IN THE TWELFTH JUDICIAL CIRCUIT COURT · 2019. 1. 28. · Board of County Commissioners (BOCC) (Appendix Exhibits) rendered by signature of the Chairman on or about December 12, 2018

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IN THE TWELFTH JUDICIAL CIRCUIT COURT

IN AND FOR SARASOTA COUNTY, FLORIDA

SURA KOCHMAN, Filed pursuant to Fla.R.App.P.9.100(f)(2)

Petitioner.

v. Case No: 2019 CA 000186 NC

SARASOTA COUNTY, In Re: Application for SIESTA PROMENADE

Applicant: SIESTA 41 ASSOCIATES, LLP

an affiliate of BENDERSON DEVELOPMENT

COMPANY LLC

Respondent.

___________________________________________/

Corrected1 PETITION FOR WRIT OF CERTIORARI

Petitioner SURA KOCHMAN, an adjacent property owner who

participated in the hearings below, files this Petition for Writ of Certiorari

pursuant to Florida Rules of Appellate Procedure 9.100(b), (c) and

9.190(b)(3) to quash and remand decision(s) of the SARASOTA COUNTY

Board of County Commissioners (BOCC) (Appendix Exhibits) rendered by

signature of the Chairman on or about December 12, 2018 after a hearing

held on December 12, 2018.2

1 To correct the Applicant (name), grammar, typos, and other errors. 2 Petitioner anticipates filing a Motion to Amend the Petition to cite to Transcript

and Appendix of exhibits as soon as the Transcript is available.

Filing # 83728839 E-Filed 01/22/2019 05:15:25 PM

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The Siesta Promenade project approvals for which Petitioner seeks

judicial review includes four application(s) that were heard together, and

comments on all 4 applications were taken at the same time in one

consolidated hearing at the conclusion of which, were voted upon by the

BOCC. Petitioners challenge 3 of the 4 application approvals:

1. Critical Area Plan (CAP) number 2016 – 01 – SP

2. Rezone Petition (RZ) number 16 – 29;

3. Special Exception (SE) number 1787

JURISDICTION

This Court has been given jurisdiction to issue writs of certiorari by

Article V, Section 5(b) of the Florida Constitution and Florida Rules of

Appellate Procedure 9.030(c)(3).

STANDARD OF REVIEW

“In first tier certiorari proceedings, the circuit court must determine:

‘(1) whether procedural due process is accorded, (2) whether the essential

requirements of the law have been observed, and (3) whether the

administrative findings and judgment are supported by competent

substantial evidence.” Deerfield Beach v. Valliant, 419 So. 2d 624 at 626

(Fla. 1982).

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STATEMENT OF RELEVANT FACTS

Respondent SARASOTA COUNTY is a political subdivision of the

State of Florida.

Applicant BENDERSON DEVELOPMENT CO. was a party below

and are Respondent (Applicant) in this action.

Venue is proper in Sarasota County, Florida because the challenged

development order was approved in Sarasota County and affects real

property located in Sarasota County.

Petitioner resides at and owns real property located at 6314 Glencoe

Ave, Sarasota Fla. 34231, which is adjacent to the Project directly across a 20’

street right of way. As a direct and proximate result of the development

order approval, including the Project’s higher density, Petitioner will be

adversely affected by increased traffic, increased height, increased density

and increased intensity and use of the subject land.

The test for standing in rezoning cases is found in Renard v. Dade

County, 261 So. 2d 832 (Fla. 1972), and proximity to a particular use of land

has been found to satisfy this test exceeding the general interest in

community good shared in common with all citizens; however, when

determining standing, the courts “should not only consider the proximity of

the property, but the type and scale of the challenged project in relation to

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Petitioner’s property.” Rinker Materials Corp. v. Metropolitan Dade County

528 So.2d 904, 906-907 (Fla. 3rd DCA., 1987). See also, County of St.

Petersburg, Bd. of Adjustment v. Marelli 728 So.2d 1197, 1198 (Fla 2nd

DCA, 1999).

As an adjacent property owner of a single family home next to the

proposed mixed-use development, Petitioner has standing under Renard.

