County and Intervenors in case file appeal with First District Court of Appeal
It took slightly more than 12 minutes on May 23 for Gov. Ron DeSantis and the Florida Cabinet — seated as the Florida Administration Commission — to vote unanimously to take “under advisement” a Siesta Key resident’s case that challenges County Commission action regarding a planned high-rise hotel on the barrier island.
The Administration Commission decision was predicated on the fact that the developers of two hotels on the Key and the owners of both sites — known in legal terms as the Intervenors – and the county had filed notice with the Florida First District Court of Appeal, in Tallahassee, that they would fight an administrative law judge’s April 5 Final Order in Lourdes Ramirez’s Florida Division of Administrative Hearings (DOAH) case regarding a County Commission vote taken on Oct. 27, 2021.
On April 25, the commissioners, on a 3-1 vote, had given County Attorney Frederick “Rick” Elbrecht the authority to preserve the right to appeal, pending the Administration Commission action this week.
Assistant County Attorney David Pearce, who has been representing the county in the litigation, and Elbrecht both had indicated uncertainty about how the Administration Commission would handle the May 23 hearing. Pearce pointed out to the governor and Cabinet members during the Tallahassee proceeding that this was the first time since 1996 that such a hearing had been conducted, in fact.
“We might as well let that run its course,” DeSantis said of the appeal, before he made the motion to put the Administration Commission decision on hold. He pointed out that the Court of Appeal could end up with a decision that countered the ruling of the administrative law judge.
Attorney General Ashley Moody seconded the motion. She already had made the point that, “regardless of what the [Administration Commission] does today, we’ve got this pending appeal.”
After looking at the other Cabinet members following Moody’s second, DeSantis said, “Hearing no objection, the motion carries.”
When The Sarasota News Leader asked whether she would like to provide a statement about the decision, Ramirez wrote in a May 24 email, “I was disappointed that sanctions against Sarasota County were not imposed during yesterday’s hearing before the Governor and Cabinet. However, I understand their desire to wait until this appeals process is complete. Reflecting back on the hearing, I felt the Governor and Cabinet were truly listening to my comments and believe once we prove our case in the District Court of Appeals, we will be able to convince them to consider sanctions if the County does not repeal that ordinance.”
Ramirez has contended that the County Commission — on a 3-2 vote — violated the county’s Comprehensive Plan in approving an ordinance that amended the county’s Unified Development Code (UDC) — which contains all of the zoning and land-use regulations — to eliminate the counting of hotel rooms for residential purposes practically countywide. She has particularly focused on Future Land Use Policy 2.9.1 in the Comprehensive Plan, which guides growth in the county. That policy restricts residential density and intensity on the county’s barrier islands to the level in place as of March 13, 1989.
The county and the Intervenors contend that a later version of the Comprehensive Plan struck those restrictions.
Ramirez also has argued that the commissioners violated other policies in the Comprehensive Plan with their action in October 2021.
Administrative Law Judge Suzanne Van Wyk conducted a two-day hearing on the issues in November 2022 before issuing her ruling in Ramirez’s favor.
Under the guidelines of state law, the Administration Commission is charged with determining whether to impose remedies and/or sanctions on a local government body that has been found to violate its comprehensive plan.
Working to make their cases
During his statement to the governor and the Cabinet, Assistant County Attorney Pearce explained that the sole issue before them was “the extent of sanctions,” as allowed for in the Florida Statutes.
As the News Leader has reported, the following are among the potential sanctions: directing state agencies not to provide funds to the county to increase the capacity of roads, bridges or water and sewer systems; specifying that the county is not eligible for grants administered under the Florida Small Cities Community Development Block Grant Program and the Florida Recreation Development Assistance Program; and denying the county revenue sharing funds, to the extend the funds have not been pledged to pay back bonds.
However, attorney Scott McLaren, of the Tampa firm Hill Ward Henderson, representing the Intervenors, stressed that it is up to the Administration Commission to determine the extent to which any sanctions “shall be applicable,” referencing Section 163.3184(8)(a) and (b) of the Florida Statutes.
The Administration Commission could impose remedial actions and sanctions, he said; one or the other; or neither.
Ramirez “seeks to improperly restate the power of this Commission,” McLaren added. She suggests that the commission “must impose remedial action on the county,” McLaren continued, because the administrative law judge ruled that the UDC ordinance violated policies that Ramirez cited in the Comprehensive Plan.
“The Commission cannot overrule or overturn the ALJ [administrative law judge],” McLaren said. However, the Commission “certainly has the authority to explain its reasoning for its enforcement decision, including any disagreement with the administrative law judge.”
Then, referring to the 1996 case — which, he noted, occurred while Lawton Chiles was governor — McLaren explained, “Nothing in that case suggested that remedial actions must be imposed in all of these cases.”
McLaren also told the governor and the Cabinet that the Florida Department of Economic Opportunity (DEO) — against which Ramirez formally filed her DOAH challenge — determined that the County Commission ordinance approved on Oct. 27, 2021 was consistent with the county’s Comprehensive Plan.
Yet, Richard Grosso of Plantation, one of Ramirez’s attorneys, stressed to the Administration Commission that the DEO — which is charged with oversight of local governments’ comprehensive plans — “never held an evidentiary hearing [on the ordinance that amended the UDC].” Florida law allowed Ramirez to challenge the Comprehensive Plan consistency of that ordinance, he added. And that ordinance, he emphasized, would allow “a major increase” in hotel development on the county’s barrier islands, in violation of the Sarasota County Comprehensive Plan.
Moreover, Grosso continued, “It is not our contention that this body must apply sanctions and remedial actions.” Nonetheless, he said, “It’s our contention that you should. Otherwise,” he added, “the statute has no consequence. You can violate your comprehensive plan.”
He further pointed out that Ramirez’s proposed order for the Administration Commission in the case, and the DEO’s proposed order, are the only ones “consistent with the statute. Levy sanctions, but withhold them until the county demonstrates that it has repealed this ordinance.”
In its proposed order for the Administration Commission, the DEO wrote that, based on its reading of Section 163.3184(8) of the Florida Statutes, the Administration Commission should take one of the following actions: require that the “County shall take remedial actions” to either repeal the ordinance that eliminated the counting of hotel rooms for residential density purposes; “amend the ordinance [No. 2021-047] to be consistent with the County’s Comprehensive Plan; transmit to the [DEO] a proposed comprehensive plan amendment that ensures Ordinance 2021-047 is consistent with the Comprehensive Plan; or appeal the Amended Final Order.”
“Your sole authority is to determine what should they change about the ordinance,” Grosso added of the commissioners. “We say repeal it.” If the County Commission declines to do that, he continued, then the Administration Commission should levy all of the sanctions provided in state law.
Ramirez herself addressed the governor and the Cabinet as the final speaker. “It’s not easy for citizens like me to challenge the local government,” she pointed out, “but I believe strongly that the state laws are in place to protect human life.”
She added that Siesta Key had had “close calls” with Hurricanes Charley in 2004, Irma in 2017 and Ian, in September 2022. “I am concerned about the vulnerability of my family, friends, neighbors and visitors,” she said.
Therefore, Ramirez asked that the Administration Commission call for the county to repeal the UDC ordinance and make the county “follow state laws that exist to protect our lives and our property.”
When Attorney General Moody asked Grosso about the pending appeal before the First District Court of Appeal, he replied, “We think the [administrative law judge’s ruling] will be upheld.”