Condo appeal raises questions of bias

Patrick DiPinto believes a series of facts surrounding an upcoming Planning Board hearing tell a clear and damning story.

Eileen Normile rejects DiPinto’s characterization and suggested it is being used to unfairly accuse her of bias.

This dispute, part of a contentious review of a downtown development, might have no clear standard for determining who’s right — or when a city official is incapable of being an impartial judge in cases like this.

“It would be very hard to articulate very hard or fast rules,” City Attorney Robert Fournier said.

DiPinto is a managing partner with Seaward Development, the company behind Epoch, a planned 18-story condo at 605 S. Gulfstream Ave. After city staff approved the project in April, a group of residents living on Gulfstream and Palm avenues filed an appeal — a case the city’s Planning Board will decide.

Ahead of a June 4 meeting, Seaward representatives sought to get Normile, the Planning Board’s chair, to recuse herself from the hearing. Robert Lincoln, the attorney representing Seaward, said her connections to the appellants led the developer to fear she would not be able to fairly decide the case.

Normile is a founding member of STOP, a group formed in 2016 to advocate for changes to the city’s development regulations. Two of STOP’s four core issues involve supporting larger building setback regulations and opposing administrative development review, which allows city staff to approve projects without a public hearing.

Lincoln and DiPinto said these facts alone are enough to raise concerns. The appeal is challenging a development approval that came through the administrative review process. One of the appellant’s primary arguments is that Epoch’s building setbacks are too small and not compatible with the surrounding area.

The appeal is a quasi-judicial matter, which means the Planning Board is obligated to consider the facts introduced into evidence when determining an outcome. Lincoln said Seaward has a right to have a case like this heard by unbiased decision-makers. He said Normile’s involvement with STOP jeopardizes that.

“That organization has political goals and positions that do matter to this case,” Lincoln said at the June 4 hearing.

Their argument against Normile’s participation goes further. Three of the 22 residents who filed the appeal are members of STOP’s advisory committee. Dan Lobeck, the attorney representing the appellant, is STOP’s attorney. DiPinto said he has never met Normile and is unaware of the exact nature of her relationship with those individuals.

Still, he was incredulous at the idea the circumstances surrounding Normile did not merit recusal.

“I’m supposed to be treated fairly?” DiPinto said. “I have, in 30 years of business, never seen political corruptness like this.”

Drawing the line

Normile, who declined the request to recuse herself June 4, said she’s fiercely committed to ensuring all parties have due process in the appeal hearing.

“I’m making an enormous effort to do everything appropriate in this case,” Normile said. “That’s my primary goal, to do everything that’s appropriate and not to make any missteps.”

Normile declined to comment substantively on matters related to the Epoch appeal, citing the ongoing nature of the hearing. But at the June 4 meeting, she read a statement outlining her reasons for remaining involved.

She pointed out STOP, as an organization, is not a party to the appeal. STOP does not take a position on any specific development proposals but instead lobbies the city to make policy changes. She said STOP’s ideal vision for regulating development did not prevent her from judging whether the Epoch project complies with existing zoning rules.

“Our decision must be based on the here and now and not on what we or STOP might prefer in the future,” Normile said.

Normile said all members of the Planning Board have preexisting relationships that inform their outlook. Because Sarasota is a small city, she said the same subset of people are involved in different planning-related matters. Lobeck is STOP’s attorney, but Normile said she previously suggested her condominium board use Lincoln to represent it on zoning-related issues.

Kate Lowman, another member of STOP’s steering committee, said Normile has taken steps in an effort to ensure her work with the group doesn’t conflict with her service on the Planning Board. She said Normile leaves the room when matters related to quasi-judicial hearings come up at meetings, and Normile previously asked the steering committee to remove her from a group email chain.

Lowman rejected the notion that Normile or City Commissioner Jen Ahearn-Koch, also a STOP founding member, were incapable of being impartial arbiters on planning-related issues.

“They approach things in an analytical way that frankly, I think, sets a standard for all commissioners,” Lowman said.

Ahearn-Koch declined to comment on matters related to the Epoch development. If the Planning Board’s decision is appealed, the City Commission would hold a quasi-judicial hearing regarding the project.

Lowman suggested the recusal request was a concerted effort to discredit Normile, STOP and the residents who filed the appeal. Lowman said the members of STOP’s advisory committee participating in the appeal were doing so of their own volition, acting on their rights as neighboring property owners.

In her statement, Normile called attention to the timing of messages sent to the city that accuse her of bias. Normile and Lowman both pointed out that some messages inaccurately said STOP was involved in the case.

“At one point a few days ago, there was a sudden flurry of emails from a diverse selection of people, each coincidentally claiming STOP was the reason for the appeal,” Normile said. “I would, if I were at trial, call that Exhibit A of an attempt to build a case for recusal based on orchestrated innuendo.”

DiPinto said other members of the development community had taken interest in the appeal because they had similar fears about their ability to get a fair hearing in front of officials involved with STOP. He said the stakes are high, and although he expressed confidence the Planning Board would uphold the approval, the delays have already jeopardized the project’s funding.

“My whole life is on the line based upon this,” DiPinto said.

Fournier said there’s no universal metric for deciding if an official is biased and if a recusal is necessary. He said parties in a quasi-judicial hearing have a right to raise concerns regarding bias. In part, a recusal request might be an effort to lay the groundwork for future arguments if the case is appealed to a higher-ranking body like circuit court. The applicant could raise the issue again if the Planning Board reverses the project approval in a 3-2 decision and Normile votes in the majority, Fournier said.   

Ultimately, officials in question decide whether to recuse themselves — a responsibility that leaves room for interpretation.

“What is going to be evidence of a lack of objectivity can vary from case to case,” Fournier said. “We have to take each situation as it comes. They’re all different.”

This article has been updated to correct the content of Normile’s statement at the Planning Board meeting.