Commissioner Michael Moran advocates for a county staff process, citing concerns about a lawsuit Gary Kompothecras has filed against the Board of Zoning Appeals
The majority of the Sarasota County commissioners agreed this week that a proposed amendment to the Siesta Key zoning regulations should be initiated privately, instead of having county staff undertake the work.
A motion Commissioner Michael Moran made that called for staff to handle the changes died for lack of a second.
The Aug. 29 action came in response to a staff memo following up on requests the board heard on July 12. Siesta Key architect Mark Smith — who also serves as chair of the Siesta Key Chamber of Commerce — and several business owners urged the commission that day to amend the Siesta Key Overlay District (SKOD) zoning regulations to clarify that a new building constructed in a Commercial General district would not have to have a minimum setback of 25 feet from the street if it were taller than 35 feet.
In a report to the board dated Aug. 11, Matt Osterhoudt, director of the county’s Planning and Development Services Department, and Zoning Administrator Donna Thompson wrote that they believed a privately initiated zoning amendment would be more appropriate than a public one, because “the issue appears to focus on a specific project …”
Since late last year, Dr. Gary Kompothecras, a chiropractor known for his “1-800-Ask-Gary” advertising, has been working on an initiative to construct what his attorney has described as a boutique hotel on the island. When that attorney, Charles Bailey III of the Williams Parker firm, asked earlier this year for an interpretation of the SKOD language regarding commercial construction setbacks, Thompson responded in writing that the island’s regulations are superseded by the general county regulations. Therefore, a building taller than 35 feet in a Commercial General district would have to be set back a distance equal to half its height, with 25 feet as the minimum. The maximum height for commercial structures on the county’s barrier islands is 85 feet, she pointed out, so 42.5 feet would be the maximum setback.
Bailey appealed Thompson’s findings to the county’s Board of Zoning Appeals. On June 12, that board voted 3-2 to side with Thompson. Subsequently, Sarasota attorney Robert Lincoln filed a Petition for Writ of Certiorari in the 12th Judicial Circuit Court on behalf of Kompothecras’ limited liability company, Siesta Acquisitions, seeking to overturn the Board of Zoning Appeals decision. However, based on the July 12 County Commission discussion, Judge Frederick Mercurio agreed to a joint motion of the county and Siesta Acquisitions to put the litigation on hold, pending the outcome of the zoning amendment process.
During the Board Reports segment of the County Commission’s Aug. 29 meeting, Moran brought up the Aug. 11 staff report. “We need guidance, I think,” he told County Attorney Stephen DeMarsh. He was afraid if the commission insisted on a privately initiated SKOD amendment, he said, that that “would impair [the] litigation in some way.”
“I don’t have an intended outcome or suggestion,” DeMarsh replied.
County Administrator Tom Harmer pointed out that the staff memo said the SKOD change essentially would apply to a specific situation. He also referenced a second statement in the memo: “Please note that staff is unaware of any other circumstances where the SKOD setbacks have been a critical issue for an applicant or property owner.”
Further, Harmer continued, staff members disagreed with the amended language Bailey had suggested to them.
As stated in the Aug. 11 memo, Bailey proffered the following changes for the SKOD, underlining the new wording: “In the [Commercial General]/SKOD, [Commercial Intensive]/SKOD and [Office, Professional and Institutional]/SKOD Districts, the minimum street yard setback shall be two feet for structures up to 35 feet in height. When the maximum height of a structure is increased through the special exception process, the minimum street yard setback shall be 2 feet unless the County Commission requires a greater street yard setback.”
However, the memo said staff would support working on criteria to help determine the appropriate setback, given the design of a proposed project.
Still, Harmer added, if the commissioners preferred a publicly initiated SKOD amendment, “we will follow up on that.”
“If we don’t agree with [Bailey’s wording],” Moran responded, “then what wording do we agree with?”
Any proposed amendment to the SKOD would have to be presented to the county’s Planning Commission first and then to the County Commission, Harmer said. Through that process, he added, “Maybe there will be some opportunity for the language to be modified or evolved, if you will.”
If the commission did agree with pursuing a publicly initiated amendment and provided “plenty of opportunity for public input,” Moran said, the language “might change 10 different ways before it ultimately gets to us for a decision.”
When Moran asked again what staff needed from the commission, Harmer responded that staff would take whatever direction the board chose to provide. If the decision ended up being to recommend that representatives of Siesta Acquisitions pursue the private initiative, Harmer added, “it’s their responsibility to bring [the language] to the county for consideration.”
Moran said that if the board demurred on the publicly initiated SKOD amendment, the county could end up paying a literal price. “What I am suggesting is to try and avoid the litigation expense and have a sensible and speedy result to this.”
“It seems like we kind of have a foot in two different boats here,” Chair Paul Caragiulo told County Attorney DeMarsh.
