Nov. 30 Zoom hearing cancelled after recent filing of new motions
This week, instead of conducting a scheduled hearing in regard to one count of a lawsuit filed in November 2021 over the Sarasota County Commission’s approval of two hotels on Siesta Key, a 12th Judicial Circuit Court judge issued a new ruling that again denied Sarasota County’s Jan. 10 motion to dismiss the entire case.
Judge Stephen M. Walker did eliminate Counts II and III from the lawsuit, though he added that the plaintiffs have the right to file new variations of them. He also dismissed most of Count I, which was to have been the focus of a Nov. 30 hearing via Zoom.
His Nov. 28 order notes that he originally ruled against the county, on July 20. He further acknowledged that, on Aug. 31, the plaintiffs had filed a motion for rehearing and/or reconsideration and clarification of Count I of the complaint.
“After careful consideration,” Walker wrote in the Nov. 28 order, “the Court determines that reconsideration is granted,” and he submitted a new order to replace the one he rendered on July 20.
The docket in the records maintained by the Office of the Sarasota County Clerk of the Circuit and County Courts and County Comptroller shows that a civil jury trial remains on schedule in the case. It is to begin at 9 a.m. on June 12, 2023.
The plaintiffs are south Siesta Key resident Robert Sax, the 222 Beach Road Owners Association and the Marina Del Sol Condominium Association. Sax has a unit at Marina Del Sol, which is east of the site where one hotel is planned.
Originally, another south Siesta homeowner, James P. Wallace III, was a plaintiff. He formally withdrew from the case earlier this year to focus on a legal challenge of the Florida Department of Transportation’s decision in late 2020 to issue permits for the installation of a traffic signal at the Stickney Point Road intersection of Avenue B and C. Without that stoplight in place — as stipulated by the County Commission — Benderson Development Co. cannot build its mixed-use Siesta Promenade complex in the northwest quadrant of Stickney Point Road and U.S. 41.
As Walker explained in his Nov. 28 order, the plaintiffs challenged the County Commission votes on Oct. 27, 2021 and Nov. 2, 2021 to allow two high-rise hotels to be constructed on Siesta Key. The first, split vote involved a project on four parcels located between Beach Road and Calle Miramar. That hotel would comprise eight stories and 170 rooms on approximately 0.96 acres.
The majority owner of that hotel site is a New York City resident, as shown in the project application. The developer would be RE/MAX Realtor Robert Anderson Jr.
The second project, planned at the intersection of Old Stickney Point Road and Peacock Road, involves a seven-story, 83-foot-tall hotel with 120 rooms, plus a five-story parking garage that would stand between Old Stickney Point Road and Stickney Point Road. The developer is Siesta businessman and chiropractor Dr. Gary Kompothecras.
The commissioners approved Special Exceptions to allow the hotels and the garage to exceed the 35-foot height restriction on property zoned Commercial General and Commercial Intensive in the Siesta Key Overlay District and to permit “transient accommodations” — the county term for hotel rooms.
However, the more controversial action that the board members took — on Oct. 27, 2021 — was to modify the county’s Unified Development Code (UDC) to eliminate the counting of hotel rooms for residential density purposes countywide.
The UDC contains all of the county’s land-use and zoning regulations.
“Simply stated,” Walker wrote in his Nov. 28 order, “Plaintiffs complain that the Board’s amendment of the UDC and approval of the three special exceptions, which together increase the intensity and density of the proposed hotel projects beyond what would have been the case before the UDC amendment, are void or illegal because they were approved in violation of governing law. Plaintiffs allege this increased intensity and density of hotel land use on the barrier island of Siesta Key first requires an amendment to the County’s Comprehensive Plan,” which guides growth in the county.
“They further allege that under the County’s charter,” Walker continued, that “such a Comprehensive Plan amendment must be approved by a super-majority vote of the [County Commission],” as stated in Section 2.2A(1) of the County Charter.
That part of the Charter says that “any ordinance amending Sarasota County’s Comprehensive Plan which increases allowable land use density or intensity shall require an affirmative vote of a majority plus one of the full membership of the Board of County Commissioners.” The amendment was added on Nov. 6, 2007, the Charter notes.
Count I of the complaint, Walker pointed out, focused on the UDC/Comprehensive Plan issue. Counts II and III were alternatives to Count I. In other words, if the judge dismissed Count I, the plaintiffs were hoping to use them to overturn the Special Exceptions for the hotels and the parking garage.
Rethinking Count I and reiterating his ‘standing’ position
In his Nov. 28 order, Walker pointed out that, in Count I, the plaintiffs alleged that, by amending the UDC, the County Commission allowed “what was previously forbidden” under the Comprehensive Plan, “without following the procedural requirements of the County Charter and [Section 163.3184 of the Florida Statues] for the adoption of a plan amendment.”
The plaintiffs had contended that the commission votes to approve the UDC amendment and Special Exceptions were ultra vires — actions beyond the board’s legal power or authority — and, thus, void. They had cited the 2007 Florida First District Court of Appeal ruling in Cf. D.R. Horton, Inc.-Jacksonville v. Peyton.
