IN THE CIRCUIT COURT OF THE TWNELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA LOUIS R. DOYLE and DIANA C. DOYLE, his and as Trustees of the Doyle Family Trust, and THERESA DUNN and MARYANNE C. as Co~Trustees of the Survivors' Trust created underthe Richard and Eleanor Dunn Family Trust, - Plaintiffs, v. CASE NO. CITY or SARASOTA, a Florida municipal A A corporation, Defendant. I COMPLAINT Plaintiffs, LOUIS R. DOYLE and DIANA C. DOYLE, his wife, individually and as Trustees of the Doyle Family Trust, and THERESA DUNN and MARYANNE HERRILL, as Co--Trustees of the Survivors' Trust created under the Richard and Eleanor Dunn Family Trust ("Plaintiffs"), sue Defendant, CITY OF SARASOTA, a Florida municipal and alle_ge: I Parties, Jurisdiction, and the Property 1. This is an action for declaratory and supplemental relief pursuant to Chapter 86, Florida Statutes, based upon conduct and events concluding in 2013 which pertain to Plaintiffs' real property having a vaiue in excess of $15,000.00. 2. Plaintiffs are owners of real property comprising approximately 9.73 acres and located at 2260 Ringling Bouievard, Sarasota, Sarasota County, Florida which has been improved with a shopping center since approximately 1955 ("Property"). A Publix store was the anchor tenant for many years until relocating in late 2011. Filed for Record 0813012013 04:32 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County. FL - 2013 CA 006511 N0 Dirt-86981438 Page 1 of 58 3. The Property was acquired in 1998 by Richard C. Dunn and Eleanor Dunn, his wife, and Plaintiffs, LOUIS R. DOYLE and DIANA C. his wife. Plaintiffs, THERESA DUNN and MARYANNE C. -HERRILL, as Co-Trustees of the Survivors' Trust created under the Richard and Eleanor Dunn Family Trust, became successors in interest to their parents, Mr. and Mrs. Dunn, in 20.11. 4. City is a Florida municipal corporation located in Sarasota County, Florida. 5. At all times material, approximately 8.59 acres of the Property where the shopping center is located was and is zoned Commercial Shopping Center Neighborhood and a small strip of approximately one acre. on the eastern boundary was and is zoned Residential Single-Family-3 (RSF-3). The City's zoning code does not permit any further rezonings-to CSC--N zoned districts, but the Property is allowed to retain its CSC--N zoning. Thus, the CSC-N portion of the Property is "grandfathered." I I 6. Based upon the requirements of _Florida law to update land use regulations, the City adopted an -Evaluation and Appraisal Report in 2005 following a City--wide analysis. The EAR recommended a revision to the City's land use regulations for the Property to provide for mixed--use development. 7. An application for use change consistent with the EAR was filed by the Property's owners in 2005. The application was opposed by residents representing themselves as members of the Alta Vista Neighborhood Association which, on Filed for Record 08f30r'20'l3 04:32 PM -- Karen E. Rushing. Clerk of the Circuit Court - Sarasota County, FL - 2013 CA 006511 N0 Dirt-36961433 Page 2 of 58 information and belief, was not incorporated until January 4, 2013 when its Articles of Incorporation were filed with lorida's Secretary of State. 8. - Persons ostensibly affiliated with the Alta Vista Neighborhood Association who opposed the application by submitting written objections prior to any public hearing were Juanita Rawlinson and Kelly was a City Commissioner from Aprii 13, 2007 through May 13, 2011, during which time he served as Vice Mayor and Mayor for the last 12 months of his tenure. 9. Even though the application was consistent with the EAR, it became' evident the application would not be approved. Therefore, the application was withdrawn in January, 2006, shortly before a scheduled pubiic hearing before the City's Planning Board, whose Chairman was Shannon Snyder. Snyder replaced on _the City Commission in May, 201i and currently serves as Mayor. 10.. In 2008, the City initiated public hearings for the purpose of making revisions to land use regulations for the Property and other parcels as recommended by the adopted EAR. Attorney Susan Chapman represented the Alta Vista Neighborhood Association before the City Commission and objected to revising land use regulations to authorize mixed use development for the Property as set forth in the EAR. Despite the City's adoption of the EAR, as Commissioner and Vice Mayor, as well as being a member of the Alta Vista Neighborhood Association, also advocated against the land use revisions for the Property. The revisions were not approved by the City Commission. Filed for Record O8i30r'2013 04:32 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2013 CA 006511 NC Dkt-86961438 Page 3 of 58 2012 - 2013 11. Upon F'ublix's relocation, and due to the land use regulations applicable to the Property, Plaintiffs entered into a contract in January, 2012 with Wat-Mart "Stores East, L.P. ("Wat-Mart") to sell the Property. The closing was contingent upon the City's approval of a site plan for redevelopment of the Property by demolishing the near vacant' existing shopping center built in 1955 and construction of a new Wal--Mart store of equal size, together with other improvements to the Property. The contract granted Wal-Mart authority to file a site plan application and to seek its approval on behalf of Plaintiffs and itself. 