Condo tower controversy appears headed back to mediation

For the second time, the Sarasota City Commission sides with opponents of 1260 North Palm Residences as the developer weighs his options for further legal action.

By Andrew Warfield
| 5:00 a.m. May 7, 2026

A rendering of the street level of 1260 North Palm Residences.

Sarasota
News

Just 10 days shy of one year ago, the Sarasota City Commission by a 4-1 vote upheld an appeal of the administrative approval of 1260 North Palm Residences, and by doing so denied approval of the site plan for the condo tower formerly known as Obsidian.

During its May 4 meeting, the commission once again voted 4-1 — with Liz Alpert the lone dissenter as before — to reject a mediated settlement between the city and developer Matt Kihnke.

It was a quasi-judicial hearing filled with ambiguity about where the legal tussle over the 18-story, 14-unit, 327-foot tower can go from here after commissioners debated what constitutes terminology such as “competent substantial evidence” and adherence to the city’s “standards of review” for developments in rendering its judgment.

Residents of Bay Plaza and supporters wear red shirts in solidarity to their opposition to 1260 North Palm Residences.

What came before the commission was a recommended mediated settlement brokered by Special Magistrate Mark Bentley, a Tampa attorney, who in January presided over a request for relief mediation filed by Kihnke under the Florida Land Use and Environmental Dispute Resolution Act. Bentley, who issued his recommended settlement on April 1, made an appearance before the commission at the start of the hearing.

“The options available today from a dispute resolution standpoint are: accept the recommended compromise, reject the compromise, or modify the compromise,” Bentley said.

There were multiple modifications to the compromise made at the dais, some at the request of commissioners. Through his representatives that included attorney Robert Lincoln and George Scarf of Hoyt Architects, Kihnke — who was not present due to a family emergency — offered last-minute changes including providing additional street parking, additional landscape elements and right-of-first-refusal for tenants in current one-story building on the site to lease in the new commercial space at 20% below market rate.

At 327 feet in height, Bay Plaza residents who oppose 1260 North Palm Residences say the condo tower is out of scale and incompatible with the surrounding area.

Compatibility vs. precedent

In making her motion to reject the recommended settlement, Commissioner Jen Ahearn-Koch stood fast on her position that 1260 North Palm Residences was in conflict with most of the city’s development code standards for review. Alpert maintained her position that the street-level adjustments requested for the project would be required for any redevelopment of the quarter-acre lot.

“Whether you like it or you don't like it, that's not our decision,” Alpert said. “The decision is, does it meet the city criteria? Putting the trash out on the sidewalk is how everybody else does it, but they offered to put it in an alley, and people didn't like that. You requested a loading zone, so they came up with a loading zone. Now you don't like that. The criteria doesn't say that they have to have all of these things, but they have made provisions for all of that under the code.”

What is competent substantial evidence?

The term “competent and substantial evidence” arises frequently in quasi-judicial hearings held by governmental bodies such as city commissions, county commissions and planning boards.

According to the Florida Bar, the legal standard of competent substantial evidence requires that factual findings in judicial or quasi-judicial decisions be supported by relevant, admissible evidence that a reasonable mind could accept as adequate to support a conclusion short of and up to a full preponderance.

What constitutes a “reasonable mind,” though, is subjective.

Key aspects include:

Competent: The evidence must be admissible, reliable and relevant to the issue, often requiring it to be expert testimony or documentation rather than hearsay or speculation.
Substantial: The evidence must be material, as in having a bearing on the fact to be proven, and enough to form a firm foundation of fact.
Context: This standard is highly deferential, meaning appellate courts or reviewing bodies will not reconsider evidence or judge witness credibility, but only ensure the finding was reasonable based on the record.

In addition to procedures for trash collection, a reduction in street retail frontage and concerns over construction hazards, at 327 feet, height has been among the primary objections of Bay Plaza residents. Kihnke has been accused of adding unnecessary interstitial space between floors to artificially raise the building so most of the residential units will peer over Bay Plaza to gain views of Sarasota Bay.

