Hearing scheduled for Sept. 13
Siesta Key businessman Dave Balot has filed for summary judgment in his complaint against Sarasota County over the refusal of the Planning and Development Services staff to allow him to proceed with preparation for construction of the approximately 112-room hotel that the County Commission unanimously approved in October 2022.
Further, The Sarasota News Leader learned from the case docket that the judge who had been assigned the case in the 12th Judicial Circuit Court has recused himself.
In a June 14 order, Judge Stephen Walker wrote that he needed to step down because of “the personal and professional relationship” he has with attorney Morgan Bentley of Sarasota, who joined Balot’s legal team in early May. Bentley is one of the principals in the Bentley Goodrich Kison firm.
Walker pointed out that he initiated the action himself.
Subsequently, on June 17, Chief Judge Diana L. Moreland assigned Judge Hunter Carroll to the case.
Then, a week later — on June 24 — a new filing in the docket showed that Carroll has scheduled a hearing at 1:30 p.m. on Sept. 13, via Zoom, to address the motion for summary judgment.
As the Legal Information Institute of the Cornell Law School explains, “A summary judgment is a judgment entered by a court for one party and against another party without a full trial.”
On March 27, attorney Clay Mathews, of the Smolker Mathews firm in Tampa, filed Balot’s complaint against the county, pointing out that the Special Exception the County Commission approved for the hotel project will expire on Oct. 26 of this year. That Special Exception was necessary for the hotel to exceed the maximum height of 35 feet on a parcel zoned Commercial General (CG) and for the project to include “transient accommodations,” which is the county term for hotel and motel rooms.
The hotel has been planned at 5810 Midnight Pass Road, which used to be home to a Wells Fargo bank.
Formally, the plaintiff in the case is ABC SUB2, which is the company name Balot used in the application for the hotel.
To help make his argument on behalf of Balot, attorney Mathews included in the Motion for Summary Judgment a statement that then-Assistant County Attorney David Pearce made during the September 2022 Sarasota County Planning Commission hearing on the hotel project. The motion also points to a later remark that Pearce — now a deputy county attorney — made in a county email to underscore Balot’s assertion that county staff should have allowed Balot to proceed with the site and development work.
The motion explains, “The County staff has refused to fully process and approve the Site Development Plan Application on the grounds that ABC’s unchallenged Special Exception and the approved density and intensity of use of 112 hotel rooms are no longer valid in light of recent state administrative and circuit court rulings and changes to the County Unified Development Code (the ‘County UDC’). On that basis, the County staff is requiring that ABC obtain a Comprehensive Plan Amendment and County UDC Text Amendment to obtain additional density and intensity of use for the hotel project and is refusing to fully process and approve ABC’s Site Development Plan Application until it obtains approval of a Comprehensive Plan Amendment and UDC Text Amendment.”
The Comprehensive Plan guides growth in the community, while the UDC contains all of the county’s land-use and zoning regulations.
Then, reprising an argument that is one of the primary points in the March complaint, Mathews writes in the motion, “The County staff’s position is contrary to Florida Statutes, case law and its own UDC. The exclusive method of challenging an increase in the density or intensity of use under a development order such as the Special Exception on grounds of inconsistency with a comprehensive plan is an action pursuant to Section 163.3215 [of the] Florida Statutes. Here, the Special Exception was never … challenged [in a timely fashion in accord with Section 163.3215]. Therefore, ABC’s unchallenged Special Exception and the approved increase in density and intensity of use allowing the 112-room hotel is no longer subject to challenge and/or invalidation on grounds of inconsistency with the County’s Comprehensive Plan.”
The motion adds, “Moreover, the County UDC does not authorize the County or its staff to unilaterally invalidate or de facto repeal the Special Exception. To the contrary, the County UDC specifically provides that a Special Exception remains valid and effective and that the staff must comply with a Special Exception and Binding Development Concept Plan even where the UDC subsequently changes or the Special Exception use becomes limited or prohibited. Moreover, the County UDC further requires that the County staff process the Site Development Plan Application under the UDC in effect at the time of the Application which, in this case, authorized the 112-room hotel.”
