Siesta resident takes second approach in challenging County Commission approval of hotel on Calle Miramar

Ramirez files petition with Florida Department of Economic Opportunity, which has oversight of local government comprehensive plans

Lourdes Ramirez. Contributed image

The attorneys for the first Siesta Key resident to challenge the Sarasota County Commission over its approval of high-rise, “mega hotels” on the barrier island have launched a new initiative in an effort to prevent construction of the buildings, The Sarasota News Leader has learned.

On Feb. 17, acting on behalf of Lourdes Ramirez, attorneys Martha Collins and Pamela Jo Hatley of the Collins Law Group in Tampa filed a petition with the Florida Department of Economic Opportunity (DEO) under the guidelines of Section 163.3213(3) of the Florida Statues. Section 163.3213(1)  “provides that substantially affected persons have the right to maintain administrative actions that assure land development regulations implement and are consistent with the local comprehensive plan,” the petition explains.

A comprehensive plan is the long-term growth guide for a local government. The DEO is the state agency that oversees comprehensive plan issues. Whenever the Sarasota County Commission is considering an amendment to the county’s plan, it must send the proposed language to the DEO for review.

The land development regulation that is the focus of Ramirez’s petition, the document continues, is the ordinance the County Commission approved on Oct. 27, 2021, which amended the county’s Unified Development Code (UDC) to eliminate the counting of hotel rooms for residential density purposes countywide. The UDC contains all of the county’s land-use and zoning regulations.

Previously, any parcel zoned Commercial General in the county was limited to 26 hotel rooms per acre, as long as no more than 25% of those rooms had kitchens.

On Oct. 27, 2021, the County Commission voted 3-2 to approve the plans for the eight-story, 170 room hotel. The four parcels that would be home to a hotel between Calle Miramar and Beach Road on Siesta Key are zoned Commercial General; they comprise 0.96 acres.

This is a rendering of the 170-room, eight-story hotel planned on Calle Miramar. Image courtesy Icard Merrill

Ramirez’s petition asks the DEO to find the ordinance amending the UDC to be inconsistent with the county’s Comprehensive Plan and provide Ramirez “the opportunity to submit written and oral testimony” to the department] in regard to the matter.

In accord with state law, the petition also notes, Ramirez’s attorneys first had to file a petition with the local government “whose land development regulation is the subject of the petition [sent to the DEO].” The necessary petition was filed with Sarasota County on Dec. 20, 2021, the document points out, and the county filed its response on Jan. 21.

In a statement provided to the News Leader on Feb. 22, the Office of the County Attorney wrote, “In accordance with the administrative process under section 163.3213 [of the Florida Statutes], to challenge a land development regulation as being inconsistent with a comprehensive plan envisions a petitioner filing a petition with the County, and the County filing a response. If the petitioner does not like the County’s response, they then file a petition with the Department of Economic Opportunity, which conducts an informal administrative review to determine whether the regulation is consistent with the comprehensive plan.”

Pamela Jo Hatley is one of Lourdes Ramirez’s attorneys. Image from her LinkedIn account

In Ramirez’s petition to the DEO, her attorneys point out that Ramirez lives on Siesta Key, “which is a low-lying barrier island …” The County Commission’s approval of the Calle Miramar hotel cleared the way for development “at a scale that significantly increases the uses, densities and intensities of Transient Accommodations in certain zoning districts, including the Commercial General zoning district on Siesta Key, known as the Commercial General-Siesta Key Overlay District, or CG-SKOD,” the petition adds.

“Transient accommodations” is the term county staff uses for hotels and motels.

The Calle Miramar hotel has been planned “with a restaurant, bar, retail shops and 223 parking spaces for hotel guests and the public on a parcel of approximately one-acre located less than one mile from Ms. Ramirez’s property,” the petition explains.

As a result of the County Commission vote, the petition continues, Ramirez will experience the following: “additional risk to her health and safety as a pedestrian and vehicle driver due to increased traffic and congestion on local roadways; delays due to increased traffic congestion on local emergency evacuation routes; delays of emergency responders due to increased traffic congestion on local roadways; congestion and overcrowding of beaches, beach parking, and beach access points; congestion and overcrowding of public restroom facilities serving local beaches.”

The petition notes, “Roadways on Siesta Key are already operating at constrained levels of service.” A table in the Mobility Element of the county’s Comprehensive Plan “shows several roadways on Siesta Key are designated ‘constrained,’ meaning the designated roadways are operating at a Level of Service ‘D’ or ‘F,’ and there are no potential improvements to provide better operating conditions.”

