By Rachel Brown Hackney
A 12th Judicial Circuit Court judge has ruled in favor of the Sarasota Commission on several arguments in a lawsuit filed in January in an effort to prevent the construction of the Siesta Promenade mixed-use development at the intersection of U.S. 41 and Stickney Point Road.
Benderson Development Co., which has offices in University Park, is the developer of the project. It was allowed to participate in the lawsuit as an intervenor.
Circuit Judge Andrea McHugh did give the plaintiff — Sura Kochman, who lives in Pine Shores Estates — the opportunity to file a different type of complaint to deal with issues that McHugh explained should not have been included in the original suit.
McHugh pointed out that Kochman’s Petition for Writ of Certiorari could be applied only to issues of a quasi-judicial nature that the Sarasota County Commission approved on Dec. 12, 2018, to allow plans for Siesta Promenade to proceed.
For example, Kochman argued in her complaint that she was not afforded sufficient time to address the multiple requests before the County Commission during the public hearing. In fact, instead of the standard 5 minutes for public comments allowed during a typical hearing, then-County Commission Chair Nancy Detert reduced the time limit to 3 minutes per speaker because of the number who had signed up to address the board. (Altogether, 69 people made comments.) Detert asked members of the audience to raise their hands if they supported that change, and the majority did.
“[Kochman] had multiple opportunities to provide her input to the County and the Board regarding this project, and participated fully in each one,” McHugh wrote in her Dec. 2 order. Kochman also “attended workshops prior to the Board’s final meeting,” McHugh added, and Kochman provided the county “with copious written feedback regarding the project, including evidence submitted both before and at the final hearing.”
“While the Court is sympathetic to [Kochman’s] argument that three minutes may seem a short time to present her argument, and that ‘justice cannot be “administered arbitrarily with a stopwatch,”’” McHugh continued, “the record is clear that [Kochman] had notice prior to the final meeting that speaking time might be limited. [Kochman] did not raise an objection to the three-minute limit …”
McHugh also cited a number of judicial precedents for her decision on that part of Kochman’s complaint.
McHugh did agree that Kochman had standing “to challenge the actions” of the County Commission. Benderson Development had argued that she did not, McHugh noted, because “she has not established ‘special damages’ rather than the more lenient ‘affected person’ standard …”
Kochman’s neighborhood is immediately adjacent to the Siesta Promenade site. She made it clear during a number of public meetings that she did not oppose development altogether on the Benderson property at U.S. 41 and Stickney Point Road. Rather, she said, it was the intensity of the Siesta Promenade plans to which she objected.
The fact that Kochman is “an adjoining property owner” affected by the zoning change the County Commission approved for Siesta Promenade was sufficient to give her standing, McHugh wrote.
After reviewing the ruling, Kochman’s attorney, Ralf Brookes of Cape Coral, provided the following statement to SNL: “Of course, we are disappointed we lost. The court did not rule in our favor because the court held that the CAP was legislative and not quasi-judicial, and therefore the court did not have jurisdiction to consider the heart of our case. We are considering appealing, or filing a declaratory judgment to seek judicial review of the legislative CAP decision, within the next 30 days.”
No action had been taken prior to the Siesta Sand deadline for this issue.
Brookes was referring to the Critical Area Plan (CAP) that the County Commission approved for Siesta Promenade.
A CAP designation allows up to 25 dwelling units per acre, instead of the standard 13 per acre in a Commercial General zoning district. The 414 apartments/condominiums Benderson plans for Siesta Promenade would put the residential density slightly above 20 units per acre, Todd Mathes, director of development for Benderson Development, pointed out during public meetings.
In response to a SNL request for comments, Mathes offered the following: “We are very pleased with Judge McHugh’s decision and the court’s thorough written order.“ He added, “Benderson Development remains focused on delivering a top-quality project that will revitalize and enhance the area. We also remain steadfast in our commitment to be a good neighbor as we move forward with construction.”
Differentiating between the claims
In her order, McHugh noted all the petitions the County Commission heard from Benderson on Dec. 12, 2018 during the public hearing.
Along with the request for the CAP designation, the commission was asked to approve the rezoning of a portion of the approximately 24-acre site and to approve a Special Exception for a 130-room hotel on the property.
Because the rezoning and Special Exception decisions of the board were considered to be quasi-judicial, McHugh explained, those were the only ones she could address in Kochman’s Petition for Writ of Certiorari.
County attorneys and the commissioners have pointed out that quasi-judicial proceedings are so called because they involve the consideration of evidence and testimony — similar to the process of a court proceeding — to determine whether requests for specific actions would comply with county policies.
In contrast, a legislative hearing establishes a policy for future application. For example, the adoption of an ordinance is a legislative matter, the Community Planning and Zoning page of the National Cooperative Extension of the U.S. Department of Agriculture explains.
“The Court finds that the CAP approval was legislative, not quasi-judicial, leaving the Court without jurisdiction to issue a writ of certiorari in regard to the CAP,” McHugh wrote.
Kochman argued in her complaint that the County Commission did not follow the prescribed county process for approving the CAP for Siesta Promenade.
During an Oct. 14 hearing before McHugh, Kochman’s attorney, Brookes, presented a CAP flow chart to underscore that argument.