Citing abundance of legal problems with complaint, county asks judge to dismiss case filed by two South Siesta residents and two condominium associations
A June 12, 2023 trial has been scheduled on the complaint filed against Sarasota County last November over both high-rise hotels that the County Commission has approved on Siesta Key, The Sarasota News Leader has learned.
Twelfth Judicial Circuit Court Judge Stephen Walker is scheduled to hear the case. That is set to take place a little more than three months after he conducts a trial on the first hotel complaint, which Siesta resident Lourdes Ramirez filed just a few days before attorneys for the four plaintiffs in the second case filed their lawsuit.
An order that Walker signed on Jan. 21 points out that a two-week jury trial term will begin on June 12, 2023. That document says the length of this second trial is unknown. In Ramirez’s situation, the judge set the trial to begin at 9 a.m. on March 27, 2023 and anticipated it would take five days.
Both cases will be heard in the Judge Lynn N. Silvertooth Judicial Center on Ringling Boulevard in downtown Sarasota, court documents note.
In the meantime, Walker also has scheduled a 30-minute hearing, via Zoom, for 2 p.m. on Feb. 11 to consider a motion seeking court approval for the owners and developers of the hotel planned on Calle Miramar to intervene in this second lawsuit.
The same three attorneys — Scott A. McLaren, Shane T. Costello and Jarod A. Brazel of the Tampa firm Hill, Ward & Henderson — also have filed a motion for their clients to intervene in Ramirez’s suit. As of a News Leader check this week of the docket in that complaint, documents indicate that Walker has called for a magistrate to hear that motion, instead of his conducting a hearing on it.
The plaintiffs in the second case, regarding both the Calle Miramar hotel and one planned on Old Stickney Point Road, are James P. Wallace and Robert Sax, both of south Siesta Key; the 222 Beach Road Owners Association; and the Marina Del Sol Condominium Association.
The condominium complex located at 222 Beach Road is across the street from the two Beach Road parcels that are to be combined with two Calle Miramar parcels for an eight-story, 170-room hotel designed to stand on the edge of Siesta Village. The Marina Del Sol complex is east of the site where Siesta businessman and chiropractor Dr. Gary Kompothecras plans a seven-story, 120-room hotel on Old Stickney Point Road.
County answers second complaint
On Jan. 10, Assistant County Attorney David Pearce filed a motion asking Judge Walker to dismiss the Wallace/Sax complaint.
After explaining the background of both hotel hearings — with separate County Commission votes on Oct. 27 and Nov. 2, 2021 — Pearce contends in his motion that Count 1 of the lawsuit “fails to state a claim for relief because it lacks a short and plain statement of ultimate facts showing the Plaintiffs are entitled to relief.” He cites Section 1.110(b) of the Florida Rules of Civil Procedure.
Moreover, Pearce argues that Count 1 “does not comply with the requirement that ‘each claim founded upon a separate … occurrence … shall be stated in a separate count … when a separation facilitates the clear presentation of the matter set forth,’” referencing Section 1.110(f) of the Florida Rules of Civil Procedure.
Then, citing a 2020 ruling by Florida’s Third District Court of Appeal, Pearce writes, “A complaint that lacks minimal organization and coherence and does not sufficiently allege ultimate facts (including standing) should be dismissed without prejudice.”
The latter phrase refers to a judicial ruling that allows a revised version of a complaint to be filed. “Standing” is a legal term that pertains to whether a person has sustained or will sustain direct injury by the specific action of another party, and whether those effects can be redressed.
In the Wallace/Sax complaint, Count 1 says the plaintiffs “are in doubt as to and respectfully request a declaration as to” whether the County Commission’s approval of an amendment to the county’s zoning regulations, which eliminated the counting of hotel rooms for residential density purposes — plus the board’s approval of the necessary Special Exception applications for both hotels — violate Chapter 163 of the Florida Statues.
That count also seeks a declaration about whether the commission’s actions have any legal force.
Both hotel project teams sought Special Exceptions to exceed the 35-foot height limit on property zoned Commercial General and to allow “transient accommodations” — the term county staff uses for hotel and motel rooms — on land zoned Commercial General.
In representing the Calle Miramar hotel property owner — Calle Miramar LLC — and the long-time lessee of the land — SKH 1 LLC — attorneys with the Icard Merrill law firm in Sarasota asserted that the county was incorrect in considering hotel rooms to be akin to residential dwelling units. County Planning Services Division staff agreed, and the county commissioners on Oct. 27, 2021 approved the change in the county’s Unified Development Code (UDC). The latter contains all of the county’s land-use and zoning regulations.
However, Future Land Use Policy 2.9.1 in the county’s long-term growth plan — the Comprehensive Plan — restricts residential density on Siesta Key to the level as of March 13, 1989. Therefore, the Wallace/Sax complaint contends that the UDC could not have been amended without the commissioners first modifying that policy.
A press release that James P. Wallace III issued after the filing of the complaint says, “Even one, much less both hotels, would vastly exceed the maximum density room requirements” of that future land-use policy, which is 26 per acre, if the rooms have no kitchens.
The Calle Miramar hotel site is about 0.96 acres, while the Old Stickney Point Road property comprises 1.17 acres.
Further, Count 1 argues that the commissioners violated Section 2.2A(1) of the county Charter, which says, “Provided however, any ordinance amending Sarasota County’s Comprehensive Plan which increases allowable land use density or intensity, shall require an affirmative vote of a majority plus one of the full membership of the Board of County Commissioners.”
