Following arguments on county’s ‘Motion to Dismiss’ Siesta Key hotels lawsuit, parties awaiting Circuit Court judge’s decision

Assistant county attorney contends plaintiffs pursued incorrect avenue to overturn County Commission votes

Circuit Judge Stephen Walker is presiding over two lawsuits filed to prevent the construction of two high-rise hotels on Siesta Key. Image from the 12th Judicial Circuit Court website

The plaintiffs in a lawsuit fighting Sarasota County Commission approval of two hotels on Siesta Key did not pursue the appropriate legal means in filing their complaint, Assistant County Attorney David Pearce has argued to the 12th Judicial Circuit Court judge presiding over the case.

As laid out in state law, Pearce told Judge Stephen Walker on March 18, the plaintiffs should have sought resolution of the issue through the Florida Division of Administrative Hearings (DOAH).

The plaintiffs contend that the County Commission should have amended the county’s Comprehensive Plan — which governs growth — instead of modifying the county’s zoning and land-use regulations to eliminate the counting of hotel rooms as residential density.

Conversely, the principal attorney for the plaintiffs — David Smolker of Tampa — cited different provisions of state law to make his point that his clients have pursued the proper avenue to resolve their concerns.

The plaintiffs, who filed their complaint in late November 2021, are two residents of south Siesta Key — James P. Wallace III and Robert Sax — plus two homeowners associations — the Marina Del Sol Condominium Association Inc. and 222 Beach Road Owners Association Inc.

Pearce pointed out during the hearing — as he had in the county’s response to the complaint — that the plaintiffs were relying on Florida Statute 163.3184, which involves the process for adoption of comprehensive plans or amendments to those plans.

In his motion, Pearce wrote, “[T]hat statute does not offer a cause of action for statutory relief based on a failure to adopt or amend a comprehensive plan …”

Attorney Scott McLaren of the Tampa firm Hill, Ward & Henderson, who is representing the hotel developers — whom the judge allowed to act as intervenors in the case — concurred with Pearce. The idea that the plaintiffs can dictate to the court how the case will progress, “quite frankly, your honor, is not supported by any legal authority,” McLaren said. “There was no Comprehensive Plan amendment in this case.”

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

Moreover, McLaren contended, “[The plaintiffs’] strategy simply is to drag this out as long as possible,” even though the developers are facing the risks of changes in the hotel market and the potential that interest rates will keep rising.

Pearce also argued that the first count of the plaintiffs’ lawsuit fails to state a claim. The plaintiffs contend that the Unified Development Code (UDC) amendment violated Future Land Use Policy 2.9.1 in the Sarasota County Comprehensive Plan, he said.

That policy restricts residential density on Siesta Key to the level in place as of March 13, 1989.

“The Comprehensive Plan is basically the equivalent of the constitution of Sarasota County,” Pearce told Judge Walker on March 18. “The Unified Development Code is separate and distinct from the Comprehensive Plan.”

Following the hearing, Walker told the attorneys that he would issue a ruling at a later date. As of the deadline for this issue of The Sarasota News Leader, no decision had been posted on the Sarasota County Clerk of Court’s website.

A comparable case as precedent

Prior to voting 3-2 to approve an eight-story, 170-room hotel planned on four parcels between Calle Miramar and Beach Road on Siesta Key, the commissioners also voted 3-2 to adopt the amendment to the county’s Unified Development Code (UDC) that the plaintiffs have cited. (The UDC contains all of the county zoning and land-use regulations.) That amendment said that hotel rooms no longer would be counted as residential dwelling units. Previously, the UDC allowed only 26 hotel rooms per acre on a parcel zoned Commercial General, and only if most of those rooms had no kitchens.

This graphic shows details about the Calle Miramar hotel site and the surrounding properties. Image courtesy Sarasota County

The Calle Miramar hotel site encompasses 0.96 acres.

These are the standards for construction on Commercial General parcels in the county as of May 2021. Image courtesy Sarasota County

The attorneys who were part of the Calle Miramar hotel project team pointed to a U.S. Census Bureau designation that they contended made it clear that the residential density issue was not valid in regard to commercial development.

Moreover, a former planner with the county, attorney Robert Lincoln of Sarasota, told the commissioners during the Oct. 27, 2021 hearing that the intent never was for hotel and motel rooms to be considered akin to residential dwellings. He worked on land-use maps, Lincoln said, that were included in the 1989 version of the Comprehensive Plan.

During the March 18 oral arguments, Assistant County Attorney Pearce noted that the facts of the Wallace/Sax case are similar to those of Bay County LLC v. Harrison, in which the First District Court of Appeal issued a ruling in May 2009.

This is the text of the Unified Development Code amendment that the County Commission approved on a 3-2 vote after the Calle Miramar hearing on Oct. 27, 2021. Image courtesy Sarasota County

The First District Court of Appeal ruling in Bay County v. Harrison said, “Some land use plans in Florida distinguish between restrictions on the density of residential dwellings and restrictions on the density of hotel- and resort-type units.” The court decision added, “The term ‘housing’ carries a dimension of permanence: ‘housing’ is ‘shelter; lodging; dwellings provided for people.’”

