Circuit Court judge rules that developers of two hotels planned on Siesta Key may intervene in lawsuit filed by 2 island residents and 2 homeowners associations

March 18 hearing set on county’s motion to dismiss the complaint regarding projects on Calle Miramar and Old Stickney Point Road

Circuit Judge Stephen Walker. Image from the 12th Judicial Circuit Court website

Following a Feb. 11 hearing in the 12th Judicial Circuit Court in Sarasota, Circuit Judge Stephen Walker ruled that attorneys representing the owners and developers of hotels planned on Calle Miramar and Old Stickney Point Road on Siesta Key may be allowed to intervene in a lawsuit fighting those projects.

However, Walker limited the attorneys’ involvement to the extent necessary to protect their clients’ interests, as noted in the formal Court Appearance Record filed with the court.

Shane Costello of the Tampa law firm Hill, Ward & Henderson was present for the hearing on behalf of Calle Miramar LLC and SKH 1 LLC. The principal of Calle Miramar LLC is New York City resident Louise Khaghan. RE/MAX Realtor Robert Anderson is the principal of SKH 1 LLC; he is the long-time lessee of the property where the Calle Miramar hotel would stand.

The other two attorneys from Hill, Ward and Henderson who are involved with the case are Scott A. McLaren and Jarod A. Brazel.

Walker directed Costello to submit a proposed order reflecting Walker’s decision. As of the publication deadline for this issue of The Sarasota News Leader, that order had not been filed.

Attorney David Smolker of the Tampa firm Smolker Matthews and Ralf Brookes of Cape Coral were present on Feb. 11 on behalf of their four clients in the lawsuit: James P. Wallace III and Robert Sax, who both live on south Siesta Key; the 222 Beach Road Owners Association, which represents the homeowners of the condominium complex standing at 222 Beach Road; and the Marina Del Sol Condominium Association, which represents the owners of that complex.

Assistant County Attorney David Pearce also was present, the court record shows.

March 18 hearing set on county motion to dismiss case

Additionally, Walker has scheduled an hour-long hearing, via Zoom, starting at 2:30 p.m. on Friday, March 18, to hear arguments on Sarasota County’s motion to dismiss the lawsuit.

In a Jan. 10 response to the complaint, Assistant County Attorney Pearce argued that Count 1 “does not comply with the requirement that ‘each claim founded upon a separate … occurrence … shall be stated in a separate count … when a separation facilitates the clear presentation of the matter set forth,’” referencing Section 1.110(f) of the Florida Rules of Civil Procedure.

In the Wallace/Sax complaint, Count 1 says the plaintiffs “are in doubt as to and respectfully request a declaration as to” whether the County Commission’s approval of an amendment to the county’s zoning regulations, which eliminated the counting of hotel rooms for residential density purposes — plus the board’s approval of the necessary Special Exception applications for both hotels — violate Chapter 163 of the Florida Statues.

That count further seeks a declaration about whether the commission’s actions have any legal force.

In late January, Walker set a trial date of June 12, 2023 for the case.

This is the text of the Unified Development Code amendment that the County Commission approved on a 3-2 vote after the Calle Miramar hearing on Oct. 27, 2021. Image courtesy Sarasota County

The plaintiffs contend that the Sarasota County Commission should have amended the county’s Comprehensive Plan — its long-term growth guide — before approving a change in the county’s land-use and zoning regulations that eliminated residential density counts for hotels.

Attorneys for the Icard Merrill law firm in Sarasota — members of the Calle Miramar hotel project team — had contended that national standards say residential density should not apply to hotel rooms; therefore, the county had been wrong to do so.

The County Commissioners voted 3-2 on Oct. 27, 2021 in agreement with the attorneys’ position.

Todd Dary, manger of the county’s Planning Services Division, told the members of the county’s Planning Commission in August 2021 that Planning staff had been considering the modification to the zoning regulations for some time. “We do believe a floor/area ratio basically … should be used to physically dictate what the maximum is on a piece of property,” Dary said, with any required Special Exception approvals serving as “additional safeguards.”

However, Wallace, Sax and the two homeowners associations have alleged that the Calle Miramar project team called for an amendment to the county’s Unified Development Code (UDC) to make that density change instead of seeking the Comprehensive Plan amendment, because it takes four of five commissioners’ votes to change the Comprehensive Plan.

Commissioners Nancy Detert and Christian Ziegler were the two board members who voted against the UDC text amendment that the Calle Miramar project team had submitted to county staff.

The Wallace/Sax complaint also focuses on what it calls “a dramatic increase of the allowable density and intensity of hotels” on Siesta Key, even though Future Land Use Policy 2.9.1 of the Comprehensive Plan limits residential density on the barrier island to the level in place as of March 13, 1989.

This is Future Land use Policy 2.9.1 in the Comprehensive Plan. Image courtesy Sarasota County

The Calle Miramar hotel would stand on four parcels totaling 0.96 acres between Calle Miramar and Beach Road. The Commercial General zoning of that property previously limited “transient accommodations” — the term county staff uses for hotel and motel rooms — to a maximum of 26 rooms per acre, if the rooms have no kitchens.

