Petition argues that the 3-2 City Commission decision was not based on fact but was politically motivated
Editor’s note: This article was updated on the morning of Aug. 5 to reflect new information from attorney Robert Lincoln about the inclusion of the Laurel Park Neighborhood Association in the petition.
As its attorney had indicated to the Sarasota City Commission in June, the Woman’s Exchange has filed a Petition for Writ of Certiorari in the 12th Judicial Circuit Court, seeking to overturn the board’s denial of a permit that would have allowed the nonprofit organization to build an expansion on Rawls Avenue.
The petition also names Laurel Park as a defendant, as the Laurel Park Neighborhood Association fought the permit, arguing that a loading zone planned as part of the addition would increase traffic on a neighborhood street and endanger pedestrians and bicyclists.
“While the opponents tried to wrap their testimony and objection around ‘facts’ regarding the applicable standards, at its root,” the petition says of the neighborhood association’s members, “the testimony amounted to ‘we don’t think [the loading zone] is compatible, so you should find a reason to deny it.”
Filed on July 29 by attorney Robert Lincoln of Sarasota, the petition points out, “Following lengthy public workshops, multiple compromises by the Woman’s Exchange, extensive [city] staff review and findings, with several [staff-mandated] conditions,” city staff approved the Exchange’s site plan and building permit. The petition continues, “Unhappy neighbors appealed to the Planning Board, who denied the appeal and upheld the Site Plan, expressly finding it met the Zoning Code requirements.” Then the Laurel Park Neighborhood Association appealed that decision to the City Commission, the petition explains. After quasi-judicial hearings on April 4 and April 11, the City Commission voted 3-2 to deny the permit.
City Attorney Robert Fournier told The Sarasota News Leader in an Aug. 3 telephone interview that he anticipated the court would determine the petition to be sufficient and order the city to “show cause” as to why the court should not grant the petition. He added that he anticipated filing that response, “probably sometime next month.”
The court allows 30 days after it orders a response for one to be submitted, he explained.
Three possible grounds may serve as the basis for such a petition, he continued: a departure from the law by the governing body in making the decision; a lack of competent substantial evidence to support the decision; and lack of due process. The latter point, Fournier said, pertains, for example, to not allowing someone to have the full time allotted for a presentation during a quasi-judicial proceeding.
Lincoln used the first two grounds as the basis for the Woman’s Exchange petition, Fournier added.
“Some of the allegations are a little more complex and a little harder to understand,” Fournier said. However, he declined specific comment, saying he expects to make his points in the city’s formal response.
In a statement it issued on the afternoon of Aug. 3, the Laurel Park Neighborhood Association said that while the Woman’s Exchange has “every right” to seek to overturn the City Commission decision, “We believe including the [Association] in this appeal is seriously misguided. We fully expect the court to reject it.”
The statement added, “[The Association’s members have] simply followed the established civil and legal processes to pursue our rights as citizens of Sarasota while looking to protect what we have built over time in partnerships with the city and neighboring businesses.”
It continued, “Rawls Avenue, where the Woman’s Exchange prefers to place a loading zone, is a very narrow one-way street where pedestrians and bicyclists must share the road with vehicles. Our only goal has been, and continues to be, to protect the safety of residents by avoiding the addition of pickup and delivery traffic down Rawls and through our unique historic neighborhood.”
The statement added, “We have repeatedly expressed our support for the Woman’s Exchange and their mission. It has been our hope that we could find a way to move forward in a positive manner. We are disappointed the leadership of the Woman’s Exchange has once again rejected that path and chosen to appeal the Commission’s ruling. We expect the court to see the inclusion of [the Association] as a transparent and inappropriate attempt to stifle civic participation.”
On the evening of Aug. 4, Lincoln released to the news media a response to the statement of the Laurel Park Neighborhood Association (LPNA). He explained, “For the record, LPNA appealed the Woman’s Exchange’s proper and validly approved site plan and building permit to the City Commission. That was LPNA’s legal right under the Laurel Park Overlay District regulations. But it also means that LPNA was a party to that proceeding. LPNA took advantage of that status in its presentation and rebuttal. LPNA used its participation as a party to convince the City Commission to grant the appeal and overturn the site plan and building permit approvals.”
Lincoln added, “Under Florida law, the Woman’s Exchange challenges the City Commission’s decision through an appeal-type process called a petition for writ of certiorari. Such a challenge is brought in circuit court, but it is not a ‘lawsuit’ per se. It seeks no damages or relief other than to overturn the City Commission’s decision.”
He further noted, “The Appellate Rules require [his emphasis] that all parties to the proceeding before the City Commission be named as respondents, and also require that the City of Sarasota, rather than the City Commission or Commissioners be named as a respondent. … Furthermore, naming Laurel Park as a respondent does not ‘stifle civic participation,’ it promotes it (as intended by the rule) by giving Laurel Park the opportunity to defend the decision it obtained from the City Commission. … I am surprised the LPNA would not be applauding the opportunity to make those arguments to a judge.”
He added, “In light of the above, [the LPNA] attack on the ‘leadership of the Woman’s Exchange’ and claim that Laurel Park was named as a respondent in ‘a transparent and inappropriate attempt to stifle civic participation’ is defamatory. The statement reflects a reckless and wanton disregard for the truth, a complete failure to investigate the facts, and clearly impugns the business ethics and reputation of the leaders of the Woman’s Exchange.”