Other concerns about Count 1
Assistant County Attorney Pearce called Count 1 “an unnecessarily convoluted combination of claims.” He added, “How can the Court properly discern the ultimate facts (including standing) associated with multiple allegations of inconsistencies with the law by four plaintiffs involving an ordinance [the UDC amendment] and three separate quasi-judicial actions involving two different hotels and a parking garage by different applicants that are combined into a single count?”
With use of the term “quasi-judicial,” Pearce was referencing the fact that the public hearings on the two hotel projects were conducted like trials, with the County Commission having to weigh testimony and evidence in deciding whether the proposals were consistent with county policies and regulations.
The third quasi-judicial hearing to which he refers regards another project approved for Siesta’s south commercial district. The Kompothecras plans also call for a five-story parking garage situated between Stickney Point Road and Old Stickney Point Road to serve hotel guests, as well as the public and customers of retail shops planned on the ground floor of the garage.
Additionally, in elaborating on the standing issue, Pearce notes that the plaintiffs “claim they will suffer adverse effects to an interest protected or furthered by Sarasota County’s comprehensive plan, ‘including interests related to health and safety, hurricane evacuation, densities or intensities of development, transportation facilities and access to health care facilities.’” (One portion of the complaint says that Wallace, who lives at the “far south end” of the Key, would be hindered in accessing hospital facilities “and doctors during medical emergencies” because of the extra traffic congestion that will be associated with the hotels.)
Pearce points out that the complaint offers “no allegations concerning adverse impacts to the character of [Wallace’s] neighborhood,” as the suit does not contend that Wallace lives within close proximity to either hotel site.
The only one of the four plaintiffs who has any degree of standing in the case, Pearce adds, is Sax, who “alleges he owns property on Siesta Key approximately 100 yards from the [Kompothecras parking garage and hotel sites].” Yet, Pearce notes, “Sax provides no factual allegations concerning the proposed hotel [on Calle Miramar].”
“How do Plaintiffs’ interest differ in degree from any other member of the public that [has] used the roads for vehicular traffic?” Pearce continues. “Plaintiffs offer no specific allegations regarding frequency of use of the roads other than ‘daily,’ compared to the rest of the general public.”
Moreover, he writes, their complaint “alleges no facts concerning the impact on [their] rights concerning changes in traffic patterns or traffic counts which compare [to] what is currently permitted … in comparison to that changed by [the County Commission approval of the Special Exception petitions]. What route do Plaintiffs take during their ‘daily’ trips? Does that take them by the site of the proposed development? When are those trips taken?”
The attorneys for the plaintiffs in the case are David Smolker and R. Clay Matthews of the Smolker Matthews firm in Tampa and Ralf Brookes of Cape Coral.
Further legal problems cited in regard to lawsuit
Pearce proceeds to cite what he contends are a number of other deficiencies in the complaint. For example, he writes that Count 1 “also fails to state a claim for relief because Plaintiffs try to create a … cause of action where none exist.”
He references the lawsuit’s assertion that the Comprehensive Plan needed to have been amended before the UDC amendment and the Special Exception petitions for the two hotels won County Commission approval. The plaintiffs cite Section 163.3184 of the Florida Statues, he continues. However, he argues with emphasis, the statue does not provide for legal relief “based on a failure to adopt or amend a comprehensive plan, but rather only relief in the form of an administrative challenge when adoptedplans or plan amendments do not comply with requirements of [that statute].”
Pearce points out that the plaintiffs should have pursued a challenge of the county action through the Florida Division of Administrative Hearings, instead of filing the case in Circuit Court.
“Section 163.3213 [of the Florida Statutes] requires a person who wishes to challenge the validity of a land development regulation as being inconsistent with a comprehensive plan to file a petition with the local government setting forth facts and reasons why they believe the regulation is inconsistent with the comprehensive plan,” Pearce writes.
(The County Commission’s votes to approve the hotel and parking garage applications are considered development orders.)
Pearce explains the process that should follow from the filing of the inconsistency petition. Ultimately, he points out, the individual may request a hearing with the Division of Administrative Hearings. The decision of the administrative law judge in such a case can be appealed to the appropriate district court of appeal, Pearce points out.
Pearce then turns his attention to alternative counts in the lawsuit, noting that that they do not comply with requirements of the Florida Rules of Appellate Procedure.
First, he writes, “Plaintiffs have not included an appendix,” which should provide the transcripts of the two County Commission hearings on the hotel projects. Additionally, once more referencing the Florida Rules of Civil Procedure, he argues that the plaintiffs should have named the applicants for the hotel projects as parties to the proceeding in Circuit Court.
Pearce further points out that, “Unless a local government’s ordinances provide otherwise, the exclusive method for a party to challenge a development order as being inconsistent with a comprehensive plan” is through a complaint seeking “declaratory relief.” Thus, he adds, the alternative counts represent “a backdoor consistency challenge, which is improper.”
The Bernhard Law Firm in Miami explains in a “white paper” that “[d]isputes often arise over certain rights, status, or other equitable or legal relations. … These circumstances leave Floridians with an immediate need to know the true meaning and scope of their rights and legal relationships.” Therefore, the paper adds, “[T]hey can seek certainty through Florida’s Declaratory Judgment Act (Florida Statutes Chapter 86).”
The paper also points out, “An action for declaratory relief [under the guidelines of the Florida Statutes] is an expedient way to resolve disputes …”