Balot’s attorney stresses that no one ever legally challenged County Commission’s unanimous vote in 2022 to approve hotel project
The Siesta Key businessman who won unanimous Sarasota County Commission approval in October 2022 to construct a 112-room hotel on Midnight Pass Road has filed a complaint against the county over county staff’s refusal to approve his company’s Site Development Plan application, so construction of the hotel can begin.
On March 27, Tampa attorney Clay Mathews, of the Smolker Matthews firm, filed the lawsuit in the 12th Judicial Circuit Court, contending that since no one ever used the applicable Florida law to pursue a legal challenge of the hotel plans proposed by Dave Balot, principal of a limited liability company called ABC SUB2, Balot should be allowed to proceed with his project.
Mathews also pointed out in the complaint, “The County’s Unified Development Code (the ‘UDC’) requires that ABC commence [the site development approved] under the Special Exception within two years, or by October 26, 2024.”
A county document explains, “[A] Site and Development Plan shall be required for all development other than the creation of a subdivision. … Approval of the Plan by the County shall be construed as authority for the representative/applicant to: a. construct improvements such as stormwater facilities, excavation and fill, bulkheads, sidewalks, paving; and b. apply for building permits.”
The developer works with county staff on that process after receiving formal approval of a proposed project. Site and development entails a thorough review of all facets of the plans, ensuring they comply with county regulations.
The October 2022 board vote approved two Special Exception petitions sought by ABC SUB2: Balot could exceed the maximum construction height of 35 feet on property zoned Commercial General, as Balot’s hotel site is, and he could build hotel rooms — termed “transient accommodations” — on that parcel.
“There is a likelihood of irreparable harm to ABC as the County’s positions may prevent ABC from commencing use of the Special Exception by October 26, 2024,” Mathews contended in the complaint. “The County’s position may also irreparably harm ABC by preventing ABC from utilizing its approved density and intensity of use of 112 hotel rooms under the Special Exception by denying its Site Development Plan Application,” Mathews continued.
In addition, he noted, the commissioners themselves this year denied Balot’s request for the processing of a county Comprehensive Plan amendment that called for up to 52 rooms per acre to be allowed on property zoned Commercial General on Siesta Key, but the increased density would be available only on parcels comprising at least 1 acre in the Siesta Key Overlay zoning District (SKOD).
Balot is asking the Circuit Court to declare that the approved density and intensity of use for his hotel project “is final, non-appealable, [and] binding on the County …” He also is seeking an extension of any county deadlines related to his hotel initiative until the court has entered a “final and non-appealable judgment” in the case.
Leading up to this point
On June 6, 2023, Matt Osterhoudt, director of the county’s Planning and Development Services Department, had written an attorney representing Balot at that time, explaining that “a decision has been made to not process the [site and development] application any further until such time as a final determination has been made” regarding the ordinance that the commissioners approved on Oct. 27, 2021, No. 2021-047. That law changd the county’s Unified Development Code (UDC) — which contains all of the land-use and zoning regulations — to eliminate the counting of hotel and motel rooms for residential density purposes throughout most of the county.
Prior to that action, the UDC prohibited more than 26 hotel rooms per acre on property zoned Commercial General, and only if the majority of those rooms had no kitchens.
Balot’s hotel site comprises 2.15 acres at 5810 Midnight Pass Road. His hotel would encompass six stories with a maximum height of 59 feet, according to testimony during the Oct. 26, 2022 public hearing on his application. The first two floors would have parking spaces.
However, as The Sarasota News Leader has reported, two 2023 legal opinions — one rendered by a Florida administrative law judge; the second, by a 12th Judicial Circuit Court judge — found that UDC modification to violate Future Land Use Policy 2.9.1 in the county’s Comprehensive Plan, which guides growth in the community. That policy limits residential density and intensity on the county’s barrier islands to the levels in place as of March 13, 1989.
In early December 2023, acting at the recommendation of County Attorney Joshua Moye, in the aftermath of the litigation, the commissioners formally repealed the ordinance approved on Oct. 27, 2021.
Prior to that, in August 2023, Balot filed an appeal of staff’s refusal to process his Site Development Plan. However, he ended up withdrawing that appeal, choosing instead to pursue his own Comprehensive Plan amendment.
Nonetheless, in late November 2023, the commissioners agreed to allow county staff to process only a series of Comprehensive Plan amendments proposed by Benderson Development Co., which would achieve the goal of the October 2021 UDC amendment. (See the related article in this issue.)
In mid-March, the Planning and Development staff began its formal review of the Benderson proposals, county staff advised the News Leader.
‘Clearly erroneous’
Attorney Mathews asserted in Balot’s March 27 complaint that the county staff’s position that “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 … is clearly erroneous … This is because the Special Exception and approved density and intensity of use of 112 hotel rooms were never timely challenged pursuant to Section 163.3215 [of the Florida Statutes].”
