Board members also agree to waive waiting period in regard to Special Exception petitions for new hotels
The Sarasota County commissioners this week unanimously approved a new amendment to the county’s Unified Development Code (UDC), which contains all of the county’s land-use and zoning regulations, to repeal an Oct. 27, 2021 modification of the UDC that eliminated the counting of hotel and motel rooms for residential density purposes almost countywide. (See the related article in this issue.)
County Attorney Joshua Moye had recommended the step for the board members in the aftermath of two legal rulings against the county in challenges that a Siesta Key resident filed in late 2021, in response to the October 2021 vote.
In the same Dec. 12 motion, the commissioners also granted the requests of attorneys representing the developers of two high-rise hotels on Siesta Key that won board approval in late 2021. The attorneys had asked for waivers of a county requirement related to their clients’ applications for Special Exception petitions necessary to the construction of those hotels. The same attorneys were members of the project teams during the processes that resulted in approval of the hotel plans in 2021.
One of those structures would stand on four parcels located between Beach Road and Calle Miramar; the other would be built at the intersection of Old Stickney Point Road and Peacock Road, on the southern part of Siesta.
Three speakers — all Siesta residents — decried the waiver requests and urged the commissioners not to approve them.
The very first speaker, Catherine Luckner, president of the Siesta Key Association (SKA), pointed out that the Special Exceptions granted by the commissioners in late 2021 to allow two high-rise hotels to be built on the Key “were voided completely by the judicial orders” issued earlier this year. “So I am perplexed,” she continued, “given how recently you all have received these legal advisements [that you would] move at this point to nullify the impact of those [legal rulings. I don’t really understand it.”
She added that she believes “a lot of people” have been asking the same question.
In approving the hotels plans, the County Commission at that time granted Special Exception petitions that allowed for “transient accommodations” — the county term for hotel and motel rooms — on property zoned Commercial General on the island and allowed the developers to exceed the maximum 35-foot height for structures on land with that zoning designation. The hotel on Calle Miramar was designed to be about 85 feet tall, while the one on Old Stickney Point Road had architectural features that put its tallest point at approximately 83 feet.
As The Sarasota News Leader has pointed out, a county staff memo included the County Commission’s Dec. 12 meeting packet explained, “Whenever the [County Commission] has taken final action on an application for the grant of a Special Exception on a property, whether approved or denied, the County shall not accept any further application for any Special Exception on any part of or all of the same property for a period of 12 months from the date of such action, or date of final judicial review or such action, whichever is later.”
However, the memo added, “The time limits of [the applicable] subsection … may be waived by three affirmative votes of the Board when the Board finds, based on new information or changed conditions, that new action may be warranted to prevent injustice or to assure protection of the public health, safety, and welfare.”
Luckner also referenced that language in the Unified Development Code, telling the commissioners, “I don’t find any injustice to us [residents on the barrier island].” Moreover, she pointed out, “There’s no finding of facts right now that any of us know about that would give you support to allow for [the waivers].”
She asked the commissioners to act on “our behalf, as a whole community.”
Luckner’s husband, Robert, treasurer of the Siesta Key Association, added, “The court orders, in my opinion, are the justice.”
“It would be an injustice to Siesta Key residents to proceed [with the waivers],” Siesta resident John Doherty emphasized during his remarks.
In his experience, Doherty said, a need first is identified before plans proceed on new construction. Doherty added that he has no problem finding accommodations for any of his relatives or other people who come to visit him on Siesta. With no need for new hotels, he continued, why would the commissioners want to exacerbate the congestion on the island?
“This is almost metaphorically like a doctor/patient relationship,” Doherty said. “You’re the doctors, and Siesta Key is the patient … Siesta Key has a circulatory system that’s, at best, livable but not flourishing.” The island has only two-lane roads, he noted, likening them to blood flow. If the high-rise hotels were built, he said, “We’re going to end up adding nothing but clogged roads.”
Referencing the other County Code language in regard to public health, safety and welfare, Robert Luckner said, “Why would not granting a waiver cause a public concern?” He added that the presence of the hotels on the island would create concerns for the public health, safety and welfare.
(The fourth speaker, Eileen Jones, who was representing the Siesta Key Condominium Council, expressed support for repealing the October 2021 UDC amendment. However, the statement she read from the Council called on the commissioners not to approve any new UDC amendment without full involvement of community residents. The Council represents about 100 condominium associations and approximately 7,000 households on the barrier island.)
Prior to the Dec. 12 vote, Donna Thompson, the county’s zoning administrator, did acknowledge that a scrivener’s error needed to be corrected in part of the language of the new amendment. It involved the county definition of “transient accommodations,” which is the county term for hotel and motel rooms.
The version included in the Dec. 12 agenda packet for the commissioners said, “A transient accommodation shall be considered a non-residential use for density purposes.”
