County given 30 days from Jan. 8 to file its response
Florida’s Second District Court of Appeal announced on Jan. 8 that it would hear an appeal of a 12th Judicial Circuit Court judge’s Dec. 2, 2019 order denying an attempt to block the construction of the mixed-use Siesta Promenade project.
The Court of Appeal gave Sarasota County, Benderson Development Co. and Benderson affiliate Siesta 41 Associates LLP 30 days to reply to the appeal filed on Jan. 2 by the attorney for Sura Kochman, a resident of Pine Shores Estates in Sarasota.
Benderson Development created the project, but the official developer is Siesta 41 Associates. The companies were allowed to intervene in the Circuit Court case.
As one of the homeowners in the community immediately adjacent to the Siesta Promenade site — which is in the northwest quadrant of the intersection of U.S. 41 and Stickney Point Road — Kochman had fought the intensity of the proposal prior to the County Commission’s Dec. 12, 2018 split vote to approve it.
Siesta Promenade would have 414 condominiums/apartments, a 130-room hotel standing 80 feet tall, 133,000 square feet of retail space and 7,000 square feet of office space.
In his Petition for Writ of Certiorari filed with the Court of Appeal, Ralf Brookes of Cape Coral, Kochman’s attorney, seeks the quashing of the Circuit Court order, saying Kochman “was denied procedural due process and the Lower Court did not apply the correct law.”
In regard to the latter situation, Brookes pointed out, Kochman’s appeal would have to “demonstrate that the [Circuit Court] Order violated a clearly established principle of law, resulting in a miscarriage of justice. … 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,” he wrote.
Brookes added that because of the location of her home, Kochman “will be adversely affected by increased height, increased density and increased intensity and use of [Siesta Promenade’s approximately 24-acre site] and corresponding increase in traffic.”
Along with the hotel, one residential building in the development would stand 65 feet tall, while another would be 50 feet high, both close to the single-family homes in Pine Shores Estates. County Commissioner Charles Hines questioned that design in opposing the CAP designation for the property.
Staff members of the Florida Department of Transportation (FDOT) also raised concerns over the years of planning for Siesta Promenade, given the expectation that the development would add more than 8,000 vehicle trips a day to the already congested area of U.S. 41 and Stickney Point Road. FDOT engineers also cited the already high crash data for that intersection.
Brookes further noted in his petition to the Court of Appeal that Kochman would be “affected by traffic going to and from the proposed large development” on Glencoe Avenue in Pine Shores Estates “and on other neighborhood streets and roads in the immediate vicinity,” including Stickney Point Road.
He cited a 1987 Florida Third District Court of Appeal decision and a 1999 Florida Second District Court of Appeal decision in making his arguments about her standing in the case.
Kochman filed her lawsuit against Sarasota County in January 2019.
Last month, Circuit Judge Andrea McHugh ruled that the County Commission had acted appropriately in approving several petitions filed with the county to make Siesta Promenade feasible as designed.
However, McHugh also explained that she could not consider the primary argument that Kochman attorney Brookes had put forth in her complaint: that the County Commission had not followed county procedures and policies for approving a Critical Area Plan (CAP) designation for Siesta Promenade. The CAP status gave Benderson the right to build up to 25 dwelling units per acre, instead of the standard 13 dwelling units per acre for projects on property zoned Commercial General — which is the zoning Benderson sought for the entire site. Benderson’s director of development, Todd Mathes, told the county commissioners that the actual density would be slightly higher than 20 units per acre.
Kochman’s Circuit Court complaint was a Petition for Writ of Certiorari, McHugh pointed out. However, that could not be applied to the CAP argument, she wrote in her December 2019 order. She figuratively left the door open for the filing of a new complaint on that issue.