12. At all times materiai, City knew or should have known Plaintiffs owned the Property and had agreed to sell the Property to Wal-Mart. '13. As contemplated, Wal~Mart filed a site plan application with the City on a City prepared form. No amendments or revisions to the City's Comprehensive Plan or zoning were requested or required because the CSC-N "grandfathered" zoning for the commerciai portion of the Property was adequate for thelanticipated redevelopment project. 14. After workshop meetings with and review by the applicable City agencies, none of which objected to the project, the City's professional planning staff with the Department of Neighborhood and Development Services issued a written report and analysis on October 30, 2012 recommending approval of the site plan because the plan was consistent with the land use regulations applicable to the Property. 15. As required by the City's Code; there was a duty advertised and noticed quasi-judicial hearing before the City's Planning Board on November 14, 2012 to Filed for Record 08I30J2013 04:32 PM - Karen E. Rushing, Clerk of the Circuit Court Sarasota County, FL - 2013 CA 006511 NC Dkt-86961438 Page 4 of 58 consider the site plan application. The application was supported at the hearing by the City's Department of Neighborhood and Development Services, as well as expert witness"-presentations by Wal--Mart. The Planning Board also heard citizens' comments_, which included a presentation' by Candice Spaulding, "President" of the Alta Vista Neighborhood Association, who said "I'm with the Alta Vista Neighborhood Association." Spaulding wanted a defined public walkway across the Property for pedestrian access to the City's Payne Park, even though the City's agencies recommended against such walkway due to safety and other concerns. Spaulding aiso_ said she would iike to see a nicer facade to the proposed' building. and concluded the brief presentation by admitting the project itself would be a "great thing for the community." Architect Jerry Sparkman also spoke at the hearing. He said "I'm not opposed to the development," but said he encouraged moving the location of the new building "so that the quality of the pedestrian experience up and down Ringling [Boulevard] can be improved." 16. The leading opponent at the hearing was Planning Board member Susan Chapman, who is now a City Commissioner. Her advocacy against the site plan at the hearing as a Planning Board member was akin to her comments made on behalf of the Alta Vista Neighborhood Association in 2008 in arguing against the changes in the City's EAR. Ms. Chapman failed to disclose her affiliation with the Alta Vista Neighborhood Association at the hearing. I 17. Upon conclusion of the proceedings on November '14, 2012, the Planning Board found the site plan consistent with the applicable land use regulations, 'stated reasons on the record for the finding, and approved the application" subject to two Filed for Record 08i'30i2D'l3 04:32 PM - Karen E. Rushing. Clerk of the Circuit Court - Sarasota County. FL -- 2013 CA 006511 NC Dkt-86961433 Page 5 of 58 conditions acceptable to Wal-Mart and Plaintiffs. The notification of approval is attached hereto as Exhibit 18. TheP|anning Board's approval of the site plan was sufficient authorization to commence the redevelopment process for the Property unless review of its decision by the City Commission was requested within ten days. I 19. Former Commissioner and Mayor, Keliy who purports to be a member and past President of the Alta Vista Neighborhood Association, did not attend the Planning Board's hearing. He emailed the City Attorney and the Director of the City's Department of Neighborhood and Development Services several hours after the hearing. requested legal advice from the City Attorney and justification from the Director for the City's professional staff recommendation for site plan approvai. The Director referred to the record before the Planning Board and the City Attorney responded as hereinafter alleged. 