- March 2, 2023
Conflict remains in the air in the months-long legal battle between residents and a developer in The Quay as the off-again, on-again and off-again public hearing process is back. This after a Monday decision by the Sarasota City Commission that outlines the process to be heard by the Planning Board.
The point of contention?
Specifically, the air over the primary private access street— Quay Commons — into the 15-acre waterfront, mixed-use development.
During a workshop on Monday, commissioners voted 4-1, with Jen Ahearn-Koch opposed, to allow a hearing before the city's Planning Board — and by extension eventually before the City Commission — to consider an amendment between developer Quay Venture LLC and the city that would permit altering the two parties' 2016 general development agreement.
One Park developer Quay 1 and 9 LLC wants to combine blocks 1 and 9 into a single building spanning over Quay Commons. The point of contention is a transfer of the air rights over Quay Commons to make the plan feasible.
To arrive at its eventual decision, commissioners heard a 26-minute, 4,300-word presentation delivered by City Attorney Robert Fournier, in addition to a 17-page legal memo he previously wrote. The matter is complex, he told commissioners, because it is unprecedented here.
One Park is an 18-story proposed condo tower that would span over Quay Commons at a ceiling height of 14 feet. To do that requires either an amendment or a major revision to the development agreement between the city and the developer. The developer is pursuing the amendment route because it requires only legislative approval by the commission. A major revision requires a more complex quasi-judicial proceeding.
Commissioners were asked by Fournier to consider bundling the general development plan (GDP) amendment with the site plan approval to address both in a single quasi-judicial hearing. That’s a sort of mini-trial that allows for staff presentation, both sides equal time to present their cases, cross-examination of witnesses and rebuttal by the applicant. This in addition to five minutes each for affected individuals — those who live within 500 feet — to speak.
Because of the legal nature of the quasi-judicial proceedings, decisions can be appealed to a higher court. A legislative hearing, by contrast, allows three minutes each for speakers.
Regardless of the outcome of Planning Board and City Commission action, the ultimate fate of the project rests in the hands of the 12th Judicial District Court, which is scheduled to hear litigation beginning May 8.
Opposing the One Park plan are residents of Block 6 of The Quay — otherwise known as the Ritz-Carlton Residences — the only completed and occupied building in the development. They allege unit owners have a vested easement applicable for use of the common area over the improved areas of Central Quay and the air rights above.
In short, they want to prevent what would be effectively a tunnel beneath One Park and a monolithic structure at the gateway to The Quay.
Jeff Kincaid, a board member of the Block 6 Condominium Association, asked commissioners to delay action on One Park until after the legal process is completed. In December, 12th Circuit Judicial Court Judge Hunter Carroll declined to issue a summary judgment request on the matter by Quay 1 and 9.
“The judge specifically called out the potential for, and I quote, ‘prohibited withdrawal of common air elements’ of the air rights over our road,” Kincaid said. “I would ask that this city put this entire project on hold until the legal issues have been resolved.”
Commissioners disagreed, the majority siding with Fournier’s assessment that air rights conveyance is a legal matter between Block 6 and Quay Venture, and that the city’s obligation lies in the amendment request, which must first be approved before the site plan can be considered.
“It's my legal opinion that air rights are private property that we shouldn't concern ourselves with,” said Commissioner Eric Arroyo who is an attorney. “That is a private landowner. They can convey it. They can sell it.”
The 4-1 majority also said Block 6 residences will have plenty of time to be heard in hearings before the Planning Board and City Commission.
Quay 1 and 9 has been waiting since November for its planning board meetings. A hastily called meeting before the city’s Development Review Committee was canceled, to the surprise of City Manager Marlon Brown, as a Nov. 21 City Commission meeting was underway and as Block 6 residents were speaking in opposition to that meeting. That meeting was to occur just before Thanksgiving.
“We had that discussion in November because we were trying to schedule a special (Planning Board) meeting,” Brown said. "Then Mr. Fournier said (he) would take a look at the process and will develop something and bring it back to the Commission.”
Hence Monday’s discussion.
With Monday’s decision by commissioners, when the Planning Board does take up One Park, it will recommend either approval or denial — separately — of both the development agreement amendment and the site plan.
Fournier suggested the combined approach for the amendment and site plan because, in his opinion, it would be more efficient and would provide a seamless record forwarded to the City Commission for its consideration and, in all likelihood, on appeal in court.
Vice Mayor Liz Alpert asked Fournier to confirm that, should the development agreement amendment fail, the process then turns to a major revision to the general development plan. And if so, like site plan approval, that is a quasi-judicial proceeding.
“But ultimately, either one leads up to approval of the site plan because one or the other has to happen before that site plan can be considered,” Fournier said.
Whether the City Commission approves or denies, Fournier said, “I think you'll probably have an appeal on this one in your future.”
Attorney Robert Lincoln, representing the residents opposed to the project, is no stranger to litigation with the city. He also represents Sarasota-Bradenton International Airport, which has brought legal action against the city over the approval of an apartment development at the former Sarasota Kennel Club.
Quay 1 and 9 are represented by the Sarasota law firm Icard Merrill, whose partners Matt Brockway and Bill Merrill both spoke at Monday’s workshop.
The city and Quay Venture entered into the development agreement for the Quay in 2016. To date, only Block 6 has been completed. Construction is underway on Bayso, an 18-story condo tower near the Fruitville Road roundabout, and on Cordelia, a mixed-use residential and commercial project along Tamiami Trail.
Blocks 1 and 9, at the north end of The Quay next to the Hyatt Regency, are currently serving as construction staging areas.