Administrative law judge rules for Siesta resident in challenge involving Calle Miramar hotel plans

County Commission violated Comprehensive Plan policies in approving project, judge write in April 3 order

A Florida administrative law judge has ruled in favor of a Siesta Key resident has who contended that the Sarasota County Commission violated several county Comprehensive Plan policies in approving an eight-story, 170-room hotel proposed on four parcels between Beach Road and Calle Miramar.

The Comprehensive Plan serves as the guide for how growth can take place in the county.

The focus of the decision was an ordinance that the commissioners put into effect on a 3-2 vote on Oct. 27, 2021. That ordinance eliminated the counting of hotel rooms for residential density purposes countywide. Previously, county regulations allowed a maximum of 26 hotel rooms per acre on parcels zoned Commercial General (CG), and only if no more than 25% of the units had kitchens.

Additionally, County Commission approval of a Special Exception is necessary for the construction of hotel and motel rooms — which county staff and documents call “transient accommodations” — on property zoned. Commercial General.

In the case of the Calle Miramar hotel, the project team sought Special Exceptions for transient accommodations and for the ability to exceed the maximum height of 35 feet in a Commercial General zone. The commissioners approved those requests, as well as the removal of residential density restrictions in regard to hotel and motel rooms.

In her April 3 order, Administrative Law Judge Suzanne Van Wyk explained that she had conducted a Florida Division of Administrative Hearings (DOAH) proceeding on the issues in November 2022 in Sarasota.

Van Wyk addressed a key argument that Ramirez made in her DOAH challenge and in companion litigation in the 12^th Judicial Circuit Court in Sarasota — that Future Land Use Policy 2.9.1 in the Comprehensive Plan limits “[t]he intensity and density of future development on the Barrier Islands of Sarasota” to that allowed by zoning ordinances and regulations existing as of March 13, 1989. (See the related article in this issue.)

Van Wyk pointed out that the parties in the case “significantly [disagreed] on the correct interpretation” of ordinances that were in effect as of that date.

However, she explained, after analyzing county documents and testimony, she found that the county’s 1981 Comprehensive Plan “specifically discusses the Barrier Islands as an area of special concern, acknowledging the ‘problems associated with development on the barrier islands,’ including ‘the detrimental effect of building along the active beach areas’ and ‘difficulties of evacuating large numbers of people from the Keys in time of emergency.”

Moreover, she noted, that 1981 plan described Siesta Key as “ ‘highly developed’ and ‘contain[ing] some of the County’s most intensive residential development.’ ” That plan “then states that it ‘recognizes the existing development represents the maximum levels of development on the Keys[.]’ (emphasis added).”

Turning to the current version of the Comprehensive Plan, adopted in October 2016, Van Wyk pointed out that it “provides more evidence that the [ordinance the commissioners approved in October 2021] — to allow hotel and motel development in [Commercial General zoning districts] at intensities limited only by the special exception process — is inconsistent with the Comprehensive Plan.

“The data and analysis supporting the current Comprehensive Plan indicate that the Barrier Island designation in itself limits development to existing densities and intensities of use, not just to the existing types of use. … The preponderance of the evidence supports a finding that the [2021 ordinance], as interpreted and applied by the County, allows for increased intensity of hotel development on Siesta Key over that established by [Future Land Use Policy 2.9.1].”

Van Wyk also agreed that the commissioners’ adoption of the October 2021 ordinance violated Future Land Use Policy 2.9.2, which says that the residential density on the barrier islands “shall not exceed the maximum gross density zoning requirements as of March 13, 1989.”

Moreover, the judge pointed out that even though the ordinance the commission approved applies countywide, “Siesta Key is the only key in the County with property zoned CG. Thus, the ordinance will affect the residents of Siesta Key differently from any other barrier island.”

Further, she explained, “Barrier Islands are so designated because they help protect the mainland from storm damage in hurricanes and other storms,” and “[t]he entirety of Siesta Key is designated Coastal High Hazard Area … and is within the County’s Hurricane Evacuation Zone A, which is required to evacuate for a Category 1 hurricane.”

