Office of County Attorney declines to respond
On March 19, writing on behalf of the Siesta Key Association (SKA), attorney Robert C. Volpe of Tallahassee demanded that the Sarasota County Commission rescind the waivers it granted in December 2023, eliminating a county-required 12-month waiting period for the developers of two high-rise hotels on Siesta Key, so they could go ahead and resubmit petitions for their projects.
Volpe stressed in his letter that “[t]he County may waive this 12-month restriction, but only after specific criteria have been met and findings made. In this case, the County did neither. Section 124-43(d)(4)(d) of the [county’s Unified Development Code] UDC states that: ‘[t]he time limits … may be waived by three affirmative votes of the Board when the Board finds, based on new information or changed conditions, that new action may be warranted to prevent injustice or to assure protection of the public health, safety, and welfare.’ The County made no such findings, because none can be made,” he pointed out.
The UDC contains all of the county’s land-use and zoning regulations.
“Conditions have not changed,” Volpe continued. “The same comprehensive plan and UDC provisions apply and the proposed Special Exceptions remain in violation of those governing laws.”
He was referencing the County Commission’s unanimous repeal in December 2023 of an October 2021 UDC amendment that eliminated the counting of hotel and motel rooms for residential density purposes throughout most of the county. The Comprehensive Plan restricts residential density and intensity on the county’s barrier islands to that in place as of March 13, 1989. That is the gist of Future Land Use Policy 2.9.1, whose validity both a state administrative law judge and a 12th Judicial Circuit Court judge have upheld.
Rescinding the waivers would “avoid needless litigation over a premature decision,” Volpe added in the letter.
Further, he called for the county not to “accept any further application or activity on an application” for a Special Exception related to the waivers.
One of the waiver requests approved in December, he noted, came from an attorney representing SKH 1 LLC. It pertained to that developer’s plans for a seven-story, 80-foot-tall hotel with about 163 rooms on 0.96 acres on Calle Miramar.
The formal application submitted to county staff on March 8 says the hotel would consist “of 4.5 levels of habitable space and 2.5 levels of parking with rooftop amenities.” The project would include a restaurant, bar and shops, the application added.
The Calle Miramar hotel project that the County Commission approved in October 2021 called for eight stories and about 170 rooms.
Volpe noted that the related waiver document stated that “ ‘[t]he proposed special exception for a hotel on the Property will be slightly less height and fewer rooms than the previously approved special exception.’ This presumptive statement does not qualify as ‘changed conditions’ or ‘new information.’ ”
He further argued, “If a minor change to a Special Exception request qualified as changed conditions or new information, the 12-month restriction against any further Special Exception application would be meaningless. Similarly, the proposed Special Exception application itself cannot logically serve as ‘changed conditions’ or ‘new information’ validating acceptance of the application. The changed conditions or new information must exist independent of the application.”
The registered agent of SKH 1, the developer of the Calle Miramar hotel, is RE/MAX Realtor Robert T. Anderson Jr. of Sarasota. However, the formal, new application for the Special Exceptions for that project names Lawrence Debb of Des Plaines, Illinois, as an employee of SKH 1. The address Debb provided belongs to a company called GSP Development. On its homepage, that company says Debb is its president and founder.
The company website adds that GSP is “a team-based real estate development group. Our focus is to go beyond the traditional client-developer relationship and instead focus on building partnerships based on trust, communication, and results.”
The other developer who won the Special Exception waiver in December 2023 was Siesta businessman Gary Kompothecras, who already has revived his plans for a seven-story, 120-room hotel at the intersection of Old Stickney Point Road and Peacock Road, in what is known as the “South Bridge Area” of Siesta Key.
Kompothecras’ request for the waiver “suggests that proposed comprehensive plan and UDC amendments [crafted on behalf of Benderson Development Co.], to run concurrent with the Special Exception application, [amount] to changed conditions. This defies logic,” Volpe continued in his March 19 letter.
Moreover, Volpe pointed out in his letter, “[T]he County made no finding that new action may be warranted ‘to prevent injustice or to assure the protection of the public health, safety, and welfare,’ ” again referencing language in the UDC.
“The requests for waivers fail to present any facts amounting to an injustice or protection of the public health, safety, and welfare,” he wrote.” The [county] staff report [on the waiver requests] similarly is silent on any injustice or protection of the public health, safety, and welfare. There were no comments or evidence presented in the record on these criteria, and the Commissioners did not make any findings on these requirements. The Waivers do not prevent injustice. The Waivers do not assure the protection of the public health, safety, and welfare. Because the Waivers are wholly void of these required findings, the County must rescind them.”
Volpe asked that the commissioners or county attorney respond by April 5 “as to whether the County will be rescinding the Waivers.”
In response to a Sarasota News Leader public records request, the Office of the County Attorney reported on April 2 that it “did not respond to this letter,” and the Commission Services staff found no records that individual commissioners had replied to it, either.
Volpe is a partner with the Washington, D.C.-based law firm Holtzman Vogel Baran Torchinsky & Josefiak, the firm’s website notes.
Just the beginning of the approval process
The County Commission’s Dec. 12, 2023 vote to approve the waivers was unanimous. Prior to the vote, Commissioner Mark Smith, a long-time Siesta Key resident and business owner, won assurance from the director of the county’s Planning and Development Services Department that the Special Exceptions could not be approved unless the county’s Comprehensive Plan, which guides growth in the community, had been amended to make the proposed hotels feasible.
Just a couple of weeks earlier, in late November 2023, the board members voted 4-1 to direct county Planning Division staff to process —outside the normal cycle — Benderson’s Comprehensive Plan and UDC amendments crafted to facilitate the construction of the two hotels originally approved in the late fall of 2021. Benderson itself plans an 85-foot-tall hotel in Siesta Village.
Matt Osterhoudt, director of Planning and Development, also pointed out during the Dec. 12, 2023 meeting that the applicants for the Special Exceptions would have to conduct county-mandated Neighborhood Workshops on their proposals, and then the county’s Planning Commission would have to hold hearings on them before the County Commission held the final hearings.
If a county commission agrees with the nature of a proposed Comprehensive Plan amendment, it approves the document during what is called a “transmittal public hearing.” Then, the document is forwarded to the Florida Department of Commerce, which previously was called the Florida Department of Economic Opportunity (DEO). There, staff analyzes it for consistency with the affected Comprehensive Plan. Provided that the DEO staff finds no significant issues that need to be addressed, the county commission then conducts a final public hearing on the amendment. It takes a supermajority of the board — four of five votes — to approve any new Comprehensive Plan amendment.
In his letter on behalf of the Siesta Key Association, Volpe also referenced that process in his letter.
“Proposed amendments that have not been reviewed, analyzed, or subject to public hearings, much less adopted, cannot amount to conditions affecting the Special Exceptions,” Volpe wrote. “An application for Special Exception is subject to the adopted comprehensive plan and UDC, not an anticipated or aspirational amendment. The adopted and codified law applies. These conditions will change only if the comprehensive plan and UDC are ultimately amended and adopted. Because there is no new information and conditions have not changed, the Waivers were improper and should be rescinded.”
Both the revived Siesta hotel projects need commission approval of Special Exceptions to allow “transient accommodations” — the county term for hotel and motel rooms — to be built on property zoned Commercial General (CG), and for the structures to exceed the 35-foot height restriction on CG parcels.
Volpe also took issue with the fact that representatives of SKH 1 and Kompothecras already have conducted the county-required Neighborhood Workshops on the hotel proposals. “Any pre-application conferences, neighborhood workshops, applications, and other components of the Special Exception applications, in turn, violate the comprehensive plan and UDC,” he contended.