Two members of public urge board members to rescind Special Exceptions that County Commission approved in 2022 to allow project to proceed
With only Commissioner Mark Smith in favor of the idea, the Sarasota County commissioners voted 4-1 this week against appealing a 12th Judicial Circuit Court ruling that went against the county in litigation involving a planned 112-room hotel at 5810 Midnight Pass Road on Siesta Key.
Formally, the motion that Commissioner Ron Cutsinger made, at the suggestion of County Attorney Joshua Moye, was to take no action on the ruling. That followed Moye’s recommendation against an appeal to Florida’s Second District Court of Appeal.
During the Open to the Public comment period at the start of the regular commission meeting on Nov. 19, in Venice, Siesta resident Lourdes Ramirez urged the board members to rescind the Special Exceptions that the commissioners seated in October 2022 approved to make it possible for Siesta businessman Dave Balot to build his hotel on the site of a former Wells Fargo bank, near Siesta Public Beach.
Ramirez won two legal challenges she filed against the county in 2021 an effort to prevent the construction of high-rise hotels on Siesta Key.
Cape Coral attorney Ralf Brookes agreed with Ramirez in regard to the Special Exceptions; he and Ramirez both referred to relevant judicial precedents for such action. However, Brookes also called for the county to appeal Circuit Court Judge Hunter Carroll’s Oct. 24 order requiring county staff to process what is called the “site and development plan” for Balot’s hotel.
In a filing in the case, Deputy County Attorney David Pearce explained, “County staff reviews a site and development plan application to ensure proper design of the components of horizontal/lateral construction (as opposed to a building permit which reviews vertical construction). Such horizontal components include stormwater management, excavation and fill, bulkheads, sidewalks, paving, drainage plans, parking, and a master utility plan for water and sewer improvements.”
During her remarks, Ramirez also talked about the memo that the Office of the County Attorney had provided the board members in their Nov. 19 agenda packet. It explained Carroll’s ruling, emphasizing that the judge made it clear that Balot could not deviate from the Binding Development Concept Plan for the hotel that the County Commission also approved in October 2022 when it granted the Special Exceptions. Carroll indicated that he was forced to agree with the argument that Balot’s attorney put forth in Balot’s complaint: No one took legal action within the 30-day period provided for in Florida Statute 163.3215 to challenge the hotel project on the basis of its inconsistency with the county’s Comprehensive Plan, which guides growth in the community.
At the time of the board approval of Balot’s project, the county still was engaged in Ramirez’s litigation. She had argued that an amendment to the county’s Unified Development Code (UDC) that the commissioners approved in late October 2021 was in contradiction with Future Land Use Policy 2.9.1 in the Comprehensive Plan. That policy limits residential density and intensity on the county’s barrier islands to the level in place as of March 13, 1989.
The amendment to the UDC, which contains all of the county’s land use and zoning regulations, eliminated the counting of “transient accommodations” — the county term for hotel and motel rooms — for residential density purposes.
Judge Carroll also presided over Ramirez’s Circuit Court challenge. In his ruling in that case, he explained that he had analyzed versions of the Comprehensive Plan approved over the years and could find that, at most, 36 hotel rooms per acre could be allowed on property zoned Commercial General, which was the designation of the parcels slated for the two hotels the commissioners approved in late 2021.
Further, as she addressed the board on Nov. 19, Ramirez pointed out that the Oct. 28 memo from the Office of the County Attorney regarding the Balot hotel case advised the commissioners of the following: “[A] third-party, such as Lourdes Ramirez, may challenge the site-and-development permit application, building permit application, or other development order involving this proposed hotel.”
As Ramirez put it this week, “Somehow, this statement pushed the responsibility of challenging the illegal, approved mega hotel into my lap.”
Yet, she continued, she and her attorney, Richard Grosso of Plantation, had discussed the memo and agreed that, based on other details in Judge Carroll’s ruling, any challenge would be limited to a material change in Balot’s Binding Development Concept Plan.