Yet, in the appeal, Brookes cited a 2005 opinion of the Second District Court of Appeal to dispute McHugh’s decision. Quoting from that 2005 judicial precedent, he wrote that the Sarasota County Commission did not “have the power to ignore, invalidate or declare unenforceable” county regulations regarding CAP adoption procedures, even though the Dec. 12, 2018 hearing during which the board approved the CAP was quasi-judicial. The latter term means the proceeding was similar to a court case in that the commissioners had to base their decisions on evidence and testimony.
Other facets of the appeal
Among other arguments in his petition, Brookes pointed out — as he did in the Circuit Court case — that the County Commission consolidated all of Siesta 41 Associates’ petitions for the Siesta Promenade project into one public hearing. Yet, the board allowed speakers only 3 minutes each to address all of them.
He also noted that the County Commission’s approval of the plans for Siesta Promenade was predicated upon FDOT’s approval of a new traffic signal at the intersection of Stickney Point Road and Avenue B and C, which is located between the U.S. 41 intersection and a drawbridge on Stickney Point Road. That bridge, he stressed, stands on “one of only two entrances to Siesta Key.” Yet, he continued, between 10 a.m. and 2 p.m. on days during the height of tourist season, “[T]his segment of Stickney [Point Road] is very frequently ‘stop and go’ with backups in both directions on [U.S.] 41 and on Midnight Pass [Road] North and South of Stickney Point [Road].”
Further, Brookes explained that the site of Siesta Promenade has been vacant for more than 10 years; thus, it has not been generating any traffic in the area of the U.S. 41/Stickney Point Road intersection.
On another point, Brookes argued that Siesta 41 Associates did not apply for Special Exceptions for the increased density and increased height associated with the design of Siesta Promenade, and it also did not seek a Special Exception as required under county regulations for the addition of standalone multifamily residential structures on property zoned Commercial General.
The only Special Exception for which the firm sought commission approval, he continued, regarded the addition of the hotel to the site plan. “If the Applicant applied for one of the special exceptions,” he wrote, “why did it not apply for the other special exceptions that were also required by the [County] Code?”
He added that Siesta 41 Associates “admitted … the CAP does not replace [his emphasis] the County’s [Land Development Code], but instead includes ‘standards beyond those required by the County’s Zoning Regulations.’”
Before the County Commission approved the rezoning of portions of the site during the Dec. 12, 2018 public hearing, Brookes continued, most of the property was zoned to allow only 9 dwelling units per acre.
“Public hearings were never held, and specific findings of fact were never made, for the special exceptions to density, height and stand-alone multifamily use,” Brookes reiterated his argument.
The county’s Unified Development Code “is the applicable law,” he wrote, and both the County Commission “and the Lower Court were required to adhere to it and apply it.” He cited a 2016 opinion of the Florida Third Circuit Court of Appeal, which “held that a City’s failure to apply its land development code is a departure from the essential requirements of the law …” Therefore, the appeal court quashed the ruling of the Circuit Court in that case because of the lower court’s “resulting failure to require compliance with the Code.”
The 2016 judicial precedent he cited, Alvey v. City of North Miami, said, “[T]hose who own property and live in a residential area have a legitimate and protectable interest in the preservation of the character of their neighborhood which may not be infringed by an unreasonable or arbitrary act of their government. Zoning ordinances are enacted to protect citizens from losing their economic investment or the comfort and enjoyment of their homes by the encroachment of commercial development by an unreasonable or arbitrary act of their government.
“Thus,” the Third District Court of Appeal continued, “the burden is upon the landowner who is seeking a rezoning, special exception, conditional use permit, variance, site plan approval, etc. to demonstrate that his petition or application complies with the reasonable procedural requirements of the applicable ordinance and that the use sought is consistent with the applicable comprehensive zoning plan. Because rezoning actions have an impact on a limited number of persons or property owners, and the decision is contingent on facts arrived at from distinct alternatives by applying, rather than setting policy, the nature of the proceeding is quasi-judicial subject to … certiorari review [Brookes’ emphasis].”