Event to be held via Zoom
A Sept. 12 hearing on a motion in a 12th Judicial Circuit Court case involving Sarasota County staff’s refusal to allow site development for a 112-room hotel on Siesta Key was cancelled and rescheduled for Oct. 16, The Sarasota News Leader has learned.
Circuit Judge Hunter Carroll has set the October event for 10:30 a.m. via Zoom, the hearing notice says.
Dave Balot, the Siesta businessman who is the principal of ABC SUB2 LLC, is seeking a summary judgment ruling in his complaint against the county. As the Legal Information Institute of the Cornell Law School explains, “A summary judgment is a judgment entered by a court for one party and against another party without a full trial.”
In late March, Balot’s attorney David Smolker, of the Tampa firm Smolker Mathews, filed the original complaint against the county. In it, Smolker pointed out, “The County’s Unified Development Code (the ‘UDC’) requires that ABC commence [the site development] … within two years, or by October 26, 2024.”
The UDC contains all of the county’s land-use and zoning regulations.
A county document explains, “[A] Site and Development Plan shall be required for all development other than the creation of a subdivision. … Approval of the Plan by the County shall be construed as authority for the representative/applicant to: a. construct improvements such as stormwater facilities, excavation and fill, bulkheads, sidewalks, paving; and b. apply for building permits.”
Then, on June 13, as the News Leader has reported, Smolker filed the motion for summary judgment. In it, he wrote that county Planning and Development Services Department staff “has refused to fully process and approve the Site Development Plan Application” that Balot filed for the hotel he plans at 5810 Midnight Pass Road on Siesta Key, where a Wells Fargo bank operated for years. The staff excuse, Smolker explained, is “that ABC’s unchallenged Special Exception and the approved density and intensity of use of 112 hotel rooms are no longer valid” in light of 2023 rulings in both a Florida Division of Administrative Hearings (DOAH) case and a 12th Judicial Circuit Court case, which fought the County Commission’s approval of an amendment to the UDC that would have allowed for increased residential density beyond the level permitted by county Comprehensive Plan Future Land Use policy 2.9.1.
Siesta resident Lourdes Ramirez won both those cases, which resulted in the County Commission’s vote this year to rescind the amendment to the UDC that the board members seated in October 2021 had approved, eliminating the counting of hotel and motel rooms for residential density purposes.
County staff has maintained that ABC SUB2 must win approval of both an amendment to the Comprehensive Plan — which guides growth in the county — and a county UDC text amendment to obtain additional density and intensity of use for the hotel project.
The Special Exception that the commissioners approved allows Balot to exceed the maximum height of 35 feet on a parcel zoned Commercial General and build “transient accommodations” — the county term for hotel and motel rooms — on his property.
As part of his argument in the summary judgment motion, Smolker pointed to action taken by now-Deputy County Attorney David Pearce during the Sept. 1, 2022 Sarasota County Planning Commission hearing on Balot’s hotel application. One of the board members remarked on a discussion that had focused on whether that advisory board “should pause, wait or postpone consideration of ABC’s Special Exception” until lawsuits contesting the County Commission’s approval of two other high-rise hotels on Siesta Key had been resolved, Smolker wrote.
That same planning commissioner proceeded to ask then-Assistant County Attorney Pearce, who was providing counsel to the Planning Commission, “whether there were any requirements or conditions or anything that the Planning Commission needed to evaluate or consider as to the pending lawsuits,” the motion continues.
Pearce replied as follows, Smolker’s motion notes, with emphasis: “No. Honestly the control as to when an application is submitted is controlled by the applicant. In order for the County to basically say, ‘we’re not going to process any applications at this time,’ it’d have to, you know, adopt some sort ofmoratorium, and there’d have to be a legitimate reason for that moratorium. For example, if the county was considering either amendments to the [County] Code or additions to the Code, that might be a legitimate reason for a moratorium, but I have not heard any sort of suggestions from county staff, nor have I heard anything in that regard from the Board of County Commissioners …”
Pearce added, “My [ordinary] advice to county staff is even if there is a lawsuit pending regarding a similar project, you follow the County’s Code of Ordinances and process the application in the same manner as you would in any other instance.”
The motion indicates that Pearce’s quotes were verified through a review of the video of that meeting.
In contrast, in his April 29 filing of the county’s Answer and Affirmative Defenses in the Balot case, Pearce contended that Balot’s lawsuit should not be considered by the court because ABC SUB2 “has not yet exhausted its administrative remedies associated with its site and development plan approval.
Generally,” Pearce wrote, “parties are require to pursue administrative remedies before resorting to courts to challenge administrative action.” Pearce cited a 2001 Florida Fifth District Court of Appeal case, Central Fla. Invs. V. Orange Cty. Code Enforcement Bd., in making that assertion.
Pearce further explained, “The exhaustion rule serves a number of policies, including promoting consistency in matters which are within agency discretion and expertise, permitting full development of a technical issue and factual record prior to court review, and avoiding unnecessary judicial decisions by giving the agency the first opportunity to correct any errors” and possibly make the court action moot.
He also cited a 1985 Florida First District Court of Appeal case, City of Gainesville v. Republic Inv. Corp., in making that point.
In the summary judgment motion, Smolker further noted, that, shortly after the County Commission vote in October 2022 to approve Balot’s hotel application, Balot “engaged engineers and a landscape architect to prepare the Site Development Plan for the Project.” Balot paid a $15,060 fee to the county on Dec. 22, 2022 when he submitted his site development plan application, the motion added, and county staff accepted both the plan and the fee.
Yet, the motion continued, “On January 19, 2023, a County staff person emailed the County Attorney, noting that Dave Balot of ABC had filed his Site Development Plan Application and inquired whether the outstanding lawsuits had ‘any impact on [her] approving the [Site Development Plan Application].’ The County Attorney responded with one word: ‘No.’ ”
The motion cited a copy of an email from then-Assistant County Attorney Pearce to county Planner Hannah Sowinski, dated Jan. 19, 2023, as the source of the latter quote.
Moreover, Smolker argued in the summary judgment motion, “The County staff’s position is contrary to Florida Statutes, case law and its own UDC. The exclusive method of challenging an increase in the density or intensity of use under a development order such as the Special Exception on grounds of inconsistency with a comprehensive plan is an action pursuant to Section 163.3215 [of the] Florida Statutes. Here, the Special Exception was never … challenged [in a timely fashion in accord with Section 163.3215]. Therefore, ABC’s unchallenged Special Exception and the approved increase in density and intensity of use allowing the 112-room hotel is no longer subject to challenge and/or invalidation on grounds of inconsistency with the County’s Comprehensive Plan.”
Witness lists
Pending Judge Carroll’s ruling on the summary judgment motion, a civil trial in Balot’s case has been set for the last week of January 2025.
In preparation for the potential trial, both Smolker and Deputy County Attorney Pearce have filed witness lists with the Circuit Court.
Among those named in the filing for Balot are Matt Osterhoudt, director of the Planning and Development Services Department; Planner Sowinski; Michele Norton, assistant director of Planning and Development; Pearce; county Zoning Administrator Donna Thompson; Planner Anna Messina; Dennis Medved, a manager of Planning and Development; Planner James Ehrmann; and architect Mark Sultana of DSDG Architects in Sarasota, who designed Balot’s hotel.
Pearce’s witness list names Osterhoudt, Medved and Ehrmann.
Both witness lists were filed with the court in mid-July.