As approved by the County Commission, the Calle Miramar hotel would be about 92 feet in height, because of the necessity of complying with federal regulations for buildings constructed in floodplains. Height on Commercial General parcels is limited to 35 feet, so the project team had to apply for a Special Exception to exceed that restriction.

The hotel would comprise five habitable floors over three levels of parking, with a total of about 170 rooms.

This is the Binding Development Concept Plan for the hotel planned on Calle Miramar. Image courtesy Sarasota County

The intervention issue

On Jan. 13, the Hill, Ward & Henderson attorneys filed their motion to intervene in the Wallace/Sax lawsuit. They contended that if the plaintiffs prevailed on their claims, the hotels on Calle Miramar and Old Stickney Point Road could not be developed as approved by the County Commission. (The County Commission voted 4-1 on Nov. 2, 2021 to allow the construction of the Old Stickney Point Road hotel; that time, Commissioner Ziegler was part of the majority.)
The hotel would be about 83 feet tall and hold 120 rooms.

Dr. Gary Kompothecras, a Siesta Key businessman and chiropractor, and members of his family, are the developers of that hotel, plus a five-story parking garage that the commissioners also approved. The garage, which would stand between Stickney Point Road and Old Stickney Point Road, would have retail space on the first level. It would serve hotel guests as well as patrons of those businesses, and it would include public parking spaces.

This is the binding development concept plan for Dr. Gary Kompothecras’ hotel planned for Old Stickney Point Road. Image courtesy Sarasota County

After citing Florida Rule of Civil Procedure 1.230, which they contended is the primary basis for their clients being allowed to intervene in the Wallace/Sax case, the Hill, Ward & Henderson attorneys pointed out in their motion that the author of that rule added a pertinent comment. That provided that “‘[t]he intervenor becomes a party to the action; he has the right to litigate on the merits the claim or defense for which he intervenes [their emphasis].’” Moreover, based on the Florida’s Civil Rules of Procedure, the attorneys wrote, an intervenor should be permitted to file counter-claims and cross-claims.

Further, the attorneys stressed that “if land subject to a development order is actually owned by certain intervenors, those intervenors have the absolute right to intervene …” They cited a 2010 Florida Fifth District Court of Appeal decision as the basis for that assertion.

The County Commission’s approval of the two hotel projects constituted development orders under Florida law.

In regard to other counts in the Wallace/Sax complaint, they referenced Chapter 86 of the Florida Statutes, which says, “[A]ll persons may be made parties who have or claim any interest which would be affected” by a court decision.

Since the plaintiffs in this case are trying to prevent the construction of the two hotels, the attorneys contended, “There is no question that all of the Intervenors … will either gain or lose by the outcome [of the litigation].”

Plaintiffs’ response

David Smolker. Image from his LinkedIn account

In response to the motion to intervene, the plaintiffs’ attorneys — Smolker and Brookes, plus Smolker’s partner, Clay Matthews — disputed the claims that the Hill, Ward & Henderson attorneys cited on the basis of the Florida Rules of Civil Procedure. For example, Smolker, Matthews and Brookes pointed out that Rule 1.230 “is not mandatory. Instead, it is discretionary with the court”.

Further, they referenced a 1998 Florida Fifth District Court of Appeal ruling in writing that if an intervenor’s interest “will be adequately protected by a responsible government entity, intervention may be property denied.”

Smolker, Matthews and Brookes also pointed out, “Nowhere in [their] motion do Intervenors allege that the County will not adequately protect their interests.”

Additionally, they wrote that Rule 1.230 makes it clear that an intervention “‘shall be in subordination to, and in recognition of, the propriety of the main proceeding [their emphasis].’ … In other words,” they continued, “‘intervention should be limited to the extent necessary to protect the interests of all parties,’” citing a 1992 Florida Supreme Court decision.

Then, referencing a 2007 Florida Third District Court of Appeal case, they added, “‘[T]he intervenor may not raise any new issues.’” Further, citing a 2016 Florida Fourth District Court of Appeal ruling, they pointed out, “An intervenor cannot challenge the propriety of the procedure or move to dismiss or delay the cause of action. … Instead, the intervenor may only argue how the issues put before the court by the parties relate to the intervenor.” With the latter statement, they again cited the 2007 Third District Court of Appeal decision.

Moreover, Smolker, Matthews and Brookes wrote, their clients are concerned that the intervenors “are insisting on full-party status to set the stage, at the end of the case, for asserting that they are entitled to attorneys’ fees,” as stipulated in Section 163.3215(8)(c) of the Florida Statutes. That portion of state law says that the prevailing party in a challenge to a development order filed under the provisions of Section 163.3215(3) “is entitled to recover reasonable attorney fees and costs incurred in challenging or defending the [development] order.”

Leave a Comment