Development on barrier islands was to be limited, successive county growth plans indicate, because of flooding and hurricane concerns, attorney for Siesta plaintiff stresses during hotel hearing

Assistant county attorney contends that ‘textual clues’ the real key to guidelines regarding provisions for hotel rooms

During a two-hour hearing on July 7 before 12th Judicial Circuit Court Judge Hunter Carroll, the attorney for a Siesta Key resident stressed that, having pored over Sarasota County comprehensive plans adopted through the years, it was clear to him and his client that the county commissioners wanted to restrict hotel development on the barrier islands because of flooding and hurricane evacuation concerns.

Richard Grosso of Plantation, who is representing Lourdes Ramirez, pointed to language in the comprehensive plans that, he said, demonstrated that the goal was to discourage hotel and motel construction in hurricane evacuation zones A and B because those are the most vulnerable to storm damage.

When the state started requiring local governments to adopt comprehensive plans to control growth in communities, Grosso continued, it also called for those governing bodies to do certain things. Among the strongest points in the relevant statute, he added, is the direction that local governments must take steps to facilitate hurricane evacuations to minimize potential damage “to life, limb and property.”

Chapter 163.3177(6)(g)7 of the Florida Statutes, which applies to counties in coastal areas, specifically says that those local governments must “[p]rotect human life against the effects of natural disasters,” Grosso told the judge.

Further, Grosso referred to Chapter 163.3178 of the Florida Statutes, which says in Section (1), “The Legislature recognizes there is significant interest in the resources of the coastal zone of the state. Further, the Legislature recognizes that, in the event of a natural disaster, the state may provide financial assistance to local governments for the reconstruction of roads, sewer systems, and other public facilities. Therefore, it is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster.”

At the conclusion of the hearing, Carroll thanked all of the attorneys “for excellent arguments” on what he characterized as a “very interesting legal issue.” Carroll added, “I will do my best to get an order out as soon as I possibly can.”

The arguments that day were a response to the parties’ filings for summary judgment, meaning the judge could rule for Ramirez or the county on the basis of documents and briefs submitted to the court, instead of having to conduct a trial. If Carroll finds that a trial should be held on issues raised in the case, the soonest that proceeding would be conducted is early November, he decided in April.

He did caution the parties on July 7 that he has “a lot of other things going on,” so “It will be several weeks” before he issues his ruling in the aftermath of this latest hearing.

The Sarasota County Comprehensive Plan policy that has been the key focus of Ramirez’s lawsuit, which was filed in November 2021 to try to prevent the construction of an eight-story 170-room hotel on four parcels between Beach Road and Calle Miramar, is Future Land Use Policy 2.9.1. That says, “The intensity and density of future development on the Barrier Islands of Sarasota shall not exceed that allowed by zoning ordinances and regulations existing as of March 13, 1989.”

That policy complied with the state statutory requirements he had cited, Grosso pointed out to Carroll on July 7.

“Well, of course, tourists want to go to the beach,” Grosso acknowledged, but the beaches on the barrier islands are in the first zone to be evacuated if a hurricane is predicted to strike the county.

Essentially, he continued, since 1975, Sarasota County’s comprehensive plans have been nudged by state law to prevent an increase in hotel development on the barrier islands.

Grosso also noted that the parties in the case — including the developer of the Calle Miramar hotel and the owners of the property where it would stand, formally known as the Intervenors — “diverge wildly on how to interpret [amendments to the comprehensive plans through the years].”

The county and the Intervenors argue that a 1983 ordinance allows an unlimited number of hotel rooms on the barrier islands, Grosso continued. Ramirez has contended, “ ‘That can’t be right,’ ” he said.

“We had to do a lot of digging,” Grosso added. “We had to go back and piece together the history of zoning in the county from before the 1975 land use plan … in order to see that ‘Ah ha!’ moment” regarding the March 13, 1989 provision.

Moreover, Grosso told Carroll, when the project team first applied for the Special Exceptions necessary to construct the Calle Miramar hotel, it also applied for an amendment to Future Land Use Policy 2.9.1, to allow hotels to exceed the policy’s restrictions. The zoning regulations that apply to the site, Grosso continued, had a limit of 26 rooms per acre, if most of those rooms did not have kitchens; the parcels are zoned Commercial General (CG). The Calle Miramar hotel land comprises approximately 0.96 acres.

The project team members also knew they needed a modification to the county’s Unified Development Code (UDC), which contains all of the land-use and zoning regulations, since it has to comply with the provisions of the Comprehensive Plan, Grosso said.

Yet, as The Sarasota News Leader has reported, county staff ultimately agreed with the attorney who was part of the project team — William Merrill III of the Icard Merrill firm in Sarasota. Merrill maintained that, as hotels are a commercial use, residential density restrictions should not apply to them. Thus, the County Commission ended up voting 3-2 to amend the UDC to implement that change, which applies to most of the county.

Why would the County Commission “need to amend [the UDC],” Grosso asked, if the county and Intervenors’ arguments are correct, that no residential density limit existed for hotel rooms without kitchens?

After conducting a hearing in November 2022 on a companion case that Ramirez had filed, a Florida administrative law judge issued a Final Order in early April, Grosso pointed out. That said the commission violated the county’s Comprehensive Plan in approving the hotel.

