County attorney does point out that appeal would be ‘an uphill battle,’ given two legal decisions in Ramirez’s favor
In accord with a recommendation from Sarasota County Attorney Joshua Moye this week, the County Commission voted unanimously to seek entry of a “final judgment’ in the 12th Judicial Circuit Court regarding both Siesta Key hotel lawsuits that were filed in late 2021.
That judgment would invalidate the County Commission votes in October and November 2021 that approved first a 170-room, eight-story hotel on four parcels between Beach Road and Calle Miramar and, second, a seven-story, 120-room hotel at the intersection of Old Stickney Point Road and Peacock Road, on the southern portion of the island.
The Florida Bar explains, “A ‘final’ judgment or order is a written order entered by a trial court (or ‘lower tribunal’) which ends the case and leaves nothing left to be done except to follow what the final judgment or order requires the parties to do. … [W]ith some exceptions, appeals generally can only be brought from a final judgment.”
Nonetheless, in an Aug. 29 memo to the commissioners, Moye wrote, “Any appeal of [an April Florida Division of Administrative Hearings ruling in favor of plaintiff Lourdes Ramirez], appeal of [12th Judicial Circuit Court] Judge [Hunter] Carroll’s decisions, or continuation of any litigation in the circuit court will be an uphill battle.”
Siesta resident Ramirez filed the first hotel lawsuit, involving what has been referred to as the Calle Miramar project. The second complaint was filed by two south Siesta residents and two homeowners associations, whose members live in condominium complexes near the hotel sites.
On Aug. 21, Circuit Judge Carroll ruled in favor of Ramirez on a key point in her complaint — that county Future Land Use Policy 2.9.1 limited residential density and intensity on Siesta Key to the level in place as of March 13, 1989. Because of that policy, Carroll wrote, the greatest density allowed for hotel units on the county’s barrier islands would be 36 per acre.
The Calle Miramar site comprises 0.96 acres, while the hotel planned on south Siesta Key would stand on a parcel encompassing approximately 1.17 acres.
In mid-July, Carroll had requested from Assistant County Attorney David Pearce full copies of two, decades-old county ordinances that Pearce had not provided him earlier. Those ordinances were the crux of arguments that Perce and the attorneys for the developers and owners of the hotel properties — called the Intervenors — had used in contending that Ramirez’s assertions were in error.
Yet, Ramirez and her attorneys have talked about having pored over the series of county Comprehensive Plans adopted through the years to guide growth in the county. On the basis of their research, they maintained that Future Land Use Policy 2.9.1 remained in effect when the County Commission cast split votes to approve the two proposed hotels.
Sarasota attorney William Merrill III, of the Icard Merrill firm, who was a member of the Calle Miramar project team, won County Commission approval, on a 3-2 vote on Oct. 27, 2021, of an amendment to the county’s Unified Development Code to eliminate the counting of hotel rooms for residential density purposes almost countywide.
The UDC contains all of the county’s zoning and land-use regulations.
With that vote on the UDC amendment having taken place first, the commissioners then ended up voting 3-2 to approve the hotel plans, with the number of rooms no longer a factor.
Earlier this year, Carroll consolidated the two Siesta hotel cases for potential trial, starting in November. His Aug. 21 ruling affects the second project as well as the Calle Miramar proposal.
Carroll did rule against Ramirez in regard to her assertions about other county policies that she believes the commissioners violated in approving the Calle Miramar hotel. In his Aug. 21 decision, he left open the possibility of trial on those issues, if the parties wished to proceed to that step.
He added in his Aug. 21 order, “In the light of the Court’s ruling with respect to FLU Policy 2.9.1, the parties shall meet and confer as to the next steps, including whether the parties desire the Court to enter at this time a final judgment invalidating the [approval of the hotel]” and preventing the county “from permitting development activities pursuant to that [October 2021 County Commission vote],” or whether they first wish to go to trial.
Carroll continued, “The parties shall advise the Court in writing filed with the Court (with copy to the Court’s Judicial Assistant) within 30 days as to the parties’ position or positions.”
As of early morning on Sept. 14, The Sarasota News Leader found no new filing in Ramirez’s Circuit Court case docket.
In his Aug. 29 memo, County Attorney Moye also 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].” As noted in an earlier memo from the Office of the County Attorney to the commissioners in regard to the Siesta hotel litigation, Moye continued, “the attorney’s fee award may be several hundred thousand dollars.” He pointed out that both Ramirez’s case and the one involving both hotels 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 the Aug. 29 memo.
The DOAH decision and appeal
In April, Florida Administrative Law Judge Suzanne Van Wyk ruled in favor of Ramirez in a companion case that Ramirez had filed in early 2022 with the Florida Division of Administrative Hearings (DOAH).
Van Wyk wrote in her Final Order that she had found it clear, in analyzing the documents that Ramirez’s team had introduced in that case, and in the testimony she had heard, that county leaders always intended to control development on the barrier islands because of their vulnerability to storms.
Van Wyk explained that the county’s 1981 Comprehensive Plan “specifically discusses the Barrier Islands as an area of special concern, acknowledging the ‘problems associated with development on the barrier islands,’ including ‘the detrimental effect of building along the active beach areas’ and ‘difficulties of evacuating large numbers of people from the Keys in time of emergency.’ ”
The County Commission did vote 4-1 in July to appeal the DOAH Final Order. Commissioner Mark Smith, who lives on Siesta Key, was in the minority, saying he did not support the Calle Miramar project before his November 2022 election to the board.
During his Sept. 12 County Commission meeting remarks, Moye did not mention an appeal of the Circuit Court case. He did reference the Aug. 29 memo that he had sent the commissioners, regarding Judge Carroll’s ruling in Ramirez’s favor.
In response to a News Leader request for information following the Sept. 12 commission action, the Office of the County Attorney provided this statement in a Sept. 13 email: “The Board will be updated about the appeal option after [Judge Carroll’s] Final Judgment is entered — either through another Board Memo or through another discussion during the County Attorney report.”
Moye also pointed out in his earlier memo, “There is the possibility of a legislative fix which amends the County’s comprehensive plan. Such an amendment would require a supermajority vote of the Board,” meaning four of the five commissioners would have to vote “Yes.”
Opponents of the hotels have contended that the that need for a supermajority vote was the reason the commissioners ended up approving the UDC amendment regarding hotel rooms instead of the project applicants’ seeking a Comprehensive Plan amendment that would eliminate the counting of those rooms for residential purposes.
During a discussion about appealing the DOAH order, which took place during the commission’s regular meeting on June 12, Commissioner Michael Moran told County Attorney Moye “to take this as far as we legally need to take it,” to try to reverse the administrative law judge’s decision.
Both the county and the attorneys for the developers and hotel site property owners have filed appeals of that DOAH decision with the First District Court of Appeal in Tallahassee, since the Florida Division of Administrative Hearings is located in the capital city.
It seems clear that the county is throwing ‘good money after bad’ – having lost twice in courts already! Isn’t it time to move on and not waste further dollars chasing a lost cause?
A mistake was made, don’t prolong the lost causes!