Benderson Development attorney underscores ‘extremely stringent standards of review’ in appeals
In litigation regarding the proposed Siesta Promenade development, an assistant Sarasota County attorney has reminded the Second District Court of Appeal that the latter “is limited to considering whether the circuit court afforded the parties due process and applied the correct law.”
Assistant County Attorney David Pearce was responding to an appeal filed early this year by Pine Shores Estates resident Sura Kochman, who lives close to the planned Siesta Promenade site at the intersection of U.S. 41 and Stickney Point Road.
“To observe the essential requirements of the law is not simply a review as to whether a legal error occurred, but whether the error is so serious as to constitute a violation of a clearly established principle of law resulting in a miscarriage of justice,” Pearce wrote in his answer to Kochman’s court brief. He was citing a 2007 Florida Second District Court of Appeal case, City of Tampa v. City National Bank of Florida, he pointed out.
In January, the Second District Court of Appeal agreed to hear Kochman’s appeal of Circuit Judge Andrea McHugh’s Dec. 2, 2019 ruling that the Sarasota County Commission did not violate county laws and procedures in determining that the mixed-use Siesta Promenade project could be constructed. McHugh did explain that she could consider only part of the issues in the Kochman’s complaint, filed in early 2019 after the commission’s public hearing in December 2018.
Siesta Promenade is slated for an approximately 24-acre site in the northwest quadrant of the intersection of U.S. 41 and Stickney Point Road. Benderson Development Co. affiliate Siesta 41 Associates plans 414 apartments/condominiums; 133,000 square feet of retail space; 7,000 square feet of office space; and a 130-room hotel standing 80 feet tall.
The site is immediately adjacent to Pine Shores Estates.
Judge McHugh suggested that Kochman could pursue a different challenge in Circuit Court to address other issues included in Kochman’s lawsuit. Instead, Kochman chose to appeal McHugh’s ruling, citing judicial errors.
Kochman’s attorney, Ralf Brookes of Cape Coral, wrote in his initial brief, “Case law indicates that [the Court of Appeal] has a degree of flexibility and discretion in determining whether the Lower Court overlooked sources of established law or applied an incorrect analysis of the law it considered, resulting in fundamental error.”
Referencing that statement, Pearce contended in the county’s answer that Kochman “fails to identify the fundamental error — an inherent illegality or irregularity in the circuit court’s order.”
“The petition lacks allegations beyond simple legal error,” he added, “and therefore cannot receive [the sought] relief in this proceeding. Even if the [Court of Appeal] disagrees with the circuit court’s conclusions, there is no demonstration that the ruling resulted in a miscarriage of justice — and there is nothing to suggest an exercise of judicial tyranny,” Pearce wrote.
During an October 2019 hearing in the case, Circuit Judge McHugh repeatedly asked Brookes for case law to back up allegations he had made in Kochman’s complaint, as well as statements he was making that day in court. Brookes was unable to do so.
In his response, Pearce noted — for one example — Kochman’s argument that McHugh declined to decide whether Benderson/Siesta 41 Associates had to comply with the county’s Special Exception process in seeking extra density, greater height and the construction of multi-family buildings in Siesta Promenade. Benderson/Siesta 41 Associates had petitioned for approval of a Critical Area Plan for the project, which would allow residential density up to 25 units per acre, instead of the 13-unit maximum allowed under the traditional Commercial General (CG) zoning designation for such a site. CG zoning regulations also cap height at 35 feet, while Siesta Promenade residential structures were designed to be as tall as 65 feet.
Pearce wrote that, as detailed in his statement of the case and facts in the response, “[B]oth the Sarasota County Comprehensive Plan and Zoning Regulations contemplate the approved density, height, and multi-family use as a matter of right through the mechanism of a critical area plan [his emphasis].” He added, “The circuit court correctly ruled that the County’s response pointed out that Kochman’s argument amounted to a collateral attack on the Siesta Promenade Critical Area Plan ordinance, which was not subject [to the Writ of Certiorari review Kochman had sought in her complaint].”
Pearce further noted that Future Land Use Policy 1.2.15 of the county’s Comprehensive Plan says, “‘A Critical Area Plan is required for mixed-use developments requesting densities above 13 and up to 25 dwelling units per acre.’”
Additionally, Pearce noted, “Section 6.10.1 of the [county’s] Zoning Regulations [recognizes] that a critical area plan may establish residential (Upper Story and Multifamily) density of up to 25 dwelling units per acre in a critical area plan which includes mixed use development.”
