Decision the second to go in Ramirez’s favor
The 12th Judicial Circuit Court judge presiding over the lawsuit that Siesta Key resident Lourdes Ramirez filed in November 2021 to oppose the County Commission’s approval of an eight-story, 170-room hotel on Calle Miramar, on the edge of Siesta Village, has ruled in her favor.
In his 32-page order, issued on Aug. 21, Judge Hunter W. Carroll agreed with Ramirez that the commissioners violated county Future Land Use Policy (FLU) 2.9.1, which limited residential density and intensity on Siesta Key to the level in place as of March 13, 1989.
That policy has been the focus of Ramirez’s Circuit Court complaint.
In April, a Florida administrative law judge also ruled in Ramirez’s favor for essentially the same reason in a case that Ramirez filed through the Florida Division of Administrative Hearings (DOAH).
Carroll wrote in his order that he found that the county’s “zoning ordinances and regulations in existence as of March 13, 1989 allowed density at most of 36 hotel units per acre [on the four-parcel, 0.96-acre] site on Siesta Key” where the hotel would stand. “The Development Order also violated the intensity requirement of that policy,” Carroll pointed out.
“Development Order” is the state and county term that references the commission’s vote in favor of the hotel.
The developer of that project is RE/MAX Realtor Robert Anderson Jr. The principal owner of the property is a New York City resident who owns other parcels in the same general area of the barrier island. The court allowed them to participate in the case. Formally, the legal term for them in that respect is “Intervenors.”
In his ruling, Carroll wrote, “[Ramirez] argues that the Development Order approves hotel development on Siesta Key in excess of that allowed by the County’s zoning ordinances and regulations existing as of March 13, 1989. The County and Intervenors disagree. They interpret the zoning ordinances and regulations existing at that time as allowing the hotel project contemplated by the Development Order. The inconsistency claim turns on what the County’s zoning ordinances and regulations allowed as of March 13, 1989.”
Carroll pointed out that a 1987 Florida Third District Court of Appeal case, Machado v. Musgrove, determined that “[a] comprehensive plan is essentially ‘a constitution for all future development within the governmental boundary.’ ” He added that the state’s “Community Planning Act provides ‘[a] development order … shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by such order … are compatible with and further the objectives, policies, land uses, and densities and intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government …” He was referencing Section 163.3194(3(a) of the Florida Statutes, he noted.
“The analysis necessary to determine the correct intensity and density limits existing as of March 13, 1989,” he continued, “requires an examination of a number of ordinances, none of which had been incorporated into a codified version of [the county’s] ordinances pertaining to zoning district uses and land development. Instead, reference must be made to an ordinance ‘as amended’ by later ordinances. The parties agree on the zoning ordinances in effect on March 13, 1989, but they strongly disagree on the proper interpretation of those ordinances.
“The operative zoning ordinance in effect as of March 13, 1989,” he wrote, “was Ordinance No. 75-38, as amended on May 18, 1982, by Ordinance No. 82-54 and as amended on February 15, 1983, by Ordinance No. 83-08.”
Carroll noted that Ramirez had argued “that the Barrier Islands were excluded from the Intensity Level Bands referenced in the zoning ordinances to limit, or perhaps even prohibit, any increase in transient accommodations on the Barrier Islands. She contends that, based on the effect of ordinances amending the foundational zoning ordinance, either no new hotel room development is authorized on the Barrier Islands or, if allowed at all, there could be at most, a maximum of 36 hotel rooms per acre are permitted.”
Carroll then explained that he undertook “an ordinance by ordinance review.”
(As The Sarasota News Leader reported last week, Carroll had requested that the county provide him the full texts of Ordinance 75-38 and 82-54, as those were not included in any of the materials that Assistant County Attorney David Pearce had filed with the court.)
Carroll explained his analysis of the ordinances in detail. Finally, he wrote, “[T]he Court rejects the County’s and Intervenors’ position that the Comprehensive Plan placed no density limits at all for the development of hotels on Siesta Key. All textual and contextual clues of the applicable ordinances in effect as of March 13, 1989, reject that argument. The Development Order is inconsistent with FLU Policy 2.9.1 as to both density and intensity, and [Ramirez] is entitled to summary judgment on this basis.”
The ‘textual and contextual” reference was to the 2022 Florida Supreme Court ruling in Conage v. United States. As Carroll pointed out, it said, “Judges must ‘exhaust all the textual and structural clues’ that bear on the meaning of a disputed text … because ‘[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.’ ”
Carroll noted that the Intervenors had argued that “the Court must afford ‘great weight’ to the County’s administrative construction of its codes, and the Court may only depart from such a construction when it is an unreasonable interpretation or clearly erroneous.”
However, he pointed out, the judicial precedents that the Intervenors’ attorneys cited did not involve a challenge to a development order in regard to its consistency with a comprehensive plan.
