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Judge in Siesta Promenade case orders Sarasota County to ‘show cause’ as to why she should not overturn County Commission approval of project
McHugh’s order latest action in lawsuit filed in early January
With an amended lawsuit having been filed in the 12th Judicial Circuit Court on April 12, Circuit Judge Andrea McHugh has issued a Show Cause order to Sarasota County, giving it 30 days to explain why she should not overturn the County Commission’s December 2018 approval of the Siesta Promenade project.
McHugh filed the order on April 17.
“Having reviewed the Amended Petition, the court file, the record, and the applicable case law,” she wrote, “the Court finds that the Amended Petition demonstrates a preliminary basis for relief, for which a show cause order should be issued.”
In the meantime, a representative acting on behalf of Benderson Development — the company behind the Siesta Promenade project — appeared before the county’s Development Review Coordination (DRC) committee on April 18 to discuss plans for clearing the approximately 24-acre site where the mixed-use project is planned. Siesta Promenade has been approved to consist of 414 condominiums/apartments, a 130-room hotel, 133,000 square feet of retail space and 7,000 square feet of office space. The development is slated for the northwest corner of the intersection of U.S. 41 and Stickney Point Road, next to the Pine Shores Estates neighborhood.
The demolition materials say the anticipated start date for the clearing is 2019, with completion expected in 2020. The total affected acres, it adds, are approximately 22.35.
Formally, the lawsuit that Pine Shores Estates resident Sura Kochman initially filed against the county on Jan. 11 is a Petition for Writ of Certiorari. It challenges the commission’s approval of Siesta Promenade on a number of issues.
Among those, Kochman points to the fact that the County Commission allowed staff to consolidate into one public hearing the four applications Benderson Development had submitted for Siesta Promenade. In a routine County Commission public hearing, a speaker is allowed 5 minutes to address facets of a proposal. However, as Kochman’s attorney, Ralf Brookes of Cape Coral, wrote in the petition, the time was reduced to 3 minutes for a speaker to cover all four Siesta Promenade applications.
The number of cards people submitted to talk about Siesta Promenade during the Dec. 12, 2018 public hearing in downtown Sarasota prompted then-County Commission Chair Nancy Detert to ask if the audience members were agreeable to the time cut from 5 to 3 minutes. The majority responded that they were. Sixty-nine speakers ended up making remarks, with only 10 of them — by count of The Sarasota News Leader — in favor of Siesta Promenade.
Another major point of the lawsuit is that “even though the approval of this development would significantly impact traffic patterns and safety, the traffic study [undertaken for the project] did not even include an analysis of the impacts on traffic levels and safety of a proposed new traffic light between US 41 and the Siesta Key Bridge.”
Benderson’s traffic consultant, Kimley-Horn and Associates of Sarasota, proposed that a signal be installed at the intersection of Stickney Point Road and Avenue B and C.
The petition adds, “[T]he [County Commission] did not have the legal authority to authorize this new traffic light as it requires a transaction involving the FDOT [Florida Department of Transportation] not yet completed.”
County staff has been working for about a year-and-a-half on a “road swap” of River Road to FDOT, in exchange for the county’s assuming responsibility for Stickney Point Road west of U.S. 41, as well as other roads on Siesta Key. The county’s goal has been to speed up improvements that have been sought on River Road for decades. As a state road, River Road will have a higher priority for widening and other changes, county staff has noted.
Kochman’s petition added, “Without the new traffic light, Siesta Promenade as proposed would never have been approved because of its severe impact on neighborhoods to the north and west that would face huge increases in project-specific traffic attempting to return in the directions from whence they came.”
Because of the speakers’ time limitation during the public hearing, the petition points out, Kochman’s remarks were “cut short during her presentation and these impacts were never fully considered and warrant reversal or remand for additional time to present this expert opinion testimony and evidence.”
A transcript and two intervenors
The original motion attorney Brookes filed on Kochman’s behalf did not provide citations to the transcript of the December 2018 County Commission hearing. The transcript finally was filed on Feb. 25. It totals 322 pages.
On April 3, Judge McHugh granted Kochman’s Motion for Leave to Amend Petition, so the new document could provide an appendix and transcript “conforming to the Rules of Appellate Procedure …”
Additionally, Judge McHugh issued an order on Feb. 27 to allow Benderson Development and Siesta 41 Associates LLP — a Benderson affiliate — to intervene in the case. McHugh wrote that she had been advised that neither Kochman nor Sarasota County objected to the request from Sarasota attorney Robert K. Lincoln, who is representing Benderson and Siesta 41 Associates in the lawsuit.
Earlier, McHugh had chastised Lincoln for filing motions opposing various actions in the case without his clients having been approved as intervenors.
Lincoln finally filed his Motion to Intervene on Feb. 22.
The demolition plans
The county DRC meeting agenda for April 18 noted that WRA Engineering of University Park would be appearing on behalf of Benderson Development and Siesta 41 Associates to talk with staff about the plans to clear the Siesta Promenade site. The DRC agenda pointed out that the “future development [would be] consistent with the Rezone and Special Exception” the County Commission approved in December 2018.
Most of the property slated for the development was zoned for 9 dwelling units per acre, as a mobile home park stood there for many years. Benderson won approval of a Critical Area Plan (CAP) designation, so the number of dwelling units could be up to 25 per acre. The total for which it received approval is 479, as the 130 rooms in the hotel officially count as half units, for a total of 65.
DRC discussions allow county staff members with subject matter expertise to voice any comments they may have about a permit application, to ensure that the resulting development does conform to the plans the County Commission has approved.
Altogether, the materials say, 7.10 acres of impervious area would be removed, including 195 trees. The majority of those trees would be palms and pines, one sheet of the document notes.
Most of the information in the materials focuses on the stormwater pollution prevention plan WRA Engineering has developed in accordance with the required Florida Department of Environmental Protection permit for “Stormwater Discharge from Large and Small Construction Activities.” That document points out that the “receiving waters” would be Roberts Bay.
