Pending County Commission’s rescinding of 2021 ordinance related to Siesta hotel construction, no trial to be held on one count in second lawsuit filed in November 2021

Case management conference set for Jan. 16, 2024

The Judge Lynn N. Silvertooth Judicial Center, located on Ringling Boulevard in downtown Sarasota, is the venue for 12th Judicial Circuit Court cases in Sarasota. File photo

On Nov. 6, the 12th Judicial Circuit Court judge presiding over both lawsuits regarding construction of high-rise hotels on Siesta Key issued a Partial Final Judgment in favor of the three plaintiffs in the second case.

The lead attorney for those plaintiffs had filed a motion on Nov. 2, seeking continuation of the trial regarding both complaints, which originally was scheduled for a period beginning Nov. 13.

Circuit Judge Hunter Carroll already had issued a Final Judgment in the first case, ruling in favor of Siesta Key resident Lourdes Ramirez, who filed her suit in late November 2021; the second complaint was filed just days later.

During their regular meeting on Oct. 24, at the recommendation of the Office of the County Attorney, the county commissioners voted unanimously not to appeal Carroll’s Aug. 21 order in the Ramirez case.

Ramirez’s complaint focused on an amendment to the county’s Unified Development Code (UDC) — which includes all of the county’s land-use and zoning regulations — that the County Commission seated on Oct. 27, 2021 approved on a 3-2 vote. It eliminated the counting of hotel rooms for residential density purposes throughout most of the county. After taking that action, the board members then voted 3-2 to approve an eight-story, 170-room hotel on four parcels standing between Beach Road and Calle Miramar.

Count 1 of the second complaint contended that that UDC amendment was approved ultra vires. As Cornell University’s Legal Information Institute explains, that term “[d]escribes actions taken by government bodies or corporations that exceed the scope of power given to them by laws or corporate charters.”

The plaintiffs in the second hotel complaint contended that the County Commission should have approved an amendment to the Comprehensive Plan, which guides growth in the community, instead of modifying the UDC. However, as they have stressed, it takes four votes — a supermajority — to amend the Comprehensive Plan and only three votes to change the UDC.

The focal point of both the Ramirez case and the second complaint is Future Land Use Policy 2.9.1 of the Comprehensive Plan, which limits residential density and intensity on the county’s barrier islands to that in place as of March 13, 1989.

This is Future Land use Policy 2.9.1 in the Comprehensive Plan. Image courtesy Sarasota County

Prior to issuing his Aug. 21 ruling for Ramirez, Judge Carroll reviewed two, decades-old county Comprehensive Plans he had requested from the Office of the County Attorney. In his Final Judgment, he wrote that, upon completing that review, he found that the largest number of hotel rooms that could be allowed on parcels zoned Commercial General on the barrier islands would be 36 per acre.

Both of the sites where the hotels that the commissioners approved in late 2021 would stand are zoned Commercial General (CG). The Calle Miramar hotel was planned on property comprising 0.96 acres, while the site that would be home to a seven-story, 120-room hotel at the intersection of Old Stickney Point Road and Peacock Road contains 1.17 acres.

The plaintiffs in the second case are the 222 Beach Road Owners Association, representing residents of the condominium complex standing at 222 Beach Road; the Marina Del Sol Condominium Association, whose homeowners live in the complex that is just east of the Old Stickney Point Road hotel property; and Robert Sax, who lives in Marina Del Sol. One other south Siesta resident, James P. Wallace III, originally was a plaintiff, but he subsequently withdrew from the litigation.

In his Nov. 3 Motion to Continue Trial, plaintiffs’ attorney David Smolker, of the Tampa firm Smolker Matthews, referenced the ruling in Ramirez’s case and the fact that Carroll had consolidated the complaints for potential trial this month.

Then Smolker noted that Carroll had directed the parties in the second case to submit to him a proposed partial final judgment.

With the formal entry of that document in the case, Smolker wrote in his motion, only Count 1 of his clients’ complaint would remain to be “adjudicated by this Court.” Smolker also pointed out that “the County has advised that it intends to rescind [the October 2021 UDC amendment] …”

David Smolker. Image from his LinkedIn account

That planned action was another facet of the Oct. 24 County Commission motion, made by Commissioner Michael Moran, not to appeal the decision in the Ramirez case. It also came at the recommendation of the Office of the County Attorney.

The formal vote on rescinding the UDC amendment, Smolker added, is expected to occur in December. Provided that the board members follow through with it, he wrote, Count 1 would be moot; thus, no trial would be necessary.

Therefore, Smolker added, the plaintiffs requested that Carroll “continue the bench trial pending the County’s final action [on the ordinance] and schedule a case management conference on or before February 1, 2024 to determine whether a trial will be necessary.”

On Nov. 3, Carroll issued an order continuing the trial, adding that he would file a separate document in regard to the scheduling of a case management conference, in accord with Smolker’s motion. The same day, he did go ahead and schedule the case management conference for 10:45 a.m. on Jan. 16, 2024, with 5 minutes reserved for comments. That event will be conducted in person and via Zoom, the document says.

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