This is a section of Table 10-4, with several Siesta Key roads listed. Image courtesy Sarasota County

That same element of the Comprehensive Plan “explains Level of Service ‘D’ means ‘Speed and freedom to maneuver are severely restricted, and a poor level of comfort and convenience is experienced by the motorist. Small increases in traffic will generally cause operational problems at this level,’” the petition points out.

The element also says that “Level of Service ‘F’ means ‘Operating conditions at this level are forced or have broken down. This condition exists wherever the amount of traffic approaching a point exceeds the amount that can traverse the point. Queues typically form at such locations. Operations are characterized by stop and go waves; vehicles may proceed at reasonable speeds for short distances, and then be required to stop in a cyclical fashion. Comfort and convenience are extremely poor, and frustration is high …’”

Among the roadways on Siesta that the Mobility Element lists as constrained are Siesta Drive and Stickney Point Road, the petition notes. Those are the only two means of getting on and off the Key, it adds, so they are designated as hurricane evacuation routes.

Storm protection policies of the Comprehensive Plan

The petition also points out that the Land Use Element of the county’s Comprehensive Plan “states Barrier Islands are recognized as a unique land use category,” explaining that development on them “‘is of special concern due to problems associated with hurricane evacuation, potential for storm damage, and the sensitive nature of coastal habitats …’”

Further, the petition says, “All properties on Siesta Key are in the designated Coastal High Hazard Area,” and the Land Use Element says, “‘The definition of Coastal High Hazard Areas is coincident with the evacuation zone for a Category 1 hurricane …’”

All properties on Siesta Key, the petition adds, also are designated Evacuation Level A; residents of that level “are the first to be evacuated for a category 1 hurricane.”

Then the petition points to Future Land Use Policy 2.9.1 in the Comprehensive Plan, which says, “‘The intensity and density of future development on the Barrier Islands of Sarasota shall not exceed that allowed by zoning ordinances and regulations existing as of March 13, 1989 (emphasis added).’”

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

The petition also stresses that Future Land Use Policy 2.9.1 “unambiguously adopts the zoning ordinances and regulations existing as of March 13, 1989 to determine standards and limitations governing the density and intensity of development on lands designated as Barrier Islands.”

Moreover, the petition notes, the county’s zoning ordinances and regulations existing as of March 13, 1989 included hotels and motels in its definition of “transient accommodations.”

Yet another portion of the Comprehensive Plan, the petition says — Coastal Policy 1.2.1 — “requires that Sarasota County’s

‘Land Development Regulations and limits on urban infrastructure improvements shall both be used to limit development on coastal barrier islands and other high-hazard coastal areas to prevent a concentration of population or excessive expenditure of public and private funds.’”

Further, the petition continues, Coastal Objective 1.3 requires the county “‘[t]o protect the public safety during emergency evacuation by reducing or maintaining emergency evacuation clearance time; maintaining an adequate emergency evacuation roadway system; and ensuring adequate shelter space.’”

This is a ‘massing’ diagram showing the bulk of the Calle Miramar hotel adjacent to residential structures on the outskirts of Siesta Village. It was presented to the County Commission on Oct. 27, 2021 by Mark Spiegel, president of the Siesta Key Coalition. The applicants’ project team objected that the image was unrealistic. Image courtesy of Mark Spiegel

During a January 2021 public workshop required as part of the application process for the Calle Miramar hotel, project team member William Merrill III, an attorney with the Icard Merrill firm in Sarasota, emphasized that managers of hotels in an area where a hurricane strike has been predicted always evacuate those facilities well in advance of the storm’s arrival. Therefore, Merrill said, Siesta residents’ evacuations would not be hampered by guests leaving at the same time as the residents.

Nonetheless, Ramirez’s attorneys point out, the County Commission’s approval of the Calle Miramar hotel “disregards the existence of ordinances and regulations existing March 13, 1989, and the clear objectives, policies, and intent of the Sarasota County Comprehensive Plan to limit development on coastal barrier islands and other high-hazard coastal areas, and to direct development away from high hazard coastal areas, and therefore the Land Development Regulation is not consistent with the Sarasota County Comprehensive Plan.”

The county’s response

In the county’s Jan. 21 response to Ramirez’s original petition, and its Feb. 23 answer to the petition her attorneys sent to the DEO, Assistant County Attorney David Pearce questioned her standing to pursue the action.