20. On November 15, 2012, e-mailed the City Attorney and City Auditor and Clerk ("City Clerk") requesting the date by which a request had to be filed for the City Commission to review the site plan approval. He also requested further advice from the City Attorney about the available "legal recourse" should the "appeal" be denied or the Planning Board decision upheld. - 21. I The City's Senior Planner for the project was tasked with responding to request for advice concerning initiating a review by the City Commission. in pertinent part, was instructed by e-mail dated November 15, 2012: I A notice of appeal in the form of a letter shalt be filed with the City Auditor and Clerk's Office within 10 days of the Planning Board's decision (which is not required to be in written form) along with the appropriate Development Application Form (available from the Filed for Record O8v'30f20t3 04:32 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2013 CA 006511 NC Dirt-'869'61438 Pas 6 of 58 Clerk's Office). The cost of filing the appeal is $1,097 plus a $500 escrow deposit. Thus, the notice of appeal must be filed on or before Monday, November 26, 2012. A copy of the e-mail is attached hereto as Exhibit 22. Also on November 15, 2012, the City Attorney responded to e- mails. He noted that had already been provided with instruction by the City's Senior Planner about how to initiate a review and confirmed the deadline. The City Attorney also provided the requested legal advice. A copy of the response is attached hereto as Exhibit 23. The City Attorney is a charter official of the City charged with the responsibility to only provide legal representation to the City. The City's website states "[T]he City Attorney's Office does not represent private citizens in private legal matters involving the City or otherwise." Nevertheless, the City Attorney provided the referenced legal advice to who was a private citizen, and continued to provide and his confederates with legal advice. 24. On Sunday, November 25, 2012, e-mailed the City Clerk and City Attorney a purported "Notice of Appeal" stating it was on behalf of others and himself seeking review of the site plan approval. also requested a de novo hearing. A copy of the e-mail is attached hereto as Exhibit The required Development Application Form was not filed and the filing fee was not paid prior to the expiration of the November 26, 2012 deadline. 25. Notwithstanding the instruction about how to initiate a review provided to by the CW3 Senior Planner and the City Attorney's acknowledgement of this - Filed for Record O8f30f2013 04:32 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2013 CA 006511 NC Dirt-86961438 Page 7 of 58 instruction, the City Attorney 'e-mailed on November 26, 2012 stating "[Y]our notice of "appeal is timely filed." 26. There was a regular City Commission meeting on December 3, 2012, and there was nothing on the published agenda regarding purported "appeal." Without notice to Plaintiffs or Wal--Mart, nine people were permitted to speak in favor of the ''appeal'' and to make substantive statements about the site plan, including an analysis of the City's Code 'and their purported reasons why the proposed redevelopment did not comply with the Code. These persons included Juanita Rawlinson and Jerry Sparkman, who were listed in email as "appellants" and James Portrnan, Vice President of Alta Vista Neighborhood Association. I 27. No effort was made to prevent the nine presentations, which were improper due to the pending application by "appellants" and which were prejudicial. Although the City Attorney was present when the nine persons spoke, he waited until later in the meeting to advise the Commission that the presentations addressing the merits of the issues subject to the pending request constituted impermissible ex parte communications. The City Attorney further suggested the problem could be cured by introducing the presentations at any future public hearing. This nevernoccurred. Furthermore, Plaintiffs and Wai--Mart were never advised of the ex parte communications and they did not learn of the presentations until April, 2013. 28. Also on December 3, 2012, the City Attorney received a letter from the attorney responsible for processing the site plan application advising the "appeal" was out of order and should be dismissed for three reasons. First, the ''appeal'' was not properly filed because the City's Code does not provide for electronic filing; second, the Filed for Record 04:32 PM - Karen E. Rushing, Cierk of the Circuit Court - Sarasota County, FL - 2013 CA 006511 N0 Dkt-86961438 Page 8 of 58 required filing fee was not paid; and third, and the other persons he listed. in his November 25, 2012 e-mail did not have standing to seek a review of the site plan approval. A copy of the objection letter is attached hereto as Exhibit 29. On December- 4, 2012 and the day after the objection letter (Exhibit the Development Application Form referenced by the City's Senior Planner in her e--maii to was filed with the City Clerk, together with payment of the required filing fee. The form was signed by Candice Spaulding as President of the Alta Vista Neighborhood Association. A copy of the Development Application Form is attached hereto as Exhibit No individual "appellant" ever filed the Development Application Form which the City Attorney described as "the standard City form" in his December 7, 2012 email which is attached hereto as Exhibit 30. in the e-mail the City Attorney also advised the purported --"appellants" to individually send e--mails as follows' and provided his reason: "This email is to confirm that I am appealing the November 14, 2012 decision of the Planning Board to approve a site plan for a new Wal-Mart at 2260 Ringling Boulevard." This would be helpful to establish that all seven of you consider yourseives parties to the appeal and to counter any obiectionthat that is not the case. Pamela [City Clerk] would request that such emails be sent before 5:00pm Tuesday December 11. (emphasis added) Exhibit was not made part of the "appeal" record and was first disclosed in the City's recent response to a public records request. 