County commission votes 4-1 to direct county attorney ‘to take as far as we legally need to take’ appeal of Florida Division of Administrative Hearings ruling in favor of Siesta resident fighting high-rise hotel project

Commissioner Smith says former county attorney estimated only 10% chance county would prevail

On a 4-1 vote this week, the Sarasota County commissioners directed the Office of the County Attorney “to do whatever it takes,” as Commissioner Michael Moran put it, to try to preserve the validity of a county ordinance that the board approved in late 2021 to allow hotels with more than 100 rooms to be constructed on Siesta Key.

That ordinance — 21-047 — was the focus of a Florida Division of Administrative Hearings (DOAH) challenge filed last year by Siesta Key resident Lourdes Ramirez.

In that case and in a companion 12th Judicial Circuit Court case, Ramirez has contended that the commissioners seated in October 2021 violated several policies in the county’s Comprehensive Plan, which guides growth in the community, in approving the ordinance.

As requested by attorneys representing the owners of the property where an eight-story, 170-room hotel would be built between Beach Road and Calle Miramar, the majority of the commissioners agreed that hotel rooms should not be counted for residential density purposes. The ordinance they approved on a 3-2 vote on Oct. 27, 2021, amended the county’s Unified Development Code (UDC) to implement that change throughout most of the county.

The UDC contains all of the county’s land-use and zoning regulations.

Previously, the UDC allowed a maximum of 26 hotel/motel rooms on property zoned Commercial General, as the Calle Miramar hotel site is, but only if most of the rooms had no kitchens.

Ramirez has maintained that that amendment violated Future Land Use Policy 2.9.1 in the Comprehensive Plan, which limits residential density and intensity on the county’s barrier islands to that in place as of March 13, 1989.

She and other opponents of the 2021 vote have pointed out that the Calle Miramar project team sought a UDC amendment instead of a Comprehensive Plan amendment because only three board votes are needed to modify the UDC, while four votes — a supermajority — are necessary to change the Comprehensive Plan.

In a Final Order issued in Ramirez’s DOAH case in early April, Administrative Law Judge Suzanne Van Wyk agreed with Ramirez’s arguments. Van Wyk also concurred with Ramirez’s contention that the commissioners violated two other Comprehensive Plan policies in approving the UDC amendment. One of those relates to hotel construction in the county’s primary hurricane evacuation zones.

During the County Commission’s regular meeting on April 25, Commissioner Mark Smith, who was a long-time leader of the Siesta Key Chamber of Commerce, cast the solitary “No” vote when then-County Attorney Frederick “Rick” Elbrecht asked for direction on preserving the county’s right to appeal the DOAH decision to the Florida First District Court of Appeal, which is located in Tallahassee — the same location as the Division of Administrative Hearings.

Elbrecht explained that day that, on May 23, the Florida Administration Commission — comprising the governor and the Cabinet — was scheduled to consider imposing sanctions against the county in the wake of the administrative law judge’s decision.

Depending on what happened during that hearing, Elbrecht said, he and his legal team were concerned about being able to meet the state mandatory deadline for filing the appeal of the DOAH ruling, if that proved necessary.

After Elbrecht concluded his April 25 comments, Commissioner Moran immediately made a motion to authorize the Office of the County Attorney “to do whatever actions are necessary” to preserve the county’s right to pursue an appeal.

Commissioner Joe Neunder seconded the motion.

Then Commissioner Smith told his colleagues, “I’m going to vote against this.” He had read Van Wyk’s order, he added, and was “in agreement with it …”

Smith also noted that he opposed the County Commission action regarding the Calle Miramar hotel when he “was a civilian.”

Reflections on past discussion and focus on the future

During the commission’s regular meeting on June 13, Smith brought up the April 25 decision, saying he had read a June 12 memorandum that new County Attorney Joshua Moye had provided to the board members about the status of Ramirez’s DOAH challenge.

