Smith casts sole ‘No’ vote after county attorney requests County Commission authority to preserve right to appeal administrative law judge’s decision in case involving proposed Siesta hotel

Smith explains he opposed Calle Miramar project prior to his election

This week, Sarasota County Commissioner Mark Smith, a Siesta Key resident, cast the sole “No” vote after County Attorney Frederick “Rick” Elbrecht asked for board approval to preserve the county’s right to appeal a Florida administrative law judge’s ruling, if necessary, in a case involving a planned eight-story, 170-room hotel on the edge of Siesta Key Village.

As The Sarasota News Leader has reported, on April 3, Florida Administrative Law Judge Suzanne Van Wyk ruled that the Sarasota County Commission violated policies in the county’s Comprehensive Plan in a 3-2 vote regarding a new county zoning regulation, which figuratively paved the way for their approval of that hotel. The structure would be built on four parcels between Beach Road and Calle Miramar.

Siesta resident Lourdes Ramirez had challenged the commission’s action  through a 2021 filing with the Florida Division of Administrative Hearings (DOAH). Her primary focus has been Future Land Use Policy 2.9.1 in the county’s Comprehensive Plan, which guides growth in the community. That policy limits residential density and intensity on the barrier islands to the level in place as of March 13, 1989.

At the urging of the Calle Miramar hotel project team, the commissioners voted in October 2021 to amend the county’s Unified Development Code (UDC), which contains all of the land-use and zoning regulations, to eliminate the counting of hotel rooms for residential purposes countywide. The board majority concurred with the project team’s assertion that hotel and motel rooms are commercial uses.

Only three votes are necessary to modify a UDC regulation. Four votes are required to amend the Comprehensive Plan.

During the April 25 regular meeting of the County Commission, County Attorney Elbrecht referenced an April 18 memo about the DOAH decision, which he had provided to the commissioners.

The next step in the process, he explained, is the referral of Van Wyk’s order to the Florida Administration Commission, which comprises Gov. Ron DeSantis and the Cabinet.

In his April 18 memo, Elbrecht provided details about that process.

Section 163.3213(6) of the Florida Statutes says that the Administration

Commission “shall hold a hearing no earlier than 30 days or later than 60 days after entry of the final order. The sole issue before the Administration Commission shall be the extent to which any sanctions described in section 163.3184(8)(a) or (b)1. or 2. shall be applicable to the local government whose land development regulation has been found to be inconsistent with the comprehensive plan.”

He added in the memo, “Subsection 163.3184(8)(a) states, ‘If the Administration Commission [during a hearing] finds that the comprehensive plan or plan amendment is not in compliance with [state law], the commission shall specify remedial action that would bring the comprehensive plan or plan amendment into compliance.’ ”

Further, Elbrecht explained, the Administration Commission may specify sanctions, provided in the state statute, “to which the local government will be subject if it elects to make the amendment effective notwithstanding the determination of noncompliance.” Among those sanctions are the following:

  • “1. The commission may direct state agencies not to provide funds to increase the capacity of roads, bridges, or water and sewer systems within the boundaries of those local governmental entities which have comprehensive plans or plan elements that are determined to not to be in compliance. The commission order may also specify that the local government is not eligible for grants administered under the following programs:
  • “a. The Florida Small Cities Community Development Block Grant Program, as authorized by [state law].
  • “b. The Florida Recreation Development Assistance Program, as authorized by chapter 375.
  • “c. Revenue sharing pursuant to [state law] to the extent not pledged to pay back bonds.”

Elbrecht then pointed out in his memo, “It is uncertain how the language regarding sanctions would be applied by the Administration Commission.”

The next meeting of the Administration Commission is scheduled for May 23, he wrote. “Our office is attempting to locate any authority describing how the Administration Commission conducts its hearings; so far we have not been successful, but we will continue with these efforts.”

Questions about an appeal

The April 18 memo also explains, “There are some questions about the timing of an appeal. Under an abundance of caution, our office seeks [County Commission] authorization to file a notice of appeal within thirty (30) days of the DOAH final order to preserve the Board’s appellate rights. After the Administration Commission makes

its decision, our office will report that decision to the [County Commission]. The [Commission] would then decide whether to move forward with the appeal, or voluntarily dismiss the appeal, depending on the Administration Commission’s decision.”

After Elbrecht concluded his April 25 comments regarding the DOAH ruling, Commissioner Michael Moran immediately made a motion to authorize the Office of the County Attorney “to do whatever actions are necessary” to preserve the county’s right to pursue an appeal.

Commissioner Joe Neunder seconded the motion.

Then Commissioner Smith told his colleagues, “I’m going to vote against this.” He had read Van Wyk’s order, he added, and was “in agreement with it …”

Smith pointed out that he opposed the County Commission action regarding the Calle Miramar hotel when he “was a civilian.”

Smith and Neunder both were elected during the November 2022 General Election. Prior to that, Smith for many years had served as an officer of the Siesta Key Chamber of Commerce.

After Smith made his remarks, Neunder asked for clarification from County Attorney Elbrecht that voting to preserve the county’s right to appeal meant no more than that.

Elbrecht confirmed that.

Then Neunder asked, “We’re not supposed to be out in the public, talking about this, giving our thoughts [on the legal challenges]?”

Elbrecht responded with a reminder that the county also is fighting two Circuit Court complaints filed in late 2021. The first, filed by Ramirez, focuses on issues similar to those in her DOAH complaint. The second lawsuit addresses the County Commission approval of both the Calle Miramar hotel and a seven-story, 120-room hotel planned at the intersection of Old Stickney Point Road and Peacock Road on south Siesta Key.

The Office of the County Attorney generally recommends that no one associated with the county comment on pending litigation, Elbrecht added.

“That’s what I thought,” Neunder said, adding that he just wanted to be certain.

When Chair Ron Cutsinger called for the vote on Moran’s motion regarding preservation of appeal rights in the DOAH case, Smith cast his “No” vote, resulting in a 3-1 decision.