31. On December 8, 9, and 10, 2012, only six of the purported "appellants sent e--mails as instructed to the City Clerk and City Attorney. Ali e-mails contained the identical language provided by the City Attorney. Copies of the six e-mails are attached Filed for Record 08!30r'2013_ 04:32 PM - Karen E. Rushing, Clerk of the Circuit Court -- Sarasota County, FL -- 2013 CA 006511 N0 Dkt-86961438 Page 9 of 53 hereto as composite Exhibit These six persons were then officially treated by the City as the parties seeking review. I 32. I The e-mails which are Exhibit are not sufficient to correct the invalid request for review of the approved site plan by the City Commission. Furthermore, the December emails are also invalid because the City's Code does not provide for I . electronic filing, (ii) the deadline for filing a request for review was November 26, 2012, and the late filed Development Application Form was made by Alta Vista Neighborhood Association. 33. - The requests for reviewcame before the City Commission at its regular meeting on January 7, 2013, and without any supporting basis a majority of the Commissioners voted to hold a pubiic hearing as provided for by Section of the City's Code. Moreover, there was no consideration given by the City Commission to whether or not any of the e-mails received by the City Clerk were sufficient to trigger the review, or the fact that the required Development Application Form was not filed by the "appellants" and the filing fee was not paid until after the November 26, 2012 deadline. 34. After the City Commission agreed to hold a public hearing, the Commissioners then addressed whether or not the six "appellants-," had standing as aggrieved persons to seek a review. Section ll-201 of the City's Code, in pertinent part, defines aggrieved persons as: Aggrieved person: (3) 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. . 10 Filed for Record 08i'30r'2013 04:32 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2013 CA 006511 NC Page 10 of 58 Deciding this status requires proof, but the City Attorney advised the Commission that deciding whether or not the six ''appellants" were aggrieved persons was "somewhat of . a formality." This was an apt description given the procedure employed. Once the City Commission voted to hold a public hearing the decision. determining the six "appellants" had standing as aggrieved persons was necessarily automatic and was not based on fact or merit. Otherwise, if "appei|ants" were not aggrieved persons the approved public hearing could not occur. 35. Notwithstanding the fact the Alta Vista Neighborhood Association was not an "appealing party," its attorney was permitted to make a presentation in favor of the review by the City Commission. Further, "Appellants," Sparkman, and Martin spoke, but offered no credible or substantive basis to explain why they were aggrieved parties as defined by the City's Code. There was no presentation by "Appellants," Candice Spaulding, Pat Kolodgy, or Juanita Rawlinson. After a presentation on behalf of Wal-Mart and Plaintiffs objecting to the review and the submission of the objection letter (Exhibit a motion was made and approved finding the six "appeliants" had standing. 36. The applicable part of the City's duly adopted minutes memorializing the actions taken at the January 7, 2013 meeting are attached hereto as Exhibit 37. At the January 7, 2013 meeting, no motion was passed which deemed the request(s) for review timely and validly filed prior to the November 28, 2012 deadline. This issue and the objection to the timeliness and the sufficiency of the emails to initiate a review were ignored except for a comment by the City Attorney that he accepted original email because it was a common form of communication '11 Filed for Record 0813022013 04:32 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2013 CA 006511 NC Dkt--86961-438 Page 11 of 58 used "nowadays." e-mail departed significantly from the instructions provided by the City's Senior Planner and confirmed by the City Attorney as alleged above. Also as alleged above, the City's Zoning Code does not provide for electronic filing and, as a matter of fact, the City amended its Zoning Code in 2002 and could have, but did not, provide for initiating a review by any electronic means, including an e- mail. 38. There wasnever any disclosure regarding the City Attorney's advice to the six "appellants" to send the December, 2012 emails so he or the "appellants" could counter any objection to the request for review and there was not a disclosure that no "appellant" filed the required Development Appiication Form. _39. Plaintiffs believe the determination -that the "appellants" are aggrieved persons without the necessity of any evidence is contrary to the 'City Attorney's advice in his memorandum that the "appellants" should give supporting testimony. .On information and belief, the City has contended in other proceedings the threshold issue of standing must be established by aggrieved person(s) by explaining how such person(s) meet the definition of "aggrieved person." 