Planning Board reluctantly rules in favor of Obsidian tower plan

Although the five members of the Sarasota Planning Board expressed general disdain for the proposed Obsidian condo tower at 1260 N. Palm Ave., all but one voted to permit the project to move forward over the objections of residents of adjacent and nearby properties. 

Wednesday’s nearly five-hour quasi-judicial hearing before the board was the result of an appeal of staff approval by residents of Bay Plaza, who have argued for nearly two years that, at 342 feet, the 18-story, 14-unit tower was too tall for the quarter-acre site and was out of scale with not only the neighborhood, but the entire downtown skyline. They cited the extensive use of interstitial space — the vertical distance between floors — as artificially large and strictly for the purpose of gaining height to provide views of Sarasota Bay above Bay Plaza, which stands immediately to the west.

The appeal, though, was based on the staff granting of three adjustments not related to height, but for street-level features and functions.

Courtesy image

They are:

• Reduction of 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.
• Reduction of the 20 linear feet of 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.
• Reduction of the required retail frontage by 9.4%, to 95.89 feet of frontage from 105.87 feet.

Although an appeal to the Planning Board opens an entire project to scrutiny, Deputy City Attorney Michael Connolly read an opinion written by City Attorney Robert Fournier, advising that, per state statute, neither the height of the building nor the use of interstitial space can be considered. 

Fournier cited Senate Bill 250, which in 2023 codified a restriction on local governments to impose more restrictive or burdensome amendments to their Comprehensive Plan or land development regulations through 2026. The law invalidated an April 2023 city zoning text amendment that limited interstitial space — specifically in the wake of the Obsidian controversy — adopted to address future projects that use what could be regarded as excessive interstitial space to gain height.

In addition to the 59 feet of interstitial space, Planning Board members questioned the need for 1.9 parking spaces per unit, where a standard is closer to one space. That is significant because, on a quarter-acre lot, more spaces add height to the parking structure beneath the habitable space, gaining further height.

The zoning code in the Downtown Bayfront district allows up to 18 stories but places no restrictions on height.

Representatives of developer Matt Kihnke said the actual volume of interstitial space will eventually be determined in the building permitting process. That's when it must be demonstrated that the height is needed to accommodate the mechanical, electrical and plumbing infrastructure.

Dismissing the interstitial space and corresponding height of Obsidian as a legal reason to deny the project, the Planning Board was left with only the three approved adjustments to consider. 

“The adjustments being requested have nothing to do with the tower,” said project consultant Joel Freedman. “Any project that would go on this site is going to have these same adjustments, I'd say anything over 10,000 square feet.”

That’s because, in order to accommodate requirements for utility, fire protection and entry features, any significant project design would fail to meet code for parallel façade and commercial square footage. 

“I really, really dislike a lot about the project, but on the other hand, I think there's a lot of good things that were done between the last time this came in front of us and now,” said committee member Shane Lamay, adding that permitted features such as 14-foot ceilings and the parking structure contributed greatly to the height. “They didn't go for what they could have. They reduced it from what they actually were even allowed, so I do take that in consideration.”

Committee member Dan Clermont reiterated his oft-stated distaste for Obsidian, but added he could find no legitimate reason to vote against it, at least not one that would pass legal muster once the project — perhaps inevitably — ends up in 12th Circuit Judicial Court. 

“The big thing for me was this interstitial space business, and whether we can discuss this or adjudicate it based on that does matter,” he said. “Setting that aside, then, it comes down to the matter of the adjustments, and I think anything that is going to be built there is going to have to deal with that. 

"I don't like this building, but I don't have much to hang my hat on. I just can't stand this thing, but I still have to look at our standards of review, and I'm just not seeing where I can sink my teeth into it.”

Clermont’s sentiments were echoed by both Terrill Salem and Douglas Christy, who added, “I came into this not liking the building, but I don't have a reason to vote that way, unfortunately, based on everything I've heard.”

Photo by Andrew Warfield

Chairman Daniel DeLeo was unmoved by his colleagues' resignation, and in impassioned remarks said there was plenty of evidence in the record to deny Obsidian. He also disagreed with the notion that interstitial space cannot be considered, adding the approved adjustments provide a basis for rejection of the project.

“At some point, these things matter, especially when taken together,” DeLeo said. “You have a developer who is pushing the limits in an extreme way with interstitial space, and I don't think that the city treated interstitial space previously the way it treated interstitial space with respect to this applicant. I think the evidence in the record compels a different result.”

The next opportunity for a different result will come before the City Commission, as Bay Plaza resident Ron Shapiro told the Observer that the condominium association intends to appeal the Planning Board decision. 

Bay Plaza attorney Morgan Bentley said he hopes the commissioners see the interstitial space issue differently.

"Obviously the Planning Board did not like the project but seemed to feel the wording of the zoning code tied their hands,” Bentley said. “We believe that it is the very purpose of the Planning Board review is to take a more holistic view to determine whether they, on balance, believe the project is good for the community and meets the spirit and intent of the code. No zoning code is perfect, but its spirit and intent can be understood. Hopefully, the City Commission will vote accordingly.”

Regardless of the outcome of that decision, the unsuccessful party is likely to have the matter settled in court.