Quoting from a different judicial precedent — Pinecrest Lakes, Inc. v. Shidel, a 2001 Florida Fourth District Court of Appeal case — Carroll wrote, “ ‘When an affected property owner in the area of a newly allowed development [brings the court] a … cause of action — as it were — for compliance with the Comprehensive Plan … the judge is required to pay deference only to the facts in the case and the applicable law.”
Carroll did not agree with Ramirez’s contention that the hotel approval also violated Coastal Policy 1.2.3 or Future Land Use Policy 1.2.6 in the county’s Comprehensive Plan — which guides growth — “because those policies contain permissive terms — i.e., encourage and discourage — instead of mandatory terms.”
Coastal Policy 1.2.3 says, “Encourage hotel/motel development in the storm evacuation zones category C, D and E rather than evacuation zones A and B.” Siesta is in zone A.
Future Land Use Policy 1.2.6 states, “Discourage the intensification of land uses within Hurricane Evacuation Zones A and B …”
The remaining potential for a trial
Carroll also ruled that disputed issues of fact remain in regard to portions of the parties’ summary judgment motions pertaining to other Comprehensive Plan policies. Among those is Housing Policy 1.5.6, which — he noted — regards “the compatibility of the hotel project in the neighborhood …”
He added, “In the light of the Court’s ruling with respect to FLU Policy 2.9.1, the parties shall meet and confer as to the next steps, including whether the parties desire the Court to enter at this time a final judgment invalidating the [approval of the hotel]” and preventing the county “from permitting development activities pursuant to that
[October 2021 County Commission vote],” or whether they first wish to go to trial.
He added, “The parties shall advise the Court in writing filed with the Court (with copy to the Court’s Judicial Assistant) within 30 days as to the parties’ position or positions.”
Earlier this year, provided he had not issued a summary judgment ruling in the case, Carroll had scheduled a trial on the lawsuit for a period beginning in November. He had won the agreement of the parties in the Ramirez case and those in a second complaint, which involves both the Calle Miramar hotel and one approved for south Siesta Key, that the lawsuits would be consolidated for trial.
Carroll’s decision came about six weeks after the July 7 summary judgment hearing he conducted in the case.
‘You just can’t add more to Siesta Key’
In response to a request for comment about Carroll’s ruling, Ramirez told The Sarasota News Leader on Aug. 21, “I am so happy. It’s such a good win for Siesta Key, and it sends a clear message that the two judges — both the state and the local judge — agree that you can’t increase density and intensity on Siesta Key. … It’s unfortunate the county decided to put profits for the county before people out here. So I’m really hoping that [the commissioners] wake up and realize that you just can’t add more to Siesta Key.”
The hotel would increase the property tax value of the parcels on which it would stand on the barrier island, and it would generate “bed tax” revenue, which the county allocates to a multitude of purposes, including beach maintenance and the upkeep of the two Major League Baseball stadiums.
In response to a News Leader request for a county response to the decision, Media Relations Officer Sara Nealeigh wrote in an Aug. 22 email, “Sarasota County does not comment on active or pending litigation.”
Ramirez’s attorneys also provided comments to the News Leader.
Richard Grosso of Plantation, who joined the legal team last year, wrote in an Aug. 21 email, “Both independent judges who reviewed this case extensively have ruled that allowing a [170-room] hotel on this site violates the density caps by a lot. Both rejected the county and developers’ claim that the plan set no density limits for hotels on barrier islands.”
Grosso added, “Since the developers’ arguments were moved out of the receptive audience of a county commission and were subject to cross examination and actual legal analysis by a judge the developer is 0-2 and Ms. Ramirez is 2-0. We urge the county to accept these rulings and rescind the unlawful development approval.”
Martha Collins, of the Collins Law Group in Tampa, added, “Sarasota County leaders of the past had the foresight to limit density in the high hazard coastal areas. We hope the current County Commissions starts to see the wisdom from the past leaders through these two separate court rulings. There is a reason we need to limit density in these areas. The County Comprehensive Plan demands it and did so to protect Sarasota County’s valuable barrier island assets.”
A second attorney in the Collins Law Group, Pamela Jo Hatley, initially worked on the case, as well. She retired earlier this year.
The News Leader received no responses to the emails it sent to attorney Scott McLaren of the Hill Ward Henderson firm in Tampa, who — with attorney Shane Costello — is representing the Intervenors. The News Leader also heard nothing from William Merrill III, of the Icard Merrill firm in Sarasota, in response to a request for remarks.
Merrill was the member of the Calle Miramar project team who stressed that national standards put hotel rooms in a commercial category, so the rooms should not be counted for residential purposes. As a result of his arguments during the Oct. 27, 2021 hotel hearing, the commissioners voted 3-2 to approve an amendment to the county’s Unified Development Code, which contains all of the land-use and zoning regulations. That eliminated the counting of hotel rooms for residential density purposes almost countywide.
