Focus to be Florida administrative law judge’s April opinion in county Comprehensive Plan challenge
At 9 a.m. on Tuesday, May 23, in Tallahassee, Gov. Ron DeSantis and the members of his Cabinet — seated as the Florida Administration Commission — are scheduled to address a Florida administrative law judge’s ruling in early April in favor of a Siesta Key resident.
The meeting is to be open to the public, as required by state law.
Proposed orders that the Administration Commission requested to be filed in early May reflect arguments made in the 2022 challenge that Lourdes Ramirez filed with the Florida Division of Administrative Hearings (DOAH).
She has maintained that the Sarasota County Commission violated policies in the county’s Comprehensive Plan, which guides growth, in approving the planned eight-story, 170-room hotel on four parcels between Calle Miramar and Beach Road. The hotel would stand in an area of residential structures, on the edge of Siesta Village.
Conversely, Assistant County Attorney David M. Pearce, who handled the case on behalf of the county, has asserted that the commissioners’ 3-2 vote in favor of the hotel project was in keeping with county policies pertinent to the application.
In early April, Administrative Law Judge Suzanne Van Wyk agreed with the arguments that Ramirez’s legal team made during a November 2022 hearing in Sarasota. The crux of those was Future Land Use Policy 2.9.1 in the Comprehensive Plan, which says that residential density and intensity on the county’s barrier islands cannot exceed that in place as of March 13, 1989.
At the request of the Calle Miramar hotel project team in 2021, the majority of the county commissioners voted to amend the county’s Unified Development Code (UDC) — which contains all of the land-use and zoning regulations – to eliminate the counting of hotel rooms for residential density purposes countywide, except for parcels within the Boutique Resort Redevelopment/Planned Development District and those within the Nokomis Center Revitalization Plan. The majority of the commissioners agreed that hotel rooms — “transient accommodations,” as the rooms are referenced in county documents — are a commercial use and, therefore, should not be counted as dwelling units.
It takes only three commission votes to amend the UDC, while four “Yes” votes are necessary to modify the Comprehensive Plan.
In his proposed order for the Administration Commission, Assistant County Attorney Pearce acknowledged that, since the April ruling in Ramirez’s DOAH case was a final order, and the Administration Commission’s “role is limited,” as outlined in state law, “the Commission cannot overturn the Final Order.”
Nonetheless, he contended, the Commission “does have the authority” to determine whether the UDC amendment that the County Commission adopted on Oct. 27, 2021, which figuratively paved the way for the Calle Miramar hotel to be built, “is ‘in compliance’ ” with state law. Therefore, he added, the Administration Commission can determine that no sanctions will be levied against the county.
Conversely, Ramirez’s attorneys have requested that the Administration Commission impose the following sanctions, which are outlined as options in Section 163.3213(6) of the Florida Statutes:
“1. The commission may direct state agencies not to provide funds to increase the capacity of roads, bridges, or water and sewer systems within the boundaries of those local governmental entities which have comprehensive plans or plan elements that are determined not to be in compliance. The [Administration Commission] order may also specify that the local government is not eligible for grants administered under the following programs:
“a. The Florida Small Cities Community Development Block Grant Program …
“b. The Florida Recreation Development Assistance Program …
“c. Revenue sharing … to the extent not pledged to pay back bonds.
2. “If the local government is one which is required to include a coastal management element in its comprehensive plan pursuant to [state law], the commission order may also specify that the local government is not eligible for funding pursuant to [Section 161.091 of the Florida Statutes].”
Ramirez’s attorneys argued that all of those sanctions should be levied against Sarasota County to ensure that local governments’ land development regulations be consistent with their comprehensive plans.
In their proposed order for the Administration Commission, the attorneys for the owners of the property where the Calle Miramar hotel is planned, plus the developer, RE/MAX Realtor Robert T. Anderson — identified in legal terms as “Intervenors” — also called for the Administration Commission to decline to apply any sanctions.
Beyond that, the attorneys wrote, the governor and the Cabinet should allow the County Commission “to maintain the UDC Amendment as effective,” if it desires to do so.
Those attorneys also are representing the Gary Kompothecras family on Siesta Key, which owns the site where the County Commission has approved a second new hotel. That property stands at the intersection of Old Stickney Point Road and Peacock Road. Kompothecras is the developer of the seven-story, 120-room project.
In its proposed order, the Florida Department of Economic Opportunity (DEO), which formally was the defendant in Ramirez’s DOAH case, wrote in its conclusion 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.”
Additionally, the DEO asks that the county not be subject to sanctions allowed as allowed by the applicable state law.
The DEO is the state department charged with overseeing issues related to local governments’ comprehensive plans. Its staff reviews proposed amendments to ensure that they comply with those plans.
A request to strike the proposed county and Intervenors’ orders
The Administration Commission’s May 23 meeting materials include a motion that Ramirez’s attorneys also filed. It asks that the Administration Commission strike the county’s and the Intervenors’ proposed rulings because they “improperly re-argue the merits of the Administrative Law Judge’s ruling that the [Oct. 27, 2021] ordinance is inconsistent with the County’s Comprehensive Plan. These arguments ask the [Administration] Commission to exceed its jurisdiction and exercise authority it does not possess by rejecting the [administrative law judge’s] rulings on the merits …”
Ramirez’s attorneys cited a 2016 First Florida District Court of Appeal decision in Dep’t of Revenue v. Graczyk. That ruling said that “an agency may not increase its own jurisdiction and, as a creature of the statute, has no common law jurisdiction or inherent power such as might reside in, for example, a court of general jurisdiction.”
