Attorney for Pine Shores Estates resident contesting Siesta Promenade’s approval unable to provide judge with legal precedents to demonstrate key contention in lawsuit
By Rachel Brown Hackney
Citing a number of court decisions to underscore their arguments, an assistant Sarasota County attorney and an attorney for Benderson Development Co. argued this week that the County Commission took the appropriate steps in approving the Siesta Promenade project.
“They are asking the court to re-weigh the evidence that is in the record,” Benderson attorney Robert Lincoln of Sarasota told 12th Judicial Circuit Court Judge Andrea McHugh on Oct. 14. He was referring to Pine Shores Estates resident Sura Kochman’s challenge of the commission’s Dec. 12, 2018 votes on Siesta Promenade, most of which were not unanimous. However, Lincoln stressed, the law does not allow the court to consider the public hearing record. “The court’s got to deny [Kochman’s] petition,” he added.
After the nearly hour-long hearing in downtown Sarasota, McHugh told the attorneys and approximately 25 members of the public that she would issue a written decision at a later date.
Kochman’s Petition for Writ of Certiorari, which was filed in January, seeks essentially to have the court rule that the County Commission violated county policy and regulations in multiple votes the board members took in approving the mixed-use development planned in the northwest quadrant of U.S. 41 and Stickney Point Road.
At two different points during the hearing, McHugh asked Kochman’s attorney, Ralf Brookes of Cape Coral, if he could cite any judicial precedent to support his argument that the County Commission did not adhere to the formal process required before approving a Critical Area Plan (CAP) designation for Siesta Promenade.
One of Kochman’s primary arguments in the case has been that the County Commission disregarded the county’s order of procedure for a CAP in the handling of Benderson’s Siesta Promenade application.
By seeking the CAP designation, Benderson and its affiliate for the project — Siesta 41 Associates LLP — could seek residential density up to 25 units per acre.
McHugh told Brookes that she had read the transcript of the daylong County Commission hearing on the various requests Siesta 41 Associates had submitted to the county. “What I’d really like to hear from you,” she added, “is what legal authority this court has to give you the relief that you are requesting.”
Brookes replied that she has the authority to reverse the commission’s votes of approval if she determines the board did not follow the appropriate processes in regard to the CAP, the rezoning of parcels on the approximately 24-acre site to Commercial General, and the granting of Special Exceptions for increased residential density and building height, as well as construction of multi-family buildings on property in a Commercial General district.
Most of the property — about 23 acres — was zoned Residential Mobile Home, which allowed up to nine dwelling units per acre, he pointed out.
McHugh could remand the matter to the commissioners with instructions that they adhere to county policies and regulations, Brookes added.
However, he acknowledged, “There’s been no case law that’s interpreted [the CAP ‘flow chart’ that he had shown the court].”
In Kochman’s complaint, Brookes argues that, according to that CAP flow chart, the County Commission should have set the boundary for the Siesta Promenade CAP before transportation studies were undertaken to determine the impact traffic generated by Siesta Promenade would have on the Stickney Point Road/U.S. 41 intersection and surrounding roadways.
Moreover, Brookes told McHugh, that boundary should have encompassed more territory than just the Siesta Promenade site, as a much wider area will feel the impacts of the traffic from the new development.
Specific concerns about proposed new traffic signal
Using poster board illustrations, Brookes explained to McHugh that if the commission had approved the boundary of the CAP first, then a traffic impact analysis would have been able to consider, for example, how a planned new traffic signal at the intersection of Stickney Point Road and Avenue B and C would affect the flow of vehicles on Stickney Point Road and in Pine Shores Estates.
At the outset of his remarks, Brookes noted that the installation of that traffic signal is a stipulation in the record for the County Commission’s approval of Siesta Promenade. “There would be no construction [without that light], so [the new signal] is a very important requirement of the project.”
The reason the traffic light has to be erected, he added, is because the county’s Comprehensive Plan prohibits a project like Siesta Promenade from putting its traffic on neighborhood streets.
Brookes used other poster board illustrations to show McHugh that Pine Shores Estates — a neighborhood of mostly single-family homes — surrounds much of the Siesta Promenade site.
Siesta Promenade has been designed with 414 condominiums/apartments, a 130-room hotel, 133,000 square feet of retail space and 7,000 square feet of office space.
Additionally, he continued, the installation of that traffic light “will absolutely affect vehicle traffic flow” to and from Siesta Key.
During the height of tourist season, Brookes told McHugh, residents in the area of the U.S. 41/Stickney Point Road intersection — including many on Siesta Key — are effectively “marooned” in their homes between 10 a.m. and 2 p.m., because traffic gridlock is routine.
Taking a completely different view
Assistant County Attorney David Pearce told McHugh that Kochman “wrongly argues that the County Commission did not follow the correct procedures …”
A CAP procedure, he added, can be considered concurrently with a rezoning application. Moreover, Pearce pointed out, the county’s zoning regulations recognize that density, height and multifamily [residential] use “can be set forth in a CAP ordinance.”
Finally, Lincoln — representing Benderson Development and Siesta 41 Associates as intervenors in the case — talked about the requirement that the County Commission consider all the evidence and testimony — similar to a jury during a trial — before making a decision on a development application.
Lincoln told McHugh, “You don’t get to decide what was adequate. The issue is whether the board thought [the evidence and testimony were] adequate. Here, the board did think it was adequate. It approved the [Siesta Promenade] petitions, the applications.”