Motion to dismiss hotel lawsuit denied

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By Phil Colpas

Sarasota County lost its motion to dismiss a lawsuit that sought to keep two high-rise hotels from being built on Siesta Key. Both hotel projects were approved last year by the Board of County Commissioners. In July, Judge Stephen Walker of the 12th Judicial Circuit Court issued his ruling denying the county’s motion to drop the lawsuit.
In the continuing battle to determine how Siesta Key will handle future development, concerned citizens filed two lawsuits in 2021 against construction of the hotels. They allege, among other things, that the county did not have the authority to change its own Comprehensive Plan or increase established density from 26 hotel rooms per acre on a barrier island.

An artist’s rendering of the approved hotel at Calle Miramar. (submitted image)

The lawsuit, which was filed late last year by four plaintiffs fronted by James Wallace, who has been a resident of Siesta Key since 1964. The lawsuit targets both the 170-room hotel near the Village on Calle Miramar and the 120-room hotel and parking garage project at Old Stickney Point and Peacock roads.
In their complaint, the four plaintiffs — 222 Beach Owners Association Inc., Wallace, Robert Sax and Marina Del Sol Condominium Association Inc. — 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.
In March, Walker heard arguments in a public hearing on the county’s motion to dismiss the lawsuit. An earlier circuit court decision allowed the owners and developers of the hotels planned for Calle Miramar and Old Stickney Point to intervene in the lawsuits.
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 “commingling” 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.”
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 landowner would not be adversely affected by the project.

An artist’s rendering of the approved hotel at Old Stickney Point Road. (submitted image)

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 are 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.”
In his decision, Walker cited a 1972 Florida Supreme Court case: Renard v. Dade County, which “established three categories of zoning ordinance challenges and set standing requirements for each category,” he wrote.
“Category 1 involved special injury or damages that were different in kind from any injury suffered by other residents in the area, while category 2 states that “the litigant must be aggrieved or adversely affected by the ordinance and must have a legally recognizable property or other interest so affected by the zoning action.”
Category 3 “requires that in a challenge attacking an ordinance on grounds that it was not enacted in accordance with proper procedures, the litigant need only be an affected resident, citizen, or property owner of the local governmental jurisdiction in question.”
The county wanted the plaintiffs’ standing to be based upon a category 2 case, but Walker stated that the plaintiffs argued that this is a category 3 case.
The lawsuit will continue without Wallace, who has dropped out as a plaintiff. The other three plaintiffs remain in the case.
“We believe our case against the county is very strong, and the lawsuit is continuing,” said Sax, who is president of the board of directors of Marina Del Sol, located at 1312 Old Stickney Point Rd.
The trial is slated to begin in June of 2023.
Regarding Wallace, “We felt Jim’s participation was no longer needed for a Siesta Key residents’ victory on the Siesta Key hotel issues,” said Ralf Brookes, attorney for the plaintiffs. “Dr. Wallace has other legal matters demanding his attention, which are difficult enough to manage given his age, and has other commitments in his life presently that require his time.


Wallace has also been battling FDOT regarding the plan to add a traffic signal on Stickney Point Road. It is related to the Siesta Promenade project at the corner of that street and U.S. 41.
This is Walker’s second ruling on a hotel-related lawsuit involving Siesta Key. Earlier this year, he denied a motion by developers to expedite a similar case filed by local resident Lourdes Ramirez.
That trial is slated for spring of 2023.

Phil Colpas
Author: Phil Colpas

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