Judge McHugh writes that Benderson and its affiliate, which filed county application for the project, are not yet formal parties to the case
The plaintiff in the lawsuit fighting the Sarasota County Commission’s decision late last year to approve the Siesta Promenade project has agreed to allow an affiliate of the developer to intervene in the case.
Nonetheless, the 12th Judicial Circuit Court judge presiding over the case has struck down two motions that the affiliate has filed in seeking to have the lawsuit dismissed.
The attorney for the applicant on county documents proposing the mixed-use project at the intersection of U.S. 41 and Stickney Point Road — Siesta 41 Associates LLP — and the developer, Benderson Development Co., had filed a Notice of Appearanceon behalf of the two companies on Jan. 24.
However, 12th Judicial Circuit Court records The Sarasota News Leader reviewed as of midday on Feb. 21 showed that that attorney — Robert Lincoln — had yet to file a formal motion seeking for the companies to intervene in the case.
On Jan. 11, Sura Kochman, who lives in the neighborhood that would be immediately adjacent to Siesta Promenade, filed a Petition for Writ of Certiorari in the 12th Judicial Circuit Court, asking that the court nullify the County Commission’s split votes on Dec. 12, 2018 to allow the mixed-use development to proceed.
As proposed, Siesta Promenade would encompass 414 condominiums/apartments in multi-story towers, a 130-room hotel standing 80 feet tall, 133,000 square feet of commercial space and 7,000 square feet of office space on a site that is just under 24 acres.
Kochman, who lives in Pine Shores Estates next to the property, argues that the County Commission violated a number of county regulations and facets of the county’s Comprehensive Plan in giving Benderson Development and Siesta 41 Associates the go-ahead for the project. Her attorney is Ralf Brookes of Cape Coral.
Her suit also contends that the commission violated “fundamental procedural due process” in giving speakers only 3 minutes during a Dec. 12, 2018 public hearing to address all the facets of the Benderson application for Siesta Promenade. The complaint cites judicial precedent in arguing that the time limit was insufficient for any speaker to make his or her points.
On Feb. 7, Lincoln filed a motion that asked the 12th Judicial Circuit Court to strike Kochman’s petition for its failure to comply with Florida court procedure. First, Lincoln pointed out, no appendix was filed with the petition, even though the document provided citations to several exhibits.
And while Kochman had filed a corrected version of the complaint on Jan. 22, Lincoln continued — including “some text clarifications, and some substantive revisions” — she “again failed to file any appendix [emphasis in Lincoln’s motion].”
State of Florida rules for court procedure require that a petition for certioraribe accompanied by an appendix, Lincoln stressed. The purpose of the appendix, he continued, “is to permit the parties to prepare and transmit copies of those portions of the record deemed necessary to an understanding of the issues presented.”
Additionally, Lincoln wrote, Kochman’s “argument requires her to obtain and provide a complete transcript of all testimony taken at the [County Commission public] hearing. While a transcript would require a reasonable amount of time to prepare, [Kochman] cannot be afforded endless time to delay these proceedings with a ‘placeholder’ Petition that fails to conform to the rules, in what appears to be an attempt to ‘tie up’ the development.”
On Feb. 11, Circuit Judge Andrea McHugh issued her first order, striking Lincoln’s motion to strike Kochman’s petition.
After reviewing “the motion, the case file, and the applicable law,” McHugh wrote, she found that even though Lincoln had filed the Notice of Appearance for Siesta 41 Associates and Benderson Development, they “are not presently parties to this case, nor have they filed a motion to intervene. As such,” she added, “[they] have no standing to file their present motion [to strike the petition].”
On Feb. 12 — just one day after McHugh issued her order — Lincoln filed another motion, asking for a rehearing on her decision.
Lincoln pointed to the fact that in the corrected petition Kochman had filed, Kochman asserted that Benderson Development is a party to the case. “The Corrected Petition,” Lincoln continued, “asserts ‘Benderson Development’ owns the property on which the Siesta Promenade project is located,” and the corrected petition identified him as “‘Attorney for Applicant.’”
Additionally, Lincoln contended, “By filing the Corrected Petition, Kochman eliminated the need for [him] to file a Motion to Intervene.”
Therefore, Lincoln wrote, “The Court must reconsider and rescind the Order Striking Motion to Strike Petition for Certiorari because, as established … Siesta 41 and Benderson Development were parties to the proceedings before the Board of County Commission and are, by definition and operation of the Rules of Appellate Procedure, party respondents … without need to intervene.”
On Feb. 12, Brookes — Kochman’s attorney — filed a document pointing out that the court reporter is “expected to complete the transcript next week,” referring to the formal record of the day-long, Dec. 12, 2018 County Commission hearing on Siesta Promenade. Then, Brookes pointed out, Kochman would file a “Motion for Leave to Amend” her petition, asking the court to accept corrections, plus the citations to the transcript, as well as a copy of the transcript itself, among exhibits for the case record.
On Feb. 19, McHugh issued her second order, denying the motion for a rehearing.
“The Court has carefully reviewed the motion, the case file, and the applicable law,” she wrote. “The Court finds that Defendant has failed to demonstrate a point of law or a fact that this Court has overlooked or misapprehended.”
Brookes did point out in his Feb. 12 response that Kochman “has no objection to intervention or participation of the applicant as an [intervenor in the case].”
In her Feb. 19 order, McHugh added, “The Court notes that although [Kochman] has no objection to intervention, the Court anticipates that the parties will follow the proper procedure for intervention.”