Yet, Van Wyk noted that only two access points exist between Siesta Key and the mainland, both of which are bridges that “are designated as constrained roads by the Comprehensive Plan. A constrained road,” she explained, “is defined by the Comprehensive Plan as a road with ‘a level of service lower than the adopted standard …’ ”

In fact, she continued, the level of service provided by both the Stickney Point Road and Siesta Drive bridges “is classified as ‘D.’ ” Appearing to quote the Comprehensive Plan, she added, “This means that while on the bridges, ‘[s]peed and freedom to maneuver are severely restricted. … Small increases in traffic will generally cause operational problems at this level.’ ”

Then Van Wyk pointed out that the “Comprehensive Plan states that constrained roads are common throughout the County and therefore the County has accepted ‘an additional responsibility … in its review and approval of LDRs [land development regulations].’ Therefore, the County must base approvals of LDRs on maintaining the existing level of service of [constrained] roadways and to not allow the existing operating conditions to be degraded.’ ”

Further facts and party responses

Van Wyk included in her order other findings of fact that she indicated had helped sway her decision.

She noted that Ramirez lives 0.61 miles “as the crow flies” from the closest Commercial General (CG) zoning district on the Key, which is Siesta Village, and that Ramirez “works from home, and often, if not daily, walks to visit her bank, the post office, and shops and restaurants in [the Village], as well as the beach. She has evacuated for hurricanes three times, and has experienced crowded roads when evacuating.” Further, Van Wyk wrote, Ramirez “can hear music from existing commercial establishments in Siesta Key village.”

Therefore, Van Wyk continued, Ramirez is concerned that the removal of “all residential density limitations from hotel developments in CG zoning districts … will exacerbate hurricane evacuation delays, jeopardize pedestrian and public safety in Siesta Key Village, and increase noise and other nuisances from the Village to surrounding residential neighborhoods like her own.”

In response to a request for comment on Van Wyk’s ruling, Ramirez wrote The Sarasota News Leader in an April 3 email, “The DOAH decision is great news for all residents of Siesta Key! I’m grateful that the State agrees the Sarasota County ordinance that allowed hotels on Siesta Key to have unlimited density is inconsistent with our Comprehensive Plan. I appreciate all the hard work of my attorneys Richard Grosso, Martha Collins, and Pamela Jo Hatley. They spent a lot of time and effort on my case against Sarasota County. This win would not have been possible without their diligence and expertise. While we are still working on the Circuit Court case, this is a huge WIN in our efforts to protect Siesta Key from overdevelopment.” (See the related article in this issue.)

Collins and Hatley are with the Collins Law Group in Tampa, while Grosso, a Plantation resident, is known statewide for his expertise in issues pertinent to the case.

The News Leader also inquired whether the Office of the Sarasota County Attorney had any comment on the administrative law judge’s decision. After checking with that office, Media Relations Officer Brianne Lorenz wrote in an April 4 email, “Per the Office of the County Attorney, Sarasota County does not comment on active or pending litigation.”

As of its deadline for this issue, the News Leader had received no response to its request for comments from the attorneys representing the owners of the property where the Calle Miramar hotel would stand and the developer, RE/MAX Realtor Robert Anderson Jr.

Grosso, of Ramirez’s team, did tell the News Leader on April 4 that state law gives the losing parties 30 days to file an appeal with one of Florida’s District Courts of Appeal. He was not certain whether such action would involve the Second District Court, in whose jurisdiction Sarasota County lies, or the First District Court, which includes Tallahassee — the home of the Florida Division of Administrative Hearings — in its territory.

County coastal policies and hurricane evacuations

Addressing another Comprehensive Plan issue in Ramirez’s complaint, Van Wyk referenced Coastal Policy 1.2.3, which reads, “Encourage hotel/motel development in the storm evacuation zones category C, D, and E, rather than evacuation zones A and B.”
Siesta Key, she pointed out, is in Zone A.

The owners of the hotel site and the developer — called Intervenors in legal terminology — contended through their attorneys that the commission’s Oct. 27, 2021 ordinance did not “implicate this policy because the Ordinance applies uniformly to hotel and motel development in commercial districts throughout the County in all hurricane evacuation zones,” Van Wyk wrote.

