Bay Plaza Owners Association awaiting date of hearing
The Bay Plaza Owners Association has appealed to the Sarasota City Commission the 4-1 vote of the Sarasota Planning Board on Feb. 12, which concurred that city staff was justified in approving the application for a 327-foot-tall condominium tower that will stand as close as 23 feet from Bay Plaza.
Chair Daniel DeLeo cast the solitary “No” vote following the hearing.
No hearing date had been set as of Feb. 19, Association member Ron Shapiro told The Sarasota News Leader.
During the approximately four-and-a-half-hour hearing, the only Planning Board member who did not express disdain for the structure that formally is known as the 1260 N. Palm Residences was Terrill Salem. In fact, Salem was part of the two-member minority who voted against allowing the Bay Plaza Owners Association to appeal the staff decision that cleared the project for construction. Then-Chair Michael Halflants joined him at the conclusion of a Dec. 11, 2024 hearing over whether the Association should be considered an aggrieved party. Without that declaration, Deputy City Attorney Michael Connolly had explained, the city Development Services staff’s approval of the new condominium complex’s application could not be considered.
At the outset of the Feb. 12 hearing, Connolly read part of the city’s Zoning Code and part of an April 2024 email from City Attorney Robert Fournier to the city commissioners and the president of the Downtown Sarasota Condominium Association in regard to the top public concern about the plans for the 160 N. Palm Residences project — also known as the Obsidian: its height, which has been linked to the design’s use of “interstitial space.”
As both the project team and the Association’s attorney pointed out, that space is where the mechanical, electrical and plumbing equipment is placed between floors in a structure.
The condominium complex has been designed to stand 18 stories high, as allowed in the city’s Downtown Bayfront Zoning District. However, each residential floor has a ceiling at the 14-foot mark. The interstitial space adds another 59 feet to the design, as George Scarfe, associate principal of Hoyt Architects in Sarasota, explained to the Planning Board.
Scarfe and other members of the project team emphasized that number, countering what they stressed was the inaccurate figure of 70 feet that members of the community have cited.
On April 17, 2023, Fournier wrote in his email, the City Commission adopted an ordinance, on second reading, that eliminated from Section VI-105(g)(1) of the Zoning Code the sentence that said, “The uninhabited space between stories [in a building] is not regulated [his emphasis].”
The new ordinance, he continued, “substituted language saying that interstitial space shall only be permitted for the use of mechanical, electrical, plumbing, or similar equipment and materials. Additional language was added saying that any more space than necessary to accommodate this equipment could be approved by the Development Services Director with written justification for the request provided for review.”
However, Fournier pointed out, on June 28, 2023, Gov. Ron DeSantis signed Senate Bill 250. “This legislation,” Fournier explained, “stated that a county or municipality located entirely or partially within 100 miles of where Hurricane Ian made landfall [in 2022] shall not ‘… propose or adopt more restrictive or burdensome amendments to its comprehensive plan or land development regulations; or propose or adopt more restrictive or burdensome procedures concerning review, approval, or issuance of a site plan … before October 1, 2024.’
The City of Sarasota is within 100 miles of where Hurricane Ian made landfall,” Fournier added, “so the legislation applies to the City.” Further, he noted, Senate Bill 250 said “ that any local ordinance that imposed a more burdensome or restrictive measure in its land development regulations in contravention of the new law was void ab initio (i.e. void from the beginning, never went into effect) and second, that the new law ‘applies retroactively to September 28, 2022.’ ”
He then explained that because the city ordinance regarding interstitial space was adopted on April 17, 2023, Senate Bill 250 made “the City’s more restrictive measure limiting interstitial space null and void …”
Noah Fossick, the city’s chief planner for development review, made clear during the Feb. 12 hearing that the final determination about the amount of interstitial space assigned between floors in the 1260 N. Palm building would come during the project team’s efforts to obtain a city building permit for the undertaking.
During his opening remarks on Feb. 12, Deputy City Attorney Connolly also read a portion of the Zoning Code regarding administrative site plans, as the hearing technically was being conducted to determine whether the Development Services staff had correctly interpreted city regulations and policies in granting the adjustments that the project team had sought to construct the building, which would be the highest in the city.