Renard v. Dade County, 261 So.2d 832 (Fla. 1972). Petitioner has standing

to seek judicial review of the rezoning. Common law standing to bring this

action is set forth under Renard v. Dade County, 261 So.2d 832 (Fla. 1972);

Upper Keys Citizens Coalition v. Wedel, 341 So.2d 1062 (3rd DCA 1987);

Save Brickell Ave., Inc. v County of Miami, 393 So.2d 1197 (3rd DCA

1981).

I. DUE PROCESS

Petitioner SURA KOCHMAN is a specially affected party and not

merely a participant because she resides in a single-family home on property

located adjacent to the mixed-use project directly across a 20’ street right of

way.

A rezoning is a quasi-judicial hearing and that a Petitioner who is an

adjacent property owner should have been given affected party status and

afforded quasi-judicial due process including sufficient time to present and

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consider expert witness opinion testimony to present evidence contrary to

the Applicant and County staff.

Petitioner is an ADJACENT residential property owner directly across

a 20’ street right of way that will be adversely affected by the rezoning and

is therefore entitled to affected party status beyond that of a mere “public”

comment. She is more than a participant, she is an affected party who owns

adjacent property. Petitioner and expert planning witnesses opposed to the

project were not given sufficient time in which to present their testimony

and evidence. The Board of County Commissioners chairman limited the

speakers, including expert opinion testimony by those opposed to the

project, to only three (3) minutes despite previously telling petitioner that 5

minutes would be allowed. This was insufficient time to present Petitioners

testimony of the traffic engineer and expert professional planner.

This was an extremely complex set of four different types of

applications. Expert witnesses for the opposition opined that the applications

did not meet specific requirements of the Land Development Code, but the

expert witnesses opposed to the development were given only three (3) total

minutes to comment on all 4 applications (i.e., 3 total minutes to comment

on aspects of all 4 applications, which were heard all at once)! Three

minutes was insufficient time to present and offer their expert opinion

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testimony. The basic due process requirements in quasi-judicial proceedings

as follows:

“We note that the quality of due process required in a quasi-judicial

hearing is not the same as that to which a party to a full judicial

hearing is entitled. Quasi-judicial proceedings are not controlled by

strict rules of evidence and procedure. Nonetheless, certain standards

of basic fairness must be adhered to in order to afford due process . . .

. A quasi-judicial hearing generally meets basic due process

requirements if the parties are provided notice of the hearing and an

opportunity to be heard. In quasi-judicial [**16] zoning proceedings,

the parties must be able to present evidence, cross-examine witnesses,

and be informed of all the facts upon which the commission acts.”

Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So. 2d 996, 1002

(Fla. 2d DCA 1993) (Quoting Jennings v. Dade County, 589 So. 2d 1337,

1340 (Fla. 3d DCA 1991). The expert traffic engineer and professional

planner who were opposed to the project were limited to only 3 minutes, yet

the applicant’s experts were allowed to exceed the 3 minute time limit. In a

relatively recent District Court Opinion, a period of time of 8 minutes was

found to be insufficient and too short a time allotment for objectors and their

expert witnesses to make their presentations in Hernandez-Canton v. Miami

County Com'n, 971 So.2d 829 (Fla. 3rd DCA 2007)(...”we must respectfully

state that eight minutes per side was too short a time allotment”). The denial

of a meaningful opportunity to be heard and present expert opinion evidence

before the quasi-judicial Board violates fundamental procedural due process.

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II. ESSENTIAL REQUIREMENTS OF LAW

SUMMARY OF ARGUMENT

As explained in more detail below, the Sarasota County Commission

made the following errors in its decision, and misapplied the essential

requirements of law contained in the Sarasota County Land Development

Code, which are challenged in this petition for writ of certiorari and

summarized as follows:

1. Failed to meet concurrency requirements.

2. Failed to follow the order of approval(s) required by Ordinance 2016-

062; specifically, the Commission should have approved a Boundary

and Scope of Work, then reviewed a proposed plan for that area, have

public input and workshops, then receive and approve a plan, which

did not occur.

3. Failed to prevent traffic from the commercial project from discharging

into surrounding residential neighborhoods.

4. Failed to approve special exceptions for density over 9 units per acre.

5. Failed to approve a special exception for building height over 35’.

6. Failed to approve a special exception for stand-alone multi-family

dwelling units.

