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Burned Square
By Matt Walsh
Editor
S.W. "Bill" Moore, a partner at Brigham Moore, one of Florida's leading eminent domain law firms, sat at his firm's conference room table, and summarized the situation.
"If the City Commission goes forward with the rezoning, and the owners decide to protect their rights in court, the claims are going to be between $15 million and $20 million," Moore says.
"What did the city spend on the Bridge Too High legal fees - $500,000 or more? That's going to be nothing compared to this."
Moore isn't some bombastic big talker who tosses out idle threats to scare his opponents. Peers who have opposed him in the courtroom say this: Moore always knows what he's talking about.
"It's black and white," Moore says.
Come Tuesday night, Sept. 6, the Sarasota City Commission is/was scheduled to vote a second and final time to adopt a new downtown master plan that includes the rezoning - mostly downzoning - of virtually every property in and around downtown Sarasota. And if that vote goes forward with a majority approving it, the effects of that action will have consequences that go far beyond the confines of downtown Sarasota. It's not exaggerating to say Tuesday's Sarasota City Commission vote will be a lesson for every city interested in New Urbanism, a lesson, in all likelihood, of how not to do it.
The crucial issue in Tuesday's vote is whether the five commissioners are willing to postpone their vote and change the zoning designation for a small slice of downtown popularly known as Burns Square. Nestled at the triangular intersection of Pineapple and Orange Avenues on the south side of downtown, Burns Square is regarded as one of the city's eclectic, architectural and historical gems. It typifies exactly what Andres Duany, the John the Baptist of New Urbanism, advocates - a pedestrian friendly compact area of retail, office and residential. And it has character. Founded in the 1920s, it is indeed the downtown of old.
For more than two decades, the Burns Square area has fallen into the city's zoning designation of the Central Business District, which heretofore allowed heights of buildings up to 18 stories and densities up to 50 units per acre. But under the new downtown master plan - which sprung from but is not a wholesale adoption of recommendations from Duany himself - the Burns Square area will be rezoned to an area called Downtown Edge. This zoning classification restricts buildings to no more than five stories and densities of 25 units per acre.
Property owners in Burns Square pleaded for relief last month at the first reading of an ordinance to adopt the master plan. Now organized as a neighborhood association, they begged the commissioners either to change the area's zoning designation to downtown core, which would allow buildings up to 10 stories and 50 units per acre, or to postpone a vote altogether and work out an agreement.
But a majority of the five-member body, led by Mayor Mary Anne Servian and Lou Ann Palmer, wouldn't budge. They said they would be willing to discuss the Burns Square property owners' concerns after the new code is adopted, during a transition period before the law takes effect Jan. 1. (See sidebar above)
The property owners, however, are wise to this stance and also puzzled by it. Denise Kowal and Harry Rosenblum, two of the property owners, say that once the new law and zoning designation are adopted, they will be costly and even more difficult than now to undo the commission's action. What puzzles Kowal the most is this: "The commissioners are telling the public they're willing to go into a lawsuit, they're willing to spend millions of taxpayers dollars to make these people's property Downtown Edge."
Moore, the eminent domain lawyer, is equally surprised. About 20 Burns Square property owners have retained Moore to represent them. Moore has been watching the city's master plan process for about three years. "When I initially thought about it (the master plan), I wondered if the city had been informed about it with respect to the Burt Harris Act," Moore says.
The Burt Harris Act (Chapter 70 in the state statutes) is state legislation that says if a government body's action inordinately and disproportionately burdens a property owner, he is entitled to compensation. "It's not just compensation for existing use, either," Moore says. "It also encompasses highest and best use."
Moore says his clients easily would fall under the Harris Act if the city goes forward. "It struck me that if the city did an economic analysis, it couldn't have been very thorough if it didn't show this would cause any economic damages. To go from 50 to 25 units per acre - that's a dramatic slicing of value. That's not tweaking. To go from 18 floors to five floors, it's difficult to believe no one would suffer any damage."
Burns Square property owner Harry Rosenblum says the city should do the math and geometry.
Rosenblum says a typical Burns Square property is around 7,300 square feet. By downzoning the area from 50 to 25 units per acre, a property owner would go from being allowed to build eight units on his 7,300-square-foot site to only four. On top of that, the Burns Square owners would be restricted to five-story buildings.