That is the state law that attorneys for Siesta residents cited in late 2021, in filing Circuit Court complaints that challenged the County Commission’s approval of the UDC amendment regarding hotel and motel rooms. (In fact, Mathews’ law partner, David Smolker, ended up being the lead attorney for the plaintiffs in the second lawsuit, which focused on both high-rise hotels that the commissioners approved in the fall of 2021. Lourdes Ramirez was the sole plaintiff in the first complaint.)
“Section 163.3215 [of the Florida Statutes] provides the exclusive method of challenging an increase in the density or intensity of use under a development order on grounds of inconsistency with a comprehensive plan, Mathews wrote in Balot’s complaint.
“Development order” references local government action approving a change in land use, such as the construction of a hotel.
“In pertinent part,” Mathews continued, “(1) Subsections (3) and (4) [of that state law] provide the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan …”
Further, he pointed out, again with emphasis, that any legal challenge “must be filed no later than 30 days following rendition of a development order or other written decision …”
Mathews added, “ABC respectfully requests that this Court declare ABC’s rights under the Special Exception and grant all declaratory, coercive and supplemental relief rejecting the County’s erroneous position and facilitating the timely and complete processing and approval of ABC’s Site Development Plan Application and all other related development orders so that ABC can continue to pursue its hotel project with the approved density and intensity of use of 112 hotel rooms as it is entitled to do under the unchallenged and valid Special Exception.”
A ’regulatory ‘Catch-22’
Farther into the lawsuit, Mathews explained the process that resulted in the County Commission’s unanimous vote of approval of Balot’s hotel proposal, including the Binding Development Concept Plan, which “depicts the hotel layout,” with the incorporation of a restaurant and the parking levels. Balot is bound to abide by that plan, Mathews pointed out. The Unified Development Code, Mathews noted, prevents Balot from deviating from that plan.
Then Mathews pointed out that Balot’s application for the Site Development Plan for the hotel was submitted to county staff on Dec. 22, 2022, which necessitated a payment of $11,450. “The County accepted both the Application and the fee,” Mathews continued. According to Florida Statute 125.022(1), he added, the county staff had 120 days to deem the application complete and then approve it, approve it with conditions, or deny it.
Mathews also noted that county staff later advised Balot that if he withdrew his Site Development Plan appeal filed in August 2023, staff would process the plan but staff would not approve it until Balot had submitted a privately initiated Comprehensive Plan amendment that would increase the hotel density and intensity of use for his property, and then the County Commission approved that amendment, and the amendment ended up facing no legal challenge.
The phrase “privately initiated” refers to the fact that someone other than county staff members was seeking a change in the Comprehensive Plan or UDC.
“On September 11, 2023, based on the above mutual understanding with County staff,” Mathews continued, “ABC withdrew its Appeal to facilitate the processing of its Site Development Plan Application but expressly reserved all of its rights relating to the Project other than a limited waiver of permitting timeframes and limitations on the number of County reviews of the Site Development Plan Application.”
Mathews then argued, “The County staff’s actions amount to extortionate leveraging of its police powers to force ABC to apply for a Comprehensive Plan Amendment Application when ABC was and still
is entitled to the density and intensity of use for 112 hotel rooms for the Project pursuant to the Special Exception without the need for a Comprehensive Plan Amendment to obtain increased density and intensity for the Project.”
Mathews also wrote about the County Commission’s Nov. 28, 2023 vote to direct staff to process Benderson Development’s proposed Comprehensive Plan amendments. He explained that Benderson is “seeking to limit development of new hotels to fifteen percent (15%) of the total acreage of commercial parcels on Siesta Key. This new limitation would effectively make it a ‘first come, first serve’ race for development of new hotels on Siesta Key and prohibit new hotels once that 15% cap is reached.”
Mathews did note that Commissioner Mark Smith — a long-time Siesta Key resident — asked Commissioner Michael Moran — who made the motion for staff to proceed with a review of the Benderson proposals — to amend the motion, so it would allow the processing of Balot’s proposed Comprehensive Plan amendment, as well. Moran refused to do so. Moran cited the 15% development limitation as the critical factor in his favoring the Benderson application.
Then, in January, Mathews added, county staff provided comments to a second submittal of Balot’s Site Development Plan application. A member of the Zoning Division staff wrote that Balot needed to reduce the number of his hotel rooms “to meet the requirements of the proposed [Benderson] Comprehensive Plan Amendment.” Even if that amendment wins approval, that staff member wrote, it would allow Balot to construct only 104 rooms.
Mathews characterized county staff’s actions as placing “ABC in a regulatory ‘Catch-22.’ On the one hand, the County staff refuses to approve ABC’s Site Development Plan Application until a Comprehensive Plan Amendment is approved. On the other
hand, the County [Commission] has refused to approve ABC’s request for the necessary out-of-cycle processing of its Comprehensive Plan Amendment on the theory that ABC will benefit from the other property owner’s Comprehensive Plan Amendment when in fact that property owner’s Comprehensive Plan Amendment excludes ABC’s Project.”
In March, Mathews added, he “called counsel for the County and attempted to resolve this matter in lieu of litigation. Counsel for the County rejected [his] efforts, forcing ABC to bring this action.”