December 2, 2022 —

On November 28, 12th Circuit Court Judge Stephen Walker again denied Sarasota County’s motion to dismiss the lawsuit over the County Commission’s approval of two hotels on Siesta Key.

“In his order Judge Walker pointed out that, in Count I, the plaintiffs alleged that, by amending the UDC, the County Commission allowed “what was previously forbidden” under the Comprehensive Plan, “without following the procedural requirements of the County Charter and [Section 163.3184 of the Florida Statues] for the adoption of a plan amendment.” On that basis, he found that the plaintiffs had sufficiently alleged a claim that the court should consider,” according to the Sarasota News Leader.

For full story, read Sarasota News Leader, December 1, 2022, Rachel Brown Hackney: Circuit Court judge again denies county’s attempt to dismiss lawsuit over two Siesta Key hotels and he reinstates one part of complaint

Following are David Smolker, Esq. (lawyer for Rob Sax, Marina Del Sol Condominium and 222 Beach Road Owners associations) comments on Judge Walker’s recent order.

“IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA

CASE NO. 2021 CA 5582

David Smolker, Esq. Comments on Judge Walker’s

ORDER (1) GRANTING MOTION FOR RECONSIDERATION AND FOR CLARIFICATION AND (2) IN PART GRANTING AND DENYING MOTION TO DISMISS

The Ordinance and special exceptions violate FLUE Policies 2.9.1 and 2.9.2 of the Future Land Use Element of the County’s Comprehensive Plan. These policies incorporate by reference the County’s zoning and other regulations existing as of March 13, 1989. The March 13, 1989, regulations prohibit special exceptions for hotel uses on CG zoned property on Siesta Key. Amendment of Policies 2.9.1 and 2.9.2 by supermajority vote of the BOCC was a mandatory condition precedent to the effectiveness of these zoning changes under section 163.3184, Florida Statutes, and the County’s charter. The County failed to amend Policies 2.9.1 and 2.9.2 to allow for the hotels it approved.

Plaintiffs sought declaration as to whether these BOCC actions are unauthorized, ultra vires and void, and of no legal force and effect because they: (1) violate section 163.3184, Florida Statutes (a general law prescribing the mandatory procedure for increasing the density and intensity of use set forth in the Future Land Use Element of the County’s Comprehensive Plan); (2) violate Article VIII, Section 1 of the Florida Constitution and section 125.01(1), Florida Statutes (limiting the County’s authority to that not inconsistent with general law) (3) violate Article II, Section 2.2A(1) of the Sarasota County Charter (requiring a supermajority vote of the BOCC to approve a plan amendment increasing the density and intensity of such land use).

The County moved to dismiss the lawsuit claiming that the challenge to the Ordinance had to be pursued administratively before the State of Florida and that the challenge to the special exceptions had to be brought as part of a comprehensive plan consistency suit under section 163.3215, Florida Statutes (which potentially could expose the plaintiffs to having to pay the County lawyers’ fees).

The Court initially agreed with the County. However, the plaintiffs moved for reconsideration by the Court and the court agreed with the plaintiffs and entered an order allowing the Ordinance to be challenged as being void without having to pursue the State administrative route and the special exceptions could be challenged without having to pursue a consistency challenge under section 163.3215.”

David Smolker, Esq. December 1, 2022

davids@smolkermathews.com