During the May 23 Administration Commission hearing, Smith continued, Assistant County Attorney David Pearce, who has been handling the hotel litigation, indicated to Gov. Ron DeSantis and the Cabinet members that an appeal already had been filed.

As a result, DeSantis proposed that the Administration Commission hold off on making any decision related to the DOAH ruling until after that appeal had run its course.

Scott McLaren of the Tampa law firm Hill Ward Henderson also indicated to the Administration Commission that the Intevenors in the hotel litigation — the property owners and developers — had filed an appeal of the DOAH ruling. McLaren is the lead attorney for the Intervenors.

However, a Sarasota News Leader search of First District Court of Appeal records on June 14 found only Notices of Appeal from the county and the Intervenors. Both were filed on May 3.

Smith told his colleagues on June 13 that Pearce’s comments came as a surprise to him, based on the April 25 vote. In his opinion, Smith added, the April 25 discussion with Elbrecht was “a bit of a misrepresentation” of what would occur.

Smith read a portion of the administrative law judge’s Final Order, as well as a list of the potential sanctions that state law provides for in response to a local government body’s violation of Comprehensive Plan policies.

As the News Leader has reported, the following are among those potential sanctions: directing state agencies not to provide funds to the county to increase the capacity of roads, bridges or water and sewer systems; specifying that the county is not eligible for grants administered under the Florida Small Cities Community Development Block Grant Program and the Florida Recreation Development Assistance Program; and denying the county revenue sharing funds, to the extend the funds have not been pledged to pay back bonds.

“I just encourage my fellow commissioners here to read thoroughly Josh’s memo to you and also the DOAH [order],” Smith said on June 13.

If the county loses the appeal, he added, that “could cost this county greatly.”

Then Chair Ron Cutsinger asked Moye for clarification about the April 25 vote. Did that action not imply that the county would file an appeal, Cutsinger asked.

The Office of the County Attorney had to file a formal Notice of Appeal, Moye explained, to preserve its right to file the actual appeal, if that proved necessary.

Moye reiterated that point: “All that’s been filed is a Notice of Appeal.”

Then Moye told the commissioners that he and his staff still are “hoping that we’ll get some kind of order back” from the Administration Commission that would clarify its action on May 23.

“We have until July 12 to file our actual appeal,” he pointed out. Therefore, Moye said, he planned to seek direction during the July 11 County Commission meeting on how the board members wanted to proceed. By then, he said, he hoped to have received more information from the Administration Commission.

Moye also explained that the Office of the County Attorney could seek a continuance for a later filing of an appeal.

“I certainly have respect for Commissioner Smith,” Cutsinger said, “[but] I feel very strongly about appealing this [DOAH order].”

Moran told Smith, “I think you’re doing your job for your district well.” Nonetheless, Moran asked Moye if he and other commissioners could go ahead and direct Moye “to take this as far as we legally need to take it?”

“That is correct,” Moye responded.

“These decisions aren’t made lightly,” Moran continued, referring to the October 2021 UDC amendment. “And this is why you have courtrooms, and this is why you have judges,” to settle disputes.

Commissioner Joe Neunder added, “We need to allow the process to follow through to the end, whatever eventuality that may lead to.”

When Cutsinger then asked Moye whether a motion providing direction would be Moye’s preference, Moye said it would, instead of board consensus.

Before anyone could make a motion, however, Smith said, “I just wanted to make a point …” He had asked the now retired County Attorney Elbrecht the odds of the county’s prevailing on appeal, Smith continued, and Elbrecht had responded that the likelihood would be about 10%. “Josh is more optimistic,” Smith acknowledged.

Nonetheless, Smith stressed, “If we lose the appeal, sanctions are around the corner for Sarasota County. This decision should not be taken lightly.”

After those remarks, Moran made the motion directing the Office of the County Attorney to go forward with the appeal, and Commissioner Neunder seconded it. Although he noted Elbrecht’s comment about the odds, Moran continued, “I think we owe it to all vested parties involved to see this thing through to the end.”

Then the motion passed 4-1, with Smith in the minority.