County attorney concedes that relevant zoning regulations amended more than 100 times over the years
Which zoning regulations actually were in effect last year as the Sarasota County Commission voted to approve an eight-story, 170-room hotel on the edge of Siesta Village?
That is a question that the attorneys for a Siesta Key resident want answered, because of its importance to their client’s challenge of the commission’s 3-2 decision to allow the hotel to be constructed on four parcels between Calle Miramar and Beach Road.
Siesta Key community advocate Lourdes Ramirez has contended that, in approving the application for the project, the County Commission violated Future Land Use Policy 2.9.1 in the county’s Comprehensive Plan, which guides growth in the community.
Future Land Use Policy 2.9.1 says, “The intensity and density of future development on the Barrier Islands shall not exceed that allowed by zoning ordinances and regulations existing as of March 13, 1989.”
A Florida administrative law judge had scheduled a hearing in Sarasota on Sept. 6 and 7 in the case that attorneys for Ramirez launched early this year through the Florida Division of Administrative Hearings (DOAH), to try to overturn the approval of the hotel.
However, in an Aug. 19 motion, Ramirez’s legal team requested a continuance of the proceeding.
Attorney Richard Grosso of Broward County pointed to conflicting Sarasota County staff interpretations of Future Land Use Policy 2.9.1 and the zoning regulations pertinent to the County Commission’s vote on the Calle Miramar hotel.
Grosso explained in his motion that Ramirez also is pursuing a complaint against the county that she filed in the 12th Judicial Circuit Court in November 2021, following the Oct. 27, 2021 public hearing on the hotel. During that proceeding, the commissioners also voted 3-2 — with Commissioners Nancy Detert and Christian Ziegler in the minority — to approve an amendment to the county’s Unified Development Code (UDC). That action, at the applicants’ request, eliminated the counting of hotel and motel rooms as residential dwelling units countywide.
Prior to the implementation of that amendment, any parcel zoned Commercial General (CG) — as the Calle Miramar hotel site is — was limited to a maximum of 26 hotel/motel rooms per acre and only if most of those rooms had no kitchens. The property where the hotel would stand encompasses slightly less than an acre.
Grosso, who is a public interest environmental and land-use attorney, pointed out in his Aug. 19 motion that depositions of county Planning and Development Services Department staff that had been taken for the 12th Circuit case revealed that some of those staff members used “one version of the relevant regulations that established a numeric limit on the number of hotel rooms that could be approved” on the barrier islands, but the county’s zoning administrator took the position that “a different version of the zoning ordinances and regulations existing as of March 13, 1989” was the relevant one to use in the review of the application for the Calle Miramar hotel. The latter version, Grosso continued, had “no numeric limit on the number of hotel rooms per acre that could be approved [in the affected areas].”
Further, Grosso wrote, Ramirez’s legal team found an apparent “lack of clarity and a dispute about the content and correct version of documents referred to by the relevant regulations even if the parties agree on the correct version of those regulations.”
On Friday, Aug. 26, Administrative Law Judge Suzanne Van Wyk approved the continuance of the DOAH hearing. Her ruling followed an Aug. 25 telephone hearing with the parties.
During that proceeding, the order says, “[T]he County acknowledged that the [zoning] ordinance in question had been amended over 100 times between its adoption and the date on which it was adopted by reference in the County’s Comprehensive Plan,” referring to Future Land Use Policy 2.9.1.
“Given the lengthy history recounted in both [Ramirez’s] Motion and [the county’s response],” Van Wyk wrote, “and the significant confusion over which specific text governs,” she found that Ramirez “has established good cause for a brief continuance to conduct some limited additional discovery.”
Then, in a new order issued on Aug. 31, Van Wyk set Ramirez’s DOAH hearing for Nov. 17-18 in the Think Tank of the Sarasota County Administration Center, located at 1660 Ringling Blvd. in downtown Sarasota. The hearing is to begin at 9:30 a.m. on Nov. 17, Van Wyk noted.
Explaining the need for the continuance
In his Aug. 19 motion seeking the continuance, attorney Grosso further explained that, during their depositions in June, two county planners testified that, in the weeks leading up to the County Commission’s approval of the Calle Miramar hotel and the UDC amendment, “County staff became persuaded to re-interpret Policy 2.9.1 to change the designation of hotels from residential to commercial uses …” He was referring to Michele Norton, assistant director of the Planning and Development Services Department, and Planner Brett Harrington.
