Courtesy of the Sarasota News Leader
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Lawsuit filed to try to halt construction of Siesta Promenade at U.S. 41/Stickney Point Road intersection
Siesta resident seeking contributions to pay for litigation
A petition filed in the 12th Judicial Circuit Court on Jan. 11 argues that the December 2018 decision of the Sarasota County Commission to allow the construction of the Siesta Promenade mixed-use project was unlawful for a multitude of reasons.
James P. Wallace, a Siesta Key resident since 1964, told members of the Siesta Key Association (SKA) during their regular meeting on Jan. 10 that he was angered by the series of commission votes on Dec. 12, 2018 that figuratively paved the way for the project to proceed.
Only then-Chair Nancy Detert voted against all but one of the motions following a public hearing that lasted approximately seven hours. Commissioner Charles Hines joined her in opposing the motion to rezone most of the 24-acre site in the northwest quadrant of the intersection of U.S. 41 and Stickney Point Road. The only motion Detert voted in favor of allows street vacations of portions of Crestwood Avenue and Brentwood Avenue; the vacation was designed to facilitate the site plan and traffic flow around the property.
Wallace acknowledged to his fellow SKA members on Jan. 10 that he did not get involved in the fight against Siesta Promenade until shortly before the Dec. 12 public hearing. “My wife kept telling me I needed to worry about this thing,” he said, but he was busy with major projects for his work.
(When he testified during the Siesta Promenade public hearing, Wallace told the commissioners he is a systems engineer.)
“The more I got involved,” he said during the SKA meeting, “the madder I got, frankly. … This [commission decision], I think, [is] a really serious problem.”
Wallace added of the lawsuit, “We need to win this. We absolutely need to win it.” He said he would “try [his] best to stop this project by any legal means possible.”
The complaint has a single plaintiff: Sura Kochman, a resident of the Pine Shores Estates community, which would be the immediate neighbor of Siesta Promenade. Kochman had been a leader of opponents of the project, as it was designed. Her ownership of a home in Pine Shores gives her “standing” in the Petition for Writ of Certiorari, as the legal document explains: “As a direct and proximate result of the [County Commission’s] approval, including the Project’s higher density, [Kochman] will be adversely affected by increased traffic, increased height, increased density and increased intensity and use of the [property].”
Benderson Development also won County Commission approval of a Critical Area Plan (CAP) designation for Siesta Promenade, which allowed the company density as high as 25 units per acre, instead of the 13 units per acre provided for under county regulations for districts zoned Commercial General.
Along with the 80-foot-tall hotel, Benderson plans one condominium/apartment tower that would stand 65 feet high, as well as 40-foot-tall residential buildings. The latter would be closest to Pine Shores residents.
During the Dec. 12 hearing, Commissioner Hines talked of the potential discomfort of Pine Shores residents coming out of their homes to get their morning newspapers and looking up at balconies in that 65-foot-high residential structure in Siesta Promenade.
Many of the speakers during the hearing also stressed that traffic at the U.S. 41/Stickney Point Road intersection already is terrible during the height of tourist season, as people try to reach Siesta Public Beach via Stickney Point Road. Sarasota County Sheriff’s Office personnel wrote $166 tickets early this year to drivers who created gridlock at the intersection as they tried to make it through the traffic signals to reach Stickney Point Road.
Additionally, a number of those who testified talked of worries that, with Siesta Promenade on the northwest corner of the intersection — generating even more vehicle trips every day — emergency personnel will encounter long delays reaching people suffering medical emergencies or responding to major structural fires on Siesta Key.
The emergency vehicle response issue is one that Wallace focused on during his SKA remarks.
“How could it be that the board would sit there and hear so many excellent legal as well as traffic analyses [and arguments related to planning issues] and just vote to approve [Siesta Promenade]?” he asked.
As he and his wife have lived on Siesta Key for decades, Wallace continued, they have “a pretty good feel for the ramifications of treating [the Siesta Promenade] corner … like any other corner on [U.S.] 41.” Yet, Wallace pointed out, that intersection, “is clearly the primary entrance” to Crescent Beach on Siesta Key.
Crescent Beach is south of Siesta Beach Park.
The attorney handling the complaint is Ralf Brookes of Cape Coral.