Lincoln wrote that if the representatives of the LPNA “ had been at all interested in finding out why LPNA had been named, [they] could have called or written [him]. He demanded a retraction of the “defamatory statements in all venues in which [the LPNA] published the same.”
A brief history
In the petition, Lincoln explains that the Woman’s Exchange “is a self-supporting, non-profit charity that has been operating in Sarasota since 1962 to provide grants and scholarships to students, arts organizations and arts-related programs in the community.”
This spring, the Woman’s Exchange presented $300,000 in grants and scholarships, CEO Karen Koblenz reported in a May 20 news release. That was $50,000 more than the 2015 total, she noted. Among the 2016-17 grant recipients were the Artist Series Concerts of Sarasota, Florida Studio Theatre, the Hermitage Artist Retreat, Sarasota Ballet, the Westcoast Black Theatre Troupe and the Manatee Concert Band. Scholarships went to 30 students.
The petition points out that the nonprofit earns revenue for its operations and its grants and scholarships by selling consigned merchandise in its store, located at 539 S. Orange Ave. in downtown Sarasota.
Representatives of the Woman’s Exchange have explained that they need to expand because of the growth of the business, especially in regard to furniture consignments. Yet, the petition says, because of the location and historic nature of the property, the nature of the surrounding streets “and all provisions of the City’s own Zoning Code, the only street where a compliant loading zone can be located is Rawls Avenue, an urban street designated for commercial or residential uses.”
The petition explains that the historic structure housing the Woman’s Exchange was built in 1922 and is listed on the National Register of Historic Places. From 1926 to 1969, the petition continues, that structure housed the Sarasota Herald-Tribune, and it had a loading area “that opened directly onto Rawls Avenue …” The Woman’s Exchange also used that for deliveries until the mid-1980s, the petition says. After the nonprofit built an annex, it designated an area adjacent to that structure’s entrance for loading purposes. However, the petition points out, that loading zone does not comply with city Zoning Code specifications.
At the conclusion of the quasi-judicial hearing on April 11,
Mayor Willie Shaw joined Commissioners Shelli Freeland Eddie and Susan Chapman in voting to deny the issuance of the building permit. Commissioners Suzanne Atwell and Liz Alpert supported the Planning Board decision upholding the city staff action.
The 3-2 decision, the petition argues, “placed the Woman’s Exchange in an impossible ‘catch 22’ situation. The staff and Zoning code mandated a loading zone and then after the Woman’s Exchange solidly demonstrated it more than met all of the City’s legal requirements,” the City Commission overturned the site plan.
Furthermore, the petition says, city staff took more than a month “attempting to draft a Denial Resolution that ultimately contains findings that not only utterly fail to reflect the opposing [commissioners’] public comments, but directly conflicts with the City’s own Zoning Code and Comprehensive Plan. The Commission’s written findings are directly contrary to the competent substantial evidence in the record, the vast majority of which was supplied by the City’s own staff. In short,” the petition continues, “instead of reading and enforcing its own legislatively binding Code, the City Commission allowed some neighbors to simply demand what they feel is ‘compatible’ with the neighborhood [in deciding] what the law should be …”
Among case law he cites in the petition, Lincoln references a Florida Second District Court of Appeal decision, Conetta v. Sarasota, which dates to 1981: “Where a building or zoning code requires the design of a building or project in a particular way, that aspect of the project may not be used as evidence that the project is not compatible with the neighborhood.”
City Attorney Fournier explained to the City Commission in June that both Oak Street and Orange Avenue are designated “primary” streets in the city’s Zoning Code. As such, the code stipulates neither can be used for a loading zone. That was why the Woman’s Exchange sought the addition on Rawls Avenue, he pointed out.
Fournier is working with other city staff members to try to modify the Zoning Code to enable the Woman’s Exchange to expand on its current site. Kate Lowman, the Laurel Park Neighborhood Association representative who offered presentations on behalf of that organization in April, voiced support in June for such action.
Approval and disapproval
As a result of the city’s adoption of the Laurel Park Neighborhood Overlay in 2013, the Woman’s Exchange held two separate community workshops — on April 30, 2014, and Feb. 24, 2015 — to present its expansion plans. Protests of the Rawls Avenue loading zone were voiced in those sessions, the petition says.
Not only did the Woman’s Exchange provide city staff “turning templates” showing how the loading zone would function, the petition continues, but representatives of the nonprofit also conducted a “live test” at the city’s request. At that time, the petition continues, “the Woman’s Exchange physically demonstrated that [its 24-foot] truck could safely use the proposed loading zone.”
The Woman’s Exchange also agreed to proffer six conditions “to address compatibility and enforcement concerns” and to limit the hours of its deliveries, the petition points out. Tim Litchet, director of the city’s Neighborhood and Development Services Department, reduced the number of deliveries from 16 per day to 12 in one of those proffers, the petition says, and the conditions were “imposed on the Site Plan and building permit …”
The petition adds, “Laurel Park was apprised of the proposed conditions and Jude Levy, the President of Laurel Park, responded. … Laurel Park complained that the conditions did not fix the neighborhood’s problem, stating, ‘placing a loading dock on Rawls was unacceptable.’”
Nonetheless, the city staff approved the site plan and issued the building permit on Nov. 3, 2015.
During the quasi-judicial hearing, the petition says, “No testimony or evidence even remotely demonstrated there was some other possible configuration of the Site Plan that would somehow provide a conforming loading space and access via Rawls Avenue that would mitigate or improve the impacts on the neighborhood.”