Concern about county’s risk in paying additional attorneys’ fees primary factor cited in memo for board consideration on Oct. 24
On Oct. 24, during the next regular meeting of the Sarasota County Commission, County Attorney Joshua Moye will ask the board members whether they wish to appeal the Final Judgment that 12th Judicial Circuit Court Judge Hunter Carroll filed on Oct. 9 in concluding a case that fought the construction of a 170-room hotel on Calle Miramar, on the edge of Siesta Key Village.
The plaintiff was Siesta Key resident Lourdes Ramirez.
In ruling for Ramirez, Carroll also invalidated the County Commission’s approval of a seven-story, 120-room hotel planned at the intersection of Old Stickney Point Road and Peacock Road on south Siesta Key. The board had approved that project on a 4-1 vote on Nov. 2, 2021.
In a memo he provided to the commissioners, which is included in the Oct. 24 agenda packet, Moye recommended against an appeal, citing the “risk associated with additional costs and attorneys’ fees.”
In an Aug. 29 memo that he provided the commissioners, Moye explained that Section 163.3215 of the Florida Statutes “provides for an award of attorney’s fees to the prevailing party in a [comprehensive plan] consistency challenge like [Ramirez’s in Circuit Court].” Moye added that “the attorney’s fee award may be several hundred thousand dollars.” He pointed out that both Ramirez’s case and a second complaint — which involved both the Calle Miramar hotel and the Old Stickney Pointy Road hotel — have “been pending for almost two years and included extensive discovery and multiple court hearings.”
“Discovery” refers to the process through which the parties in a lawsuit work to gather materials that they believe will support their cases.
Attorney’s fees also ultimately could be awarded to the plaintiffs in the second hotel case, Moye added in that Aug. 29 memo.
In an Oct. 16 newsletter to her supporters, Ramirez wrote, “On Thursday, October 12th, my lawyers filed a motion in Circuit Court for attorney fees and costs (Link). If we are successful, we should be able to recover legal fees and costs associated with the Circuit Court case that we won in August. … Let’s hope the Circuit Court agrees with our motion so that some of the legal costs are covered.”
Further, in the Oct. 24 memo, Moye recommended that the commissioners seek dismissal of the county’s appeal of a decision in a companion case that Ramirez filed through the Florida Division of Administrative Hearings (DOAH). The DOAH appeal is on the docket of the First District Court of Appeal in Tallahassee, which is where the DOAH is located.
Commissioner Mark Smith, who lives on Siesta Key, was the only board member opposed to that appeal. In making the motion to direct the Office of the County Attorney to pursue the action, Commissioner Michael Moran stressed that the county’s legal staff should “do whatever it takes” to preserve the validity of the 2021 approval of the Calle Miramar hotel.
Additionally, Moye wrote in his latest memo, the Office of the County Attorney recommends that the commissioners rescind the ordinance that prompted Ramirez’s Circuit Court challenge.
On Sept. 12, at Moye’s request, the commissioners voted to allow the Office of the County Attorney to formally request that Judge Carroll issue the Final Judgment. Such an order is necessary before a party can appeal a legal ruling, as The Sarasota News Leader has explained.
The UDC amendment and the Future Land Use policy
In his Aug. 21 ruling in favor of Ramirez, Carroll agreed with her assertion that the ordinance that the county commissioners approved on Oct. 27, 2021 — on a 3-2 vote — violated the county’s Comprehensive Plan, which guides growth in the community. That ordinance eliminated the counting of hotel rooms for residential density purposes in most of the county. It was proposed by Sarasota attorney William Merrill III, a partner in the Icard Merrill firm, who said the ordinance was consistent with a national standard that considers hotel and motel rooms to be commercial operations.
Merrill was part of the Calle Miramar hotel project team.
With the elimination of density restrictions for “transient accommodations” — the county term for hotel and motel rooms — on Siesta Key, the commissioners then voted 3-2 to approve the hotel project planned on four parcels standing between Beach Road and Calle Miramar.
The principal owner of the property is a New York City resident. The developer is RE/MAX Realtor Robert Anderson Jr.
Ramirez contended in her complaint that Future Land Use Policy (FLU) 2.9.1 in the Comprehensive Plan prevented such an ordinance from being put into effect. The policy limits residential density and intensity on the county’s barrier islands to the level in place as of March 13, 1989.
In his Aug. 21 ruling, Carroll wrote that the greatest residential density he could find that might be applicable to parcels zoned Commercial General on Siesta Key — which is the designation of the four parcels where the Calle Miramar hotel would stand — was 36 hotel or motel rooms per acre. The site comprises 0.96 acres.
Carroll issued his ruling after hearing oral arguments in May and then reviewing decades-old versions of the Comprehensive Plan.
The ordinance that the commissioners approved in October 2021 modified the county’s Unified Development Code (UDC), which contains all of the zoning and land-use regulations. Opponents of that action emphasized the fact that it takes a supermajority of the board members — four of five — to approve a Comprehensive Plan amendment, but only a simple majority to modify the UDC. (See the related story in this issue.)
Ramirez filed her Circuit Court complaint against the county in November 2021. The second complaint, regarding both hotels, was filed several days later.
The Oct. 24 County Commission meeting will be conducted in the County Administration Center standing at 1660 Ringling Blvd. in downtown Sarasota. Because of changes in the board’s meeting rules, the News Leader is unable to predict when County Attorney Moye will bring up the hotel litigation. That item is listed as No. 45 on the agenda, following commission evaluations of both Moye and County Administrator Jonathan Lewis, as well as a number of public hearings. Even though those hearings are listed as Presentations Upon Request — meaning no remarks from county staff members or applicants are planned — a commissioner could request a full hearing for any or all of them. Additionally, members of the public always are allowed to speak during such hearings, if they sign up to do so.