7. Failed to require a traffic study (5% of the surrounding neighborhood)

as required by Code.

8. Failed to require completion of the Scope of Work dated February 1,

2017, including but not limited to the lack of required open space,

study of potential Ave A closure, required multi-modal transportation

and pedestrian access.

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9. Failed to consider the health safety and welfare impact of installing an

additional light on Stickney Point Road west of US 41 and east of the

Stickney Point Road Bridge.

10. Failure to consider Sarasota area wide impacts of restricting access to

Siesta Key.

11. Lack of any competent substantial evidence that the project was

compatible with the surrounding neighborhood.

For any one of these reasons, the approvals should be reversed or

remanded and returned to the Commission for further action.

BACKGROUND

This matter involves an application for development on property

owned by Benderson Development located at the northwest corner of US 41

and Stickney Point Road in Sarasota County. The project is more commonly

known to the public as Siesta Promenade. For many years, this property was

the site of the Pine Shores Mobile Home Park containing 300 units as well as

a Shell gas station directly on the intersection corner. Over 10 years ago, the

property was acquired and cleared of all buildings (other than an historic

chimney structure) located on the property.

The Siesta Promenade project application included four parts:

1) Critical Area Plan (CAP) number 2016 – 01 – SP

2) Rezone Petition (RZ) number 16 – 29;

3) Special Exception (SE) number 1787 and

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4) Street Vacation (SV) application number as the 18 – 10.

The Siesta Promenade project requested that the 23.8 acres be rezoned

to allow for 133,000 square feet of retail use and 7,000 square feet of office,

414 multifamily residential units and a 65-unit hotel (this would equal 130

rooms if kitchens were omitted). The heights of the building would vary

from 35 feet to 80 feet, or approximately 4 to 8 stories in height.

At the time of acquisition by Benderson Development, the property

contained four zoning districts: Residential Mobile Home (“RMH”),

Residential Multifamily (“RMF-1”), Office Professional and Institutional

(“OPI”) and Commercial General (“CG”).

The subject property was designated as “Commercial Center” under

Sarasota County’s future land use map. As a “Commercial Center”, the

property was required to undergo a second general planning review known

as a Critical Area Plan (“CAP”), under Ordinance No. 89-93 as amended by

Ordinance Nos. 97-074 and 2016-062. As stated in that Ordinance:

“The purpose of the Critical Area Planning Program is to plan for

critical areas of concern and provide information for evaluating future

development proposals in such areas to ensure consistency with the

Comprehensive Plan. Critical Area Plans (CAPs) are intended to

provide a bridge between the general characteristics of the

Comprehensive Plan and the specific nature of development orders

and permits issued pursuant to the County’s land development

procedures (e.g., Land Development Regulations and Zoning

Ordinance).”

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The CAP Ordinance clarifies that it is a planning tool. It is “not a

‘development order’ within the meaning of chapter 380 or chapter 163,

Florida Statutes and does not by itself have the effect of permitting or

prohibiting development of any property.”

A “Development Order” is defined as any action granting a

“Development Permit”. A “Development Permit” is defined, among other

things, as a site plan, rezoning, special exception, or variance.

Therefore, on its face, the CAP Ordinance cannot be used as a

substitute for a site plan, a rezone, a special exception, or variance.

However, as explained below, this is precisely what the County

Commission did in the approvals under challenge.

The CAP Ordinance further states that “notwithstanding the

foregoing, under the County’s concurrency management regulations adopted

as ordinance 89 – 103, as amended, CAPs are treated as development orders

for the purpose of evaluating potential land-use impacts of proposed CAPs

on adopted level of service”.

Concurrency is the requirement that a project not degrade the “Level

of Service” particularly of traffic, due to the project itself. Therefore,

concurrency is applicable to a CAP application.

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A CAP allows the County to provide specific recommendations for

the development of a geographic area to help ensure that it is developed in a

coordinated way and is compatible with the surrounding neighborhoods and

consistent with the goals, objectives and policies of the county’s

Comprehensive Plan. Adopted CAPs include a plan and conditions of

Development Approval, which all future development and rezonings within

the CAP Boundary must comply.