Additionally, Grosso noted, Harrington testified that county staff had recommended approval of the hotel “based on a new interpretation of Policy 2.9.1 to mean that hotel rooms without kitchens” were not subject to the cap of 26 units per acre, “because they did not meet the definition of ‘dwelling unit.’ ”
After learning from Norton that Zoning Administrator Donna Thompson “played an important role in the County staff’s reinterpretation of the Comprehensive Plan and the zoning regulations referenced therein,” Ramirez’s attorneys scheduled a deposition with Thompson.
In her deposition, Grosso continued, Thompson took the position that a 1983 ordinance superseded the language in Future Land Use Policy 2.9.1. That ordinance, she said, “established no explicit numeric limit on the number of hotel rooms that can be approved on the Barrier Island of Siesta Key,” Grosso wrote.
“Thus,” he added, “it has become clear that a basic question as to the content of the relevant regulations adopted by Comprehensive Plan Policy 2.9.1 remains the subject of dispute. Discovery remains ongoing relative to this point.”
“Discovery” is the process of gathering materials, facts and depositions during litigation, to help each party try to make its case.
The Ramirez legal team had filed a new request for materials from the county, Grosso continued, but those would be produced outside the timeline allowed for that process in advance of the Sept. 6-7 DOAH hearing. Further, he noted, Ramirez’s attorneys were seeking to obtain a deposition of attorney William Merrill III of the Icard Merrill firm in Sarasota, who was part of the Calle Miramar project team. Merrill had not provided any dates for that deposition, Grosso pointed out, and the intervenors in the case had informed Ramirez’s attorneys that they would challenge the deposition; that would necessitate Ramirez’s attorneys having to subpoena Merrill.
The intervenors in the case are the owners of the property where the hotel is planned — the principal owner resides in New York City — and the developer, who is RE/MAX Realtor Robert Anderson Jr. in Sarasota.
More citations relative to the confusion
Grosso provided more examples of the information that Ramirez’s team had obtained, which had resulted in the confusion and the motion:
- In his June deposition, county Planner Harrington testified that since the adoption of the March 13, 1989 Comprehensive Plan, County staff had applied and interpreted Policy 2.9.1 to limit the number of hotel rooms that could be approved on a Barrier Island to a maximum of 26 per acre, and to require an amendment to the policy before a hotel could be approved for a greater number of hotel rooms per acre.
- The initial application package for the Calle Miramar hotel referenced an attachment reflecting the zoning ordinances as of March 13, 1989. That information was included in an August 2021 staff report for the Planning Commission hearing on the project. The attachment pointed out that the maximum allowable number of hotel and motel rooms on Commercial General parcels was 26 per acre, when no more than 25% of the rooms had “cooking facilities.”
- The staff Comprehensive Plan consistency report for the Calle Miramar Hotel, prepared for the Planning Commission, said, “In terms of density, Sarasota County staff has historically used residential density as the basis for [calculating] the number of rooms for transient accommodations since at least 1989 and [that] continues to be the standard utilized in [the] Code today.” That information also came from the deposition of Harrington, Grosso noted. “Transient accommodations” is the term in county documents for hotel and motel rooms.
- The staff’s Comprehensive Plan consistency report prepared for the Oct. 27, 2021 County Commission hearing on the Calle Miramar hotel said, with Grosso’s emphasis, “Currently, transient accommodations are subject to a density per acre calculation for determining the number of rooms allowed within a structure based on the percentage of rooms having kitchens and those without. A Special Exception approval is required in the [Commercial General zoning district], allowing 13 units per acre if over 25% of the units have kitchens, and 26 units per acre if only up to 25% of the units have kitchens.” Again, that was from the Harrington deposition.
- Additionally, the County Planning staff consistency report for the hotel project stated the following: “This commercial use is determined by residential unit calculations in the [County Code] at this point in time, allowing for up to 26 units per acre depending upon the availability of kitchen facilities. The applicant has proposed a UDC amendment that would calculate commercial hotel room counts using a more modern and applicable methodology.” Once more, that was from Harrington.
