Wal-Mart decision expected Tuesday night

City Hall will be the center of attention at 6 p.m. Tuesday night (Feb. 26), when the Ringling Boulevard Wal-Mart site plan appeal resumes, picking up where Sarasota City Commissioners, city staffers and those arguing for and against the proposed development left off after roughly four hours of discussion on Tuesday, Feb. 19.

If you were among the 24 affected persons or members of the general citizenry who signed up to address commissioners but did not get to speak due to the meeting running so long, you will get your chance early on during Tuesday night’s proceedings, right after the status of the affected persons has been determined.

After the public has its say, commissioners will take center stage, sharing their views and opinions, posing any additional questions they have and ultimately casting their vote for or against the site plan approved by the city’s volunteer Planning Board in November. If the Wal-Mart developers come out on the losing end, it’s highly likely they will appeal the city commission decision in court, dragging the City of Sarasota into a lawsuit at taxpayers' expense.

The Process

At the Feb. 19 meeting, City Attorney Bob Fournier explained the basic premise of the quasi-judicial hearing. Wal-Mart representatives Jim Porter, Susan Finch, state senator and practicing attorney Bill Galvano and others would get 45 minutes to make their case for upholding the previously approved site plan that, if upheld, would allow for the construction of a Wal-Mart store at the south end of the Ringling Shopping Center formerly occupied by Publix and other retail tenants.

The appealing party would then have an unspecified amount of time to cross examine Wal-Mart representatives.

City staff members would then share their interpretation of the city’s zoning codes, followed by cross-examination from Wal-Mart and Alta Vista Neighborhood attorneys.

Those appealing the proposed development would then be given 45 minutes to make their presentation, followed by cross-examination by Wal-Mart reps.

It would then be time for the affected parties and general public to have their say. After which, commissioners would discuss the matter, pose additional questions and eventually render their final decision.

Anticipating a lengthy discussion, Fournier told commissioners they were not obligated to complete the hearing in one night.

“Your decision has to be supported by competent substantial evidence as placed into the record,” Fournier said, providing a subtle reminder that personal feelings on the proposed development should not factor into a commissioner’s decision.

 Wal-Mart Weighs In

The proceedings began with Porter asking commissioners to dismiss the appeal based on technicalities. With that idea quickly dismissed, he then shared his opinion that the entire process was a “red herring.”

Finch, a professional planning expert with ties to Sarasota, shared her opinion that the proposed development of a 98,000 square foot Wal-Mart store complies with the city’s zoning code and should be allowed.

Much of the evening’s debate centered around the appealing party’s contention that zoning codes do not allow the construction of a “department store” larger than 15,000 square feet.

Contending that Wal-Mart is not a department store, Finch stated that “over 54 percent of the store is grocery,” with the remaining floor space dedicated to the sale of electronics, clothing, home goods, automotive supplies and other retail items, as well as a pharmacy section.

In attempt to differentiate Wal-Mart from traditional department stores, Finch said, “I would ask you to think about the last time you bought milk in Macy’s. This is not a department story by any stretch of the imagination.”

Finch then said, “It is my professional opinion that every single one of these uses is allowed … This is what I found, this is what your professional planning staff found and this is what the planning board found. They all got it right.”

The City Perspective

After the Wal-Mart reps were cross-examined by local attorney Bob Turffs, Director of Neighborhood and Development Services Director Tim Litchet and General Manager Gretchen Schneider provided commissioners with their professional opinions.Litchet started by saying, “It is my responsibility as Director of Neighborhood and Development Services to enforce and interpret the zoning code. I am responsible for those types of determinations and I have to take the responsibility, good or bad.”

Addressing a report that opponents of this particular Wal-Mart store created and circulated to commissioners and media members, Litchet said the hearing was staff’s first opportunity to respond to the report.

“While we respect the position taken by the neighborhood, we do feel there are many inaccuracies and omissions in the report that need to be addressed,” he said.

Citing previous Planning Board testimony given by Senior Planner Courtney Mendez (currently out on maternity leave), Litchet supported Mendez’s opinion that the proposed Wal-Mart should be designated as a “large store” as opposed to a “department store” in regard to what type of structure it is.

If commissioners agree with city staff’s designation regarding structure type, the Wal-Mart opponents’ arguments may be in serious jeopardy, as this is considered to be a key element of the case.

