Three-judge panel named, but Appeal Court docket says members of the panel could decide they would not benefit from oral arguments
A three-judge panel of the Second District Court of Appeal tentatively is set to hear oral arguments in the Siesta Promenade case on June 23, the court has announced.
The hearing is set to begin at 11 a.m. before Judge Robert J. Morris Jr., Judge Daniel H. Sleet and Judge Matthew C. Lucas, the case docket says. It has been scheduled in the courtroom of the Stetson University College of Law, at the Court of Appeal’s Tampa Branch Headquarters, the docket notes.
However, the docket does add, “Should the assigned panel of judges decide that the court will not benefit from oral argument in this proceeding, the attorneys or parties will be notified by order no less than two weeks before the scheduled date.”
Further, if the hearing is conducted, the panel of judges “is subject to change without notice,” the docket points out.
Sura Kochman, a resident of the Pine Shores Estates neighborhood immediately adjacent to the Siesta Promenade site, filed her original complaint in the 12th Judicial Circuit Court in January 2019. It responded to the Sarasota County Commission’s split votes to approve the mixed-use development on an approximately 24-acre site in the northwest quadrant of the intersection of U.S. 41 and Stickney Point Road.
Siesta Promenade has been designed to encompass 414 apartments/condominiums, a 130-room hotel, 133,000 square feet of retail space, and 7,000 square feet of office space next to the mostly single-family homes in Pine Shores Estates.
On Dec. 2, 2019, following an October 2019 hearing, Circuit Court Judge Andrea McHugh ruled that the County Commission had taken appropriate action following the Dec. 12, 2018 Siesta Promenade hearing. However, she pointed out in her decision that she could not address certain issues Kochman raised in the complaint because they were beyond the scope of the type of lawsuit Kochman had filed. McHugh figuratively left the door open for Kochman to file a new complaint in Circuit Court on those points. Instead, Kochman filed the appeal.
In his formal reply to responses in that appeal from the Office of the County Attorney and attorneys representing Benderson Development Co. and one of its affiliates — Siesta 41 Associates LLP — Ralf Brookes of Cape Coral, Kochman’s attorney, continues to contend that McHugh erred.
“The lower court failed to apply the correct law,” he wrote in his March 23 reply.
McHugh pointed out in her December 2019 order that she could not deal with any arguments in the lawsuit except those focused on rezoning and Special Exceptions, which are quasi-judicial issues. “Quasi-judicial” refers to a type of public hearing in which members of an elected body hear evidence and testimony — as in a court trial — and then make a decision on the basis of whether an applicant’s petition complies with county regulations and policies.
Brookes pointed out in his reply that the County Commission approved the rezoning of part of the Siesta Promenade site to Commercial General (CG), and it approved a Special Exception for the hotel. However, he continued, Benderson and Siesta 41 Associates — which formally is the developer of Siesta Promenade — also should have sought Special Exceptions for additional height, density and other aspects of the project.
McHugh, he wrote, “failed to apply the essential requirements of law to the quasi-judicial special exception requirements contained [in the county’s Unified Development Code, which encompasses the county’s land development and zoning regulations].”
Brookes pointed to two decisions of the Florida Supreme Court — one in 1982; the other, in 2001 — to assert that Kochman “was denied her ‘as of right’ first tier review of quasi-judicial applications …”
Kochman’s Circuit Court case was a Petition for Writ of Certiorari.
As he did in his initial brief in the appeal, Brookes further noted that Benderson and Siesta 41 Associates “chose to pursue a voluntary site-specific [Critical Area Plan] CAP for Siesta Promenade. As admitted by the County Response,” he continued, “the voluntary CAP process is supplementary to the County’s zoning regulations and does not replace requirements in the County’s zoning regulations. … The [Commercial General] zoning regulations do not provide or allow CAPs to exceed special exceptions thresholds without first obtaining a special exception.”
While a development approved under the aegis of the county CAP policy may encompass additional height and density, for examples, Special Exceptions still must be obtained if the petitioner wants the extra height and density, Brookes argued. And the County Commission was obligated to address such Special Exceptions for Siesta Promenade “under the quasi-judicial zoning regulations,” he added.
The CG zoning allows for a maximum building height of 35 feet; however, one residential structure planned in Siesta Promenade would stand 65 feet tall, and the hotel itself has been designed at 80 feet. Additionally, the CG regulations allow for 13 dwelling units per acre. The CAP designation gives a developer the right to go up to 25 units per acre. Todd Mathes, Benderson’s director of development, told the County Commission during the December 2019 hearing that the residential density for Siesta Promenade would be about 20.5 dwelling units per acre.
The CAP contentions
Further, Brookes wrote in his reply, “[O]nce an applicant chooses to submit a CAP, the applicant must meet the mandated requirements of the CAP enabling Ordinance … Simply because the application is voluntary does not make approval of a site-specific CAP legislative.”
