Presiding administrative law judge offers no indication about when she will issue ruling
Following a November 2022 Florida Division of Administrative Hearings (DOAH) proceeding, a Siesta Key resident challenging the October 2021 Sarasota County Commission approval of an eight-story, 170-room hotel on the outskirts of Siesta Village, as well as the Florida Department of Economic Opportunity (DEO) and Intervenors in the litigation, have filed their proposed final orders in the case.
The Intervenors are the owners of the property and the developer; the latter is a RE/MAX Realtor, Robert Anderson Jr. of Sarasota.
In early 2022, attorneys representing Siesta resident Lourdes Ramirez filed a challenge with the DEO through the DOAH, alleging that the County Commission had violated policies in the county’s Comprehensive Plan — which guides growth — in approving the application for the hotel on four parcels situated between Beach Road and Calle Miramar. The site comprises 0.96 acres.
The DEO is the state agency charged with reviewing proposed amendments to county comprehensive plans to determine whether they are consistent with those plans.
Administrative Law Judge Suzanne Van Wyk, who is presiding over the case, had given the parties until Jan. 27 to file their proposed final orders. She has not indicated how long it may take her to issue her ruling.
In their Jan. 27 filing, Ramirez’s attorneys point out that, to make the hotel project possible, the county commissioners first had to approve an amendment to the county’s Unified Development Code (UDC), which contains all of the county’s land-use and zoning regulations, to eliminate the counting of hotel rooms for residential purposes. The site of the development is zoned Commercial General (CG), where “transient accommodations” — the county term for hotel and motel rooms — had been limited to no more than 26 units per acre and only if none of the rooms had kitchens.
That amendment, Ramirez’s attorneys explain, deleted language in the County Code “that had existed since at least 1983 which mandated that ‘[a] transient accommodation shall be considered a residential use …’ ”
Moreover, Ramirez’s proposed order discusses the history of the Comprehensive Plan’s Future Land Use Policy 2.9.1, which restricted residential density and intensity in place on Siesta Key as of March 13, 1989. That policy has been the primary focus of Ramirez’s contention that approval of the hotel was inconsistent with the Comprehensive Plan.
Ramirez’s proposed order cites county Planner Brett Harrington’s deposition in the case, noting, “Since at least the 1975 [county] Land Use Plan, the Comprehensive Plan has strictly limited development on the Keys.” The proposed order also stresses that, although Harrington was the county planner responsible for determining whether the UDC amendment complied with Policy 2.9.1, he “had not performed that analysis until doing so under questioning during the hearing in this case.”
In their proposed final order, the Intervenors contend that Harrington also testified that the UDC amendment is consistent with the Comprehensive Plan because the amendment did not call for any change in land use or zoning on the barrier islands. Additionally, the Intervenors argue that, based on Harrington’s analysis and opinion, “[T]here are no density limits for transient accommodations on the Barrier Islands as of March 13, 1989.”
The Intervenors’ proposed order adds, “Although the definition of transient accommodation [in a 1983 county ordinance] provides that it is a residential use, Mr. Harrington drew a distinction between ‘residential use’ and ‘residential density,’ because the definition of ‘residential density’ required a ‘dwelling unit,’ and the definitions of ‘dwelling unit’ and ‘transient accommodations’ reflected that there could be transient accommodations with no dwelling units.”
The Intervenors note that Ramirez has emphasized the definition of “transient accommodations” in that 1983 ordinance: “A transient accommodation shall be considered a residential use.” However, the Intervenors emphasize that, by enacting the 1983 ordinance, the county “explicitly removed language … providing that transient accommodations/hotels constituted residential density, and incorporated new definitions providing that transient accommodations without kitchens did not have residential density.”
Nonetheless, Ramirez’s attorneys point out that, in September 2021, in commenting on one of four applications for new hotels on Siesta Key with more than 100 rooms, Harrington wrote that “the maximum number of permittable hotel rooms under the March 13, 1989 regulations was 26,” and the county staff report regarding the proposed UDC change and the Calle Miramar hotel application said, “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 [County] Code today.”
Ramirez’s proposed order contends, “The practical effect of the [commission’s land development regulation] LDR change is to increase, from 26 hotel rooms per acre to 177 hotel rooms per acre (or more), the density of hotels that can be built in the CG [Commercial General] zoning district.”
Her proposed order further points out, “There are no properties zoned CG on the County’s other Barrier Islands. Siesta Key is the only Barrier Island that is impacted by the LDR change,” as Planner Harrington testified during a deposition taken by Ramirez’s attorneys.
Harrington also said in his deposition, as noted in the proposed order, that prior to the commission’s approval of the UDC amendment and the Calle Miramar hotel, county staff “was persuaded to re-interpret Policy 2.9.1 to allow hotels to be considered commercial, not residential uses, thus rendering the residential density caps inapplicable.”
Ramirez’s attorneys stress that the county’s and the Intervenors’ “mechanical focus on the literal definition of ‘dwelling unit’ to claim that hotel units are exempt from density limits expressed as ‘dwelling units per acre’ ignores the context, terms, logic and ultimately the intent of the regulations.”