At the conclusion of the hearing that day, Connolly told the board members, each of them would be required to determine whether the site plan application “meets the Standards for Review in the Zoning Code.” Those are as follows:
Further, Connolly emphasized to the board members that the hearing would be a quasi-judicial proceeding, similar to a court case, in which factual evidence was the key to their decision. “It doesn’t matter how many people testify for, or against, the site plan,” he said. “All that matters,” he pointed out, was that, when the board members reached the end of the hearing, “there’s competent substantial evidence” in the record on which they could base their decision. “Competent substantial evidence” is the phrase that attorneys for local government bodies underscore in advising the members of those bodies what to rely on to reach their conclusions following quasi-judicial hearings.
That evidence is what the city attorney would need to defend the Planning Board’s decision if its decision led to a Circuit Court complaint, Connolly said.
Sarasota attorney Brenda Patten, of the Berlin Patten Ebling firm, who was a member of the 1260 N. Palm project team, stressed to the Planning Board members, “Your staff has gone to extreme lengths to show you that this [building] complies with the [city Zoning] Code. If you deny it, and [this] eventually ends up in Circuit Court, it would be a most awkward situation for the city attorney.”
She pointed out that the city attorney would be arguing “that staff is incompetent and made errors, and their staff report [for the hearing] would be trashed.”
Noting that she had been involved with land-use projects for many years, Patten added, “I’ve never seen that happen.”
‘You have a developer who is pushing the limits in an extreme way’
“I really, really dislike a lot about the project,” Planning Board member Shane LaMay said, but the design was better than the previous one, which the Planning Board seated in 2023 had agreed did not comply sufficiently with city regulations and policies. The height, he pointed out, remained his primary concern.
“The big thing for me was this interstitial space business,” Planning Board member Dan Clermont said. “Frankly … I don’t like how tall this [condominium complex] is …”
Nonetheless, he pointed out, he was obligated to consider the factors demonstrating the site plan’s compliance with the Zoning Code and the efforts that the project team had made to mitigate the impact of the building, which would stand so close to Bay Plaza.
Alluding to Deputy City Attorney Connolly’s comment about the potential of litigation, Clermont added that he did not see that the board members had sufficient grounds for agreeing with the Bay Plaza Owners Association that city staff had erred in granting approval to the project.
Planning Board member Douglas Christy concurred with Clermont.
“I still think that the argument or the problem with the project is not with the developer,” board member Salem told his colleagues. Based on his review of the applicable parts of the Zoning Code, Salem added, “They should be permitted to build the building.”
Yet, Chair DeLeo told his colleagues, “I think there’s a tremendous amount of evidence in this record to turn this building down. A tremendous amount.”
Turning to the city’s Standards for Review, he cited No. 4: “Whether there are ways in which the configuration of the development (e.g. location of use(s); intensity; density; scale; building size, mass, bulk, height and orientation; lot coverage; lot size/configuration; architecture; screening; buffers; setbacks; signage; lighting; traffic circulation patterns; loading area locations; operating hours; noise; odor; and other factors of compatibility) can be changed which would mitigate or improve the effect of the development on adjoining and nearby properties and on the community.”
“There has been a lot of talk about the height [of the project],” DeLeo continued. “It is extreme, I think, by any measure, as it relates to those properties around it and the history of Sarasota.”
Moreover, he pointed out, the site plan is not compatible with the Sarasota City Plan, which is the city’s comprehensive plan; it guides growth in the municipality. “Here, again,” he said, “the height by itself is a wholly independent variable.”
DeLeo also noted the requested adjustments to city regulations that staff had approved for the site plan. One of those entailed a 9.4% reduction in the required retail frontage, to 95.89 feet, where 105.87 feet would be required, Lucia Panica, director of Development Services, wrote in her letter of approval of the project.
DeLeo stressed that the figure was nearly 10%, “and, at some point, these things matter.”
As for the interstitial space, he continued, “You have a developer who is pushing the limits in an extreme way … and I don’t think that the city treated interstitial space previously the way it treated interstitial space with respect to this applicant.”
During the project team’s presentation, architect Gary Hoyt, whose firm designed the 1260 N. Palm building, provided a history lesson about building height in Sarasota.
