First District Court of Appeal upholds DOAH ‘Final Order’ in Ramirez case challenging county over amendment that cleared way for high-rise hotels

Although County Commission dropped its appeal this fall, Intervenors had continued to pursue their appeal

Image from the homepage of the First District Court of Appeal

On Dec. 12, Florida’s First District Court of Appeal, in Tallahassee, upheld the Final Order that a state administrative law judge issued in early April in favor of a Siesta Key resident who had contended that the Sarasota County Commission violated the county’s Comprehensive Plan in October 2021 in approving a land-use regulation that eliminated the counting of hotel and motel rooms for residential density purposes.

While the Sarasota County Commission in late October agreed to drop its appeal in the Florida Division of Administrative Hearings (DOAH) case, the Tampa attorneys for the developers of a planned 170-room hotel on the edge of Siesta Village and a 120-room hotel on Old Stickney Point Road — plus the owners of the parcels where the two hotels would stand — did not take the same step. Those parties, in legal terms, are called Intervenors.

The developer of the Calle Miramar hotel is RE/MAX Realtor Robert Anderson Jr., while the developer of the south Siesta hotel is businessman Gary Kompothecras. The principal owner of the Calle Miramar hotel property lives in New York City, while the owners of the hotel site at the intersection of Old Stickney Point Road and Peacock Road are Kompothecras and members of his family. They were not originally defendants in the Ramirez DOAH case, so they had to request approval of the administrative law judge to intervene in the proceedings.

The First District Court of Appeal ended up consolidating the Intervenors’ appeal with the one the county filed this spring.

Formally, the Court of Appeal ruling was per curiam, simply affirming the Administrative Law Judge Suzanne Van Wyk’s decision. The court also dismissed the case.

Per curiam opinions, which are issued in the name of a court, instead of coming from a specific judge or panel of judges, “will typically deal with issues which the issuing court views as relatively non-controversial,” the Legal Information Institute at Cornell University’s law school explains. Attorneys have told The Sarasota News Leader that per curiam decisions are frustrating to the losing party, as they generally do not provide any points that would make it possible for the losing party to seek higher judicial review. However, according to the Florida Rules of Appellate Procedure, the Intervenors are allowed a period to file motions before the ruling is considered final. Rule 9.330 says a party may file a motion for rehearing, clarification, certification or issuance of a written opinion; that must be done within 15 days of the court’s issuing a decision. “A motion for certification,” the rule explains, “shall set forth the case(s) that expressly and directly conflicts with the order or decision or set forth the issue or question to be certified as one of great public importance.”

The Dec. 12 ruling does indicate that the three judges who handled the case were Joseph Lewis Jr., L. Clayton Roberts and Adam Tanenbaum.

Lewis has been on the appeal court since 2001, his court biography notes. Roberts was appointed to the First District Court of Appeal bench in January 2007, while Tanenbaum won his appointment in October 2019, their court biographies say.

Significant disagreements over interpretation of ordinances

Scott McLaren. Image from the Hill, Ward and Henderson website

The Intervenors’ attorneys, Shane T. Costello and Scott McLaren of the Hill Ward Henderson firm in Tampa, joined Ramirez’s attorneys and the Office of the County Attorney in proposing a Final Order for Administrative Law Judge Van Wyk’s consideration following the November 2022 hearing in the case.

In their preliminary statement in that proposed order, Costello and McLaren pointed out that the County Commission on Oct. 27, 2021 approved an amendment to the county’s Unified Development Code (UDC), which contains all of the land-use and zoning regulations, to make it clear, as they wrote, “that transient accommodations are to be considered a non-residential use for all purposes.” The amendment “removed maximum density (dwelling units per acre) limitations applicable to transient accommodations in commercial zoning districts.”

“Transient accommodations” is the county term for hotel and motel rooms.

