Nonprofit organization has stressed that county’s Neighborhood Parkland Program stipulations prevent transfer of 162 Beach Road parcel to Holderness
Both the Office of the Sarasota County Attorney and attorneys representing Siesta Key business and property owner Michael Holderness have asked that the 12th Judicial Circuit Court to dismiss a Siesta nonprofit’s complaint seeking to overthrow a County Commission majority vote in September that settled a federal lawsuit that Holderness filed against the county in 2024.
Formally, the attorneys representing Holderness’ limited liability company, Siesta Beach Lots LLC, filed a motion with the Circuit Court on Nov. 2, asking that the verified complaint that Protect Siesta Key and four island residents filed in September be dismissed with prejudice, meaning that the nonprofit organization could not try a slightly different approach with an amended lawsuit.
The county motion seeking dismissal says the Protect Siesta Key complaint failed “to state a cause of action.” Therefore, Assistant County Attorney Neal C. Addison wrote, in accord with Florida Rules of Civil Procedure 1.140(b), the complaint should not be allowed to proceed.
The four residents who are parties to the Protect Siesta Key complaint are the organization’s president, Lourdes Ramirez; John Phair, vice president of the Terrace East Association; Mary Smarelli and her husband, John V. Doherty, who live in the Terrace East condominium complex on Ocean Boulevard in Siesta Village. They contend that the County Commission violated county regulations by agreeing, as part of the settlement, to transfer to Holderness the parcel located at 162 Beach Road, which the county bought in 2017 with $1.4 million from its Neighborhood Parkland Program (NPP). A 0.25-mil property tax brings in revenue for that program, which was created after county voters in 2005 agreed to extend through 2029 the county’s Environmentally Sensitive Lands Protection Program (ESLPP) and reserve part of the funds for the purchase of land that would be appropriate for new neighborhood parks.
One mil represents $1,000 of the value of a piece of property.
(Last week, over 84% of the voters during the Nov. 3 General Election who marked the ballot question on continuing the ESLPP/NPP programs through 2049 agreed that the tax should remain in effect, as The Sarasota News Leader reported.)
In representing Holderness and Siesta Beach lots, attorneys Chad Manausa and Bill Galvano, of the Grimes Galvano firm in Bradenton, point out in their legal brief that, “for more than a century,” Florida law has required in the type of litigation Protect Siesta Key is pursuing “that a private plaintiff allege a special injury: harm different in kind, not merely in degree, from that suffered by the community at large.” They cited three Florida Supreme Court cases, with the earliest dating to 1917, Rickman v. Whitehurst, as the basis for that assertion.
Manausa and Galvano add that in the Protect Siesta Key complaint, “Plaintiffs do not dispute that rule. They plead it.” Thus, the two attorneys add, “[T]he only question is whether the Complaint’s allegations satisfy it. They do not.”
On that ground alone, Siesta Beach Lots says the court should dismiss the lawsuit.
Misunderstanding of the applicable sections of the County Code
In the county’s Motion to Dismiss, Assistant County Attorney Addison writes, “Florida’s pleading requirements force counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it, which avoid wasted expenses for litigants and unnecessary judicial effort.” He cited as the basis for that statement the 2020 Florida Third District Court of Appeal ruling in K.R. Exch. Servs. v. Fuerst, Humphrey, Ittleman, PL.
Moreover, Addison points out, with emphasis, Section 125.37 of the Florida Statutes states the following: “Whenever, in the opinion of the board of county commissioners, the county holds and possesses any real property, not needed for county purposes, and such property may be to the best interest of the county exchanged for other real property, which the county may desire to acquire for county purposes, the said board of county commissioners of any county is authorized and empowered to make such an exchange. Provided, however, before any exchange of property shall be effected, a notice, setting forth the terms and conditions of any such exchange of property, shall be first published, once a week for at least 2 weeks, in a newspaper of general circulation published in the county, before the adoption by the board of county commissioners of a resolution authorizing the exchange of properties.”
The Protect Siesta Key complaint argues that the county would be conveying the 162 Beach Road property “to a private developer for private development, extinguishing [the land’s] present character as protected public open space and natural coastal buffer.”
It also says, “A county may exercise only such authority over the disposition of public property as is conferred by law, and may not dispose of property held for a dedicated public purpose in a manner inconsistent with that purpose or with the terms on which the enabling funds were approved by the electorate.”
The verified complaint adds, “Section 90-68 of the Sarasota County Code confirms the restricted character of Neighborhood Parkland: it permits disposition only of incidental acreage not meeting parkland criteria, and even then only for ‘not less than the original acquisition cost with all proceeds being deposited in the fund used for the original purchase.’ ”
However, in his motion, Assistant County Attorney Addison contends that the plaintiffs’ reading of Section 90-68 is wrong. He adds that “the County has broad home rule authority, recognized by general law, to sell, purchase, lease, or exchange real property. Accordingly, this Court must start with the presumption that the County can dispose of the property, unless the County has restricted its ability to dispose of property through its ordinances.” Thus, Addison argues, “Plaintiffs’ argument fails at its outset.”
As an example of how that section of the County Code functions, Addison points out that the county could buy a 100-acre parcel that has “75 acres of quality wetland habitat,” though the other 25 acres “is not protected habitat.” The county could use its Neighborhood Parkland funds for the purchase and “portion off the remaining 25 acres and sell it.” He stressed, “That is the purpose of Section 90-68. … Nowhere in the text of Section 90-68,” he continues, “is a restraint on disposal of the entirety of property when the Board determines it is in the best interest to do so.”
Moreover, Addison argues, “The County is exchanging one parcel located on Beach Road for three beachfront parcels” — Lots 15, 16 and 17. They will be used to extend Beach Access 3, he adds.
Commissioner Mark Smith, who voted against the settlement with Holderness, has contended that those three lots Holderness agreed to turn over to the county in exchange for the 162 Beach Road parcel are worth only about $30,000 each, vastly less than the $18-million total of the appraised values that Holderness submitted to county staff. Those appraisals, Smith has stressed, were based on the potential for home construction on the lots, but “They’re not buildable [parcels].”
Addison then delves into Section 90-67 of the Neighborhood Parklands Code to present the procedure used to acquire properties for the program. Nothing in that section, either, prevents the commissioners from engaging in “future exchanges of [such] property consistent” with Florida Statute 125.37, he writes.
In one other argument, Addison references Chapter 86 of the Florida Statutes, which, he writes, makes it clear that “[g]overnmental entities enjoy sovereign immunity in cases [such as the one Protect Siesta Key is pursuing] unless such immunity is explicitly waived or involves a violation of constitutional rights.” He cited the 2024 Florida First District Court of Appeal ruling in University of Florida Bd. of Trust. v. Browning.
“Because this case does not involve a claim involving an alleged constitutional violation,” he contends, “the doctrine of sovereign immunity” prevents the court from deciding in favor of the plaintiffs.