(On Oct. 27, 2021, in making the case for eliminating the counting of hotel and motel rooms for residential density purposes, attorney William Merrill III of the Icard Merrill firm in Sarasota, pointed to U.S. Census information in contending that those rooms are considered to be commercial uses only.)
As part of his testimony during the Dec. 12 hearing, Robert Luckner specifically referenced the line that Thompson ended up addressing later. If the ordinance under consideration that day was designed to repeal the Oct. 27, 2021 ordinance, he asked why it would apply only to property zoned for commercial uses.
When Thompson came to the podium following all of the speakers’ testimony, she explained that she had neglected to strike through the “non” in the section of the new ordinance that Luckner had cited.
Chair Ron Cutsinger then sought clarification that the regulations before the board that day mirrored the language in place in the UDC prior to the Oct. 27, 2021 vote.
“That is correct,” Matt Osterhoudt, director of the county’s Planning and Development Services Department, told Cutsinger.
‘Don’t panic’
In early April, a Florida administrative law judge issued a Final Order in a Florida Division of Administrative Hearings (DOAH) case that challenged the approval of the October 2021 UDC amendment. She agreed with plaintiff Lourdes Ramirez of Siesta Key that that ordinance conflicted with county Comprehensive Plan policies, especially one that limits residential density and intensity on the county’s barrier islands to the level in effect as of March 13, 1989.
On Aug. 21, 12th Judicial Circuit Court Judge Hunter Carroll ruled in Ramirez’s favor, as well, in a companion case that she had filed to challenge the October 2021 ordinance. Mirroring the decision in the DOAH case, his ruling said that the ordinance violated the Comprehensive Plan policy that was the focus of the DOAH Final Order.
During the board discussion prior to the Dec. 12 vote, Osterhoudt of Planning and Development explained that even if the commissioners agreed to the waivers for the Special Exceptions, the applicants still would have to go through the standard county process in an effort to win approval of the new petitions.
Moreover, in response to questions posed by Commissioner Mark Smith, a Siesta Key resident, Osterhoudt said that the new Special Exceptions could not be considered unless the County Commission first amended the Comprehensive Plan — which guides growth in the community — to modify Future Land Use Policy 2.9.1. That policy was at the heart of the Ramirez legal challenges.
“I just wanted to clarify that,” Smith told Osterhoudt.
On Nov. 28, the commissioners agreed, on a 3-1 vote, to allow county Planning Division staff to process a series of Comprehensive Plan amendments proposed by Benderson Development Co. The first of those would be very similar to the Oct. 27, 2021 ordinance in that it would eliminate the counting of hotel and motel rooms for residential density purposes. However, this amendment would apply only to Siesta Key.
In essence, Osterhoudt noted on Dec. 12, the staff review of the new Special Exceptions would run concurrently with staff’s analysis of the Benderson Comprehensive Plan amendments.
The applicants for the Special Exceptions will have to conduct county-mandated Neighborhood Workshops on their proposals, and then the county’s Planning Commission will have to hold hearings on them before the County Commission holds the final hearings, Osterhoudt pointed out.
As for the new Comprehensive Plan amendments: Those also would have to be discussed during a Neighborhood Workshop before public hearings were conducted. However, an additional step is necessary to achieve final approval of a new Comprehensive Plan amendment: It must undergo a review by staff of the Florida Department of Economic Opportunity (DEO), which analyzes any proposed Comprehensive Plan amendment that wins initial local government approval during what is called a “transmittal hearing.” That analysis is designed to ensure that the amendment does not conflict with any facets of the affected Comprehensive Plan or state policies. Only after the DEO staff signs off on a proposed amendment can the County Commission hold its final hearing on the amendment.
Commissioner Michael Moran made the motion to approve the new UDC amendment and to grant the Special Exception waivers. Commissioner Smith seconded the motion.
“I just want to reiterate to my Siesta Key folks,” Smith said, that the approval of the waivers that day “doesn’t mean [the Special Exceptions are] set in stone.” He referenced Osterhoudt’s earlier comments about the process that would have to take place.
“So don’t panic,” Smith told the speakers in the audience.
We wish Mr. Merrill III would explain why definitions in US Census Information have any relevance in determining whether such hotel living units increase density. It is “plain as a pike staff” that they do increase density. After all, density is just a descriptive term for a mass or volume and, in this case, a mass or volume of people. Whether it is residential or non-residential, it is the volume of people occupying the rooms – whether they are located in a residential, a commercial or even an industrial zone – that is important. However those hotel rooms are labeled, they add to the density (volume) of people on the KEY. Mr. Merrill III would have us believe that because these units are non-residential for zoning purposes, we can ignore the numbers of people who occupy those units and treat them as non-existent when calculating density. Nothing could be more absurd, and I would expect a court to so find.