George Scarf of Hoyt Architects, which designed the building, said the planned Mira Mar residential towers towers are proposed at 301 feet from Palm Avenue to the top of an architectural belfry with interstitial space per floor of 3 feet 4 inches up to 9 feet 10 inches. The Waldorf Astoria at Five Points will be 355 feet in height, he said, with interstitial space ranging from 3 feet 6 inches to 14 feet 6 inches.

"As you may recall, ours was a typical 2 feet, and then some of our areas were as much as 7 feet," Scarf said.

The location of the proposed 1260 North Palm Residences with Bay Plaza in the background.

Commissioner Kyle Battie, who hesitated for about a minute before casting his vote against the mediated settlement, warned of precedents throughout the downtown area, most recently the redevelopment and preservation of the historic Mira Mar building a few blocks to the south.

“We went right down the street and did a whole comprehensive plan amendment, and then we talk about compatibility,” Battie said. “I don't even know where the compatibility was with that. We did a whole comprehensive plan for that to save a building, and then we allow for two 18-story buildings (at Mira Mar).”

Developer Matt Kihnke during a prior City Commission hearing about 1260 North Palm Residences.

Such precedent could be part of the next phase of legal maneuvers which for now is teed up to return to the special magistrate for another round of mediation. That mediation will not produce another recommendation, but rather a decision by Bentley on whether the commission's decision was unreasonable or unfairly burdens Kihnke as the property owner. If that is the magistrate's determination and the commission maintains its position, the next step could be litigation in the 12th Judicial Circuit Court.

Or, Kihnke could just choose to bypass further FLUEDRA procedures and litigate now.

If the commission does change its posture on 1260 North Palm Residences, the Bay Plaza residents could choose litigation as well.

City Attorney Joe Polzak warned the commission the future is uncertain, and that hoping the next round of mediation results in substantial changes acceptable by all parties is risky.

“There's no guarantee what will happen from here,” said Polzak, “so if you're making a decision counting on something — another process occurring — that may or may not occur.”

In the approval battle that began with the introduction of the project as Obsidian in 2023, it appears all but certain that something, indeed, will occur.

Standards for review

The building, zoning and code enforcement department, planning board and city commission shall use and be guided by the following criteria in the exercise of their discretion when evaluating a site plan submission:

Whether the proposed development, design and layout are in keeping with the intent and specific standards and criteria prescribed in pertinent sections of the land development regulations.
Whether, on balance, the proposed development, design and layout are compatible with the Sarasota City Plan.
Whether the required information has been furnished in sufficiently complete and understandable form to allow an accurate description of the proposed use(s) and structure(s) in terms of density, location, area, height, bulk, placement, setbacks, architectural design, performance characteristics, parking and traffic circulation.
Whether there are ways in which the configuration of the development (location, intensity; density; scale; building size, mass, bulk, height and orientation; lot coverage; lot size/configuration; architecture; screening; buffers; setbacks; signage; lighting; traffic circulation patterns; loading area locations; operating hours; noise; odor; and other factors of compatibility) can be changed which would mitigate or improve the effect of the development on adjoining and nearby properties and on the community.
Whether the proposed development, design and layout has made adequate provisions for vehicular and pedestrian access, safety, and traffic circulation (both internal and external to the project), in addition to the requirements pertaining to concurrency certificates.
Whether the proposed development, design and layout has made adequate provision for parking and loading and unloading areas.
Whether the proposed development, design and layout has preserved the natural features and characteristics of the land including but not limited to the regard given to existing large trees, natural groves, watercourses and similar natural features that would add attractiveness to the property and environs if they were preserved, natural drainage systems, natural buffering, and the use of other techniques for the preservation and enhancement of the physical environment.

author

Andrew Warfield

Andrew Warfield is the Sarasota Observer city reporter. He is a four-decade veteran of print media. A Florida native, he has spent most of his career in the Carolinas as a writer and editor, nearly a decade as co-founder and editor of a community newspaper in Mecklenburg County, North Carolina.