Judge Walker cautions that making his decision likely will take some time
During a 12th Judicial Circuit Court hearing on Jan. 6, an assistant Sarasota County attorney cited multiple sections of county ordinances — and judicial precedents — to make his case that the County Commission did not violate a Future Land Use policy regarding residential density and intensity on Siesta Key when it approved an eight-story, 170-room hotel on the edge of Siesta Village.
However, the attorney for the Siesta resident who is the plaintiff in the case — Lourdes Ramirez — asked why the principal attorney for the owners of the hotel site and the developer initially sought a Comprehensive Plan amendment to eliminate the counting of hotel rooms for dwelling unit purposes if County Commission action decades ago deemed hotel rooms without kitchens to be non-residential units.
Both sides had filed motions for summary judgment in the litigation. If Circuit Judge Stephen Walker, who is presiding over the civil case, rules fully in favor of one of the parties, then the jury trial scheduled for the week of March 27 would be unnecessary.
Following nearly four hours of arguments on Jan. 6, Walker noted the fact that he had “a lot of material to process,” so he did not know when he would issue a ruling in the case.
Ramirez filed her complaint in late November 2021, following the commission’s 3-2 vote on Oct. 27, 2021 to approve the hotel, which would be constructed on four parcels located between Beach Road and Calle Miramar; the site comprises 0.96 acres.
The board members first approved an amendment to the county’s Unified Development Code (UDC), which contains all of the county’s land-use and zoning regulations, to make it clear that hotel rooms were of a commercial nature and therefore should not be considered residential dwelling units.
(A supermajority of four votes — out of five — is necessary to amend the county Comprehensive Plan, which governs growth in the county. However, just a three-vote majority is needed to modify the UDC.)
Following the action on the UDC amendment, Commissioner Alan Maio cast the tie-breaking vote to approve the hotel application. Commissioners Michael Moran and Ron Cutsinger joined him in supporting the project, while then-Commissioner Christian Ziegler and Commissioner Nancy Detert opposed the plans.
During the Jan. 6 proceeding, Judge Walker first allowed Assistant County Attorney David Pearce and an attorney for the intervenors, Scott McLaren of the Hill Ward Henderson firm in Tampa, to make their arguments. Then attorney Richard Grosso of Plantation, who joined Ramirez’s legal team last year, offered his views on Ramirez’s behalf, which countered the County Commission’s finding that the hotel project was consistent with the county’s Comprehensive Plan.
The focus of Ramirez’s complaint has been Future Land Use Policy 2.9.1 in the Comprehensive Plan. It says in part, “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.”
Grosso stressed to the judge that Pearce and the attorneys for the intervenors were wrong in asserting that county ordinances governing development in the county allowed unlimited development on the barrier islands.
If that were the case, Grosso said, the commissioners would not have amended the Unified Development Code in regard to the counting of hotel rooms. “The rules were never unlimited development — whatever you can fit on barrier islands,” he emphasized.
Yet, Pearce had shown Walker numerous sections of Sarasota County ordinances dating to 1975 to explain the county’s interpretation that hotel rooms without kitchens are not considered dwelling units; therefore, hotel rooms could not be counted for residential purposes.
For example, Section 28 of county Ordinance 75-38 says, “A dwelling unit is a room or rooms connected together, constituting a separate, independent house-keeping establishment for a family, for owner occupancy or rental or lease on a weekly, monthly, or longer basis, and physically separated from any other rooms or dwelling units which may be in the same structure, and containing sleeping and sanitary facilities and one kitchen.”
The county’s regulations for the Commercial General zoning district in the 1975 ordinance also allowed “transient accommodations,” Pearce explained. That language refers to hotel and motel rooms, he added.
Then, Pearce continued, in 1983, the County Commission amended that ordinance to omit the language about the length of time a dwelling unit may be occupied, but the board left in the provision that a dwelling unit was one that contained sanitary facilities and a kitchen.
“You’re going to hear a lot about that one kitchen as we move forward,” Pearce told Walker.
The 1983 ordinance, Pearce said, made it clear that three types of transient accommodations exist: those considered to be dwelling units; those that are not dwelling units; and those “used as a dwelling unit or other place of human habitation with sleeping accommodations …” That ordinance did say that a transient accommodation is a residential use, Pearce acknowledged.
Further, the 1983 ordinance, which was in effect as of March 13, 1989, designated the maximum residential density within the Commercial General (CG) zoning district, Pearce continued.
However, he emphasized, Siesta Key was not included in the “intensity level bands” set forth in that ordinance. Thus, no maximum residential density was approved for the barrier islands.
“There are several different reasons why the [commissioners] may have done what they did back in 1983,” he added. For example, Pearce pointed out, they may have wanted to discourage the conversion of hotel rooms into apartments or condominiums on the islands.
Yet, even if the court found the language in the 1983 ordinance to be ambiguous, Pearce continued, the August 2022 Florida Supreme Court ruling in Conage v. United States calls for courts to look at textual and structural clues in local government documents. That decision also discussed the “traditional canons” in regard to interpreting statutes, he added. “Ordinances can be interpreted in the same manner as statutes,” Pearce noted.
Therefore, he said, the fact that the 1983 county ordinance did not contain a maximum residential density for transient accommodations in CG zoning districts on the barrier islands should be read as the County Commission’s intent to omit such a standard for the islands.
Therefore, Pearce continued, the commission’s approval of the 170-room hotel on Calle Miramar was not inconsistent with Future Land Use Policy 2.9.1.
During his arguments, McLaren, the attorney for the intervenors, emphasized Pearce’s statement that the 1983 ordinance said that, without a kitchen, a dwelling unit had no residential density.
McLaren further noted that just five months after the March 1989 Future Land Use policy was adopted, the commissioners approved a measure establishing 26 dwelling units per acre as the maximum residential density for a CG zoning district. Violating FLU 2.9.1, McLaren added, “could not have been the intention.”
Ramirez’s assertions
Representing Ramirez, attorney Grosso maintained that the county’s Comprehensive Plan policies “clearly, unambiguously express an intent to limit development on the barrier islands like Siesta Key far, far more strongly than anywhere else in the county.”
He added, “There’s no way that we can conclude that this Comprehensive Plan contemplated hotels on barrier islands” with 170 rooms per acre.
Such development was not allowed, Grosso stressed, until the commissioners agreed to amend the Unified Development Code to eliminate the counting of hotel rooms for residential purposes.
Alluding to depositions taken on Ramirez’s behalf for the lawsuit, Grosso pointed out that county Planning Division staff indicated “that there was a numeric limit” on hotel rooms.
He told the judge that a person has “to trace the history of the zoning codes in order to see where things actually stood as of March 13, 1989.”
Ordinance 75-26, he continued, enacted the limit of 26 hotel rooms per acre in CG zoning districts. Then, Grosso noted, a subsequent ordinance — 75-38 — allowed up to 36 units per acre. That ordinance, he added, said that each hotel room would be considered a dwelling unit, and it made it clear that it was replacing “all prior ordinances” on the issue.
Moreover, Grosso said, the county’s 1981 Comprehensive Plan discussed the detrimental effects of overdevelopment on the barrier islands, especially as that could relate to hurricane evacuations. That plan suggested, instead, that less development would be appropriate for the islands, he added.
The 1981 Comprehensive Plan, Grosso contended, made it clear that the barrier islands are “a completely separate land-use category from all the other land-use categories.”
Yet, he stressed, “That basic distinction [is] one that the [county and the intervenors] have completely ignored or glossed over. … They’re asking you to conclude that that separate treatment actually means greater amount of development than anywhere else, your honor. That just can’t be true.”
Excellent journalism