County’s brief also cites flaw in decision of DeSoto County judge in similar case
Timing is the key to the case, and the plaintiff failed to comply with the applicable judicial standard.
That is the assertion of the Office of the Sarasota County Attorney as it seeks to win litigation that a limited liability company launched against the county in September, after failing to win a Coastal Setback Variance late last year for proposed construction on a vacant Beach Road lot on Siesta Key.
The heart of the county’s argument is that the attorneys for Saba Sands II LLC have misinterpreted a state provision for “tolling” in regard to the deadline for seeking court relief. In fact, Deputy County Attorney David M. Pearce contends that a DeSoto County judge also misinterpreted state law in ruling in a similar DeSoto County case in April 2024.
Morgan Bentley and Ashley E. Gaillard, of the Sarasota firm Bentley Goodrich Kison, are representing Saba Sands II.
As the Cornell University Law School’s Legal Information Institute explains, “To toll means to stop the running of a time period, especially a time period set by a statute of limitations.”
Referring to Section 70.51 of the Florida Statutes — the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA) — Pearce points out, with emphasis, “Initiation of a proceeding [under the provisions of that law] tolls the time for seeking judicial review of a local government development order or enforcement action until the special magistrate’s recommendation is acted upon by the local government.”
An attorney who serves as a Special Magistrate in FLUEDRA challenges presides over mediation with the parties. Ultimately, at the conclusion of that mediation, the Special Magistrate makes a recommendation to the affected local government board on action it can take to settle the dispute.
A development order is a decision by a local government body on a land-use application — either approval or denial, or approval with conditions.
The DeSoto County judge “concluded that FLUEDRA proceedings have the effect of suspending finality [of a] development order for purposes of subsequent judicial proceeding,” Pearce adds.
“The Reardon court’s reasoning is flawed,” Pearce continues, with more emphasis, “because FLUEDRA cannot be read as creating a delay in the finality of a development order. Why? Under subsection 70.51(3), the initiation of a FLUEDRA proceeding can only begin after a local government creates finality by rendering a development order.”
Again citing a section of the state law, Pearce writes, with further emphasis, “Any owner who believes that a development order … is unreasonable or unfairly burdens the use of the owner’s real property, may apply within 30 days after receipt of the order or notice of the governmental action for relief under this section.”
A critical factor in the Saba Sands case, Pearce asserts, is the fact that the limited liability company abandoned the FLUEDRA process before the presiding Special Magistrate could issue any recommendations to the County Commission on resolving the dispute.
Pearce’s Nov. 25 brief is a response to Circuit Judge Hunter Carroll’s denial of the county’s motion to dismiss the Saba Sands case. In a Nov. 20 order, Carroll directed the county to explain why he should not grant Saba Sands’ petition. Carroll also called for the county to address the DeSoto County case because of its relevance to the Saba Sands litigation.
On Sept. 17, as The Sarasota News Leader has reported, an attorney for Saba Sands — whose principal is Sarasota attorney Wiliam Saba — filed its petition with the Circuit Court, seeking to quash the County Commission’s denial of the variance that the company needs for landowner Saba to construct a three-story, two-unit condominium complex on a vacant Siesta Key parcel near Beach Access 10 on Beach Road.
The Saba Sands attorneys asserted in their answer to the county’s Motion to Dismiss the case that they met the deadline for filing the Petition for Writ of Certiorari.
Yet, in his Nov. 25 response to Judge Carroll’s Nov. 4 order, Deputy County Attorney Pearce cites two sections of the Florida Rules of Appellate Procedure — 9.030(c)(3) and 9.100 — in contending that such a petition must be filed within 30 days of the date of the rendering of a local government decision. In this case, “rendering” refers to the formal adoption of the County Commission resolution of denial of the variance necessary for the Saba Sands residential structure to be built well seaward of the county’s Gulf Beach Setback Line (GBSL) and the filing of that resolution with the Office of the Sarasota County Clerk of the Circuit Court and County Comptroller.
(The GBSL was established in 1979 to protect dunes and other beach habitat which, in turn, protect landward properties from storm surge and other flooding events.)
The County Commission formal resolution of denial of the variance was rendered on Jan. 15, Pearce added. Yet, Saba Sands did not file its petition until Sept. 17.
Pearce agrees that the initiation of the FLUEDRA proceeding halted the countdown for Saba Sands to seek judicial review of the denial of the variance. However, he continues, “[T]he County’s position is the ‘shot clock’ for the tolling period” starts after a local government board has adopted a resolution regarding a development order, and it restarts on one of two dates: the date that a local government’s vote on the recommendation of the Special Magistrate is filed with the relevant clerk of court or the date that the property owner abandoned the FLUEDRA process. In the Saba Sands case, the latter date was Aug. 8.
Pearce also stresses that the FLUEDRA process is a voluntary one. Therefore, he points out, a landowner who dislikes a local government body’s decision on a development application can forego the FLUEDRA process and proceed with filing a Petition for Writ of Certiorari with the applicable Circuit Court.
He provides further arguments in regard to Florida Statute 163.3215 and the FLUEDRA process to underscore his assertion that no development order can be challenged until it has been rendered. The rendering, he points out, provides public notice of the local government body’s decision. Thus, he continues, “Subsection (3) of FLUEDRA contemplates that a landowner can file a FLUEDRA petition within 30 days after receiving notice.”
Likewise, he write, Section 163.3215 of state law “envisions the same 30-day period for a third party to challenge a development order as being inconsistent with a comprehensive plan,” which guides growth in a local government’s jurisdiction.
Further, Pearce points to judicial precedents that, he contends, make it clear that other courts have agreed that stopping the countdown of “a statutory deadline does not reset the clock.”
The full timeline
Pearce offers the following complete timeline of the relevant events:
- On Nov. 19, 2024, the County Commission conducted its hearing on Saba Sands’ application for the Coastal Setback Variance.
- On Dec. 17, 2024, before the commission rendered its decision through a formal resolution, Saba Sands sent a petition to the county to initiative the FLUEDRA proceedings.
- On Dec. 18, 2024, county staff “sent an email to Saba Sands stating that the FLUEDRA petition was premature because the Board had not rendered its decision.”
- On Jan. 15, the commission approved the denial resolution, and the Clerk’s Office recorded it the same day.
- On Jan. 22, Saba Sands sent the county an updated FLUEDRA petition.
- On June 17, the parties conducted the first part of the mediation outlined under the FLUEDRA statute. At the conclusion of that proceeding, “the parties agreed to conduct further mediation.”
- On Aug. 8, further mediation took place with no settlement. At the conclusion of that session, “Saba Sands announced it was terminating the FLUEDRA proceeding.”
Thus, Pearce points out, the Special Magistrate, Ken Tinkler of Tampa, “confirmed that he would not be issuing a final recommendation to the [County Commission] because Saba Sands elected to terminate the FLUEDRA proceeding.”
- On Sept. 17, Saba Sands filed its Petition for Writ of Certiorari.