- Further, Harrington testified in his deposition that when the owners of the property and Realtor Anderson submitted the application for the Calle Miramar hotel, they included a proposed amendment to Future Land Use Policy 2.9.1 that would have eliminated the counting of hotel rooms as residential dwelling units.
- Norton of Planning and Development testified in June that, “at roughly the same time during 2021 there were four total applications for hotels pending with the County, each of which was seeking to amend Policy 2.9.1” to allow approval of a project with more than 26 hotel rooms per acre.
Along with Grosso, Ramirez’s attorneys are Martha Collins and Pamela Jo Hatley of the Collins Law Group in Tampa.
The intervenors are represented by attorneys Scott A. McLaren, Shane T. Costello and Jarod A. Brazel of the Hill Ward Henderson firm in Tampa.
County fights the continuance of the DOAH hearing
In a 75-page court filing on Aug. 23, Assistant County Attorney David M. Pearce disputed the need for the continuance of the DOAH proceeding.
Pearce characterized Ramirez attorney Grosso’s statement regarding the “lack of clarity” in interpretations of the county’s zoning regulations as “a fundamental misunderstanding as to the history of the zoning ordinance as evidenced in [Ramirez’s legal challenges] which carried over into the depositions.”
Then Pearce asserted that the zoning ordinance in effect as of March 13, 1989 is Ordinance No. 75-83, “as amended.” That ordinance said that the maximum residential density in a Commercial General (CG) zoning district was 18 dwelling units. The definition of residential density, he added, is in Section 28.33 of that ordinance. It said, “The term density refers to the number of residential dwelling units permitted per gross acre of land [as] determined by dividing the number of units by the total area of land within the boundaries of a lot or parcel not including dedicated rights-of-way and except as otherwise provided for in these regulations. In the determination of the number of residential dwelling units to be permitted on a specific parcel of land, a fractional unit shall not entitle the applicant to an additional unit.”
Further, Pearce explained that county staff had “acted as a facilitator” with the Board Records staff, which keeps copies of all of the county’s zoning ordinances, to ensure that Ramirez and her legal team received them. Board Records, he noted, is a division within the Office of the Sarasota County Clerk of the Circuit Court and County Comptroller. Ramirez’s legal team had sought copies of the ordinances from the county, not Board Records, Pearce wrote.
County staff “volunteered a copy of an index of the amendments,” he pointed out; he attached that to his motion requesting that the administrative law judge keep the DOAH hearing set for Sept. 6-7.
Pearce added that the ‘lack of clarity’ experienced by Ramirez is one she created.”
He then provided examples — with emphasis — from the March 13, 1989 zoning ordinance from 1983 that defined a dwelling unit as, among other facets, a room or rooms “containing sanitary facilities and one kitchen.”
The March 13, 1989 zoning ordinance also included a definition of residential density, Pearce wrote. Again with emphasis, he noted that that term referred to “the number of residential dwelling units permitted per gross acre of land.”
“By its plain language,” he noted of the zoning ordinance in effect as of March 13, 1989, if a hotel or motel room “did not include a kitchen, then it [was] not a ‘dwelling unit.’ The zoning ordinance did not define the term ‘kitchen’ …”
Further, he included details from that zoning ordinance that said that the maximum residential density within the Commercial General zoning district was nine units per acre for multiple family dwellings and that the number varied for hotel and motel accommodations, even when no more than 25% of the units had cooking facilities.
He included an exhibit to help make those details clearer, as they referenced “Intensity Level Bands” as shown on a county Future Land Use Map.
That map — which also was in effect as of March 13, 1989 contained — “no maximum residential density for transient accommodations within the Commercial General zoning district on the barrier islands,” Pearce pointed out.
In fact, Pearce also included in his motion, with emphasis once more, the definition of “transient accommodation” in what he said was the prevailing zoning ordinance, No. 83-08: “A transient accommodation means a dwelling unit or other accommodation used as a dwelling unit or other place of human habitation with sleeping accommodations …”
He added, “Ramirez has not read the zoning ordinance harmoniously. … [S]he contends that there cannot be residential use without residential density. But there is nothing in the zoning ordinance which says that transient accommodations cannot be a residential use and not have residential density.”