Carroll rules that businessman Balot must adhere to Binding Development Concept Plan County Commission approved in 2022
A 12th Judicial Circuit Court judge has cleared the way for construction of a 112-room hotel on Siesta Key, near the public beach.
In a ruling issued late in the afternoon of Oct. 24, Circuit Judge Hunter Carroll agreed with the argument of ABC SUB2, whose principal is businessman Dave Balot, that county staff should not have refused to process what is called a “site and development plan” that Balot had submitted to the county, so Balot could prepare his 5810 Midnight Pass Road parcel for the hotel project.
In a filing in the case, Deputy County Attorney David Pearce explained, “County staff reviews a site and development plan application to ensure proper design of the components of horizontal/lateral construction (as opposed to a building permit which reviews vertical construction). Such horizontal components include stormwater management, excavation and fill, bulkheads, sidewalks, paving, drainage plans, parking, and a master utility plan for water and sewer improvements.”
Nonetheless, Carroll has left open the potential of a third party to file suit to try to stop the hotel’s being built.
An Oct. 28 memo from the Office of the County Attorney (OCA) to the County Commission regarding Carroll’s decision noted that, for example, Siesta resident Lourdes Ramirez — who, in 2023, won two legal challenges she had filed in an effort to prevent construction of two proposed high-rise hotels on the barrier island — could challenge Balot’s efforts to take the necessary steps to continue with his project.
In his March complaint against the county, Balot had sought a court decision that would have prevented such third-party challenges.
Carroll was the judge who ended up ruling for Ramirez, in August 2023, in her Circuit Court case. She had argued that the County Commission violated the county’s Comprehensive Plan, which guides growth in the community, by approving an amendment to the county’s Unified Development Code (UDC) to eliminate the counting of hotel and motel rooms for residential density purposes. The vote was 3-2; to approve a Comprehensive Plan amendment, a supermajority vote of the commission — four in favor — is necessary.
The UDC contains all of the county’s zoning and land-use regulations.
Ramirez focused on Future Land Use Policy 2.9.1 in the Comprehensive Plan, which limits residential density and intensity on Siesta Key to that in place as of March 1989.
The Comprehensive Plan, Carroll ruled in the Ramirez case, allowed for, at most, 36 rooms per acre on property zoned Commercial General, which is the zoning of the two sites planned for the hotels the 2021 County Commission approved.
Following their Oct. 27, 2021 vote to implement the UDC amendment, the commissioners approved a 170-room hotel on 0.96 acres on Calle Miramar, on the edge of Siesta Village, and a 120-room hotel on 1.17 acres standing on Old Stickney Point Road, on the southern part of the island.
A couple of times during Oct. 16 arguments in the Balot case, Carroll pointed to the residential density and intensity limitations on the barrier islands that is part of the Comprehensive Plan.
In his Oct. 24 decision, Carroll wrote, with emphasis, that the county could not require ABC SUB2 “to obtain a Comprehensive Plan Amendment to obtain increased density or intensity of use for the Project,” as long as “no material alteration to the Special Exception Application and incorporated Binding Development Concept Plan previously approved by the [County Commission]” is made.
In October 2022, the County Commission seated at that time voted unanimously to approve a Special Exception to allow “transient accommodations” on the Midnight Pass property slated for the Balot hotel, which is zoned Commercial General. “Transient accommodations” is the county term for hotel and motel rooms. The Special Exception also gave Balot permission to exceed the 35-foot height restriction for construction on a parcel zoned Commercial General.
Carroll also stressed more than once that nothing in his Oct. 24 ruling prohibits the county from requiring compliance with the Comprehensive Plan “in all other respects not addressed by the 2022 development order [meaning the County Commission vote of approval of Balot’s hotel plans], or, if there were to be a material alteration to the plans approved by the 2022 development order, or both.”
The Binding Development Concept Plan laid out the design of the hotel, including the plan for approximately 112 rooms.
