Obsidian OK'd, but final approval is far from achieved

Although the Obsidian condominium tower planned for the 1200 block of Palm Avenue has received administrative approval from the city, the project still faces a lengthy path to the start of construction.

Residents of the adjacent Bay Plaza as a collective have filed an appeal with the Sarasota Planning Board on the basis of three adjustments that were granted to developer Matt Kihnke by Director of Development Services Lucia Panica. That hearing is currently slated for the Dec. 11 meeting, dependent on whether Bay Plaza residents are granted aggrieved party status. 

That is an area of multiple shades of gray, largely subjective and open to appeal. Under Florida statute, an aggrieved party can be “any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan. … The alleged adverse interest may be shared in common with other members of the community at-large but must exceed in degree the general interest in community good shared by all persons.”

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How that legalese can be applied requires some amount of guesswork, but attorney Morgan Bentley, who represents Bay Plaza, said his client is the proverbial poster child for aggrieved party status.

“It's an easy argument for us,” Bentley said. “Number one, even though just being adjacent is sufficient, we're more than just adjacent. We're three out of four sides, the fourth being (Palm Avenue). Number two is we're literally part of their application. We're mentioned four times — I think maybe five — with specificity, so we're literally part of it.”

Bay Plaza literally wraps around three-fourths of the quarter-acre site, which Bentley said clearly qualifies as bearing a burden beyond the general interest in community good brought by the project.

“Unlike most neighbors where there's going to be some separation during any building phase of this project, because of this constrained site every shingle that falls off that property can only fall on our property,” Bentley said. “Every paint droplet that they miss is going to end up on our property. I think we're the textbook definition of an aggrieved party.”

In addition to facade and retail and commercial frontage variances, the most controversial aspect of the 18-story, 14-unit tower is its height which, at 342 feet, is nearly 100 feet taller than any other 18-story tower in downtown.

Once taken up by the Planning Board, the possible outcomes include:

• Bay Plaza is not granted aggrieved party status by the Planning Board and confirmed on appeal by the City Commission. There is no quasi-judicial hearing and status is likely appealed to 12th Judicial Circuit Court.
• Bay Plaza is not granted aggrieved party status by the Planning Board and overturned on appeal by the City Commission. The quasi-judicial hearing then must be held by the Planning Board.
• A quasi-judicial hearing is held before the Planning Board and a decision is rendered, likely to be appealed by the City Commission by either Bay Plaza or the developer.
• If the Planning Board appeal is won by the developer, an aggrieved party hearing is first held by the City Commission. If status is denied, no quasi-judicial hearing will be held. If granted, there will be a City Commission hearing.
• Any decision by the City Commission will then likely be appealed by the unsuccessful party to the 12th Judicial Circuit Court.

All of that, Bentley estimates, could take eight to nine months to complete, but could possibly take as long s 14 months. Should a verdict by the 12th Judicial Circuit Court be appealed to the District Court of Appeals, that could take an additional 18 months or more to adjudicate.

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Since first introducing the project, Kihnke and his architecture firm, Hoyt Architects, have made many changes to the building, including shaving off 15 feet of height and increasing street level retail and commercial space as well as inhabitable space on the second floor, all still falling short of code, thus necessitating the three adjustments.

Bentley said none of the approved adjustments addressed the height, which Bay Plaza residents charge was achieved via manipulation of interstitial space — the height between floors. At the time of project submission, however, the city’s building code did not address limits on interstitial space.

Now it does, but Bentley said the entire project, not just the three adjustments, are fair game once an appeal hearing is opened.

For his part Kihnke said Obsidian, with its three approved adjustments, conforms to city code as it existed at the time.

“The city approved the project based upon the code that we followed and I would hope that the planning board uses the same approach,” Kihnke said. “I have worked very hard with my team designing an incredible and appropriate project that meets all the city’s requirements for approval. We will continue to fight for full approval and permit, and hope that it doesn’t come to that.”

This will be the second time Obsidian comes before the Planning Board. On Jan. 10, the board denied Kihnke's appeal of a denial of adjustments by Panica, which fell far short of the most recent adjustment requests. Board members also suggested the height of the buildiing was objectionable.

In the likely scenario a hearing eventually comes before the City Commission, it is possible a majority of the seats at the dais may be filled by those not lectured by Bay Plaza residents over the past year. All three district seats on the five-seat board are up for election on Nov. 5.