Oral arguments sought in lawsuit challenging County Commission approval
By Rachel Brown Hackney
The Pine Shores Estates resident who filed suit early this year in an effort to stop the construction of Siesta Promenade has asked a 12th Judicial Circuit Court judge to schedule arguments in the case.
In a July 31 motion, the attorney for Sura Kochman, Ralf Brookes of Cape Coral, explained, “This is an extremely complex rezoning [case],” involving multiple issues and numerous votes of approval by the Sarasota County Commission. “The court would benefit from the presentation of oral argument in this case and the opportunity to ask questions and [seek] clarification …”
Benderson Development Co. and its affiliate for the mixed-use project — Siesta 41 Associates LLP — sought County Commission approval for rezoning of most of the 24-acre site of Siesta Promenade, which is in the northwest quadrant of the intersection of U.S. 41 and Stickney Point Road. The companies also petitioned for Critical Area Plan (CAP) approval for the project, to enable them to build more dwelling units per acre than traditional county Commercial General zoning would allow. The CAP designation permits up to 25 units per acre.
Further, they needed approval of a Special Exception for a hotel in the development, because of county regulations governing transient accommodations.
Additionally, the companies sought the vacation of a portion of a county road to create Siesta Promenade, as planned.
Altogether, Benderson has said it will construct 414 apartments/condominiums, a 130-room hotel and 140,000 square feet of office and retail space on the property, which sits immediately adjacent to Pine Shores Estates, a community of mostly single-family homes.
Brookes argued in his reply brief in the case that Benderson should have applied for commission approval of other aspects of the proposed project. For example, the company plans to erect standalone multi-family residential structures amid the other uses. While county regulations allow such construction, Brookes pointed out, a Special Exception is required; yet, Benderson never even sought one.
Further, he argued, the hotel is slated to be 80 feet tall, but no board approval was sought for the increase in allowed height from the 35-foot maximum in a Commercial General zoning district, which is the designation the commission approved for the Siesta Promenade site in a Dec. 12, 2018 vote.
Brookes asked the court “to either quash and reverse or remand the development approvals for additional hearings on the site-specific CAP, the rezoning, and the additionally required special exceptions.”
Among issues on which Kochman has focused in her Circuit Court complaint is the process by which the County Commission approved the CAP. If county staff and the County Commission had followed the procedure outlined in county regulations for winning a CAP designation, Brookes contended in the reply brief, the traffic analysis for Siesta Promenade would have been much wider in scope. He pointed to the potential for a significant exacerbation of traffic flow in the Stickney Point Road/U.S. 41 vicinity.
CAP contentions and traffic
Much of Brookes’ 18-page reply brief in the case deals with the Sarasota County ordinance detailing the CAP process. Brookes included a copy of a county flowchart “expressly indicating the steps that must be taken for CAP approval and in precisely what order. “By ‘touching the bases’ in the wrong order,” he added, Benderson and Siesta 41 Associates “violated the essential requirements of law.”
In his response to the lawsuit, Benderson’s attorney, Lincoln, wrote that the Circuit Court lacked jurisdiction over “Kochman’s complaints relating to the approval of the Project CAP … Simply put,” Lincoln pointed out, the commission’s “decision to approve the Project CAP to allow mixed use development at this busy Sarasota intersection was a legislative decision,” and a Petition for Writ of Certiorari cannot contest such action.
Brookes also countered arguments Assistant County Attorney David Pearce made in his response to Kochman’s complaint, on behalf of the County Commission.
For example, Brookes pointed out, Pearce wrote that the proposed Siesta Promenade development “is compatible with the commercial characteristics of US 41 through South Sarasota, including the Sarasota Pavilion Shopping Center on the southeast corner of the [Stickney Point Road] intersection and other strip center development along US 41.”
Yet, Brookes argued, Siesta Promenade would be constructed on property that is vacant at “an absolutely critical intersection … that must be maintained for acceptable ingress and egress [for] Siesta Key.” He pointed out that the Level of Service for the afternoon peak drive time at the intersection of U.S. 41 and Stickney Point Road is rated F. (“Level of Service” references a driver’s view of how smoothly traffic flows in a particular area.)
“An ‘F’ represents near ‘gridlock’ conditions, where every vehicle moves in lockstep with the vehicle in front of it and traffic nearly comes to a stop,” Brookes added. “Clearly, this US 41 intersection already has more traffic than it can safely handle and is the subject of [Florida Department of Transportation] FDOT concern.”
Moreover, Brookes argued, “Despite numerous objections made to the [County Commission], no attempt was made to measure [Siesta Promenade’s] impact on Siesta Key residents, who objected and observed they were already impacted, by onerous stop and go traffic, and must stay at home from about 10 a.m. until around 2 p.m. during peak tourist season or frequently sit in gridlock.” Nonetheless, Brookes added, the commission “treated this proposed development, on this currently vacant parcel … like any other ‘strip center’ corner on US 41.”
Yet, in his response for Benderson and Siesta 41 Associates, attorney Lincoln explained that a CAP is akin to a comprehensive plan, but on a smaller scale. It is a decision about what sort of development is appropriate in a specific area and what conditions must be satisfied to permit that development to proceed, he added.
Lincoln wrote that the County Commission had the right to determine whether the CAP traffic analysis was sufficient to support its decision on the compatibility issue involving the adjacent neighborhood.