“It just so happens that I was working with [architect] Tim Siebert when Bay Plaza was done,” Hoyt noted. “That was the early ’80s.” The site selected for that building was vacant he added.
“It was the first time that people on the Keys that had water views started to realize that they could get a water view by coming downtown.”
“Sarasota,” he said, “which had really been in not very good shape for many years, was starting to try to come back to life.”
At that time, Hoyt noted, 8-foot ceilings were the standard in the condominiums constructed on South Palm Avenue. “The goal was you basically had to squeeze in as many floors as you could …”
However, the developer of Bay Plaza asked the architects to determine exactly how much height they could get for the ceilings, he said. The result was that they were able to design ceilings at 8 feet, 8 inches, “and that was seen as a major step.”
He left town after that project, Hoyt noted. Upon his return, he added, he opened his own firm; that was about 30 years ago. By that time, he continued, people who wanted to live in downtown condos were asking for higher ceilings.
His first project, he said, was Marina Tower; he was able to design 10-foot ceilings. “That was a real big step for Sarasota.”
It took approximately 40 years, Hoyt pointed out, for ceiling heights to rise from 8 feet to 14 feet. Explaining the demand for the latter, he pointed out that buyers “are coming from homes quite large.” They have grown accustomed to ceilings that range from 12 to 16 feet, he added.
However, when Sarasota attorney Morgan Bentley, of Bentley Goodrich Kison, was making his presentation on behalf of the Bay Plaza Owners Association, he stressed, “Let’s be clear: We’re talking about rich people, right?”
The “market,” Bentley continued, wants “affordable housing. They don’t want 5,000-square-foot units for ultra-rich people to live there four months a year. … We’re talking about a segment of the market.”
He did add, however, “There’s nothing wrong with being rich.”
Still, Bentley said, in the case of the 1260 N. Palm Residences, “The developer wants to maximize his profit. … The market clearly does not require this.”
‘Compliant with all development standards’
The city staff report for the hearing noted that the Administrative Site Plan for the 1260 N. Palm Residences was approved on Oct. 2, 2024, “as the proposed development is compliant with all development standards of the Zoning Code, including height, parking and façade requirements.”
Attorney Patten emphasized that during the team’s presentation to the board.
Nonetheless, Bentley said early on during his remarks that he wanted to talk about “the 800- or thousand-pound gorilla in the room, which is interstitial space and the height of the building.”
He took issue with Fournier’s April 2024 email about Senate Bill 250. What Fournier wrote, Bentley said, was that a “more restrictive ordinance cannot stand in the face [of that law].”
Bentley added, “Just because you can’t pass a regulation about interstitial space doesn’t mean anything.” The idea that, without regulation of it “you could have 100 feet of interstitial space between stories is nonsense, absolute nonsense. … Just apply your common sense.”
The applicant — Palm Properties LLC, whose manager is Matt Kihnke — wants a pre-approved amount of interstitial space because he wants the building to be taller than it otherwise could be, Bentley contended.
“The whole purpose of the [Zoning] Code,” he continued, “is to have height limits.” He then read from Article VI-1005(g) in the code, which regards building height:
During his testimony, Fossick of Development Services explained, “The redevelopment of sites always leads to a transition from low-story buildings to higher-story buildings, where there will be periods of time with differences in height.”
He added, “Growth is incremental, and we should expect and encourage differences in height, which add interest to our skyline.”
Differences in height are seen in cities worldwide, Fossick pointed out.
For one example in Sarasota, he cited the fact that the BLVD Sarasota condominium complex, which stands at 1224 Boulevard of the Arts, is 215 feet taller than the single-story house next to it.
During an exchange with Fossick, Chair DeLeo asked whether the applicant could have chosen to reduce the height of the 1260 N. Palm Residences building “to make it more compatible with the surrounding buildings.”
“Define ‘compatible,’ ” Fossick replied.
“It’s a simple question, sir,” DeLeo responded.
“It’s staff’s opinion that compatibility has been achieved by the project,” Fossick said, prompting laughter among residents of Bay Plaza who were in the audience.
DeLeo also asked Fossick, “Isn’t it true that this lot had very significant constraints with respect to the proposed structure and site plan?”
“That is true,” Fossick told him.