However, during oral arguments in the Ramirez case, attorney Grosso emphasized the fact that, in the initial application for the Calle Miramar project, Merrill sought an amendment to the Comprehensive Plan to make it possible for the hotel to exceed the standard residential density limits on a parcel zoned Commercial General, which is the zoning of the four-parcel hotel site. Later, Merrill withdrew that proposal.
It takes four of five county commissioners to approve a Comprehensive Plan amendment, but only a majority to modify the Unified Development Code.
On Aug. 29, the County Commission will conduct its first meeting since the board members took their annual four-week summer break. Although the agenda for that session makes no mention of Judge Carroll’s ruling, it is possible that County Attorney Joshua Moye will mention it.
In his Aug. 21 order, Carroll explained that an updated Florida summary judgment standard applied to this case: “Newly revised [Florida Rule of Civil Procedure 1.5.10(a) “states in pertinent part: ‘The court shall grant summary judgment if the [party seeking the decision] shows that there is no genuine dispute as to any material fact and the [party] is entitled to judgment as a matter of law …’ ”
In accord with the “overarching points” that the Florida Supreme Court made in revising that rule, Carroll continued, he had found a number of undisputed facts in Ramirez’s case. Among them, he wrote, are as follows:
- Volume 2 of the current Comprehensive Plan, which was adopted effective Oct. 25, 2016, says, “Barrier Islands are recognized as a unique land use category. Development on the Barrier Islands is of special concern due to problems associated with hurricane evacuation, potential for storm damage and the sensitive nature of coastal habitats.
Previously, it was recognized that total preservation or conservation of the Barrier Islands was preferable, but development of one dwelling unit per acre was acceptable, consistent with development patterns on Manasota and Casey Key. The higher densities found on Siesta Key were recognized, yet prohibited from further increases by a 1979 Planning Department Study, and subsequent down zoning in 1982.”
That section of the plan adds that the “definition of Coastal High Hazard Areas is coincident with the evacuation zone for a Category 1 hurricane, as established in the Southwest Florida Regional Planning Council Hurricane Evacuation Study, 2010.”
Further, that part of the Comprehensive Plan says, “Land use densities within the Coastal High Hazard Area are not being increased as part of the proposed Comprehensive Plan Update. The barrier island designation has not been modified and coastal residential densities are represented by existing development, and/or current zoning.”
Moreover, Carroll pointed out, Chapter 6 of Volume 2 of the plan, titled Coastal Disaster Management, states, “Evacuation route capacity and road constraints can seriously impact hurricane evacuation times. Since several barrier island and coastal mainland evacuation routes serve as collectors and tie into US 41 and SR 776, smooth evacuation is impaired at points where bottlenecks occur along these routes. Siesta and Longboat Keys, with their higher densities, generate the longest evacuation times.”
- Hotels are not a principal use in the county’s Commercial General zoning district; instead, they can be built if the County Commission grants Special Exceptions for them.
- The Binding Development Concept Plan for the Calle Miramar hotel “shows building setbacks as two feet along Calle Miramar (with 40 foot setback for floor areas above 35 feet in height) … The east side setback adjoining condominium development is 20 feet, including a 15 foot landscape buffer. Along Beach Road to the south, the building setback is two feet, with 11 feet 3 inch setback for building height above 35 feet. No setback up to 35 feet building height is shown along the west boundary line adjoining commercially developed office and hotel properties.”
- The County Commission’s approval of the Calle Miramar hotel “will allow approximately 125,000 square feet of development on the Subject Property.
- “Siesta Key is designated ‘Barrier Island’ on the Comprehensive Plan’s Future Land Use Map and is located in the Coastal High-Hazard Area (CHHA), with an Evacuation Zone designation of Category A. This category has the greatest exposure of citizens and properties to hurricane impacts. Evacuation Zone categories B through E are located on the County’s mainland.”
- Ramirez lives on the north end of the Key, about 0.65 miles from the hotel site; she has resided there since 1999.
- Ramirez “is an active advocate on issues related to density, illegal residential rentals, and other land use and environmental issues on Siesta Key and has expended time, energy, and financial resources in pursuit of such interests.”
- Ramirez “is concerned that the hotel project approved by the Development Order will adversely affect her quality of life and safety by increasing the number of people and vehicles on Siesta Key and thus the congestion and danger she encounters on Siesta Key when driving or walking, increasing the number of vehicles that will need to evacuate when she is also trying to evacuate, increasing competition for beach parking and access, increasing the noise heard from her residence by the operation of a rooftop bar with amplified music, increasing the amount of time it may take for emergency vehicles to reach her home if such a need arises, and increasing noise and crime impacts. The County and Intervenors admit that Plaintiff has expressed these concerns but dispute that the hotel project will impact her as she alleges.”