Citing the rulings in Ramirez’s Florida Division of Administrative Hearings (DOAH) case and the two Circuit Court cases, county Planning and Development Services Department staff refused to process the site and development plan application that Balot filed with that department on Dec. 22, 2022. Yet, Balot’s attorney, Clay Mathews, of the Tampa firm Smolker Mathews, noted 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.”
“The County accepted both the Application and the fee,” Mathews continued in the March complaint. According to Florida Statute 125.022(1), he wrote, the county staff had 120 days to deem the application complete and then approve it, approve it with conditions, or deny it.
Along with Mathews, Sarasota attorney Morgan Bentley, of the Bentley Goodrich Kison firm, is part of Balot’s legal team.
Responses to the ruling
The Office of the County Attorney has recommended that the County Commission refrain from appealing Carroll’s decision. “Because most appeals are unsuccessful, and there is a supportable rationale for the circuit court’s decision,” a memo explained, “our office believes there is only a small likelihood of successfully prevailing on appeal.”
In response to a News Leader request for comment, Balot wrote in an Oct. 30 email, “As for me, you can image, I was elated upon hearing Judge Carroll agreed with our legal position and provided his ruling in only 8 days. To say the least, I have the utmost respect for Judge Carroll and firmly believe, in his courtroom, justice is blind!” Balot began.
“The ruling could not have come at a better time for me,” he continued, “as I’ve been working daily trying to get the Siesta Key Beach Resort and Siesta Key Beachside Villas, which I co-own with Mike Holderness, back in operational order. After witnessing the devastation caused by Hurricane Helene, followed by Hurricane Milton, to our ground level, 1950’s hotel and villas, I believe now more than ever that a new, elevated and hurricane resistant hotel (or two) would benefit Siesta Key and its residents. I pray Siesta Key never goes through what we are currently recovering from again, but if it does happen, I hope my proposed new, elevated, hurricane-resistant hotel with back-up generators and an elevated parking garage, will be there to assist our residents in their time of need.”
Attorney Mathews provided this statement: “We are happy with the Court’s ruling in our client’s favor. We always believed that the issue of density and intensity of use for our client’s proposed hotel was not subject to challenge because it was never timely challenged under Section 163.3215 [of the] Florida Statutes. As such, we believed that the County could not require our client to obtain Comprehensive Plan and Unified Development Code amendments for additional density and intensity of use prior to approving our client’s Site Development Plan application — and the Court agreed. Going forward, our client is excited to construct a beautiful new hotel and restaurant on Siesta Key.”
Contrasting statutes
Mathews’ primary argument in Balot’s complaint was that, under state law, challenges relating to a development order’s consistency with a local government’s comprehensive plan must be filed within 30 days of the formal approval of the development order. That is one of the stipulations in Florida Statute 163.3215. Yet, Mathews pointed out in the complaint, no one took the opportunity to challenge the October 2022 County Commission vote approving Balot’s hotel project.
He further noted, during Oct. 16 oral arguments before Judge Carroll, that the two other Siesta hotels that the County Commission approved in 2021 “were markedly different” from Balot’s design.
Carroll concurred with Mathews’ argument regarding Florida Statute 163.3215, writing in his Oct. 24 decision that it “provides the exclusive, and time-limited, method to challenge inconsistency with a county’s comprehensive plan …”
In his representation of the county in the lawsuit, Deputy County Attorney Pearce contended that Florida Statute 163.3194 was the controlling law in this situation. “All development on land covered by a local government’s comprehensive plan, and all action taken by the government regarding that development, must comport with the comprehensive plan,” Pearce wrote, with emphasis, in the county’s response to Balot’s complaint.
During the Oct. 16 oral arguments, Mathews and Pearce focused largely on those two statutes, along with case law that each referenced to bolster his stance.
Among the judicial precedents he cited, Mathews pointed out that in 2014, Florida’s First District Court of Appeal ruled in O’Neil v. Walton Cnty. that “once a development order has not been timely challenged under Section 163.3215, the matters determined by that development order cannot be subsequently raised in a challenge to a related development order on grounds of inconsistency with a comprehensive plan under Section 163.3215.”