"That means you'd have to have retail on the first floor, and four floors of apartments," Rosenblum says. "Who in his right mind wants to live in a 6,000-square-foot condo in that location? What you really want in that location is modest size, 900-square-foot apartments, but you can't do that with this zoning."
Once Moore read the city's existing zoning codes, he became even more puzzled at the move to rezone Burns Square to Downtown Edge. Before the Duany plan, the city code specifically stated that it wanted in the Central Business District (i.e. Burns Square) the "development of retail trade activities; business, preofessional and financial services; hotels and high-density residential uses. The district is intended to be an active pedestrian area with an emphasis on human scale activities and amenities at the street level ... Residential developments and mixed-use developments incorporating residential are especially encouraged in order to increase the district's resident population."
Says Moore: "They've been encouraging us for years to come in here with our money and develop intensely to save land. But this plan achieves the exact opposite. Now they want to take the rug out from under us." As Moore says, it's clearly a taking.
Moore last week sent a letter on behalf of the property owners to the city commissioners. "We earnestly ask you to pause, and fully consider the ramifications of your rezoning decision," the letter says. "The affected property owners we represent do not want litigation. They do not want the taxpayers' money. They value their civil right of property ownership, and desire to keep the value of the private property that they own.
"The Burns Square owners ask that you not use your power to damage the rights of your constituents so drastically. A pause now could help ensure effective and defendable long-range planning, as well as avoid fractious and catastrophically expansive litigation."
On Aug. 31, members of the Burns Square Neighborhood Association met to discuss their plight and strategy. Says Rosenblum: "This deserves a closer look for the best answer. It needs to be thought through. Finding the right solution is going to take hard work, but the results are going to be worthwhile."
Rosenblum added that the property owners are unanimous on their strategy: "We are committed to preserving the maximum amount of property rights that we have at this time." It's not a threat. It's their right.
Where Two Key Votes Stand
When the Sarasota City Commission voted last month on first reading to adopt a rezoning plan for all properties in and around downtown Sarasota, the vote was 3-2. Commissioners Ken Shelin and Danny Bilyeu opposed the measure, and Mayor Mary Anne Servian and Commissioners Lou Ann Palmer and Fredd Atkins voted to adopt it.
On Wednesday, Sept. 1, a week before the second and final vote on the rezoning, The Review asked Servian and Atkins whether they will reconsider their positions on Burns Square. Here's what they said:
Have you made up your mind about how you're going to vote next week on the downtown zoning master plan?
Servian: "We already passed it unanimously at the first public hearing. I can't imagine that there will be any changes between now and then. I know that our city attorney is working with some folks to get some text amendments done that will address some of their issues, but that's not part of this to do the rezoning. They have their insurance that they will come before us in time during the transitional period. The rezoning and the code, everything will go into effect as of Jan. 1, so there is going to be a transitional period between now and then."
Atkins: "I'm not going to be at that meeting. I have a couple of sons playing football in Tallahassee on Monday night; I'm not promising anybody. I'm going to fly back from Tallahassee. (One son plays for Miami, and one son plays for Florida State.)
With this vote, do you have concerns about the Burns Square situation?
Servian: "I certainly have concerns about it, but I think we've come this far. We've had years of discussions and planning, and I think it would be something that we can address between now and the end of the transition period. But I think we need to go forward and fulfill the commitment that we made to the community when we adopted the downtown master plan. But between now and when the end of the transition period occurs, I would hope that between the commission, the property owners, their planner and our planners, we would be able to find an appropriate overlay district for them or a way to resolve some of their issues. But I don't want to redraw the lines of our zoning at the table and have not had the amount of public input that we've had up to this date.
Atkins: "We've evaluated the downtown area to death now. I think it's time to make a decision, but I am willing to look at the Herald Square/Burns Court area there. I would be willing to take it out of the final decision if necessary so that we can wait until they finish with the evaluation with their consultant. And if need be kind of reach some kind of compromise on those properties because that is our only real contested area.
"They do have a legitimate concern. They are taking the greatest blow to the values of their properties, even though they have escalated tremendously. I would be willing to slow down to make sure we do the right for everybody's concern. I would vote give them more time, and us more time, so that we can make an informed, fair decision."
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