The concept of a CAP has been an innovative planning tool used

throughout unincorporated Sarasota County since 1983. Sarasota County has

adopted over 33 CAPs for nearly every major intersection of the County,

every Major Employment Center (MEC) area in the County, and along every

Major Arterial Corridor. CAPs have included revitalization plans for the area

of Osprey, Nokomis and Englewood. The majority of CAPs were initiated

by the County. However, some CAPs were initiated by the private sector, as

allowed for by adopted Ordinance No. 89-93 and amended by Ordinance

Nos. 97-074 and 2016-062. Some of these private sector-initiated CAPs and

Sector Plans have included the following:

• Sector Plan No. 83-03-SP and 83-04-SP for the designated

Village Commercial Center at the intersection of Bee Ridge Road

and Cattlemen Road

• Sector Plan No. 83-06-SP for the neighborhood commercial

center at 17th and Honore

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• Sector Plan No. 83-08-SP for the River Road Major

Employment Center

• Sector Plan No. 83-10-SP for the Fruitville Major Employment

Center east of I-75

• Sector Plan No. 89-02-SP for the Village Center at US 41 and

Blackburn Point Road

In nearly every one of these CAP or Sector Plan studies, whether they were

instituted by the public or private sector, the approval included multiple

properties, because the intent of the CAP is to examine opportunities for

areawide solutions, including allocation and distribution of land use types,

land use compatibility, transportation access management, stormwater

coordination, environmental analysis or urban design elements.

A CAP is intended to be the “roadmap” against which individual

parcels that ultimately come before the County for rezoning can be evaluated

to ensure that the area is planned as a unified development and to avoid

piecemeal decision making. Again, this is precisely the opposite of what the

Commission did in the decisions challenged below.

CAP Process Generally

To evaluate the needs of a particular area, the CAP Ordinance

provides for a process and steps to take. See 2016-02 CAP Ordinance, pp

1820, Appendix C.

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First, the Commission sets the CAP Boundary. This defines the

properties to be studied. Meanwhile Staff and DRC establish a Scope of

Work. Id.

Second, if the Commission approves the Boundary, the Commission

then approves the Scope of Work. This outlines the issues to be examined

within the Boundary area.

Third, a Critical Area Plan is then developed for the area by the

Applicant after Public Workshops. Id. This Plan lists the zoning designations

that would be most appropriate for the CAP area. In short, this becomes the

Future Land Use Map for the CAP Area.

Finally, the Plan is then submitted to Neighborhood Workshops, a

public hearing before the Planning Commission and a public hearing before

the County Commission for approval or denial. After that, the Applicant

will have certain zoning categories that are deemed appropriate for the CAP

area.

The Subject Siesta Promenade CAP Process - Specifically

On October 11, 2016, the Commission held a public hearing on the

proposed CAP Boundary. The CAP Boundary was not adopted; instead, the

item was continued to a later date. See Staff Report, page 3, Page 7 App. C.

As of the date of final approval, no CAP Boundary was ever set by the

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County Commission.

On January 25, 2017, (some two years ago), the Commission, in a

discussion item with Staff, adopted a Scope of Work for the site. See Scope

of Work pp.19-28, App. C.

The Commission specifically noted that the approval of the Scope of

Work was not an approval of:

1.) the subsequent CAP Boundary that may ultimately be developed

or

2.) the development Plan application that would follow.

Instead it was simply the “first step in the process” as noted by

Commissioner Moran in moving to approve the Scope of Work.

On July 17, 2018, Staff deemed the CAP application to be sufficient

and set the matter for a Neighborhood Workshop. However, no Boundary

has yet been adopted, nor had a Critical Area Plan been proposed.

Critical Area Plan at US 41/Stickney Point Road.

The Promenade area, along with all of the surrounding quadrants,

have been designated as a Commercial Corridor on the Future Land Use

Map. Currently, the Siesta Promenade site has four (4) different zoning

categories, which were all in place at the time of purchase by the Applicant.

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The Commercial Corridor designation allows for rezoning to

Implementing Zoning Districts: CN; CG; CI; CM; OPI; RSF-4*3; RMF-1*;

RMF-2*; RMF-3*; MP; GU; PED. However, the Future Land Use Map

says nothing about which of these zone districts would be most appropriate

or whether it makes sense to plan the entire area with more specificity. This

is where a CAP comes into play. The CAP, and what it does, and does not,

include will be further addressed below in this Petition.