40. The City required persons who desired to speak at the public hearing to file a "Request For Affected Person Status." In order to qualify as an "affected person," one must be located within 500 feet of the Property, which is a lower standard than required to initiate a review by an "aggrieved person." The City -knew that only "Appellant," Sparkrnan, was within 500 feet of the Property and he had to register his office address at 2168 Main Street, Sarasota, in order to comply. After receiving the request for Affected Person Status, the persons' addresses were verified and the City 12 f-"rled for Record 0Br'30!20'i3 04:32 PM - Karen E. Rushing. Clerk of the Circuit Court - Sarasota County, FL - 2013 CA 006511 NC Dkt~86961438 Page 12 of 58 prepared a matrix disclosing whether or not a person was iocated within the required 500 feet. Attached hereto as is a copy of the matrix. In addition, a map was introduced in opposition to the "appeal" at the public hearing before the City Commission which shows the respective locations of the "appellants." A copy of the map is attached hereto as Exhibit it is likely the City did not require the "appellants" to make any effort to establish their aggrieved person status because the City and the "appellants" knew this high standard could not be met and with the exception of . Appellant, Sparkman. none met the lower standard of "affected person." 41. The pubiic hearing was conducted at two City Commission meetings on February 19, 2013 and February 26, 2013. in spite of the motion to only hold a public hearing consistent with Section lV--505(a) of the City's Zoning Code, the City forced the public hearing to become a de novo proceeding to grant the "appellants" a "do over" opportunity to oppose the site plan. 42. The City has made no provision for such a de novo proceeding. There are only six instances in the City's Zoning Code which provide for a de novo proceeding, and none relate to the review of the site plan approval granted by the Planning Board. 'The City could have provided for a de novo proceeding as it did in the six other instances, but it did not do so. 43. Section of the City's Zoning Code is the provision applicable to the City Commission's review of the site plan and it states: The city commission shall, in accordance with the provisions of section IV-202, review the proposed site plan, the written staff 1 As noted on the map, Sparkman owns two houses more than 500 feet from the Property. On information and belief, he resides at the Milmar Drive address because tax records show the property homesteaded. 13 l-"lied for Record 04:32 PM - Karen E. Rushing. Clerk of the Circuit Court - Sarasota County, FL - 2013 CA 006511 NC Did-86961438 Page 13 of 58 analysis and the recommendation of the planning board, and shall approve, approve with conditions or deny all applications for site plan approval described in this subparagraph after a public hearing. The generic reference to Section is meaningless because it is so vague and, in part, is contrary to thespecific provisions. of lV-505. 44. Section clearly establishes the scope of review by the City Commission. Moreover, the term "appea|" used in Section of the City's Code is defined as request for review of a decision of a board relating to arequest for development approval." I 45. At the proceedings before the City Commission, the review of the site plan started anew as if there had not been a duly noticed quasi-judicial hearing by the Planning Board for all interested persons to present evidence or speak. 46. The record before the Planning Board was made part of the review record. Evidence was required from 'Wal-Mart, the City's Department of Neighborhood and Development Services, the six "appellants," and comments were received from "affected persons" and others. 47. The Commission first required evidenceufrom Wal--Mart supporting the site plan. This evidence was presented through the same expert witnesses who testified before the Planning Board. These were certified land use planner with approximately 24 years experience, including employment by Hillsborough County, Florida; a_ Florida licensed professional engineer who held a Masters in Civil Engineering and practiced in Sarasota; and a Florida registered architect. These witnesses explained the proposed redevelopment under the site plan and the plan's consistency with the land use regulations. _14 Filed for' Record 0813012013 04:32 PM - Karen E. Rushing. Clerk of the Circuit Court - Sarasota County. FL - 2013 CA 006511 NC Dl