Balot withdraws appeal of Planning and Development director’s refusal to allow site and development work for project to proceed while litigation still underway
The developer of the third Sarasota County Commission-approved hotel on Siesta Key has withdrawn his appeal to the board of a county staff decision not to allow him to proceed with site preparations for the project, The Sarasota News Leaderhas learned.
Before Hurricane Idalia prompted the rescheduling of items on the commission agendas for meetings on Aug. 29 and 30, Dave Balot was set to request that the county commissioners direct the Planning and Development Services’ staff to allow him to go ahead with the site work while litigation proceeds over the two hotels that the board members approved before his.
Instead, Balot told the News Leader in a Sept. 25 email, “After discussions with County staff, we have agreed to withdraw our appeal, and in return, the County has agreed to let me file a [Comprehensive Plan] amendment that will support my existing hotel plan, including my site and development plan.”
That amendment, he added, will be “similar to, or even possibly the same as the one I had previously filed 2 years ago.”
His original amendment to Future Land Use Policy 2.9.1, which limits residential density and intensity on the barrier islands to that in existence as of March 13, 1989, called for doubling the maximum number of hotel and motel rooms — which county staff calls “transient accommodations” — allowed on at least 1 acre of property zoned Commercial General in the Siesta Key Overlay District (SKOD). County regulations permit up to 26 units per acre, but only if most of them have no kitchens.
Balot’s hotel site, which is zoned Commercial General, comprises 2.15 acres at 5810 Midnight Pass Road.
In his Sept. 25 email to the News Leader, Balot also pointed out, “[A]fter no one appealed [the commissioners’ approval of two Special Exceptions for his project] (for height and transient accommodations), County staff made me aware that I had 2 years to get my project permitted and out of the ground. As such, a civil engineer and landscape architect [were] hired to assist us with all the site and development plan (ground level and below), and we began moving forward. I never had any intention of moving any dirt or doing any work until the lawsuits against the other two [hotels] were resolved.”
On June 6, Matt Osterhoudt, director of Planning and Development, wrote a letter to Balot’s attorney, explaining that he is the administrator of the county’s Unified Development Code (UDC), which contains all of the county’s land-use and zoning regulations. Osterhoudt pointed out, “[A] decision has been made to not process the [site and development] application any further until such time as a final determination has been made” regarding the ordinance the commissioners approved on Oct. 27, 2021, No. 2021-047. That modified the UDC to eliminate the counting of hotel rooms for residential density purposes throughout most of the county.
Balot’s hotel would encompass six stories with a maximum height of 59 feet, according to testimony during the Oct. 26, 2022 County Commission hearing on his application. The first two floors would have parking spaces.
The property was home for years to a Wells Fargo Bank.
Balot initially planned a 100-room hotel. However, after county staff informed him that a Grand Tree had been identified on the property, the hotel had to be redesigned to ensure that the tree would be preserved. That led to an increase in rooms to approximately 112.
The county hold on site and development for Balot’s project
A county document explains, “[A] Site and Development Plan shall be required for all development other than the creation of a subdivision. … Approval of the Plan by the County shall be construed as authority for the representative/applicant to: a. construct improvements such as stormwater facilities, excavation and fill, bulkheads, sidewalks, paving; and b. apply for building permits.”
The developer works with county staff on that process after receiving formal approval of a proposed project. Site and development entails a thorough review of all facets of the plans, ensuring they comply with county regulations.
Prior to Balot’s plans for the appeal of the site and development decision, a Florida administrative law judge had ruled in favor of Siesta resident Lourdes Ramirez in a Florida Division of Administrative Hearings (DOAH) challenge over the commission’s approval of an amendment to the county’s zoning and land-use regulations, on Oct. 27, 2021, that eliminated the counting of hotel rooms for residential density purposes throughout most of the county. Then the board members, on a 3-2 vote, approved a 170-room, eight-story hotel planned on four parcels between Beach Road and Calle Miramar. The administrative law judge concurred with Ramirez’s assertion that, in approving the amendment to the zoning and land-use regulations, the commissioners had violated Future Land Use Policy 2.9.1.
The county — along with attorneys for the developer and property owners involved in the Calle Miramar hotel project and the owners/developer of a south Siesta hotel that would comprise 120 rooms — have filed appeals of the Final Order in the DOAH case. (The First District Court of Appeal, located in Tallahassee, combined both appeals into one case.)
Then, almost exactly a week before Balot’s site and development appeal would have been heard by the County Commission, the 12th Judicial Circuit Court judge presiding over companion litigation that Ramirez had filed with that court in late November 2021 also ruled in her favor. On Sept. 20, following a unanimous County Commission vote on Sept. 12, the parties in both hotel lawsuits in Circuit Court filed a joint motion, requesting that Circuit Judge Hunter Carroll enter a final judgment in favor of Ramirez on “the inconsistency of the challenged Development Order approving the Calle Miramar hotel with Future Land Use Policy 2.9.1 of the Sarasota County Comprehensive Plan …”
They also asked that Carroll grant judgement in favor of the county and the developers/property owners in regard to the consistency of the hotel approval with two other policies in the Comprehensive Plan, both of which Carroll had indicated in his Aug. 21 ruling to be aspirational instead of being directives.
Only after such a final judgment has been filed in a case can the parties appeal. The Office of the County Attorney provided the News Leader a statement after the Sept. 12 County Commission meeting, which said in part, “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.”
Yet, in an Aug. 29 memo that he provided the commissioners, County Attorney Joshua 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.”
I should hope that that “hill” will be very steep, and the objective of the climb unattainable.