County requests that lawsuit is tossed out

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By Phil Colpas

In the continuing battle to determine how Siesta Key will handle future development, the last several rounds have gone to the developers. The county recently greenlighted two large-scale hotel projects for the island; approved a setback variance at the Saba Sands property, 636 Beach Rd., to allow for the construction of a four-unit beach condo; and granted exceptions to allow for the construction of a swimming pool seaward of the property at 104 Beach Rd.

Concerned citizens have filed two lawsuits against construction of the hotels, alleging, among other things, that the county did not have the authority to change its own Comprehensive Plan or alter established density from 26 hotel rooms per acre on a barrier island.

Sarasota County wants the second lawsuit dropped.

The lawsuit in question was filed late last year by four plaintiffs fronted by James Wallace, who has been a resident of Siesta Key since 1964. Wallace’s hotel lawsuit targets both the 170-room Siesta Village hotel and Dr. Gary Kompothecras’ 120-room hotel and parking garage project at Old Stickney Point and Peacock roads.

In their complaint, Wallace, 222 Beach Owners Association, Robert Sax, and Marina Del Sol Condominium Association allege that the Sarasota Board of County Commissioners acted illegally and in violation of their own procedures by adopting the Land Development Code changes without first amending their Comprehensive Plan policy which limits hotel room density to a 26 units per acre maximum on Siesta Key.

On March 18, Judge Stephen Walker of the 12th Circuit Court of Sarasota heard arguments in a public hearing on Sarasota County’s motion to dismiss the Wallace, et al, lawsuit. An earlier circuit court decision allowed the owners and developers of the hotels planned on Calle Miramar and Stickney Point to intervene in the lawsuits.

Judge Walker will provide his written ruling at an unspecified date.

According to the plaintiff’s response in opposition to the county’s motion to dismiss the case: Plaintiffs/petitioners all reside on Siesta Key and are injured to a greater degree and in a different way than the general public who reside on the mainland. Their access to their properties is limited to two points of access (the north and south bridges). Their access will be adversely affected by the increased number of hotel rooms allowed for each of the hotels which will generate additional traffic on both of the already overcrowded, heavily and unacceptably congested barrier island access routes.

David Pearce, an assistant county attorney, cited different co-applicants filing on different days and the “co-mingling” of claims as reasons for dismissal. Further, he stated that the amendment was to the Unified Development Code, not the Comprehensive Plan. “UDC is separate and distinct from the Comprehensive Plan, which sets out land development use underneath the Comp Plan,” he said. “The UDC implements the plan.”

Count 1 “should’ve been dismissed because they should’ve gone through DEO,” Pearce said. (DEO is the Florida Department of Economic Opportunity.) “The plaintiff admits that Counts 2 and 3 are weak, citing no case law, statute or authority influenced by this decision.”

Pearce contended that plaintiffs did not prove that they were more impacted by this than anyone else on Siesta Key, citing Putnam County, Florida vs. Kaiser (1998), in which the court determined that the land owner would not be adversely affected by the project.

Scott McLaren, a Tampa-based attorney also representing the county in this case, echoed Pearce’s comments that the accounts from co-applicants must be shared at the same time. He also alleged that the petition for certiorari was not filed within the required 30 days, as well as a number of technical violations, including failure to file an appendix and failure to move to amend the petition. (Petitions for certiorari are filed to claim that a lower court has incorrectly decided an important question of law.)

“The plaintiff’s strategy is to drag this out as long as possible. That is not allowed within the rules,” McLaren said. “There was no Comprehensive Plan amendment in this case. An ordinance was adopted and some special exceptions were involved. That’s it. The only thing they laid out is a consistency challenge. You cannot consider consistency challenges in a certiorari petition.”

David Smolker, a Tampa-based attorney representing the plaintiff, responded: “The county is attempting to recast this as a consistency challenge; it is nothing of the sort. A detained procedural process is required to amend a plan. This was not done. They updated the Comp Plan by simply amending the UDC. That’s not the way it works. This is a violation. The Charter says density increases must be done by a supermajority.”

Smolker contended that all of the county’s arguments spoke to merits, which re not sufficient to dismiss these claims.

“Their argument — that a citizen can’t challenge a government in their own violations of the law — should not be the law,” Smolker said. “We are arguing they failed to follow procedure for amending a Comp Plan.”

If it is not dismissed, the trial is slated to begin in May of 2023.

Phil Colpas
Author: Phil Colpas

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