Lack of any competent substantial evidence that the project was

compatible with the surrounding neighborhood.

There is no competent, substantial evidence, or credible argument

based on the facts, that the development of the Siesta Promenade site will

have no immediate effects to the surrounding properties both residential and

commercial. For instance, as currently proposed, the Promenade site creates

the following adverse impacts on the surrounding properties, including

Petitioner’s property:

• Puts traffic from the site into the surrounding residential

neighborhoods - something the Comprehensive Plan bars. (FLU

Policy 2.3.7, pg. VI-23)

• Adds between 8,000 and 12,000 cars per day to an intersection

(US41 and Stickney Point Road that currently has approximately

3 (* - The residential zoning districts are permissible in commercial corridors, but

are not primary implementing uses.).

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44,000 cars per day and has (per FDOT) “astonishingly high”

crash rates.

• Does not take into account, and failed to consider, the obvious

need for sidewalks and traffic control for all of the streets affected

if the traffic is in fact diverted into surrounding neighborhoods.

• Lengthens the northbound left turn lanes on 41, but shortens the

southbound left turn lanes going into Gulf Gate. This just swaps

one traffic issue for another and benefits Promenade at the expense

of everyone else, including Gulf Gate residents and merchants.

• Does not address, as required by the Scope of Work, “Potential

median closures and the impacts the alterations have on the current

retail/residential uses served by the existing openings shall be

evaluated on the overall area road network in the following

locations: Ave A; Ave B and C. The transportation impact study

shall include potential solutions to improve traffic circulation if the

existing median opening(s) are closed or modified.”

• Requested and contained 80’ buildings (essentially eight

stories) in an area of single-family homes and even single-story

commercial, including the entire Sarasota Pavilion, formerly

known as Gulf Gate Mall structure directly adjacent to the site.

Again, this is not equal treatment, it is preferential treatment.

• Suggest that FDOT review has been approved when in fact

there is no submittal before FDOT for review at all. That review

will begin later in the process and is not assured.

• Ignores the fact (as acknowledged by Staff) that the required

traffic mitigation of adding a third left turn lane and timing lights is

not possible due to Right of Way (ROW) considerations and

FDOT issues.

• Ignores the uncontested testimony and evidence that the

installation of a NEW traffic signal light on Stickney Point Road

at Avenue B/C will have a severe negative impact on the

primary access route to Siesta Key, and this traffic light would

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cause terrible incremental problems for access to Siesta Key.

See below.

The current proposed CAP boundary ignores the obvious impacts not

just the immediate residential neighborhood, but also significant commercial

uses directly across Stickney Road, and known adverse impacts to other

commercial and residential areas such as Gulf Gate. This includes everyone

trying to get on and off Siesta Key via its primary access route across

the Stickney Road to Stickney Point Bridge.

Additional Density without meeting Code Requirements

As an additional element of a Critical Area Plan (CAP), an applicant can

request an increase in density up to 25 units per acre (up from 13 units per

acre), provided the Applicant meets certain requirements, which include

the following:

• Protection of existing residential neighborhoods adjacent to the

proposed development area. This requirement is not met because

the current Plan proposes four (4) traffic ingress/egress points into

adjoining neighborhood.

• Creation of multi-modal (pedestrian, bicycle, public transit, and

automobile) internal circulation systems that would be integrated

with other public and private transportation systems and land uses,

with the objective of reducing trip length, increasing transportation

capture rates, and providing safe and efficient methods of

transportation. This requirement is not met because none are

shown on Plan as submitted.

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• Creation of internal pedestrian circulation systems to link

properties with one another and also to the surrounding area and to

provide safe access to public transit stops. This requirement is not

met because none are shown on the Plan as submitted.

• Relative compatibility of mixed-use redevelopment versus

continuation of existing use or redevelopment as traditional

commercial development. This requirement is not met because

none are shown on the Plan as submitted.

• Creation of public amenities including, for example, recreational

opportunities, public squares and other publicly accessible open

space areas. This requirement is not met because none are shown

on the Plan as submitted.

• Availability of, and opportunity to utilize existing urban

infrastructure. This requirement is not met because none are shown

on Plan as submitted.

