Judge orders Saba Sands attorneys to file written response to county motion within 15 days
Deputy Sarasota County Attorney David Pearce has filed a motion in the 12thJudicial Circuit Court, asking the presiding judge to dismiss a case against the county involving a dispute over use of property adjacent to Beach Access 10 on Siesta Key’s Beach Road.
Filed on Sept. 19, the Motion to Dismiss points out that Saba Sands waited more than nine months after the County Commission denied it a Coastal Setback Variance for construction of a three-story, two-unit condominium complex on Beach Road before launching its attempt at judicial recourse.
The principal of Saba Sands is Sarasota attorney William Saba.
Yet, Pearce explained in the motion, the Florida Rules of Appellate Procedure call for a much more timely filing of such a legal challenge. “Thus,” he wrote, “the question addressed by this motion is whether Saba Sands timely filed their petition for writ of certiorari.”
As The Sarasota News Leader has reported, Ashley E. Gaillard, an attorney with the Sarasota firm Bentley Goodrich Kison, filed the Saba Sands petition on Sept. 17. The firm is seeking the court’s quashing of the denial of the variance and remanding of the issue to the County Commission.
On Nov. 19, 2024, Pearce wrote, the commissioners conducted what is called a “quasi-judicial hearing” to consider the Coastal Setback Variance petition. Such a proceeding mirrors a court hearing in that the County Commission is directed to consider evidence and testimony in making its decision on the matter at hand; the members are not to rely on opinions of speakers.
Then, on Jan. 15 of this year, the board members formally approved a resolution that denied the variance, a copy of which Pearce attached to his motion.
The Board Records division of the Office of the Sarasota County Clerk of the Circuit Court and County Comptroller recorded the resolution the same day, Pearce noted.
“It is well settled under Florida law that aggrieved parties are permitted to have circuit courts review quasi-judicial local government board decisions,” he continued, citing the Florida Rules of Appellate Procedure. However, Pearce pointed out, the applicable Rule of Appellate Procedure, 9.100(c), “states a petition for writ of certiorari” — which is what Saba Sands filed last month in the Circuit Court — “ ‘shall be filed within 30 days of rendition of the order to be reviewed.’ ”
He explained that “rendition” means that a signed, written order — in this case, the County Commission resolution of Jan. 15 — has been “ ‘filed with the clerk of the lower tribunal,’ ” referring to the Sarasota County clerk of court. Pearce was quoting Florida Rule of Appellate Procedure 9.020(h), he noted.
Before pursuing a legal challenge, Pearce continued, Saba Sands undertook a different initiative allowed under state law to try to overturn the County Commission’s denial of the variance. Known as the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA), its provisions are detailed in Section 70.51(1) of the Florida Statutes.
“The pertinent language in FLUEDRA provides, ‘Any owner who believes that a development order, either separately or in conjunction with other development orders, or an enforcement action of a governmental entity, is unreasonable or unfairly burdens the use of the owner’s real property, may apply within 30 days after receipt of the order or notice of the governmental action for relief under this section,’ ” Pearce explained.
The denial of the variance is considered a development order.
Then Pearce pointed out, “The FLUEDA process essentially involves both mediation and non-binding arbitration …” He quoted from the state statute to explain the process.
“The parties did not successfully resolve their differences at the conclusion [of mediation conducted on Aug. 18],” he added. “On this date,” Pearce continued, “Saba Sands elected not to continue with the second part of the FLUEDRA process, which would have been the nonbinding arbitration.”
Yet, he wrote, the initiation of a FLUEDRA action makes it clear that a party should not seek judicial review of a local government development order or enforcement action until after the Special Magistrate handling the mediation has made a recommendation and the affected local government has acted on it.
Pearce then delved into specific facets of the FLUEDRA process in regard to its suspension of time for the filing of any court action. Based on the language in the state law, he continued, Saba Sands should have filed its court petition no later than Jan. 22. At best, he writes, Saba Sands would have had to file its Petition for Writ of Certiorari no later than 23 days after Aug. 17. However, the filing came on Sept. 17.
He cited a Florida Supreme Court ruling in 2000, Hankey v. Yarian, to support his argument.
On Sept. 27, Circuit Court Judge Stephen Walker issued an order giving Saba Sands 15 days to file a response to Pearce’s motion. Walker added that the “response should address the April 10, 2024, order of the Twelfth Judicial Circuit Court … for Desoto County in Jason Reardon and Joy Reardon v. Desoto County, a copy of which he attached to his order.
The Reardon decision
In the Reardon case, DeSoto County also sought a dismissal of a Petition for Writ of Certiorari.
The 12th Judicial Circuit Court ruling explains that, on Feb. 22, 2022, the DeSoto County Commission denied a rezoning application that the Reardons had filed. That board decision came after a quasi-judicial hearing, as well, the court decision points out. The formal denial was filed with the board clerk on March 8, 2022, it adds.
Then, on April 7, the order continues, the Reardons began a FLUEDRA action against DeSoto County. The Special Magistrate in that proceeding conducted a hearing and issued recommendations, the document says. After holding its own hearing to consider those recommendations, the order adds, the DeSoto County Commission rejected them. A formal resolution was filed with the clerk to the board on May 24, 2023, the ruling notes.
The Reardons then filed their Petition for Writ of Certiorari on June 22, 2023, the document continues.
In that case, too, the county sought dismissal of the petition on the basis that it was untimely, referencing the Florida Rules of Appellate Procedure; the filing came more than 30 days after the rendition of the DeSoto County Commission’s denial of the Reardons’ rezoning application. The County Attorney’s Office in DeSoto County also contended that the commissioners’ rejection of the Special Magistrate’s recommendations did “not create a judicial cause of action.”
Yet, the Reardons argued that “several subsections of the [FLUEDRA law], construed together, [acted] to delay rendition of the ordinance denying their rezoning application until completion of proceedings brought under the [provisions of the FLUEDRA statute].”
In his ruling, Circuit Judge Don T. Hall, who presided over the DeSoto County case, provides details about his review of the Florida Land Use Dispute Resolution Act. He points out that DeSoto County had argued that “the Act does not say that a landowner’s filing for Special Magistrate proceedings delays or postpones rendition of the underlying development order. Indeed, the term ‘rendition’ nowhere appears in the Act and the Legislature could have used the term if it intended the Special Magistrate proceedings delay rendition of a governmental entity’s development order or enforcement action.”
Yet, Hall continues, the Reardons contended that a subsection of the Act makes it clear that the rendition is delayed until the Special Magistrate proceedings have been concluded.
Ultimately, Hall agreed with the DeSoto County argument that, given the language in the FLUEDRA statute, the County Commission’s adoption of the formal resolution that rejected the Special Magistrate’s recommendations — after holding a hearing on them — did not start the clock ticking on a 30-day timeline for the Reardons to file their Petition for Writ of Certiorari. Hall points out, “The Act does not specify whether a quasi-judicial hearing is necessary when a governmental entity considers a Special Magistrate’s recommendation.”
He added, “More importantly,” a subsection of the Act provides “ ‘[t]he procedure created by this section is not itself, nor does it create, a judicial cause of action.’ ”