Her ruling, he stressed, “completely demolishes this argument … that all density restrictions are off on Siesta Key and the barrier islands.”

Nonetheless, in response to statements that one of the attorneys for the Intervenors, Scott McLaren of the Hill Ward Henderson firm in Tampa, made, Judge Carroll said that he tended to agree that, “from a legal standpoint, [the administrative law judge’s ruling] is not binding on me.”

‘Textual clues’ and judicial precedents

During his argument, Assistant County Attorney David Pearce showed the judge copies of sections of county Comprehensive Plans through the years to emphasize the county’s view that Ramirez has been incorrect in contending that the March 13, 1989 residential density and intensity policy applied to hotels on the barrier islands.

Pearce and McLaren both stressed that a 1983 ordinance changed the definition of “transient accommodations,” which is the county term for hotel and motel rooms. Section 28 of that ordinance defined a dwelling unit as having one kitchen, Pearce said. Thus, he added, for a hotel room to be considered a residential dwelling, it must contain a kitchen. “This particular hotel [planned on Calle Miramar] does not have any kitchens associated with its hotel rooms,” Pearce continued.

“You don’t have a kitchen, you don’t have a dwelling unit,” McLaren emphasized during his argument.

At one point, when Carroll asked McLaren what would happen if a hotel room had two kitchens, McLaren replied, “I believe it would be residential.”

Pearce proceeded to show the judge other exhibits included in the county’s motion for summary judgment, to illustrate more textual clues.

The 1983 ordinance, Pearce said, was in existence when Future Land Use Policy 2.9.1 was implemented in regard to density and intensity of development on the barrier islands as of March 13, 1989.

The reasoning for making the distinction with hotel and motel rooms, Pearce explained, was to prevent the ease of conversion of those accommodations into condominiums and apartments.

Further, Pearce pointed out, in regard to where hotels and motels can be constructed in the county, the Comprehensive Plan only encourages them to be built outside of the primary hurricane evacuation zones.

When Carroll asked about the reasoning behind that, Pearce replied that the measure was aspirational, “but it is not an absolute requirement.”

Carroll questioned McLaren on the same point. “Don’t we find it curious” that the county included such direction in Coastal Policy 1.2.3 in the Comprehensive Plan?

“That’s the policy,” McLaren responded. “I’m not arguing with the court on that.”
Moreover, McLaren continued, the Ramirez case involves just the hotel planned on Calle Miramar.

(Subsequent to approving that project, the commissioners also voted 4-1, in November 2021, to allow a 120-room, seven-story hotel to be built at the intersection of Old Stickney Point Road and Peacock Road on south Siesta Key, which also is in a primary hurricane evacuation zone. Further, in late October 2022, the board members approved a 112-room hotel that has been planned on Midnight Pass Road on the northern part of the barrier island. Both projects were predicated on the UDC amendment that eliminated the counting of hotel rooms for residential density purposes.)

Among other supporting facts that McLaren and one of his Hill Ward Henderson partners, Shane Costello, pointed to in their summary judgment motion was that “[Sarasota] County Ordinance 83-08, in effect as of March 13, 1989, listed transient accommodations as an allowed use in [Commercial General] districts, and defined [the term] as follows: Transient Accommodation. A transient accommodation means a dwelling unit or other place of human habitation with sleeping accommodations (hereinafter collectively referred to as ‘an accommodation’) … Transient accommodations shall include hotels, motels,boatels and other similar uses. A transient accommodation shall be considered a residential use … (emphasis supplied).’ ”

The motion added, “The definition of ‘dwelling unit’ from the same ordinance requires there to be a kitchen so, reading the definitions together, transient accommodations in which no rooms had kitchens would not contain any ‘dwelling units [their emphasis again].’ ”

Moreover, the Intervenors’ motion stressed, “On November 15, 1988, the County adopted Ordinance 88-126 (in effect March 13, 1989), amending the definition of ‘Density, Residential,’ providing, ‘The term density refers to the number of residential dwelling units permitted per gross acre of land.’ Thus,” the motion continued, “ ‘residential density’ refers to the number of residential ‘dwelling units’ per acre. The definitions of ‘Density, Residential,’ ‘dwelling unit,’ and ‘transient accommodation’ establish that hotels without kitchens did not have residential density under the County’s zoning ordinances on March 13, 1989.”

During the July 7 hearing, McLaren also cited what he called the “seminal case” in zoning determinations: Rinker Materials Corp. v. City of N. Miami, which was a 1973 decision of the Florida Supreme Court. McLaren and Costello, also cited it in their summary judgment motion in support of the county.

The gist of that ruling and a similar decision in City of Miami v. 100 Lincoln Road Inc., a 1968 Florida District Court of Appeal case, McLaren and Costello contended in their motion, is as follow: “When a court is interpreting zoning ordinances regulating use of real property, because zoning ordinances/regulations are in derogation of private rights of ownership, as a general rule, they are subject to strict construction in favor of the right of a property owner to the unrestricted use of his or her property [their emphasis].”

A 2020 Florida Second District Court of Appeal case, Persaud Properties FL Investments LLC v. Town of Fort Myers Beach also makes it clear that presumption of deference to the landowner still applies, McLaren told Carroll.