Referencing the report compiled in part by retired City Planner Mike Taylor, Litchet said, “His report incorrectly states that the CSCN zone district prohibits department stores and does not recognize any other retail structure types---both hardware stores and variety retail stores are specifically shown in the CSCN use chart as permitted uses … I hate to say it, but the Alta Vista Neighborhood’s planner is simply mistaken.”

Litchet read testimony and comments made by local designer and current Planning Board member Chris Gallagher. Quoting Gallagher, Litchet said, “The proposed Wal-Mart was not a department store under our zoning code because that definition envisions a traditional type of retailer with specifically manned departments within their floor area, such as a Macy’s. Nothing would be sold at Wal-Mart that hasn’t been sold on this site for many decades. Those relying on the department store [designation] are not correct and are stretching the code in a direction to find something to trip over.”

Summing up his own opinion, Litchet said, “I urge you to not to accept the argument that Wal-Mart has to be classified as a department store and is therefore prohibited, because that argument is based on a flawed analysis that assumes no other retail structure types are allowed in the commercial shopping center districts.

“If you accept that reasoning, that a Wal-Mart is not allowed as a large store structure type, it necessarily follows that you can’t have any of those other listed structure types, such as shopping centers or malls, in our commercial shopping center districts. That’s a conclusion I cannot support.

“I urge the City to conduct a robust discussion related to compatibility issues, such as the 24-hour operation, the design, access and noise, but I do not believe you can or should make a finding that the use of the parcel for a store like Wal-Mart is prohibited under the terms of the zoning code.”

The Neighborhood ViewAt 9:45 p.m., Commissioner Shannon Snyder made a motion to adjourn the meeting after the appealing party made their 45 minute presentation and subsequent cross examinations were concluded, thus informing the affected parties and general public that they would not be speaking that night, nor would commissioners be rendering a decision.

Turffs began the appellants’ presentation by pointing out that 11 of the 24 Alta Vista residents claiming to be affected parties live within 500 feet of the proposed project.

With Taylor, former Mayor Kelly Kirschner and local architect Jerry Sparkman seated at the table with him, Terffs said, “We believe that the matter before you is in fact a very simple decision. Despite what you’ve heard from Wal-Mart, the issue is whether the petition and the project conform to your zoning code and to the City of Sarasota Comprehensive Plan---and it doesn’t. A single mega-store of 98,000 square feet that will operate 24 hours a day is not neighborhood-oriented.”

Addressing the department store argument, Turffs said, “From Wal-Mart you have, and will continue to hear, a great deal of misdirection and talk about issues that have nothing to do with your decision. Until, and unless, there’s a proposal that meets your code standards, we don’t need to talk about aesthetics, economics, traffic patterns, jobs or any of the issues that Wal-Mart would clearly rather talk about.”

He went on to say, “This is not some type of class warfare waged by a group of elitists who don’t want to shop at Wal-Mart. This issue has been raised by a group of concerned citizens whose neighborhood will be adversely impacted if the Wal-Mart is built, and moreover, by citizens that want to see their city, the City of Sarasota, comply with its own laws and rules.”

Taylor shared his opinion that the allowable use table contained in the city code does not allow a structure that large on this parcel, saying, “I think size does make a difference and as a result the site plan must be denied.”

Questioning what is and what is not allowed on the 8.7 acre parcel, Commissioner Paul Caragiulo asked Taylor if several smaller buildings designed for similar retail use would constitute an allowable use. Taylor said he thought it would, depending on how it was designed.

Marking the argument that demolishing a building means a developer has to adhere to the most recent zoning codes, Sparkman said, “If you remove the structure, the zoning that is on the land is what you use.”

Contending that zoning designations provide for small, medium and large retail developments, Sparkman disagreed with Litchet’s interpretation that disallowing a Wal-Mart at this particular site prevents one from being built elsewhere in the city.

Addressing the department store designation during his closing remarks, Turffs said, “Is it a department store? Is it a large store? I think what’s important is to recognize what does Wal-Mart call itself? If we look at the Yellow Pages online we’ll find out that it’s under the department store category.

“Wal-Mart has historically called itself a department store," Terrfs said, contending that the effort to be known as something else is an attempt to “fit within these loopholes within the code."

He concluded by saying, "Remember, your code says if it’s not permitted, it’s prohibited and this structure is prohibited.”

After cross-examination, the meeting was adjourned until Tuesday.

The public is welcome to attend Tuesday’s special meeting and it will be televised on Access Sarasota (channel 19 for Comcast customers and channels 32 and 34 for Verizon customers). The meeting will be streamed live at the City website and archived there the following day.