Ramirez’s attorneys also cited a 1974 First District Court of Appeal decision in State ex rel. Greenberg v. Fla. State Bd. Of Dentistry, which made it clear that “[a]dministrative agencies’ ‘powers must be exercised in accordance with the statute bestowing such powers, and they can act only in the mode prescribed by statute.’ ”
Then, with emphasis, Ramirez’s attorneys wrote that Section 163.3213(6) of the Florida Statutes “limits the Commission’s jurisdiction in this matter: ‘The sole issue before the Administration Commission shall be the extent to which any of the sanctions described in [state law] shall be applicable to the local government whose land development regulation has been found to be inconsistent with its comprehensive plan.’ ”
The attorneys added, “In this case, section 163.3213(6) [of the Florida Statutes] is clear that, once a Final Order of inconsistency of a land development regulation with a comprehensive plan is issued by an Administrative Law Judge, that order is final and may not be ruled upon or adjudged in any way by the Commission. Only an appellate court, pursuant to section 120.68 [of the Florida Statutes] has jurisdiction to conduct any review on the merits.”
Attorney Richard Grosso of Plantation wrote the documents filed on Ramirez’s behalf for the Administration Commission hearing. Tampa attorneys Martha Collins and Pamela Jo Hatley of the Collins Law Group also represented her in the DOAH proceeding.
The attorneys for the Intervenors are Scott McLaren and Shane Costello of Hill Ward Henderson in Tampa.
Further details of the May 23 agenda item
The May 23 session will begin at 9 a.m. in the Cabinet Meeting Room of the Capitol in Tallahassee, the agenda says. The Administration Commission’s portion of that meeting will be the final item prior to adjournment. Ramirez’s case is the third topic, the agenda shows.
The heading of that item says, “Consideration of Whether Sanctions are Warranted Relating to the Amended Final Order issued by the Division of Administrative Hearings in the proceeding of Lourdes
Ramirez v. Department of Economic Opportunity and Sarasota County, Florida, and Calle Miramar, LLC; SKH 1, LLC; 1260, Inc.; Stickney Storage, LLC; and Siesta Key Parking, LLC.”
The companies listed are those of the Intervenors.
The narrative about Ramirez’s DOAH case on the Administration Commission agenda further points out that the matter “is before the Administration Commission solely for the determination of whether sanctions are warranted pursuant to section 163.3213(6) [of the Florida Statutes].”
However, in Assistant County Attorney Pearce’s proposed final order, he emphasized that Section 163.3148(8)(b) of the Florida Statutes says that the Administration Commission “may specify [sanctions] to which the local government will be subject if it elects to make the amendment effective notwithstanding the determination of noncompliance [emphasis in the document].”
Pearce explained, “The adoption of a land development regulation [such as the approval of the hotel project] by a local government is legislative in nature and shall not be found to be inconsistent with the local comprehensive plan if it is ‘fairly debatable’ that the land development regulation is consistent with the comprehensive plan.”
He cited another portion of state law, adding that, although “fairly debatable” is not defined in Chapter 163 of the Florida Statutes, “the Florida Supreme Court has explained: The fairly debatable standard is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety. In other words, an ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.”
He cited a 1997 Florida Supreme Court case, Martin County v. Yusem, in making that argument.
Therefore, Pearce indicated that the Administration Commission could disagree with the administrative law judge’s “interpretation of the zoning regulations in existence as of March 13, 1989.”
He added that in the 2022 ruling In Conage v. United States, the Florida Supreme Court “wrote that proper legislative interpretation must ‘exhaust all the textual and structural clues that bear on the meaning of disputed text,’ because “the plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which the language is used, and the broader context of the legislation as a whole.’ ”
Then Pearce contended that Administrative Law Judge Van Wyk “did not ‘exhaust all textual and structural clues’ ” in her review of the county documents submitted as exhibits in Ramirez’s case. “No deference was given to the County, even when the County pointed to the plain language of the zoning regulations in support of its position,” Pearce wrote.
The Intervenors’ attorneys’ arguments in their proposed order for the Commission mirrored some of those that Pearce had made.
Moreover, the Intervenors’ attorneys stressed, “Where 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.” They cited a 1968 Florida Third District Court of Appeal decision, City of Miami v. 100 Lincoln Road, Inc.
Additionally, the attorneys contended, Administrative Law Judge Van Wyk relied on a Comprehensive Plan that no longer was in effect at the time of the County Commission hearing on the Calle Miramar hotel. Therefore, her conclusion that hotel development on the barrier islands “ ‘is limited to the maximum density already on the ground’ … is entirely unsupportable when the plain language of the policy at issue — [Future Land Use] Policy 2.9.1 — limits intensity and density of future development to what was ‘allowed’ [their emphasis] by the zoning ordinances on March 13, 1989.”
They added, “If the County wanted to limit development to the intensity and density of what was already existing on the ground, it could have said so in its zoning ordinances. It did not, and [Van Wyk] cannot insert such a prohibition where none existed.”
This article is extremely well written. It captures the complex legal and community aspects of the Ramirez case against a significant increase in density in Siesta Key Village.
Extremely well done.