He stressed in the Motion for Summary Judgment he filed for Balot in early June that the Special Exception the County Commission approved for Balot’s hotel “specifically states that ‘the requirements of the … Comprehensive Plan for Sarasota County, Florida, have been met and satisfied’ and that the ‘proposed use is consistent with … the Comprehensive Plan.’ The Special Exception attaches a ‘Binding Development Concept Plan,’ ” he added, “which expressly states that the density for the Project is 112 HOTEL ROOMS.’ ”
In 2010, Mathews explained in the motion, “Walton County issued a development order approving a developer’s initial development application which included its initial site plan and location for a planned unit development. In its 2010 development order, the County found the 2010 application ‘in compliance and consistent with’ the County’s comprehensive plan. Importantly, no party challenged the County’s 2010 development order. In 2013,” Mathews continued, “the County issued a subsequent development order approving the developer’s detailed site plan for the same development. Nothing in the County’s 2013 development order or developer’s detailed site plan materially altered the location of development or anything approved in the 2010 development order. Thereafter, third party property owners filed an action against the County and developer under Section 163.3215 challenging the County’s 2013 development order. Specifically,” those owners challenged the location of the development “and other items addressed and approved in the 2010 development order. The trial court ruled in favor of the County and developer,” Mathews added, “concluding that the 2013 development order did not ‘materially alter’ the property as required for a challenge under Section 163.3215.”
After the property owners appealed, the First District Court of Appeal ruled that “the 2013 development order did not ‘materially alter’ the development as required by Section 163.3215 because the 2010 development order already approved the location of the development and other items and ‘nobody challenged it’ within the 30-day statutory deadline under Section 163.3215 [emphasis in the motion].”
Nonetheless, Deputy County Attorney Pearce cited Pinecrest Lakes, Inc., v. Shidel, a 2001 Florida Fourth District Court of Appeal ruling, which, he wrote, “specifically recognized the requirement that all development orders must be consistent with a comprehensive plan …”
The Fourth District Court’s decision in Shidel said that Florida Statute 163.3194 “is framed as a rule, a command to cities and counties that they must comply with their own Comprehensive Plans after they have been approved by the State. The statute does not say that local governments shall have some discretion as to whether a proposed development should be consistent with the Comprehensive Plan.”
During the oral arguments, Pearce told Judge Carroll, “The county was on the proverbial horns of a dilemma,” in regard to how to address Balot’s site and development plan application, given the filing of Ramirez’s DOAH case and the two related Circuit Court cases. (A group of plaintiffs had filed a lawsuit against the county in regard to the two hotels approved in the fall of 2021.)
Nonetheless, Pearce pointed out, “At every step of the process, [Balot] was aware of that pending litigation.” Pearce stressed that county staff could not approve a site and development plan application that might be found inconsistent with the Comprehensive Plan.
Pearce noted Balot’s contention that the Binding Development Concept Plan that the County Commission approved for the hotel project controls the intensity and density of the use. “That’s not true,” Pearce said.
Further, Pearce cited the 1980 First District Court of Appeal decision in State Dep’t of Envtl. Reg. v. Oyster Bay Estates, Inc., which said that a change in the law, instead of the law in place at the time an application for a permit or license is filed, is what “determines whether the permit or license should be granted.” He cited that case in his written response to Balot’s summary judgment motion.
By Balot’s own admission, Pearce continued in his written response, “the law changed” while Balot’s site and development permit application was pending.
A similar finding came in the 2005 ruling of the Fifth District Court of Appeal in the Lake Rosa and Lake Swan Coalition, Inc., v. Bd. Of County Comm’rs case, Pearce told Judge Carroll during the Oct. 16 hearing.
In that case, Pearce explained in his written response, a change in a future land use designation rendered a building permit inconsistent with the Putnam County Comprehensive Plan.