Judge cites judicial precedents in affirming that plaintiffs have ‘standing’ to pursue the case
A 12th Judicial Circuit Court judge has denied Sarasota County’s motion to dismiss a lawsuit filed in late November 2021 that seeks to prevent the construction of both high-rise hotels that the County Commission approved for Siesta Key last year.
The Office of the County Attorney — and attorneys representing the developers and property owners behind the hotel projects — had contended that only one of the plaintiffs potentially could have been found to have “standing” to contest the County Commission action. “Standing” is a legal term referring to whether a party would be affected more adversely by a proposed action than any other individuals or groups.
In his order ruling against the county, Circuit Judge Stephen M. Walker explained, “The seminal case on standing [in Florida] is Renard v. Dade County,” in which the Florida Supreme Court issued a 1972 opinion.
“Renard established three categories of zoning ordinance challenges and set standing requirements for each category,” Walker wrote. The first category involved a person’s allegation that he or she would suffer “a special injury or damages different in kind from any injury suffered by other residents in the area,” he continued.
“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,” Walker noted.
“Category 3,” he wrote, “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 argued that the standing of the plaintiffs in the hotel case “should be analyzed as a Category 2 case because the complaint does not specifically allege that the County failed to enact [an amendment to the county’s Unified Development Code, which contains all of the land-use and development regulations] without giving proper notice.”
However, Walker pointed out, the plaintiffs have countered that this is a Category 3 case.
The plaintiffs are south Siesta residents James P. Wallace III and Robert Sax, as well as the 222 Beach Road Homeowners Association and the Marina Del Sol Condominium Association.
They have alleged that the County Commission first should have amended the Comprehensive Plan — which guides growth in the community — before it could amend the Unified Development Code (UDC).
Prior to voting 3-2 on Oct. 27, 2021 to approve an eight-story, 170-room hotel planned on four parcels between Beach Road and Calle Miramar, the commissioners approved a UDC amendment that eliminated the counting of any hotel rooms countywide as residential dwelling units. The Comprehensive Plan says the residential density on the barrier islands — including Siesta Key — cannot exceed the level in place as of March 13, 1989. That is laid out in Future Land Use Policy 2.9.1.
Moreover, a supermajority of the commissioners must approve a Comprehensive Plan amendment, meaning four of the five would have to approve it for the amendment to go into effect. The plaintiffs in the case argue that the commissioners were doubtful they could get that supermajority vote to change the Comprehensive Plan policy. Therefore, the hotel project team — at the recommendation of the county’s Planning Division staff — dropped a request for a Comprehensive Plan amendment involving residential density in hotels and pursued only the UDC amendment.
As it turned out, the vote to approve the hotel planned on Calle Miramar was 3-2, with Commissioners Nancy Detert and Christian Ziegler opposing the application.
“For purposes of analyzing Plaintiff’s standing to bring Counts 1, II, and III [of their complaint],” Walker wrote, “the Court finds this case is a Renard Category 3 case. Plaintiffs essentially alleged [that the commissioners], by enacting the UDC amendment and approving [three Special Exception petitions necessary for the two hotel projects], increased intensity and density of hotel land use on the barrier island of Siesta Key without complying with several legal prerequisites, rending those enactments void.”
The second hotel proposal that the Wallace/Sax lawsuit addresses is planned as a seven-story, 120-room project at the intersection of Old Stickney Point Road and Peacock Road, on south Siesta Key. Marina Del Sol stands just to the east of that site; Sax lives in that condominium complex.
Walker added, “This is a quintessential Category 3 case.”
He also pointed out, “[S]tanding in a Category 3 case is the broadest under Florida common law. It presents the lowest hurdle for a plaintiff to overcome.”
Wallace and Sax have alleged that they are taxpayers who own property on Siesta Key, Walker continued in his order, while the two homeowner associations “allege their respective condominium complexes are located on Siesta Key ‘adjacent and nearby’ the properties subject to the approved special exceptions.”
Based on the plaintiffs’ allegations about how the hotel developments would affect them, Walker added, “[T]he Court finds the complaint sufficiently alleges each Plaintiff is an ‘affected resident, citizen, or property owner of the governmental unit in question’ for purposes of Renard Category 3 standing. Therefore, he added, they have standing to bring Count 1, which argued that the County Commission first should have amended the Comprehensive Plan before enacting the UDC amendment regarding the elimination of counting hotel rooms for residential density purposes.
