County response to Balot complaint says he did not exhaust other remedies before seeking court action
Twelfth Judicial Circuit Court Judge Stephen Walker has set a bench trial during the three-week period beginning Jan. 27, 2025 for a complaint that Siesta Key businessman Dave Balot filed against Sarasota County in late March.
The lawsuit involves county staff’s refusal to allow Balot to proceed with preparation of his Midnight Pass Road property for the construction of a 112-room hotel that the County Commission approved unanimously in October 2022.
In the meantime, Sarasota attorney Morgan Bentley, of the firm Bentley Goodrich Kison, has joined Balot’s legal team, as noted in a May 9 filing posted in the case docket.
Clay Mathews, of the Tampa firm Smolker Mathews, filed the complaint on Balot’s behalf. Formally, the plaintiff is ABC SUB2, the company that applied to the county to build the hotel on the 5810 Midnight Pass Road site of a former Wells Fargo bank.
Bentley long has been recognized among the top attorneys in Sarasota, and he has a track record of prevailing in cases against the county.
In his complaint, Balot has contended that county staff has discriminated against him in an effort to put a priority on Benderson Development Co.’s hotel plans for Siesta Key. Attorney Mathews wrote in the lawsuit, “The County staff’s actions amount to extortionate leveraging of its police powers to force ABC to apply for a Comprehensive Plan Amendment Application when ABC was and still is entitled to the density and intensity of use for 112 hotel rooms for the [hotel] Project … without the need for a Comprehensive Plan Amendment to obtain increased density and intensity for the Project.”
Matt Osterhoudt, director of the county’s Planning and Development Services Department, has maintained that county staff was unable to allow Balot to proceed with the what is called the “site and development” phase of his project, because the county lost a 2021 lawsuit against an ordinance approved that year that would have eliminated the counting of hotel and motel rooms for residential density purposes.
As a county document explains, a “Site and Development Plan shall be required for all development other than the creation of a subdivision. … Approval of the Plan by the County shall be construed as authority for the representative/applicant to: a. construct improvements such as stormwater facilities, excavation and fill, bulkheads, sidewalks, paving; and b. apply for building permits.”
The developer works with county staff on that process after receiving formal approval of a proposed project. Site and development entails a thorough review of all facets of the plans, ensuring they comply with county regulations.
As a result of both a 12th Judicial Circuit Court ruling, in August 2023, and an April 2023 ruling in a separate proceeding on the same issue in the Florida Division of Administrative Hearings (DOAH), the County Commission last year repealed the 2021 ordinance.
That prompted Benderson Development to file a proposal for a series of amendments to the county’s Comprehensive Plan, which guides growth in the community. One of those amendments mirrors the 2021 ordinance, except it applies only to Siesta Key, whereas the 2021 amendment was valid for most of the county. Although Benderson proposes limiting hotel development on the barrier island to only 15% of the approximately 44.4 acres that are zoned either Commercial General or Commercial Intensive, the company’s proposal also says that only hotels that won County Commission approval after July 1 of this year could be constructed.
Judge Walker’s order setting the bench trial — meaning he would hear the case, not a jury — says the trial is expected to last two to three days.
On April 2, Walker also issued an order setting the case on a streamlined track, with a case management conference set before him at 1:30 p.m. on Sept. 16 at the Silvertooth Judicial Center on Ringling Boulevard in downtown Sarasota.
County’s response to the complaint
On April 29, Deputy County Attorney David Pearce filed the county’s Answer and Affirmative Defenses in the case, contending that Balot’s lawsuit should not be considered by the court because ABC SUB2 “has not yet exhausted its administrative remedies associated with its site and development plan approval. Generally,” Pearce continued, “parties are require to pursue administrative remedies before resorting to courts to challenge administrative action.” Pearce cited a 2001 Florida Fifth District Court of Appeal case, Central Fla. Invs. V. Orange Cty. Code Enforcement Bd., in making that assertion.