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CAP did not include required Special Exceptions for:

(1) Additional Density, (2) Building Height and (3) Multifamily uses.

Density required Special Exception.

As explained above, a CAP Ordinance does not by itself grant any

right to develop. Those must be done by a site plan, rezone, special

exception, or variance (i.e., a “development order”). Under the Sarasota

County Code of Ordinances, the CG District is restricted to nine (9))

units/acre in the absence of special exception or other further approval. This

is termed density “by right” in the Code and is restricted to 9 units/acre

unless a special exception is obtained to increase the density beyond 9

units/acre.

The Code states that an applicant can increase density from 9 to 13

units/acre via the special exception process. The Zoning Code, District Zone

Standards, further state that an applicant can obtain 25 units an acre in an

adopted critical area plan (CAP). However, the Code does not state that 25

units/acre are available “by right” - without a special exception. Granting

this amount of additional density above 9 units/acre should also require a

“special exception” not just a CAP, which the CAP Ordinance itself states is

not a “special exception.”

It would defy all reasonable statutory interpretation to suggest an

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applicant must meet the special exception criteria to increase density from 9

units to 13 units per acre but an applicant could increase density even higher

to 25 units/acre without obtaining a special exception by simply using the

vastly more deferential standards for CAPs without also meeting the criteria

applicable to a special exception.

However, this is precisely what the County Commission did because

no special exception was obtained for the density of 20 units/acre, which is

more than the 9-13 units that would clearly require a special exception.

Height required Special Exception.

Similarly, height “by right” in the CG District is 35 feet. An applicant

can request by “special exception” height up to 85 feet. Here, height was

approved at 80 feet but no special exception requesting a change from 35

feet to 80 feet was ever filed or approved.

Freestanding Multifamily Units required Special Exception.

The Siesta Promenade project also requested freestanding multifamily

dwelling units. Under the CG District allowable uses, freestanding

multifamily dwelling units are only allowed by special exception. Yet no

special exception for freestanding multifamily dwelling units was applied for

or obtained even though the Board of County Commissioners approval

included freestanding multifamily dwelling units, which are not allowed

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unless a special exception is obtained. Again, the CAP itself is not a

development order and did not contain, and is not in itself, a special

exception. Special exceptions have specific standards and criteria that must

be met and proved by competent, substantial evidence in the quasi-judicial

hearing prior to approval of a special exception.

Separate special exceptions should have been obtained for the:

(1) additional density,

(2) additional height, and

(3) additional freestanding multifamily uses.

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REQUEST FOR RELIEF

Petitioner requests an order from this court quashing and reversing or

remanding the approvals below for failure to afford procedural due process

and failure to comply with essential requirements of law and because the

approvals are not supported by competent, substantial evidence.

Respectfully submitted,

/s/ Ralf Brookes

RALF BROOKES ATTORNEY

Florida Bar No. 0778362

Attorney for PETITIONER

1217 E Cape Coral Parkway #107 Cape

Coral, Florida 33904

Telephone (239) 910-5464

Facsimile (866) 341-6086 [email protected] [email protected]

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this Petition for Writ of Certiorari complies with the

font requirements of Florida Rule of Appellate Procedure 9.1000(1).

/s/ Ralf Brookes

Ralf Brookes Attorney

Fla Bar No. 0778362

1217 E Cape Coral Parkway #107

Cape Coral, Fl 33904

(239) 910-5464;

(866) 341-6086 fax Email service:

[email protected]

[email protected]

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished by email on January 22, 2019 to the following:

Sarasota County Attorney Office

Alan Roddy [email protected]

David Pearce, Esq. [email protected]; [email protected]

Office of County Attorney

1660 Ringling Blvd Fl 2

Sarasota, FL 34236-6808

941-861-7255

Attorney for Applicant:

LAW OFFICE OF ROBERT K. LINCOLN, P.A.

2055 Wood Street, Suite 206

Sarasota, FL 34237

941-681-8700

[email protected]

/s/ Ralf Brookes

Ralf Brookes Attorney

Fla Bar No. 0778362

1217 E Cape Coral Parkway #107

Cape Coral, Fl 33904

(239) 910-5464;

(866) 341-6086 fax

Email service:

[email protected]

[email protected]