McHugh had written in her December 2019 order that she could not address Kochman’s arguments that the County Commission failed to follow the proper CAP procedure because it was a “legislative” — or policy — issue, not a quasi-judicial issue.
“The failure to review the site-specific quasi-judicial application approval for this Siesta Promenade CAP … resulted in a miscarriage of justice not only to [Kochman], but also to other members of the public,” Brookes wrote.
The county not only failed to hold required public hearings, he added, but it also “failed to hold the required public workshop after establishment of the CAP boundary as required by the CAP enabling Ordinance 2016-062 …” That ordinance, he explained, includes a CAP approval process flowchart, which mandates “specific required (i.e. ‘shall’) steps in a specific order,” which are necessary to an applicant’s gaining approval of a site-specific CAP.
“The failure to follow the mandatory procedural steps for approval of the Siesta Promenade CAP in the required order of approval fails to meet the clear and express requirements of law,” Brookes contended. For example, he pointed out, a public workshop should have been held after the commission approved the Scope of Work for the CAP “but prior to preparation of the actual traffic studies [related to the design of Siesta Promenade].” That workshop “would have given the public the opportunity to be heard,” he added.
The County Commission “did not approve the CAP boundary until … the very same public hearing” when it approved the final CAP, he noted.
Citing a 2016 decision of the Florida Third District Court of Appeal, Brookes contended that Kochman and the public “have a right to rely on existing ordinances as controlling law. … If a member of the public can’t rely on a county’s ordinances as laws, then the ordinance’s requirements that were adopted to protect the public interest are ineffectual and public trust in law is eroded.”
Brookes further pointed out, “This CAP, and the CAP Boundary, Impact Area, rezoning [and] special exceptions were all heard and approved together by motion in a single consolidated, concurrent public hearing. This process did not comply with the extraordinary planning process that is mandated for critical area planning by the critical area planning ordinance …”
Siesta Key traffic concerns
During the December 2019 public hearing, Brookes continued, the County Commission decided to “include a condition of approval that requires a new traffic light on Stickney Point Road that would dramatically affect traffic utilizing the four-lane southern drawbridge approach …”
That traffic light is planned at the intersection of Avenue B and C and Stickney Point Road.
“This particularly affected anyone who travels to Siesta Key, which includes not only [Kochman] but Siesta Key residents, businesses and visitors …” He argued that they were “denied an opportunity to comment on these impacts at the mandated public workshop that was required after the establishment of the CAP boundary,” but before the county’s Planning Commission conducted its public hearing on the CAP, Brookes wrote. (The majority of the Planning Commission members voted in November 2019 to approve the Siesta Promenade petitions.)
Referring to the Siesta Promenade site, Brooks also wrote, “Make no mistake, this is a critical section of Sarasota County. This project is located between what [the Florida Department of Transportation] FDOT commented was a physically constrained, dangerous US 41 and Stickney Point Road intersection and very short drive to the drawbridge to Siesta Key. It is also surrounded by an established neighborhood of single-family homes, including Sura Kochman’s home, located directly across a neighborhood street from the Proposed Siesta Promenade project.”
He pointed out that in a July 25, 2016 letter, FDOT “warned the county” about development in that northwest quadrant of the intersection.
FDOT staff said in the letter, “[W]e believe that access types, safety concerns, and operational limitations of this intersection should be given special consideration when determining or planning the future land use in this area [emphasis in Brookes’ legal brief].”
Legal fees contributions welcome
Leaders of the Siesta Key Association (SKA) have noted on numerous occasions that south Siesta residents James and Marcia Wallace have spearheaded the raising of funds to pay for Kochman’s Siesta Promenade litigation.
The Siesta Key Condominium Council sent out an email blast on April 20, reminding its members of that fact, as it provided an update on the status of the appeal.
Working on a pro bono basis, Morgan Bentley, a principal of the Bentley & Bruning law firm in Sarasota, has set up a trust account for collections of donations, the Condo Council pointed out. “The way to contribute to this effort is to send a check payable to: Bentley & Bruning, P.A. Trust Account,” using the office address of 783 S. Orange Ave, Suite 300, Sarasota FL 34236, the email said.
“Reference Siesta Promenade either on the envelope or the information line on the check,” the Condo Council leaders added.
I note that the appellate court indicated it may not hear oral argument “if it decides that the court will not benefit from oral argument”. As a practicing lawyer for over 50 years (now retired) that would suggest to me evidence of some pre-judgment, or lack of open-mindedness about the case, for there just is no case in which oral argument is not beneficial to the judgment of the court, even if it serves no other purpose than to provide the court with an opportunity to ask questions of counsel.