The Office of the County Attorney’s memo summed it up thus: “[T]he circuit court ruled that any material change in the intensity or density of the proposed hotel during any future permitting applications will mean that the County must apply those limits of its comprehensive plan.”
Ramirez said she was not sure why the Oct. 28 memo produced by the Office of County Attorney had included her name, but she wanted to “volley this responsibility [of stopping construction of the hotel] back to the county.
She also told the commission on Nov. 19 that she and a volunteer “will closely monitor the permitting process” for Balot’s hotel.
Moreover, Ramirez said, “The county should consider revoking the Special Exception on the basis that it was issued in error.”
The Special Exception approval regarded the 59-foot height of the hotel, as 35 feet is the maximum on property zoned Commercial General, and the ability to provide transient accommodations on the site.
During his Nov. 19 remarks to the commissioners, attorney Brookes pointed out that he not only had been an assistant Sarasota County attorney in years past but that he also had worked as an attorney on staff with Monroe County. The latter county, he said, was involved in two cases, Corona Properties of Florida Inc. v. Monroe County and Crowell v. Monroe County, in which a Florida Court of Appeals ruled that nothing prevented Monroe County from rescinding a Special Exception that had been approved “that was clearly a mistake in law.”
If Sarasota County appealed the Balot decision, Brookes noted, “citizens groups can file amicus briefs and try to explain the issue to the court.”
An amicus brief is a legal document filed with court permission by an entity that, while not a party in a case, nonetheless has a strong interest in the outcome. Such briefs are submitted to courts in efforts to try to encourage the courts to rule in favor of one of the parties in the litigation.
‘Not the thing to do’
After County Attorney Moye presented his recommendation against an appeal, as part of his Nov. 19 report to the board, Commissioner Smith, who is a long-time resident of Siesta Key, talked of having received communications on the issue, which — he noted — he had forwarded to Moye. Given those communications and the comments from Ramirez and Brookes that morning, he added, “I believe that we should appeal.”
The assumption of the commissioners seated in October 2022, when they approved the Balot hotel project, Smith continued, was “that the county was in the right” in having approved the UDC amendment and then voting to approve the two high-rise hotels — one on the edge of Siesta Village; the other, on Old Stickney Point Road.
“I’m not against hotels on Siesta Key,” Smith added, “but we have something that is in violation of our Comp Plan if we let [Balot’s project] go forward, and I think that’s just not the thing to do.”
Referencing the judicial precedents that Ramirez and Brookes had cited, Smith said, he believed the commission should rescind the Special Exceptions approved for Balot’s proposal.
Moye explained that Deputy County Attorney Pearce, in representing the county in the Balot case, “tried to get across to the judge that site and development is a different development order, inconsistent with the Comp Plan. … The judge … really focused on the Special Exception.”
If it were the will of the commission to pursue an appeal, Moye continued, “Then we can make the best arguments that we can make.” Nonetheless, he said, “It’s just going to be an uphill battle.”
(The Second District Court of Appeal has a long record of siding with Circuit Court judges’ decisions, the News Leader has observed in tracking cases over recent years.)
Then new District 1 Commissioner Teresa Mast pointed out that, based on Carroll’s ruling, county staff would undertake “what I would call rather tight scrutiny” of Balot’s Binding Development Concept Plan, as Balot’s project team moves forward with the hotel plans.
She did seek clarification from Moye that Carroll had stressed of the Binding Development Concept Plan that “nothing can be altered, changed, in any way, shape or form …”
“That’s correct,” Moye replied. “So staff would be reviewing that [plan] closely throughout the process. If anything did change,” he added, “the county staff would say, ‘You’ve gone too far’ …”
At that point, Commissioner Ron Cutsinger announced, “I don’t see the wisdom of appealing this at this time.” The UDC amendment, he noted, “was in force” at the time of the October 2022 board approval of Balot’s Special Exceptions.
“I think it would be really difficult to go back and win an appeal on this.”