Siesta residents seeking to prevent construction of two high-rise hotels ask judge to reconsider his elimination earlier this year of one count in their complaint

Assistant county attorney argues that plaintiffs trying to get around applicable state law

A south Siesta Key resident and two homeowners associations that filed suit against Sarasota County last year, following the County Commission’s approval of two hotels on Siesta Key, have asked the presiding judge to reconsider a July ruling that eliminated Count I of their complaint.

The attorneys for the original set of plaintiffs — south Siesta residents James P. Wallace III and Robert Sax, plus the Marina Del Sol Condominium Association and 222 Beach Road Owners Association, contended in Count I that the County Commission violated sections of the Florida Constitution and the Florida Statutes, along with Section 2.2A of the Sarasota County Charter, by approving an ordinance on Oct. 27, 2021 that eliminated the counting of hotel rooms for residential density purposes.

That portion of the county Charter involves the requirement that a supermajority — four of five — of the County Commission must vote for ordinances that amend the Comprehensive Plan to increase allowable land use density or intensity.

The plaintiffs argue that the commissioners first should have amended the county’s Comprehensive Plan — its guide for growth in the county — before adopting the ordinance that modified part of the county’s Unified Development Code (UDC). The UDC contains all of the county’s land-use and zoning regulations in regard to hotel room density.

As the plaintiffs’ attorneys pointed out in the lawsuit, only a simple majority of votes is needed to implement a change to the UDC.

With Commissioners Nancy Detert and Christian Ziegler dissenting on Oct. 27, 2021, the other three board members approved the UDC amendment and then voted to approve the plans for an eight-story, 170-room hotel on four parcels between Beach Road and Calle Miramar. The property totals about 0.96 acres on the edge of Siesta Village.

On Nov. 2, 2021, Ziegler joined Commissioners Alan Maio, Michael Moran and Ron Cutsinger in approving the second hotel on the Key, which would comprise seven stories with 120 rooms at the intersection of Old Stickney Point Road and Peacock Road.

The plaintiffs contend that the commissioners violated Comprehensive Plan Policy 2.9.1, which relates to the county’s barrier islands. The policy says that residential intensity and density cannot exceed the level existing on the barrier islands as of March 13, 1989.

In his July 19 ruling in the case, Circuit Judge Stephen M. Walker dismissed Count I “without prejudice.” He wrote 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.

With Siesta resident Wallace having dropped out of the hotels lawsuit in August, the attorneys representing the remaining three plaintiffs filed a motion on Aug. 31, arguing that the UDC amendment was “an end [run] around Policy 2.9.1’s limitation.” They contend that the action figuratively paved the way for the commissioners to approve a significant increase in residential density on Siesta Key through the addition of close to 300 hotel rooms.

“Count I seeks declaration as to whether the [commission’s] actions are unauthorized … and of no legal force and effect,” the motion for rehearing of that part of the complaint points out. “It alleges that, in effect, the [commission’s] actions are tantamount to de facto amendment of Policy 2.9.1” without following the procedures mandated in state law for comprehensive plan amendments,” the motion says.

Among the reasons the plaintiffs’ attorneys cite as the basis for their request is Section 163.3213 of the Florida Statutes, which states the following, their attorneys note: “[A] substantially affected person, within 12 months after final adoption of the land development regulation, may challenge a land development regulation on the basis that it is inconsistent with the local comprehensive plan.”

Each vote to approve a new hotel on Siesta Key constituted a “land development regulation.”

Further, the motion points to Section 163.3194(3)(a) of the Florida Statutes, which says, “A development order or land development regulation shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by such order or regulation are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.”

Further, the motion points out, that section of state law deals only with matters pertaining to local government. “Violations of state statute, or a county charter or a county’s Home Rule authority under the Florida Constitution do not involve matters ‘enumerated by a local government,’ ” the motion continues.

“Accordingly,” the motion contends, “legal challenges raising such [other] violations” are not within the jurisdiction of the law that applies to local government comprehensive plan challenges. “Instead,” the motion says, “they must be brought, as Plaintiffs did here, by a separate action …”

The plaintiffs’ attorneys cited a 1990 Florida Third District Court of Appeal ruling in White v. Metro. Dade County as the basis for that assertion.

The motion also contends that clarification of Judge Walker’s dismissal of Count I is necessary, because it was unclear whether he intended to dismiss it in its entirety. Thus, the plaintiffs are uncertain whether they can continue to pursue any of the Count I claims.

The plaintiffs’ attorneys are David Smolker and R. Clay Matthews of the Smolker Matthews firm in Tampa.

County argues that dismissal of Count I was appropriate

In the Sarasota County response to the plaintiff’s motion, filed on Sept. 7, Assistant County Attorney David Pearce contends that the plaintiffs’ belief that the county commissioners enacted a de facto Comprehensive Plan amendment “is nonsense. There is no such thing as a de facto comprehensive plan amendment. The [commission] knows how to amend its comprehensive plan and did not do so [prior to approving the hotel planned on Calle Miramar],” Pearce added.

He notes that the plaintiffs “are unable to cite to any case in which another court has recognized a theory of a ‘de facto amendment’ to a comprehensive plan to create a cause of action [under state law].”

The plaintiffs in this case, he adds, 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].”

Pearce points 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,” Pearce continued. “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 county adopted its first Comprehensive Plan in 1981, Pearce points out. The County Commission has amended that document “many times over the past four decades, with significant revisions on March 13, 1989, and again in 2006, and 2016,” he writes.

The UDC amendment that the commission majority approved on Oct. 27, 2021, “removed the residential density limits (as measured in dwelling units per acre) which apply to transient accommodations within the commercial zoning districts throughout Sarasota County,” Pearce explains.

“Transient accommodations” is the county term for hotel and motel rooms.

Prior to the board’s approval of that amendment last October, Pearce points out, Commercial General zoning districts could have no more than 26 dwelling units per acre, if no more than 25% of those units had kitchens.

In Judge Walker’s order in the case, issued on July 19, he ruled that the allegations in Count I “essentially seek the same … relief as alleged” in Counts IV and V, Pearce argues.

Those counts, he note — which the judge allowed to stand — deal with the Special Exceptions that the commissioners also approved for the hotels, including height above the 35-foot limit in Commercial General zoning districts.

“Accordingly, it is appropriate to dismiss Count I with regard to the claims that the three approved special exceptions are inconsistent with the County’s Comprehensive Plan,” Pearce writes.