The focus of that lawsuit, the court noted, was the Bay County Commission’s approval of a “large beachfront resort” in the county’s Laguna Beach area. In 1999, the court continued, Bay County amended its Comprehensive Plan to allow for a “seasonal/resort” category of land use in parts of Laguna Beach, “where the clientele are predominantly seasonal or temporary visitors and tourists.” That plan also called for such areas to consist of “concentrations of accommodations and businesses that are used for non-residential, tourist-oriented purposes.”

The First District Court of Appeal decision pointed out that Bay County’s planners “evidently appreciated the permanency that the term ‘housing’ conveys; in other sections, [the county’s Comprehensive Plan] refers to ‘housing’ in the context of county residents’ permanent homes. … Conspicuously, Bay County chose not to impose a density cap for lodging establishments,” the court added. “[P]lanners, when they wish, may indeed impose different density limitations for residential and non-residential property.”

Therefore, the court ruled, the county’s decision to approve a resort in Laguna Beach was consistent with the county’s comprehensive Plan.

The ‘standing’ issue

Further, Pearce told Judge Walker, only one of the plaintiffs in the Wallace/Sax case could demonstrate “partial sufficiency” in regard to “standing,” a term that refers to the ability of an individual or entity to prove that local government action, for example, will result in a greater impact on that person or entity than on others.

Pearce pointed out that standing “depends in large part on proximity [to the site of a project that is being contested].”

This is a ‘massing diagram’ that leaders of the Siesta Key Coalition commissioned of a Sarasota architect to show the bulk of the planned hotel near residences on Old Stickney Point Road and Peacock Road. Marina Del Sol is to the left of the hotel site in this image. Image courtesy Siesta Key Coalition

The plaintiff he singled out with partial standing sufficiency is Sax, who lives in the Marina Del Sol Condominium complex, which is just east of the site of the second hotel that won County Commission approval. That one would be seven stories tall with about 120 rooms at the intersection of Old Stickney Point Road and Peacock Road.

He is the only plaintiff, Pearce noted, for whom the complaint included allegations about proximity.

Yet, all of the plaintiffs allege that their interests differ from those of the general public because of the existence of two drawbridges between the mainland and the barrier island, Pearce told Judge Walker. (The plaintiffs contend that the hotels would exacerbate traffic that already has become problematic for them, especially in the context of their need to drive to and from the mainland for personal reasons, such as appointments with doctors.)

If the bridges are sufficient to give the plaintiffs standing, Pearce said, then every other Siesta Key resident and every visitor to the island would have standing.

Vehicles wait in line as the Stickney Point Road drawbridge opens. File photo

Pearce cited what he referred to in the county’s Motion to Dismiss the lawsuit as the “seminal case” involving standing: Renard v. Dade City, in which the Florida Supreme Court issued a 1972 ruling.

The state’s high court wrote that, in a complaint that “attacks the substance of an ordinance or a development order [such as approval of the hotels on Siesta Key], an aggrieved or adversely affected person with a legally recognizable interest is someone whose interest may be commonly shared with other members of the community but must have a definite interest exceeding the general interest in community good shared in common with all citizens.”

The plaintiffs’ arguments

David Smolker. Image from his LinkedIn account

During his remarks, Smolker of the Smolker Matthews law firm in Tampa, the attorney representing the plaintiffs, stressed to the judge that the case is not a Comprehensive Plan consistency challenge.

“We’re dealing with three Special Exceptions,” he said, referring to the County Commission’s approval of extra height for the two hotels and a parking garage on south Siesta Key, as well as the allowance of “transient accommodations” — hotel and motel rooms — on property zoned Commercial General.

Smolker cited Future Land Use Policy 2.9.1 of the county’s Comprehensive Plan, which restricts residential development on Siesta Key.

The number of rooms planned in the Calle Miramar hotel, Smolker continued, would be “almost seven times the density” allowed in that policy.

“You can’t amend the [Comprehensive Plan] by adopting a land development regulation,” he said, “and then enforce the Plan” as though the land development order were part of it.

Smolker pointed out that the attorneys on the Calle Miramar hotel project team originally filed for a Comprehensive Plan amendment that would have eliminated the counting of hotel and motel rooms for residential density purposes. “But they dropped that.”

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

Amending the UDC instead of the Comprehensive Plan, he emphasized, was an act that violated the process laid out in state law. “That’s not how it works.”

Moreover, Smoker told the judge, the applicable state law “does not provide the authority to raise the issues that we have raised, whether a government could do what [the County Commission] did.”

All of the plaintiffs own property and reside or conduct business on Siesta Key, Smolker added. All of them depend on the two drawbridges to drive to and from the island, he said. The hotels “will exacerbate an already unacceptable level of congestion … on the only two main routes [to the Key].”

As for the standing issue: Smolker maintained that the complaint lays out all of the necessary facts to prove standing. The plaintiffs’ interests in regard to the increased intensity of traffic congestion exceed those of the general public, he added.

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