The petition indicates that Sarasota attorney Robert Lincoln is representing Benderson Development. The Sarasota News Leader did not get a response from Lincoln to its request for a comment.
The policy of the Office of the County Attorney is not to comment on litigation that is underway, county staff has explained on several occasions to the News Leader.
Paying for the litigation
Wallace further pointed out to the SKA members that he has been working to raise money to cover the expense of the lawsuit. The estimate he had received, he said, was $75,000.
Both SKA Vice President Catherine Luckner and the Siesta Key Condominium Council (SKCC) already have sent out email blasts to inform members of their organizations about the legal challenge.
In their Jan. 11 notice, the Condominium Council leaders pointed out that they had opposed Siesta Promenade by sending letters to the County Commission, speaking at the county Planning Commission hearing on the proposal, which was conducted on Nov. 15, 2018, and addressing the County Commission on Dec. 12. “These actions were taken on the belief that the vast majority of the Condo Membership were against the development,” the notice says.
Both Luckner, during the Jan. 10 SKA meeting, and the Condominium Council leadership have explained that if anyone desires to provide financial support for the lawsuit, the person may send a check to the Sarasota law firm of Bentley & Bruning, with the notation that the money is for the Siesta Promenade lawsuit. Wallace explained on Jan. 10 that Bentley & Bruning will compile all the funds in a trust account.
The firm’s address is 783 S. Orange Ave., Suite 300, Sarasota, 34236.
Any money not spent, Wallace stressed, will be returned on a pro-rata basis.
Facets of the complaint
Among the arguments in the petition is that the County Commission did not allow members of the public sufficient time to provide testimony during the public hearing as they addressed facets of Benderson’s proposal. “This was an extremely complex set of four different applications that experts for the opposition opined did not meet requirements of the [county’s] Land Development Code,” the complaint says. Nevertheless, the speakers “were cut off” after only 3 minutes into their presentations “(for all 4 applications together!),” the petition says.
Typically, the County Commission allows 5 minutes per person during a public hearing. However, after then-Chair Detert reported that 90 speaker cards had been turned in before the start of the Siesta Promenade hearing, she asked the audience members whether they would be willing to shorten their statements to 3 minutes each. The majority of them agreed to that, as indicated by a show of hands.
Brookes cites two opinions of the Florida Second District Court of Appeal and one of the Third District Court of Appeal in arguing that more time should have been allowed for the speakers.
For Siesta Promenade, Benderson was seeking not only the rezoning and the Critical Area Plan designation but also a Special Exception for inclusion of the hotel on the site and the approval of the street vacation.
“The denial of a meaningful opportunity to be heard and present expert opinion evidence … violates fundamental procedural due process,” the complaint says.
On another point, the petition contends that county staff and the commission failed to adhere to a county ordinance specifying how a Critical Area Plan (CAP) application should be handled. Brian Lichterman of Sarasota, a consultant who worked for decades as a county planner before opening his own firm, was among those who pointed out to the commissioners that county regulations required their approval of the boundary of the CAP as an initial step in the process. Yet, the CAP approval did not take place until after the Dec. 12, 2018 public hearing had concluded.
Further, the complaint argues that the County Commission did not consider how Siesta Promenade could lead to restricted access to Siesta Key.
The petition also contends that Benderson Development did not provide “any competent substantial evidence” that the project “was compatible with the surrounding neighborhood.” The term “competent substantial evidence” is used in reference to local government hearings that are conducted like trials. An applicant must demonstrate that he or she will be in compliance with all of the affected local government’s land development regulations.
The complaint points out that traffic from Siesta Promenade will travel the roads in “surrounding residential neighborhoods,” which is a violation of a Future Land Use policy in the county’s Comprehensive Plan.
Additionally, the complaint argues that the County Commission ignored “uncontested testimony and evidence” that the installation of a new traffic signal at the intersection of Stickney Point Road and Avenue B and C “will have a negative effect on emergency access to Siesta Key.”
Benderson Development’s traffic consultant on the project — Kimley-Horn and Associates of Sarasota — recommended the traffic signal as a means of dealing with the thousands of extra vehicle trips anticipated on a daily basis in the area of U.S. 41 and Stickney Point Road after Siesta Promenade has been completed.