Further, the motion says, “The County has admitted that no party has appealed or challenged the Special Exception. As such, no Court has or could have invalidated the Special Exception.”
On April 29, when Deputy County Attorney Pearce filed the county’s Answer and Affirmative Defenses in the case, he contended that Balot’s lawsuit should not be considered by the court because ABC SUB2 “has not yet exhausted its administrative remedies associated with its site and development plan approval.
Generally,” Pearce continued, “parties are require to pursue administrative remedies before resorting to courts to challenge administrative action.” Pearce cited a 2001 Florida Fifth District Court of Appeal case, Central Fla. Invs. V. Orange Cty. Code Enforcement Bd., in making that assertion.
Pearce then explained, “The exhaustion rule serves a number of policies, including promoting consistency in matters which are within agency discretion and expertise, permitting full development of a technical issue and factual record prior to court review, and avoiding unnecessary judicial decisions by giving the agency the first opportunity to correct any errors” and possibly make the court action moot.
He also cited a 1985 Florida First District Court of Appeal case, City of Gainesville v. Republic Inv. Corp., in making that point.
‘Statement of Material Facts’
A section of the summary judgment motion that includes “material facts” points out that Balot began working on the hotel project in March 2021. The site where the structure would stand encompasses about 2.15 acres.
The motion also notes that during the Sept. 1, 2022 Sarasota County Planning Commission hearing on Balot’s hotel application, one of the board members remarked on a discussion that had focused on whether that advisory board “should pause, wait or postpone consideration of ABC’s Special Exception” until lawsuits contesting the County Commission’s approval of two other high-rise hotels on Siesta Key had been resolved.
The same planning commissioner who made that comment proceeded to ask the assistant county attorney who works with that board “whether there were any requirements or conditions or anything that the Planning Commission needed to evaluate or consider as to the pending lawsuits,” the motion continues.
That assistant county attorney — David Pearce — replied as follows, the motion points out, with emphasis: “No. Honestly the control as to when an application is submitted is controlled by the applicant. In order for the County to basically say, ‘we’re not going to process any applications at this time,’ it’d have to, you know, adopt some sort of moratorium, and there’d have to be a legitimate reason for that moratorium. For example, if the county was considering either amendments to the [County] Code or additions to the Code, that might be a legitimate reason for a moratorium, but I have not heard any sort of suggestions from county staff, nor have I heard anything in that regard from the Board of County Commissioners …”
Pearce then added, “My [ordinary] advice to county staff is even if there is a lawsuit pending regarding a similar project, you follow the County’s Code of Ordinances and process the application in the same manner as you would in any other instance.”
The motion indicates that Pearce’s quotes were verified through a review of the video of that meeting.
Further, among the material facts, the motion includes this: “The Special Exception states that ‘[a]ll the requirements of the Sarasota County Unified Development Code and the Comprehensive Plan for Sarasota County, Florida, have been met and satisfied” and the ‘proposed use is consistent with the intent, goals, objectives, policies, guiding principles and programs of the Comprehensive Plan.’ ”
The motion cites Balot’s complaint and Pearce’s April 29 Answer and Affirmative Defenses as the sources of that statement.
Site development problems
The motion also explains that, shortly after the County Commission vote in October 2022 to approve Balot’s hotel application, Balot “engaged engineers and a landscape architect to prepare the Site Development Plan for the Project.” He paid a $15,060 fee to the county on Dec. 22, 2022 when he submitted his site development plan application, the motion adds. County staff accepted both the plan and the fee, the motion says.
Moreover, the motion continues, “On January 19, 2023, a County staff person emailed the County Attorney, noting that Dave Balot of ABC had filed his Site Development Plan Application and inquired whether the outstanding lawsuits had ‘any impact on [her] approving the [Site Development Plan Application].’ The County Attorney responded with one word: ‘No.’ ”
The motion cites a copy of an email from then-Assistant County Attorney Pearce to county Planner Hannah Sowinski, dated Jan. 19, 2023, as the source of the latter quote.