On that basis, Walker wrote in his new order, he found that the plaintiffs had sufficiently alleged a claim that the court should consider.
Then Walker explained that Counts IV and V also were alternative claims, alleging that the Special Exceptions were inconsistent with the county’s Comprehensive Plan. Those counts cited Section 163.3215 of the Florida Statutes, Walker noted.
That portion of state law provides “the exclusive methods for an aggrieved or adversely affected party to appeal or challenge the consistency of a development order with a comprehensive plan,” the statute says. The commissioners’ votes to approve the hotel and parking garage projects are considered development orders.
Then Walker explained that the county had challenged the “standing” of the Plaintiffs in regard to Counts I, IV and V. “Standing” is a term that relates to whether a person will be harmed more than the general public by a specific action.
However, Walker also pointed out that, in its motion to dismiss the lawsuit, the county did note correctly that “the statutory standard for standing” in Section 163.3215 of the Florida Statutes applies to Counts IV and V.
As he did in his July 20 order, Walker explained again in the Nov. 28 order, “The seminal case on standing is Renard v. Dade County,” which was a 1972 ruling by the Florida Supreme Court. That decision “established three categories of zoning ordinance challenges and set standing requirements for each category,” Walker wrote.
“Under Category 1,” he continued, “the litigant must allege a special injury or damages different in kind from any injury suffered by other residents in the area. The test for Category 2 is that the litigant must be aggrieved or adversely affected by the ordinance and must have a legally recognizable property or other interest so affected by the zoning action.” Walker added, “Proximity of the litigant’s property to the property affected by the zoning or rezoning may be an important factor in such cases.”
Then Walker explained, that, in the Renard decision, “Category 3 standing is the broadest under Florida common law. Category 3 requires that in a challenge attacking an ordinance on grounds that it was not enacted in accordance with proper procedures, the litigant need only be an affected resident, citizen, or property owner of the local governmental jurisdiction in question.”
The county contended that the plaintiffs’ common law standing in the lawsuit over the two hotels should be analyzed as a Category 2 Renard case.
However, Walker wrote, the plaintiffs focused on the lack of a Comprehensive Plan amendment eliminating the counting of hotel rooms as residential dwellings. Therefore, he added, the plaintiffs argued that this is a Category 3 case.
As he did in July, Walker sided with the plaintiffs. “[They] essentially allege [that the County Commission], by enacting the UDC amendment and approving the three special exceptions, increased intensity and density of hotel land use on the barrier island of Siesta Key without complying with several legal prerequisites, rendering those enactments void.”
He added, “This is a quintessential Category 3 case.”
Renewed focus on Comprehensive Plan Policy 2.9.1
In writing further about Counts IV and V, Walker once more referenced Section 163.3215 of the Florida Statutes. He pointed out that the plaintiffs allege that the Special Exceptions the commissioners approved for the hotels increase the density and intensity of hotel uses on Siesta Key “beyond that allowed under Policy 2.9.1 of the Future Land Use Element … of the County’s Comprehensive Plan.”
That policy restricts residential density and intensity to the level in place as of March 13, 1989. It was based mostly on the need to evacuate the island efficiently in advance of a major storm event.
Under that policy, Walker continued, the plaintiffs allege that the hotel on Old Stickney Point Road could have a maximum of 30 rooms and up to 30 parking spaces.
The Calle Miramar hotel could include a maximum of 25 rooms and up to 25 parking spaces, based on Policy 2.9.1, Walker added. Not only would the hotel have 170 rooms, he continued, as a result of the commission vote, but it also would hold 223 public and private parking spaces.
Because the County Commission approved the Special Exceptions, Walker continued, “Plaintiffs claim they will suffer adverse effects [in regard] to an interest protected or furthered by the County’s Comprehensive Plan, ‘including interests related to health and safety, emergency medical services, hurricane evacuation, densities or intensities of development, transportation facilities, and access to health care facilities.’ ” He was quoting from their lawsuit.
Further, Walker pointed out that, in its motion to dismiss the case, the county “concedes the complaint adequately alleges an interest protected by [the] Comprehensive Plan.”
Then, Walker noted, it was necessary to analyze “whether Plaintiffs’ interests in intensity and density of development [on Siesta Key] ‘exceed in degree the general interest in community good shared by all persons,’ ” quoting two judicial precedents, including a 1998 decision by the Florida Fifth District Court of Appeal.
Walker wrote that the plaintiffs “largely focus on the alleged impact of ‘severe traffic congestion’ ” resulting from the increased hotel intensity and density on the island and its effect on “their ability to safely use roadways on Siesta Key, both to leave the barrier island and to access other portions of it. … These allegations sufficiently state particularized interests that ‘exceed in degree the general interest in community good shared by all persons.’ ”
“The three approved special exceptions plainly have the effect of increasing the allowable intensity and density of hotel development on Siesta Key,” Walker added.
Therefore, he agreed that the plaintiffs have standing to challenge the consistency of the Special Exceptions with the Comprehensive Plan “as alleged in Counts IV and V.”