Further discussion of the plaintiffs’ standing in regard to Counts IV and V
Walker then turned his focus to Counts IV and V in the complaint, for which the finding that the plaintiffs had standing was based on Section 163.3215(3) of the Florida Statutes.
That portion of state law defines an “aggrieved or adversely affected party” as “any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources,” Walker pointed out.
While that “alleged adverse effect may be shared in common with other members of the community at large,” the statute says,” the plaintiffs have to show that they will suffer adverse effects to a greater degree than other persons.
The plaintiffs in this case contend that the Special Exceptions that the commission majority approved for the hotels were inconsistent with provisions of the Comprehensive Plan.
The county’s zoning regulations allow for up to 26 residential units per acre on property zoned Commercial General (CG), if most of the rooms have no kitchens. The CG site of the Calle Miramar hotel is 0.96 acres, while the CG property for the Old Stickney Point Road hotel comprises 1.17 acres.
Thus, with the elimination of the consideration of hotel rooms for residential dwelling counts, the commissioners were able to approve the hotel plans with far more rooms.
The project teams had to request Special Exception approval to create “transient accommodations” — which is the county staff term for hotel and motel rooms — on the two sites and to exceed the 35-foot height limit for construction on CG parcels.
“Because of the enactment of the three special exceptions,” Walker continued in his order, “Plaintiffs claim they will suffer adverse effects to an interest protected or furthered by the County’s Comprehensive Plan,” which is a reference to Future Land Use Policy 2.9.1 for the barrier islands. The Plaintiffs contend that those adverse effects include interests “ ‘related to health and safety, emergency medical services, hurricane evacuation, densities or intensities of development, transportation facilities, and access to health care facilities,’” Walker quoted from the complaint.
“In its motion to dismiss [the lawsuit],” Walker added, “the County concedes the complaint adequately alleges an interest protected by its Comprehensive Plan.”
Then, he discussed the plaintiffs’ allegation that they will be harmed more than other members of the general public if the hotels are constructed. They “largely focus on the alleged impact of ‘severe traffic congestion’” in regard to how the intensity and density of the hotels will affect “their ability to safely use roadways on Siesta Key, both to leave the barrier island and to access other portions of it,” Walker wrote. They alleged “daily trips” on those roads, he added.
“These allegations sufficiently state particularized interests that ‘exceed in degree the general interest in community good shared by all persons,’” Walker wrote. He was quoting from a 1998 Florida Fifth District Court of Appeal case, Homosassa River Alliance, Inc. v. Citrus County, he noted.
Further, Walker pointed out, the plaintiffs’ interests in maintaining the status quo in regard to intensity and density on Siesta Key “is adversely affected by the County’s approval of the special exceptions.” The increase in traffic congestion, he wrote, has an adverse effect on their interests “in safe use of Siesta Key’s roadways.”
Other counts dismissed
In his July 19 ruling, Walker did dismiss two other counts in the complaint. However, he did so “without prejudice,” meaning those counts could be re-filed within 30 days of the July 19 date of his order.
Essentially, he explained, those counts focused on alternative means of pursuing the case, in the event the court ruled against the primary argument, in Count 1.
David Smolker and W. Gunnar Westergom of the Smolker Matthews law firm in Tampa, along with attorney Ralf Brookes of Cape Coral, have been representing the plaintiffs.
Assistant County Attorney David Pearce has been handling the complaint for the county.
The attorneys for the developers and the property owners of the hotel sites are Scott McLaren and Shane Costello of Hill Ward Henderson in Tampa.
During a motion hearing on June 24 — regarding the intervenors’ taking of depositions — Walker explained that a technical issue had resulted in the delay in the filing of his ruling on the county’s motion to dismiss the complaint. He had anticipated that that matter would be resolved by the end of June, he told the attorneys that day.
Walker also is presiding over the first hotel lawsuit, filed by Siesta resident Lourdes Ramirez several days before the Wallace/Sax complaint was entered into court records.
Walker has set trial dates for both cases in the spring and summer of 2023, with Ramirez’s scheduled for March 27 of that year and the Wallace/Sax case set for June 12, 2023.