Proceeding to be conducted via Zoom on Jan. 6
The 12th Judicial Circuit Court judge presiding over a lawsuit that Siesta Key resident Lourdes Ramirez filed late last year over the Sarasota County Commission’s approval of a hotel on the edge of Siesta Village has scheduled a Jan. 6, 2023 hearing on a motion that the county has filed, seeking summary judgment in the case.
Ramirez’s attorneys also have filed a motion for summary judgment.
Assistant County Attorney David Pearce filed his motion on Nov. 22, while Ramirez’s attorneys filed hers on Dec. 1, 12th Judicial Circuit Court records show.
Additionally, the intervenors in the case — the owners of the property where the hotel project is planned, along with the developer, a RE/MAX Realtor — have filed their own motion in support of the county’s action.
The eight-story hotel, which would have 170 rooms on approximately 0.96 acres won County Commission approval on a 3-2 vote following an Oct. 27, 2021 public hearing.
As Cornell University’s Legal Information Institute explains, “Summary judgment is a judgment entered by a court for one party and against another party without a full trial.”
Circuit Judge Stephen Walker will conduct the January hearing via Zoom, the formal notice says. It is set to begin at 9 a.m. and last an hour. Members of the public may participate in such proceedings, but they must remain muted, the judge has stressed. The details about participation are in the notice in the case docket.
Pearce says in his motion for summary judgment that Ramirez “specifically alleges the proposed number of hotel rooms will exceed the density allowed by the Sarasota County Comprehensive Plan.”
Ramirez has argued that the County Commission violated Future Land Use Policy 2.9.1, which — as Pearce explains — “limits the intensity and density of development on the barrier islands to that allowed by the zoning ordinance existing as of March 13, 1989.”
Pearce contends that “Ramirez has cited the incorrect version of this zoning ordinance in her complaint and in discovery.”
(Discovery is the process through which attorneys in a lawsuit formally interview witnesses and gather documents they believe are pertinent to the litigation.)
The county ordinance, Pearce explains, “defines ‘residential density’ as ‘the number of residential dwelling units permitted per gross acre of land.’
“Furthermore,” he continues, it “defines a ‘dwelling unit’ as ‘a room or rooms connected together … containing sanitary facilities and one kitchen.”
“Because none of the proposed [Calle Miramar] hotel rooms allowed by [the County Commission vote] will be built with a kitchen,” Pearce argues, “they are not ‘dwelling units’ as defined by [the March 13, 1989 ordinance]. … Therefore, there is no violation of Policy 2.9.1.”
Yet, in Ramirez’s motion for summary judgment, her attorneys — Martha Collins and Pamela Jo Hatley of the Collins Law Firm in Tampa — stress, “Because the County is unable to produce codification of the ordinances and regulations as they existed on [March 13, 1989], it is necessary to trace the history of the ordinances to determine the density and intensity allowances [at that time]. That review,” they continue, “demonstrates that hotels are either not authorized at all on land zoned Commercial General [on Siesta Key] or, if allowed, are limited to 26 hotel rooms per acre. The application of those rules by County staff and hotel applicants until the [commission’s approval of the Calle Miramar hotel] suggests their understanding that the latter was true,” Collins and Hatley add.
Ramirez’s attorneys also cite a statement made by county Planner Brett Harrington, who oversaw the application process for the Calle Miramar hotel. “In the weeks leading up to the [board’s approval of the project],” Harrington said, county staff members “were persuaded to re-interpret Policy 2.9.1 to allow hotels to be considered commercial, not residential uses …”
Pearce explains that, prior to granting approval of the Special Exceptions for the hotel, the County Commission approved an amendment to the county’s Unified Development Code (UDC) — which contains all of the zoning and land-use regulations — to treat hotel rooms as a commercial use instead of a residential use countywide, with two limited exceptions that are “not pertinent” to Ramirez’s lawsuit.
Ramirez contends that the amendment to the UDC is not consistent with the county’s Comprehensive Plan, Pearce continues. However, Pearce points out that the county did not set maximum residential density for hotel rooms within the Commercial General (CG) zoning district on the barrier islands. (The hotel property is zoned Commercial General in the Siesta Key Overlay District zoning regulations.)
“Ramirez believes the barrier islands had already reached maximum residential density” by the time the county adopted its Comprehensive Plan in 1981, Pearce notes. “Ramirez would insert a prohibition against construction of transient accommodations in the CG zoning district on the barrier islands where there are not such words or phrases,” he adds.
Policy 2.9.1 “contemplates transient accommodations — [the term county staff uses for hotel rooms] — as a use allowed by special exception … whether on Siesta Key or elsewhere in unincorporated area of Sarasota County,” he writes.
The Comprehensive Plan did acknowledge that Siesta Key, unlike the other barrier islands, “is highly developed,” he acknowledges. However, he explains, given the fact that Siesta “is a tourist destination because its beaches are world-renowned [and] tourism is a key industry in [the county], it made perfect sense for the [commission] to not include a maximum residential density” for hotel rooms within Commercial General districts on the barrier islands.
Nonetheless, Pearce adds, the commission did include limitations on the number of hotel rooms that could be constructed on a parcel by including those in other county regulations.
In their motion, Ramirez’s attorneys point once more to Planner Harrington’s deposition: He said that every hotel on Siesta Key “was approved and built prior to the 1989 adoption of the Comprehensive Plan and was ‘grandfathered in,’ and not subject to Policy 2.9.1.”
