Nov. 30 hearing set for Circuit Court judge to hear arguments regarding Siesta residents’ request for him to clarify dismissal of count in lawsuit over two hotels planned on the Key

Proceeding to be conducted via Zoom

At 11 a.m. on Wednesday, Nov. 30, the 12th Judicial Circuit Court judge presiding over the two lawsuits filed over the County Commission’s 2021 approval of high-rise hotels on Siesta Key is scheduled to conduct a hearing on a motion plaintiffs filed for the clarification of his dismissal of a count in one of those cases.

That hearing will be conducted via Zoom, the notice says. It has been planned to last 30 minutes.

As The Sarasota News Leader has reported, a south Siesta Key resident and the two homeowners associations asked Circuit Judge Stephen Walker to reconsider, or at least clarify, his July ruling that eliminated Count 1 of their complaint over both hotel votes.

They contended in that count that the county commissioners first should have amended the county’s Comprehensive Plan, which guides growth, before amending the county’s Unified Development Code (UDC) to eliminate the counting of hotel rooms for residential density purposes. The UDC contains all of the county’s land-use and zoning regulations.

As Robert Sax, the Marina Del Sol Condominium Association and 222 Beach Road Owners Association pointed out in Count 1 of their lawsuit, it takes a supermajority — four of the five commissioners — voting “Yes” to modify the Comprehensive Plan. With the UDC, a simple majority is all that is necessary.

The attorney on the project team representing the owners and developer of the four parcels between Beach Road and Calle Miramar where an 8-story, 170-room hotel is planned argued that the North American Industry Classification System (NAICS) says hotel rooms are commercial and therefore should not be considered dwelling units.

At the conclusion of the Oct. 27, 2021 hearing on that hotel application, the commissioners voted 3-2 to approve the project, including the change to the UDC. Commissioners Nancy Detert and Christian Ziegler opposed the plans.

Yet, the plaintiffs have pointed to a Comprehensive Plan policy — 2.9.1 — which has been in effect since March 13, 1989 to make their case that hotel rooms should continue to be considered residential units. That policy was implemented, they point out, to maintain the density and intensity of development on the county’s barrier islands, primarily out of concern that, when a hurricane is predicted to strike the area, residents need to evacuate in a timely fashion.

In his July 19 ruling in the case, Judge Walker dismissed Count I “without prejudice.” He pointed out that an administrative process set forth in state law “is the exclusive remedy for such a consistency challenge,” citing a 2000 Florida First District Court of Appeal decision in Veal v. Escambia County. Thus, Walker continued, his ruling left open the potential for the plaintiffs to pursue such an administrative challenge through Florida’s Division of Administrative Hearings (DOAH).

The Office of the County Attorney has insisted that the plaintiffs are trying to create “a cause of action wherein they challenge the consistency of the [UDC amendment and the approvals of the hotel applications] without having to use the … remedies spelled out in [Sections] 163.3213 and 163.3215 [of the Florida Statutes].”

Assistant County Attorney David Pearce has pointed out that the state’s Community Planning Act requires all local governments “to have a comprehensive plan, approved by the State, that outlines their respective ‘principles, guidelines, standards and strategies’ for land development in the future.’ ”

“Local governments implement their comprehensive plans through the adoption of local land development regulations,” David Pearce continued in the county’s response to the motion for rehearing of Count 1. “Therefore, all land development regulations must be consistent with an adopted comprehensive plan,” as noted in Section 163.3194(1)(b) of the Florida Statutes.

The Nov. 30 hearing notice also points out, “Pursuant to the Court’s practice preference,” the proceeding will focus only on the request for clarification of the judge’s dismissal of Count 1 of the complaint, “unless the Court chooses to also address reconsideration.”

Another south Siesta resident — James P. Wallace III — originally was a fourth plaintiff in that case. He withdrew from it earlier this year to focus on efforts to prevent the installation of a traffic signal at the Avenue B and C intersection with Stickney Point Road on Siesta Key. As the News Leader also has reported, on Dec. 12, 2018, in approving the application for the mixed-use Siesta Promenade development in the northwest quadrant of the intersection U.S. 41 and Stickney Point Road, the County Commission majority stipulated that the traffic signal must be in place before construction of Siesta Promenade can begin.

Members of the public can watch judicial proceedings via Zoom. However, judges caution that those who are not parties to the litigation should remain muted, so as not to disturb the proceedings.

The Meeting ID for the Nov. 30 session is 465 693 0098.

The password is 568290.
For those wishing to participate via telephone, the dial-in number is 1-786-635-1003.

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