Bay Plaza owners granted status to appeal Obsidian condo tower

Defining aggrieved party status under Florida law and local ordinance requires interpretation of multiple shades of gray.

And usually, that meaning depends on which side of the issue is arguing the point.

The Sarasota Planning Board grappled with that definition during its Dec. 11 meeting, its members attempting to pin down whether the Bay Plaza Owners Association held legally recognized aggrieved party status in its attempt to appeal the administrative approval of the neighboring Obsidian condo tower project.

The purpose of the hearing was not to debase the merits of the controversial 342-foot tower developer Matt Kihnke intends to build on the 1200 block of North Palm Avenue but whether the residents of Bay Plaza, represented at the hearing by attorney Morgan Bentley, had legal standing to appeal the decision before the Planning Board.

Obsidian received administrative approval of three adjustments in October.

So conflated can become the debate between what is an affected party and an aggrieved party that the Planning Board was sharply divided, eventually granting it status by a 3-2 vote with Daniel DeLeo, Daniel Clermont and Shane Lamay in support following a 90-minute argument, some of it among the board members themselves.

Deputy City Attorney Michael Connolly attempted to offer clarity with the legal definition of an aggrieved party at the onset of the discussion.

According to the city’s zoning code, Connolly said, such a party is “Any person or entity which will suffer to a greater degree than the general public an adverse effect to a legally recognized interest, protected or furthered by the land development regulations or the comprehensive plan.”

The rub lies in the words “legally recognized interest.”

Bentley argued that Bay Plaza, simply by its proximity to the Obsidian — it effectively wraps around three sides of the quarter-acre site — is an aggrieved party to a building that will tower above it by manipulating a zoning code loophole regarding interstitial space between floors and will therefore have an unreasonable impact on its residents beyond any on the general public.

Lincoln countered that the definition of legally recognized interest cannot include what “might” happen because of a neighboring development, but what Bay Plaza can prove “will” happen — conditions such as blocking vehicle or pedestrian access, etc. Simply not liking a building that passed zoning code muster according to staff isn’t enough.

Both arguments struck a chord with Planning Board members, resulting in the split decision. As a result, a public hearing will be scheduled for early 2025, and simply because Bay Plaza was granted, standing does not mean Obsidian’s administrative adjustments, which are restricted to the first and second levels, won’t get upheld by the board. 

Regardless of its decision, though, the unsuccessful party will surely appeal to the City Commission where the exercise will begin anew. And, regardless of its decision, either Kihnke or Bay Plaza seems likely to appeal that to the 12th Judicial Circuit Court, which would have to rule not only on the aggrieved party status, but also whether Obsidian conformed to the zoning code as it existed at the time.

The space between

The basis of Bay Plaza’s appeal are three adjustments granted by the city’s Development Services Department.

The include:

• Parallel facade coverage: To reduce the parallel façade coverage by 20.8%, from the 133.61 feet required to 105.87 feet proposed. The lot has 148.45 feet of total frontage.
• Habitable space: To reduce the 20-foot habitable space by 6.5% on the ground floor, from 105.87 feet to 99.02 feet, and by 8.6% on the second floor, from 148.45 feet to 135.7 feet.
• Retail frontage: To reduce the required retail frontage by 9.4%, to 95.89 feet of frontage where 105.87 feet would be required.

The interstitial space between floors did not require an adjustment because, at the time, the zoning code placed no restrictions on height between ceiling and floor above. That didn’t prevent the matter from being part of the Planning Board’s discussion, as some members objected to the interstitial space as a loophole to achieve a building height nearly 100 feet taller than any other 18-story building in downtown.

Courtesy image

“I worked in interstitial space,” said Clermont, an architect. “There was a time in my life I rolled around in interstitial space, preparing fans for air handling and putting in duct work and all that. I know it's a tight space and I wish I had been granted a 5-foot space for my time in there. 

“Why did that happen in this case? Isn't this just basically a workaround to make the building tall?”

Lincoln countered that now was not the time to discuss the interstitial space dispute as it had no bearing on the recognition of aggrieved party status. George Scarf of building designer Hoyt Architects joined him in discussing why additional space was uniquely needed for ventilation and utilities infrastructure, and that all of that would have to be approved as the building undergoes the permitting process.

Also, “The zoning code that applies to this project is very clear that interstitial space is not regulated,” Lincoln added.

Whether germane to matter at hand or not, Clermont was joined by board member Shane Lamay in his disdain for the height of the building in such proximity to the 14-story Bay Plaza nearly half its height at only four fewer floors. They were joined by DeLeo who said Bay Plaza’s legal status was obvious and the definition not as simple as Lincoln contends. 

“These people are next door. They're on three sides. More importantly, they have specific issues,” DeLeo said. “In my mind, the most significant is interstitial space, but not the only one. The point of standing is to be a legal gatekeeper so not everybody can get into the courthouse door and I think to argue the way Mr. Lincoln does — to accept that proposition — it closes the courthouse door to everyone, and that's wrong.”

Conformity vs. intent

On the opposite side of the legal standing question were Planning Board Chairman Michael Halflants and board member Terrill Salem. The latter contending fault lies with the zoning code rather than with the developer.

“It's very clear that this applicant has designed this building in accordance with the zoning code. They followed all of the processes that have been laid out before them, and they designed the building,” Salem said. “Is it their fault that they followed the rules? We say, well they stretched, but did they cross the line when they stretched? No, they adhered to the zoning code, and now we want to penalize them for adhering to the zoning code.”

As if aggrieved party status weren’t gray enough, Lamay then ventured down the rabbit hole of intent — that although Obsidian may conform to the letter of the zoning code, it does not meet the intent of the code and of the city’s Comprehensive Plan or Downtown Master Plan. Height in the Downtown Bayfront Zone District, after all, is limited to 18 stories, and to date no buildings there had been proposed with 14-foot floor-to-ceiling heights such as Obsidian, which contributes to the overall height of the building.

“The problem I have with it is that we have a code here at 18 stories, with a general understanding of what an 18 story building is,” Clermont said. “Think this one pushes beyond that to something that just does not look like what we expect an 18-story building to look like, and that's why I can support the status because they're living very close to something I think goes beyond what our intent is.”