That UDC amendment was the basis for the County Commission’s subsequent 3-2 vote to approve the eight-story hotel on four parcels located between Beach Road and Calle Miramar. Previously, the UDC had limited the number of hotel and motel rooms on property zoned Commercial General — as the Siesta site is — to no more than 26 per acre, provided most of those rooms had no kitchens.

Ramirez put the focus of her argument on her belief that the UDC amendment violated Future Land Use Plan 2.9.1 in the Comprehensive Plan, which limited residential density and intensity on the county’s barrier islands to the level in place as of March 13, 1989.

This is Future Land use Policy 2.9.1 in the Comprehensive Plan. Image courtesy Sarasota County

Yet, she cited other policies in the Comprehensive Plan — which guides growth in the community — that she found had been violated by the commissioners’ actions on Oct. 27, 2021.

In their Proposed Final Order, Costello and McLaren contended that updates to the Comprehensive Plan over the years had modified the county policies regarding transient accommodations to the point that Future Land Use Policy 2.9.1 was not violated by the passage of the UDC amendment.

In her Final Order, Administrative Law Judge Van Wyk did write that the parties in the case “significantly [disagreed] on the correct interpretation” of ordinances related to residential density on the county’s barrier islands.

However, she explained, after analyzing county documents and testimony, she found 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.”

Administrative Law Judge Suzanne Van Wyk. Image from the Florida Bar Foundation

Moreover, she noted, that 1981 plan described Siesta Key as “ ‘highly developed’ and ‘contain[ing] some of the County’s most intensive residential development.’ ” That plan “then states that it ‘recognizes the existing development represents the maximum levels of development on the Keys[.]’ (emphasis added).”

Turning to the current version of the Comprehensive Plan, adopted in October 2016, Van Wyk pointed out that it “provides more evidence that the [ordinance the commissioners approved in October 2021] — to allow hotel and motel development in [Commercial General zoning districts] at intensities limited only by the special exception process — is inconsistent with the Comprehensive Plan.

Costello and McLaren also had stressed in their Proposed Final Order that even though the UDC amendment had been approved, the project team for the Calle Miramar hotel still had to go through a formal process laid out by county regulations — including public hearings — to win the necessary Special Exceptions to place transient accommodations on the Commercial General property just east of Ocean Boulevard in Siesta Village and to exceed the maximum height of 35 feet for any structure on property zoned Commercial General.

The UDC amendment itself, Costello and McLaren continued, did “not allow for the development of any hotels …”

They also referenced Ramirez’s concerns that, as a resident living only about 0.61 miles from the hotel site, “as the crow flies,” she would expect to have to deal with extra problems in evacuating the Key — given the number of hotel guests — if warned to do so because of an approaching hurricane. Ramirez cited the facts that she would have to use a two-lane road and that she already had had to evacuate her home four times for hurricanes.

Further, Ramirez “expressed fears about overcrowding of the sidewalks, bicycle lanes, and traffic congestion on Siesta Key,” if the hotel were to be built, Costello and McLaren added.

However, they pointed out, she “did not present any traffic or noise study or analysis, and there was no evidence comparing traffic/noise generated by hotels under the UDC Amendment versus other allowable uses.”

Moreover, they wrote, “On hurricane evacuation, she solely relied on personal experience.”

Nonetheless, Van Wyk pointed out that even though the ordinance the commission approved applied mostly countywide, “Siesta Key is the only key in the County with property zoned [Commercial General] CG. Thus, the ordinance will affect the residents of Siesta Key differently from any other barrier island.”

Further, she explained, “Barrier Islands are so designated because they help protect the mainland from storm damage in hurricanes and other storms,” and “[t]he entirety of Siesta Key is designated Coastal High Hazard Area … and is within the County’s Hurricane Evacuation Zone A, which is required to evacuate for a Category 1 hurricane.”

Yet, Van Wyk noted that only two access points exist between Siesta Key and the mainland, both of which are bridges that “are designated as constrained roads by the Comprehensive Plan. A constrained road,” she explained, “is defined by the Comprehensive Plan as a road with ‘a level of service lower than the adopted standard …’ ”