In his motion, Pearce does point out that Future Land Use Policy 2.9.1 “treated the barrier islands differently than the urban areas [because] Sarasota County attracts more tourists during its ‘snowbird’ season than during the summer and fall when hurricanes are prevalent. Thus, hotel rooms do not impact Siesta Key in the same way as housing for new, permanent, full-time residents. Other communities in Florida treat transient accommodations in a similar manner, distinguishing them from permanent housing,” he added.
Then, Pearce writes that Section 163.3104(3) of the Florida Statutes defines when development orders — such as the Special Exceptions that the County Commission approved for the Calle Miramar hotel — are consistent with a comprehensive plan. He includes segments of that state law:
“(3)(a) A development order or land development regulation shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by such order or regulation are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.
“(b) A development approved or undertaken by a local government shall be consistent with the comprehensive plan if the land uses, densities or intensities, capacity or size, timing, and other aspects of the development are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.”
Moreover, Pearce continues, that statute defines “density” as “an objective measurement of the number of people or residential units allowed per acre of land, such as residents or employees per acre.”
“Intensity,” he adds, means “ ‘an objective measurement of the extent to which land may be developed or used … and the measurement of the use of or demand on facilities or services,’ ” again referencing the same statute.
Pearce also notes that that state law defines compatibility as “a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negative impacted directly or indirectly by another use or condition.”
The hurricane evacuation arguments
Ramirez’s attorneys, Collins and Hatley, cite not only Policy 2.9.1 but also five other county Comprehensive Plan policies with which Ramirez contends that the approval of the hotel was inconsistent. Among them was Future Land Use Policy 1.2.6, which discourages “the intensification of land uses within Hurricane Evacuation Zones A and B …” Siesta Key is part of Zone A, the attorneys add, which is the area of the county most susceptible to storm surge, as county maps show.
The three other policies also relate to the need for residents in the county’s Coastal High-Hazard Area to be able to evacuate in a timely fashion when a hurricane is predicted to strike the county’s coast or otherwise have a significant impact on the county’s coastal communities.
Moreover, Collins’ and Hatley point, with emphasis, to other sections of the most recent version of the Comprehensive Plan — the 2016 update — in contending that the commissioners violated the document in approving the hotel project.
Among those, they note, with emphasis, the Plan says,
“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. … The higher densities found on Siesta Key were recognized, yet prohibited from further increases by a 1979 Planning Department Study …”
Further, they write — again with emphasis — the Plan says, “Siesta and Longboat Keys, with their higher densities, generate the longest evacuation times.”
Collins and Hatley add, “Ramirez has evacuated her home [on the northern part of the Key] at least twice as a result of an approaching storm.”
In his motion, Pearce notes that the hotel project team hired Trescott Planning Solutions LLC to evaluate the emergency evacuation requirements relative to a hotel standing on the Calle Miramar site. The resulting model, he continues, found that even if a Category 5 hurricane were predicted to hit Siesta Key, the hotel would not have an adverse effect on countywide evacuation times.
Ramirez had not paid for any studies “to demonstrate that this development will have a material impact on evacuation time,” Pearce adds.
Yet, Ramirez’s attorneys note, the county staff’s own report on the hotel project, for the County Commission hearing, included the following: “The [project team’s] analysis did not touch on sheltering of transient guests if an evacuation is imminent. However, even with modern technology and early warning, there may be instances where guests are forced to find shelter at the county facility. Again, the hope is that guests get early notice and cancel their trip or evacuate early if already at the hotel, but consideration should be given to the potential for transient guests having to utilize county shelter space and the amenities provided therein, which can impact residents, county assets and shelter staffing.”
The traffic contentions
Among other facets of his motion, Pearce discusses the fact that since the hotel project site is zoned Commercial General, other uses on the property would generate more vehicle trips than the hotel. For example, he writes, a supermarket would be expected to produce 207 trips per day, whereas the traffic study for the hotel says it would create 101 trips. Pearce notes that the latter total was less than what the other Commercial General uses would produce.
Yet, Ramirez’s attorneys point out, “Roadways on Siesta Key are already operating at constrained levels of service,” as shown in the 2016 Comprehensive Plan. Several of the roads, they continue, are designated at the D or F Levels of Service, “and there are no potential improvements to provide better operating conditions.”
A road’s Level of Service relates to the perception of a driver about how smoothly traffic flows on it, as transportation engineers have explained. The best Level of Service is A, while F is the worst.
In fact, Ramirez’s attorneys write, “Siesta Drive and Stickney Point Road, segments of which are constrained roadways, provide bridges from Siesta Key to the mainland and are designated Evacuation Routes.”
Ramirez uses the North Bridge, they point out, which is closer to her home; its Level of Service, they write, is D.
Collins and Hatley also cite another statement of county Planner Harrington in his deposition in the case: “The roadways are constrained … operating at level [of] service D and F on most of those roads and there’s no way to actually widen those roads.”
A section of the 2016 Comprehensive Plan “explains Level of Service ‘D’ means ‘Speed and freedom to maneuver are severely restricted, and a poor level of comfort and convenience is experienced by the motorists,” Ramirez’s attorneys explain. “Small increases in traffic will generally cause operational problems at this level,” the attorneys add, also referencing the plan.
Level of Service F, the Plan explains, is a condition where “the amount of traffic approaching a point exceeds the amount that can traverse the point. Queues typically form at such locations. Operations are characterized by stop and go waves,” the attorneys further point out.