Obsidian approval decision appealed to the Planning Board

The battle over whether the Obsidian condominium tower will be built makes its inevitable shift from the administrative approval process to the political realm as opponents of the project, primarily residents of the adjacent Bay Plaza, have appealed administrative site plan adjustment approval to the Sarasota Planning Board. 

In a letter dated Oct. 2 from Director of Development Services Lucia Panica to project consultant Joel Freedman, Panica wrote, “After many months of review and many modifications from the original submittal, I have determined that the proposed administrative site plan meets the standards for review.”

Red shirt-wearing opponents have appeared before the City Commission for more than a year, sounding a warning that in the likelihood an eventual Planning Board verdict is appealed to the commissioners by either developer Matt Kihnke or residents of Bay Plaza, they will be held responsible for the ultimate decision.

Obsidian, also referenced as 1260 North Palm Avenue, is proposed as an 18-story, 14-unit condominium tower with 5,989 square feet of commercial and retail space on the first and second floors. The project received partial sign-off by the city's Development Review Committee on May 15.

The primary objection to the project is its height which, at 342 feet, is nearly 100 feet taller than any other building downtown. Opponents have accused the developer of achieving the additional height via manipulation of interstitial space, typically space to run utilities between floors. They content the tower is out of scale and on too small of a site, about a quarter-acre, to support such a structure. 

Prior to the public comments portion of Monday’s commission meeting, City Attorney Robert Fournier informed commissioners that any comments made during that meeting cannot be considered evidentiary in either an appeal to them or, ultimately, the 12th Judicial Circuit Court.

The process is now quasi-judicial — likely eventually judicial — meaning strict rules will apply and all comments made previously or prior to quasi-judicial proceedings are to be disregarded. Only evidence presented during a hearing may be considered.

“I wanted to mention that in advance because I certainly dislike being put in the position of discouraging anyone from coming to testify, and I respect the concerns that have been expressed by these residents," Fournier said. "That testimony, if any of it is given today, will not count."

Heeding Fournier's caution, most Obsidian opponents stood down. Ron Shapiro, though, did speak against the administrative adjustment approval.

“Most residents believe developers get whatever they want in Sarasota. This approval of 1260 shows most residents are right,” Shapiro said. “I am not upset with city staff. They are young, hard-working people … and they’re under a lot of pressure from developers. But city staff are human beings and all humans make mistakes ,,, so we are appealing this decision to the Planning Board. 

"We hope and expect that the Planning Board, with their greater and more diverse experiences as well as their broader overview of what’s right for the city, will overturn this decision.”

Photo by Andrew Warfield

Since Obsidian was initially filed, the city has closed the interstitial space loophole — the zoning code had not specified limits on the amount of space between floors — but because the project was already in the administrative approval pipeline, those new restrictions do not apply.

The request of the city by Kihnke was for three adjustments: 

• 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.

All three adjustments come as the result of space needed for a required electricity transformer, a fire control room and vehicle access to structured parking. It was determined that Kihnke either satisfactorily mitigated or complied to the extent possible to those standards to warrant adjustment approval. 

Per city code, the director of development services is authorized to grant an adjustment for the reduction of a dimensional standard that does not exceed 25%, provided the request is consistent with the code. 

“This is not a subjective review,” Panica’s letter reads.

Disdain for height and ground-level adjustments notwithstanding, the city’s hands may be tied on the matter. Decisions made through quasi-judicial processes can ultimately land in court, another consideration the Planning Board and City Commission will face. Either Kihnke or Bay Plaza is likely to appeal the Planning Board’s decision to the commission, and its determination to the 12th Judicial Circuit where jurisprudence requires whether or not Obsidian conforms to the zoning code as it existed at the time, including the permitted adjustment approval parameters.

“If the Planning Board denies our appeal, we will then appeal to you, our City Commissioners, elected by the people to carry out the will of the people with the hope and expectation that the right thing will be done and sanity will prevail,” Shapiro said on Monday.

Obsidian was not on the Planning Board’s agenda for its Oct. 23 meeting. Its next meeting scheduled for Nov. 13.That agenda has yet to be published.