He also argued that the elimination of the counting of hotel rooms for residential density purposes, through the commission’s adoption of the UDC amendment, “ensures that hotels are not easily converted into permanent residential density in the form of apartment complexes or condominiums.” Hotel rooms cannot have kitchens or cooking facilities, according to the ordinance, he noted; “otherwise, they become dwelling units.”

In regard to the “standing” issue, Pearce explained that, according to Section 120.52(12)(b) of the Florida Statutes, a “‘substantially affected person’ for purposes of the Administrative Procedure Act … must show a substantial injury caused by the disputed action. … A person … must prove that substantial injury by demonstrating: (1) an injury … of sufficient immediacy to merit entitlement to an administrative hearing; and (2) the substantial injury is of a type or nature which the proceeding is designed to protect.”

Pearce cited a 1981 Florida Second District Court of Appeal case in his assertion, Agro Chemical Co. v. Department of Envtl. Reg.

“To satisfy the sufficiently real and immediate injury,” he continued, the person’s injury “must not be based on pure speculation or conjecture.” He cited a 1999 Florida First District Court of Appeal case as the basis for that statement.

This aerial view shows the proposed new hotel on Old Stickney Point Road and a five-story parking garage on Stickney Point Road, with the Gulf of Mexico west of the sites. The County Commission voted 4-1 on Nov. 2, 2021 to approve the garage and the hotel. Image courtesy Sarasota County

In her petition, Pearce wrote, Ramirez said she “believes there will be increased traffic and congestion on the local roadways” as a result of the County Commission’s approval of the two hotel projects on Siesta Key. (The County Commission approved the second hotel, planned for Old Stickney Point Road, on Nov. 2, 2021.) However, he added, “her interests must be something more than a generalized concern broadly shared by the public,” citing a 1995 Florida First District Court of Appeal case. Yet another ruling of the First District Court of Appeal, in 2001, he noted, held that “a generalized interest … is insufficient to confer standing.”

Claims regarding an increase in traffic, Pearce contended, are not an injury different from situations that the general public can assert.

“There is no injury … associated with the enactment of [the UDC amendment that eliminated the counting of hotel rooms for residential density purposes],” Pearce argued. “With limited exception,” he added, “the regulation applies uniformly throughout Sarasota County. Thus, the causal connection between the adoption of the [amendment] and the alleged injury to Ramirez is too remote.”

Moreover, he continued, citing Section 163.3213(5)(a) of the Florida Statutes, “Ramirez must demonstrate that it is not even ‘fairly debatable’ that the land development regulation is consistent with the comprehensive plan.”

While “fairly debatable” is not defined in Chapter 163 of state law, he added, the Florida Supreme Court has explained the following: “The fairly debatable standard is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety. In other words, an ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.”

“Additionally,” Pearce wrote, the ‘fairly debatable’ rule is a rule of reasonableness which answers whether, upon the evidence presented to the local government, the local government’s action was reasonably based.” He cited a 1993 Florida Second District Court of Appeal case in that assertion.

“Thus,” Pearce continued, “Ramirez shoulders a heavy burden to overcome the ‘fairly debatable’ standard. … For this burden to be met, Ramirez must demonstrate that it is beyond reasonable debate or legitimate controversy that the challenged land development regulation and the comprehensive plan, taken as a whole, are inconsistent.”

He added that the UDC amendment clarified “the way the County handles certain transient accommodations. They are not a residential use. Rather, they are a commercial use.”

This graphic explains the Unified Development Code amendment that the County Commission approved on a 3-2 vote after the Calle Miramar hearing on Oct. 27, 2021. Image courtesy Sarasota County

Then, referencing Future Land Use Policy 2.9.1, Pearce pointed out that the 1989 zoning regulations for the county “never treated transient accommodations as residential density on the barrier islands where such transient accommodations do not include a kitchen/cooking facilities.”

On March 13, 1989, he wrote, the county zoning regulations defined a “dwelling unit” as “a room or rooms connected together, constituting a separate, independent housekeeping establishment for a family, for owner occupancy or rental or lease, and physically separated from any other rooms or dwelling units which may be in the same structure and containing sanitary facilities and one kitchen [his emphasis].”

“By [their] plain language,” Pearce stressed, the zoning regulations made the distinction that if a transient accommodation had no kitchen, it was not a dwelling unit.