Regardless of whether the amendment were privately or publicly initiated, DeMarsh replied, “I believe that the staff will propose what it believes is the correct idea … I think that you’re going to get to [the result] no matter what process [you pursue].”
Moran also mentioned the cost of a privately initiated amendment, but DeMarsh told him, “[It] is not going to be the end of the world if someone had to pay the fee.”
In response to a News Leader question about the fee, county Media Relations Officer Drew Winchester wrote in an Aug. 30 email, “The fee is $1,000 plus advertising. In this instance, there would only be two hearings — one before the Planning Commission and one before the County Commission. Each ad is approximately $1,000, so total cost would run $3,000 to $4,000 depending on the number of advertisements that are needed for hearings.”
Finally, Moran said, “I think the answer is for us to take leadership in this.” Then he made the motion to direct staff to pursue the publicly initiated SKOD amendment.
After a couple of moments, Caragiulo noted, “Motion dies for lack of a second.”
“Thank you for listening,” Moran told his colleagues.
Commissioner Charles Hines said he appreciated Moran’s attempt. Still, he concurred with staff that, until Kompothecras, Mark Smith and others broached the issue on July 12, he had not heard from anyone who desired to have the SKOD commercial setback requirements changed.
“Let them bring [the proposed amendment] to us,” he added of representatives of Siesta Acquisitions. “Then we’ll hear the debate …” If they disagreed with the board’s decision, Hines added, they could go back to Judge Mercurio.
DeMarsh made it clear that the case has been held in abeyance until after a conclusion has been reached at the County Commission level. The county has not incurred any expenses thus far in litigation with Siesta Acquisitions, he pointed out.
Nonetheless, DeMarsh said, “At the end of the legislative process [involving the Planning and County commissions’ public hearings], it could pick up again.”
Replying to a News Leader request for a response to the board’s action, Siesta Acquisitions’ attorney, Charles Bailey III, wrote in an Aug. 31 email, “In short, I do understand the County Commission’s desire expressed at their meeting Tuesday that the amendment be privately-initiated. From a practical standpoint, it does not matter whether a clarifying amendment to the Zoning Regulations is initiated by the County or a private landowner. Because concern over the Board of Zoning Appeal’s interpretation of the County’s regulations was raised by multiple Siesta Key stakeholders at the July 12 County Commission meeting, including a number of Siesta Key commercial property owners, my takeaway was that the County Commission intended the amendment to be processed by their staff. We thought this made sense as a publicly-owned amendment process, controlled by the County, would give a greater opportunity for public input. Nevertheless, as there are several engaged Siesta Key commercial property owners concerned over this issue and aware of the substantial negative impact the [Board of Zoning Appeals] interpretation has on their ability to redevelop their lands, I suspect many are eager to work with the County on this to process a clarifying amendment to the County Commission.”
Siesta residents’ continuing opposition
The day of the discussion, Catherine Luckner, vice president of the Siesta Key Association (SKA), sent a letter to the board, indicating support of the privately initiated zoning code amendment.
As the organization “represents residential and other property owners on Siesta Key,” she wrote on behalf of the SKA directors, “we ask you consider our primary goal is to support and maintain the standards within the Siesta Key Overlay (SKOD) regulations. … Any modification of the SKOD Zoning is worthy of public input and we would request participation in any such process.”
When news of Kompothecras’ hotel plans first broke in December 2016, Siesta resident Lourdes Ramirez was among the first to oppose them, citing concerns about increasing density and intensity of commercial uses on the barrier island. The SKOD already allows for tourist accommodations, she pointed out. Ramirez is a past president of the Sarasota County Council of Neighborhood Associations (CONA).
When the News Leader notified her on Aug. 29 about the County Commission discussion, she responded in an email, “I’m not thrilled with the idea of going through the text amendment process when I know Siesta’s residents will overwhelmingly oppose the change to reduce setbacks on commercial buildings. It’s a waste of our resources. But at least the county commissioners recognize that this request is to benefit just one entity and if this entity wants the shorter setbacks for his upcoming project then [he] should pay for the text amendment process. With all of the hassles the petitioner will put the community through, I’m sure [he is] not paying enough to cover the costs of the proposed text amendment.”
As for the legal action against the Board of Zoning Appeals, Ramirez continued, “I also hope the lawsuit goes forward since I’m confident the developer will lose in court. And when that happens I believe the county should ask for reimbursement of our attorney’s fees.”
During the Aug. 3 Siesta Key Association (SKA) meeting, Ramirez was among several attendees who spoke out against Kompothecras’ efforts to build a hotel on the island. A second one that evening, Margaret Jean Cannon, addressed the County Commission during the Open to the Public part of the Aug. 29 meeting.
Cannon said she was one of several speakers at the June Board of Zoning Appeals hearing who spoke in support of staff’s interpretation of the SKOD setback requirements.
“We do not want buildings that reduce our daylight plane, that impact our resources,” she told the County Commission.