Moreover, Pearce contended, Kochman is wrong in her assertion that McHugh erred when McHugh did not rule on whether the commission followed the correct procedure in adopting the Critical Area Plan (CAP) boundary for Siesta Promenade and the CAP scope of work.
Nonetheless, Pearce continued, “The proper method to challenge a CAP is a declaratory judgment, not certiorari,” which is the action Kochman pursued in Circuit Court.
He pointed out that the commission held a public hearing on Oct. 11, 2016 to set the boundary of the CAP. At that time, he added, the board continued its decision to the Dec. 12, 2018 public hearing on the Benderson/Siesta 41 Associates petitions for the rezoning of the Siesta Promenade site and the special exception for the inclusion of the hotel in the project.
“Kochman had actual notice of the CAP boundary and scope of work,” Pearce noted, referring to the legal requirement that property owners within a certain radius of the Siesta Promenade site be notified in advance of county workshops and hearings related to the project. “She attended the Board’s public hearing when the Board adopted [the boundary and scope of work],” he added. “She hasn’t indicated how she was prejudiced.”
Moreover, Pearce pointed out, “Where the government provides actual notice of its action and an opportunity to set aside that action … then the requirements of procedural due process are met.” He cited a 1994 federal case in the U.S. District Court for the Middle District of Florida, along with an 8th U.S. Circuit Court of Appeals decision in 1996; and a Florida Division of Administrative Hearings proceeding in 2006 as judicial precedents underscoring his argument.
Details of Siesta 41 Associates’ answer
A Tampa attorney, Steven L. Brannock, is the lead counsel representing Benderson Development and its affiliate in the Siesta Promenade appeal, court records show. His co-counsel are Sarah C. Pellenbarg, also with Brannock & Humphries in Tampa; and Robert K. Lincoln of Sarasota, who represented the companies during the Circuit Court proceedings.
The attorneys had received permission from the Appeal Court to delay filing the Benderson/Siesta 41 Associates’ response to Kochman’s complaint. Instead of their answer being due by Feb. 7, the Appeal Court allowed an extension until Feb. 21.
In the response, Brannock joined Assistant County Attorney Pearce in underscoring the “extremely stringent standards of review” in petitions such as Kochman’s. Brannock added, “Kochman cannot demonstrate the circuit court applied the wrong law resulting in a miscarriage of justice, [so] her petition should be denied.”
Further, he wrote, because Judge McHugh “found that there was competent substantial evidence to support the [County Commission’s approval of the Siesta Promenade plans],” Kochman focused her challenge on the CAP process.
(“Competent substantial evidence” is a term used in reference to public hearings such as the one the County Commission conducted on Siesta Promenade in December 2018. As with a proceeding in court, the petitioners had to prove through testimony and evidence that they complied with county policies and regulations, meeting the necessary standards to win board approval.)
Brannock proceeded to point out that the five parcels Benderson Development acquired for the Siesta Promenade project were “located within an area designated as Commercial Center on the [county’s] Comprehensive Plan’s Future Land Use Map.” That designation, he continued, “is significant, because it entitled Benderson to automatic upzoning to [C]ommercial [G]eneral zoning over the majority of the Property, which could have resulted in a far more intensive commercial development. Instead,” Brannock wrote, “working with the county, Benderson sought and ultimately obtained approval for a less intensive mixed-use project.”
Brannock also noted that Kochman lives across from the portion of the site that was zoned Residential Multifamily-1 at the time of Benderson’s acquisition of the site. That zoning allowed for buildings with heights of 35 feet, with an additional 12 feet “for structured parking,” he noted.
The proposal that Benderson/Siesta 41 Associates created for Siesta Promenade, Brannock continued, ended up necessitating Critical Area Plan (CAP) designation.
Brannock then explained facets of the process to obtain CAP approval, including the need for the applicant “to satisfy numerous additional criteria separate and apart from a typical zoning change request …”
Just as Pearce had done in his answer for the county, Brannock pointed out that Kochman’s challenges to the CAP ordinance “were legislative” and not subject to Circuit Judge McHugh’s review in Kochman’s case.
Moreover, Brannock added, “Kochman has identified no law requiring the [County Commission] to follow a certain order in approving a CAP plan. Kochman argues that a flow chart picture contained in the CAP regulations is the binding guideline for the CAP process,” he continued. However, he pointed to a section of the county’s CAP regulations that he included in the answer, contending that it “makes clear there is no magic to the order of approvals and that concurrent processing may be appropriate: ‘In cases where a CAP and rezone petition are anticipated for the same area in question, it is recommended that one complete document for the CAP and the rezone petition be prepared to expedite the review process. This option would allow for the concurrent processing of the [CAP] and rezone petition for public hearings.’”