Potential for delay in proceedings also cited, with trial date already set
Attorneys for a Siesta Key resident who filed suit over the Sarasota County Commission’s approval of a hotel on the outskirts of Siesta Village argue that the owners of the project site and the developer should not be allowed to intervene in the 12th Judicial Circuit Court case.
Writing on behalf of Lourdes Ramirez, Martha Collins and Pamela Jo Hatley of the Collins Law Group in Tampa contend that the section of the Florida Statutes they cited as the basis for Ramirez’s case “includes no … language relative to the applicant for the development order or the owner of property subject to the development order,” or the lessee of property for which a development order was approved, to be named a party in a case such as Ramirez’s.
The County Commission’s 3-2 vote on Oct. 27 2021 to allow the eight-floor, 170-room hotel to be built constitutes a development order.
The attorneys explain that Section 163.3215(3) of the Florida Statutes “permits an aggrieved or adversely affected party to seek relief against a local government that approved a development order that is inconsistent with the local government’s comprehensive plan.”
A comprehensive plan, Ramirez has explained, is the county’s “long-term growth plan.”
Ramirez has maintained that the county commissioners violated a number of policies in the Comprehensive Plan when they agreed to allow the hotel project to go forward. Chief among those was Future Land Use Policy 2.9.1, which limits the density and intensity of Siesta Key to the level in place as of March 13, 1989.
However, before they approved the Calle Miramar hotel plans, the commissioners also voted 3-2 to amend the county’s land-use and zoning regulations to eliminate any counting of hotel rooms for residential density purposes.
The project is planned for four parcels, constituting about 0.96 acres, which are zoned Commercial General. County zoning regulations in the Unified Development Code (UDC) had stated that no more than 26 hotel rooms could be allowed per acre on property zoned Commercial General, if those rooms had no kitchens. Otherwise, the limit was 13 rooms per acre.
The UDC amendment that won board support applies countywide.
Another relevant portion of the Comprehensive Plan, as noted in Ramirez’s complaint is Housing Policy 1.5.6. That “requires Sarasota County to ‘ensure that the character and design of infill development promotes, enhances, and increases the vitality of existing neighborhoods,’” as the complaint noted.
Yet, the lawsuit contends, the hotel, as designed, “adjacent to existing residential developments … will result in negative impacts to and reduced vitality of the existing neighborhood.”
Further, Collins and Hatley add in their response, “[T]he sole form of relief” in the case involves Sarasota County. In other words, the presiding judge could declare that the County Commission vote in favor of the hotel project did violate Comprehensive Plan policies.
Section 163.3215(1) of the Florida Statutes, Collins and Hatley also note, “requires the local government that issued the development order to be named as a respondent in all proceedings.”
“If the Florida Legislature had intended property owners, lessees, or development order applicants to be necessary and indispensable parties to challenges under [the section of state law at the heart of the complaint], the legislature would have said as much in the statute,” Hatley and Collins write. The Legislature took care, they continue, “ to specify that the cause of action and relief is against the local government …”
The statute contains no mention of the development order applicant or property owner, they add, “even though the statute clearly contemplates the existence of an applicant and property owner …” Therefore, Collins and Hatley write, the Legislature demonstrated “a clear intent and understanding that the applicant and property owner are not indispensible or necessary parties.”
The formal owner of the property planned as the site of the hotel is Calle Miramar LLC, whose principal is New York City resident Louise Khaghan. SKH 1 LLC, whose principal is RE/MAX Realtor Robert Anderson Jr., was the applicant. The project team that submitted the necessary documents to county Planning Services Division staff in May 2021 noted that Anderson was the long-time lessee of the parcels where the hotel would stand.
Inability of the companies to provide relief sought in the case
Ramirez’s attorneys also point out that the two limited liability companies assert that they “are the real parties that stand to gain or lose by the outcome of this lawsuit.”
Yet, Collins and Hatley contend, the county’s development order “does not mention either Calle Miramar or SKH 1 and does not otherwise name any owner, lessee, or other person with an interest in the subject property.”
The attorneys further note that the Florida courts “have consistently held that owners of the property subject to a local government zoning action are not indispensible parties to a judicial review of that administrative action,” citing a 2005 Florida Second District Court of Appeal case, Citizens of Bayshore Cmty. V. Lee County.
In that case, Collins and Hatley explain, “[A] community citizen group filed a petition [for judicial review] of the Lee County Board of Commissioners’ approval of a property owner’s application to rezone its property. … The petition named Lee County as a respondent but did not name the property owner that had filed the rezoning application seeking to expand development of its property. … The property owner appeared in the case and moved to dismiss the petition, on the ground that the property owner was an indispensible party to the litigation. … The trial court dismissed the petition with prejudice,” because the complaint did not include the property owner as an indispensible party, Hatley and Collins point out.
“Dismissing with prejudice” means a complaint cannot be revised in some fashion and then re-filed.
Hatley and Collins cite two other cases as further judicial precedent for their argument that Calle Miramar LLC and SKH 1 LLC should not be allowed to intervene in Ramirez’s case. On the basis of one of decisions — a 1992 Florida Supreme Court ruling — they write that, “in considering a motion to intervene, a trial court must (1) determine whether an asserted interest is appropriate to support intervention; and (2) if it determines the requisite interest exists the trial court must exercise its sound discretion to determine whether to permit intervention, considering a number of factors,” including the size of the interest, the potential for conflicts, or new issues; “and (3) the trial court must limit the intervention to the extent necessary to protect the interests of all parties.”
Ramirez’s attorneys contend, “The interests asserted by Calle Miramar and SKH 1 do not support intervention for [the] narrow question [of whether the County Commission vote approving the hotel project is consistent with the county’s Comprehensive Plan].”
A plea not to let intervention delay the case’s progress
If presiding Circuit Judge Stephen Walker does allow the owner and developer to intervene in Ramirez’s case, Hatley and Collins add, that action should “not permit unnecessary protraction of the litigation.”
The case has been set to go to trial in March 2023.
If Calle Miramar and SKH 1 are allowed to intervene “as full party defendants with no limitations,” the attorneys point out, that will mean two extra parties filing motions, conducting discovery — which is the process of gathering all pertinent documents and witness statements — and participation at trial. “This will complicate the case” and lead to its taking longer than estimated at this point, Collins and Hatley argue. That also will result in “a substantial increase in the costs of the litigation to both Ms. Ramirez and Sarasota County,” they note.
Moreover, they point out, “Calle Miramar or SKH 1 may be seeking party status in order to set the stage, at the end of the case, to assert entitlement to attorney’s fees,” as provided for in Section 163.3215(8)(c) of the Florida Statutes. That part of state law allows the prevailing party in a challenge to a development order “to recover reasonable attorney fees and costs incurred in challenging or defending the order.”
As a result of that state law, Ramirez has told supporters she could be looking at hundreds of thousands of dollars in legal fees if she loses the case. She has started a GoFundMe initiative to seek donations in support of her efforts on behalf of all opponents of the hotel project. Ramirez has set a goal of $75,000.
Therefore, Collins and Hatley add, if the judge allows Calle Miramar and SKH 1 to intervene, they “should be limited to monitoring the proceedings as a spectator, filing appropriate motions to protect [their] interests, having the right to be heard prior to a judgment or settlement, and having the right to appeal the trial court’s decision on points affecting [their] interests.”