Pearce explained, “The exhaustion rule serves a number of policies, including promoting consistency in matters which are within agency discretion and expertise, permitting full development of a technical issue and factual record prior to court review, and avoiding unnecessary judicial decisions by giving the agency the first opportunity to correct any errors” and possibly make the court action moot.
He also cited a 1985 Florida First District Court of Appeal case, City of Gainesville v. Republic Inv. Corp., in making that point.
“Here, by ABC’s own admission, it has a pending site and development permit application that has not yet been approved. ABC has the option of challenging staff’s interpretation of the Code requirements,” Pearce wrote.
Further, Pearce made points about the complaint in reference to what is known as the “new peril doctrine.”
“[T]he County anticipates that ABC will cite O’Neil v. Walton County,” a 2014 Florida First District Court of Appeal decision, to assert that when the “granting [of]a development order does not materially alter the intensity or density allowed in a prior development order, there could not be a lawsuit from a third party challenging the new development order,” Pearce wrote.
“Development order” refers to action such as the commission approval of the hotel projects.
Balot contends that the Special Exceptions that the County Commission approved for his project involved a Binding Development Concept Plan for the hotel, Pearce added. Therefore, Pearce continued, he expects Balot to argue that his company has what are known as “vested rights” associated with that Special Exception, which permitted him to construct hotel rooms on his property zoned Commercial General and exceed the 35-foot height maximum of structures on property with that zoning designation.
“However,” Pearce continued, “even assuming a property owner has vested rights to property, which the County denies here as being too speculative given [the lawsuits Pearce noted in his response], if a local government can show some new peril to the health, safety, morals, or general welfare of the community, the local government may effectively override those vested rights.” He cited a 1976 Florida Supreme Court ruling and a 1974 Florida Third District Court of Appeals decision to make that argument.
“Vested rights” cannot “defeat valid governmental regulations carried out by the exercise of the police power in the interest of the common welfare,” Pearce pointed out. “Here, the [County Commission] recognized the new peril associated with unregulated transient accommodations.”
Further, he continued, if a change in law “occurs while an application for a permit or license is pending,” relevant to that application, that change “determines whether the permit or license should be granted.” He cited a 1980 Florida First District Court of Appeal case for that assertion.
Moreover, Pearce wrote, the county’s Future Land Use Policy 2.9.1 in the Comprehensive Plan — the basis for Siesta Key plaintiff Lourdes Ramirez’s Circuit Court and DOAH challenges of the County Commission approval of two high-rise Siesta hotels in the fall of 2021 — “forbids any development order which exceeds the density or intensity provided in any zoning ordinance or regulations in existence as of March 13, 1989.”
That policy applies to the county’s barrier islands.
“Additionally,” Pearce pointed out, “the Unified Development Code limits residential density for transient accommodations [the county term for hotel and motel rooms] at 26 dwelling units per acre where the hotel has less than 25% of the units with kitchens. [Balot’s] property is only 2.15 acres in size, and therefore the proposed hotel does not meet
the requirements of the Comprehensive Plan or the Unified Development Code. If ABC disagrees with this interpretation, it has the remedy of appeal to the Board of County Commissioners.”
The Unified Development Code (UDC) contains all of the county’s land-use and zoning regulations.
Yet another defense Pearce has included in his response is the fact that, a 1997 Florida’s Fourth District Court of Appeal opinion made it clear that “[i]f a property owner had good reason to believe that government policy might change, reliance on the status quo is not possible. … Here, ABC knew about the pending lawsuits challenging [the residential density change approved in October 2021] and the two special exceptions for [the high-rise hotels] on Siesta Key before [ABC SUB2] pursued [its] site and development permit application. Thus, ABC had a good reason to know that the County’s policy might change because of those pending lawsuits.”
The applicants for those hotels also sought County Commission approval of Special Exceptions to allow transient accommodations on their sites, which were both zoned Commercial General, and for height above the county’s 35-foot maximum for those parcels. In the case of a hotel proposed on Calle Miramar, the proposed height was 80 feet; for a hotel on Old Stickney Point Road, the highest point would have been 83 feet, to accommodate an architectural feature of the structure.