“[The attorneys] introduced evidence that, out of the approximately 5,200 acres of commercially zoned property to which the Ordinance applies, around two-thirds of that acreage is outside of evacuation zones A and B. Thus, their experts testified that, since more of the commercial property subject to the Ordinance is in evacuation zones C, D, and E, it does not encourage hotel development in zones A and B over C, D, and E.”

Van Wyk added, “That testimony was neither credible nor persuasive. That opinion assumes that demand for hotel development is equal among all evacuation zones. It ignores findings that Siesta Key brings in thousands of tourists each year to visit the beaches … and that Siesta Key is the only barrier island with [Commercial General, or CG] zoning to which the Ordinance applies. Demand for hotel units will be higher closer to the beach, which is almost exclusively in evacuation zones A and B.”

Moreover, Van Wyk wrote, “The best evidence of the effect the Ordinance has had on hotel development is the actual hotel development proposals which have been brought forward since the Ordinance was adopted. It is uncontroverted that the Ordinance was proposed by Intervenors … along with the special exception application for the Calle Miramar Hotel, in order to maximize the number of units to be built.”

Additionally, the judge pointed out, “No evidence was introduced to support a finding that any special exception hotel application has been filed in any area of the County outside of either evacuation zone A or B since adoption of the Ordinance.” Thus, Van Wyk added, “The preponderance of the evidence supports a finding that the Ordinance encourages hotel development in evacuation zones A and B, rather than C, D, and E.”

About a week after the commissioners approved the Calle Miramar hotel project, they also voted in favor of a seven-story, 120-room hotel planned on Old Stickney Point Road. Then, almost exactly a year later, they approved a hotel with about 112 rooms with a maximum height of 59 feet on the former Wells Fargo bank property on Beach Road.

“Development of a hotel at 170 rooms on one acre is a significant increase over prior policy,” Van Wyk also wrote in her order, referring to the Calle Miramar hotel project. “It is easy to understand why [Ramirez] is concerned with the intensity of a new hotel development on the barrier island,” Van Wyk continued. “This hotel, which [county] planning staff characterized as ‘out-of-scale’ with surrounding commercial uses, will generate automobile traffic in areas where she walks regularly, contribute to more beach traffic, and produce noise from a planned rooftop bar which may disturb her neighborhood.”

Lack of sufficient documentation to support one argument

Van Wyk did disagree with Ramirez’s assertions that the County Commission action violated Coastal Objective 1.3, which “requires the County ‘to protect the public safety during emergency evacuation by reducing or maintaining emergency evacuation clearance time; maintaining an adequate emergency evacuation roadway system; and ensuring adequate shelter space.’ ”

She wrote that that objective “is implemented by 11 specific policies,” which she then cited.

Among them are Policies 1.3.2 and 1.3.3, which “establish a level of service of 12 hours emergency evacuation time for in-County evacuation in a Category 5 hurricane, and 16 hours for out-of-county evacuation.”

Van Wyk pointed out that none of the 11 policies “requires a hurricane evacuation study prior to approving zoning ordinances that impact density or intensity of development on barrier islands. None of these policies relates to the connection between approving new development and hurricane evacuation times.”

She added, “The County did not analyze the impact the Ordinance would have on evacuation times.” Nonetheless, she explained that a consultant for the property owners did conduct such a study in regard to the applications for the hotels proposed on Calle Miramar and Old Stickney Point Road. “There was some testimony that the impact on the County’s hurricane evacuation clearance times from evacuation of those hotel guests would be de minimus. … [Ramirez] contends that, since there is no exception in the Comprehensive Plan for de minimus increases, the Ordinance is inconsistent with the objective.”

Yet, after analyzing all of the documentation and testimony in regard to that facet of the DOAH challenge, Van Wyk wrote, “Even accepting hearsay testimony that the Calle Miramar and Old Stickney Point [Road] hotels will increase hurricane evacuation time, the evidence could not support a finding that the Ordinance conflicts with the direction in Objective 1.3 for the County to reduce or maintain its hurricane evacuation times.”