second District Court of Appeal.