Ramirez’ attorneys quote from a 2017 Florida Supreme Court case, Schoeff v. R.J. Reynolds Tobacco Co., which cited a 2008 Florida Supreme Court decision: “A subsection must be read in the context of the whole.”
Other considerations in Ramirez’s favor
Further, Ramirez’s proposed order notes that she lives year-round on the Key and works from her home, which is only about 0.6 miles from the Caller Miramar hotel site.
“From her home,” the document continues, “Ms. Ramirez can hear noise from amplified music from one story establishments in Siesta Key Village. Code enforcement of the County noise ordinance is ineffective since code enforcement personnel do not work nights.”
Given those facts, the proposed order says that “Ramirez will hear the noise from a rooftop bar” at the planned hotel.
Additionally, her proposed order points out, “Ramirez walks through or near the properties zoned CG [in the Village] on a regular, sometimes daily basis, as part of her regular exercise routine, to visit the bank, post office box or restaurants, or the beach.” She normally uses Beach Access 7, the proposed order notes, which is “close to the proposed hotel site …”
Moreover, the document points out, the island has two access points for residents and visitors: a two-lane bridge on Siesta Drive and a four-lane bridge on Stickney Point Road. “Ramirez typically uses the north bridge,” it adds, and she has had to evacuate her home three times for hurricanes, during which action she “experienced crowded roads …”
Thus, the proposed final order says, “Ramirez’s substantial interests are affected by the [land development regulation] change by the [increase] in the number of evacuating vehicles with which she must compete to evacuate safely, and that will add to the existing congestion and pedestrian-vehicle and other pedestrian traffic conflict problems in Siesta Key Village, and by the noise from the hotels that are now approvable under the change.”
Additionally, the document points out that data and analysis in the Comprehensive Plan show that several of Siesta’s roadways are constrained, “meaning they are operating at [a Level of Service] LOS ‘D’ or ‘F,’ and there are no potential improvements [planned to alleviate the situation].” Again, the document quotes Planner Harrington from his deposition, in which he acknowledged, “[T]here’s no way to actually widen those roads.”
The proposed order explains that LOS D “means speed and freedom to maneuver are severely restricted, and a poor level of comfort and convenience is expected by the motorist, with small increases in traffic generally expected to cause operational problems.” The document cites statements in both Volumes 1 and 2 of the Comprehensive Plan as the source of those assertions.
Level of Service F, the proposed order continues, is a condition that exists “ ‘wherever the amount of traffic approaching a point exceeds the amount that can traverse the point. Queues typically form at such locations. Operations are characterized by stop and go waves …’ ” The document again cites the Comprehensive Plan as the basis for that explanation.
County Engineer Spencer Anderson has indicated to the county commissioners on multiple occasions that it would be prohibitively expensive for the county to obtain the necessary property from landowners to make widening of roads possible on the island.
Ramirez’s proposed order further quotes Harrington and the Comprehensive Plan in contending that because of county leaders’ acceptance of the existence of those constrained roadways, the county is presumed to have an additional responsibility to review and approve land development regulations so county leaders do “ ‘not allow the existing operating conditions to be degraded.’ ”
Additionally, the document cites numerous sections of the Comprehensive Plan that discuss the need to limit growth on the Barrier Islands because of “problems associated with hurricane evacuation,” as well as the need to protect costal habitats.
The DEO’s proposed order
Among its assertions in its proposed final order, the Department of Economic Opportunity (DEO) says that “zoning ordinances are in derogation of private rights of ownership. In the absence of clear legislative intent, a zoning ordinance will not be interpreted to displace the common law principle which favors unrestricted use of property.” The DEO was referencing a 2020 decision of the Florida Second District Court of Appeal in Persaud Props. FL Invs. LLC v. Town of Fort Myers Beach.
It also cites judicial precedents in arguing that Ramirez “shoulders a heavy burden to overcome the ‘fairly debatable’ standard” of Florida Statute 163.3213(5)(a). Although that section of state law does not define “fairly debatable,” the DEO continues, the Florida Supreme Court explained it thus in a 1997 case, Martin County v. Yusem: “The fairly debatable standard is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety. In other words, an ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.”
To meet the burden of overcoming that “fairly debatable” standard, the DEO adds, “[A] petitioner must demonstrate that it is beyond reasonable debate or legitimate controversy that the challenged land development regulation and the comprehensive plan, taken as a whole, are inconsistent,” citing a 1953 Florida Supreme Court case.
Moreover, the DEO argues, Ramirez’s interpretation of the county zoning ordinance existing as of March 13, 1989 “to conclude that no new transient accommodations would be allowed in the Commercial General zoning district on the barrier islands would be inconsistent with the [County Commission’s] ordinances enacted in 1989.”
Additionally, the DEO points out that Ramirez “did not conduct a traffic study about the alleged impacts” of the hotel; she “is not a noise expert … [n]or has she conducted any studies involving alleged impacts from the noise.”
However, the DEO does acknowledge, “Unlike the other barrier islands, Siesta Key has been highly developed and contains some of the County’s most intensive residential development.” Further, the department agrees that the island is in the county’s primary hurricane evacuation zone and, therefore, county staff orders the island to be evacuated even if a Category 1 storm has been predicted to strike the area.