Petitioners in the case considering whether to appeal
The Sarasota County Commission applied the correct law and regulations in its approval of the planned Grand Lakes development, which could include up to 1,097 homes on 533 acres south of Clark Road and east of Interstate 75, a 12th Judicial Circuit Court judge has ruled.
In his Dec. 27, 2018 order, Judge Frederick P. Mercurio considered six arguments put forth by a group of residents who live near the Grand Lakes site. The petitioners contended that the commission violated county regulations regarding green and open space on the site and that it was wrong not to allow their representative more time during public hearings to detail their objections to facets of the project.
The petitioners also alleged that the market study for Grand Lakes, conducted by a consultant on behalf of the developer — Ibis Road LLC, an affiliate of Neal Communities — was insufficient.
On Aug. 10, 2018, seven people filed the Petition for Writ of Certiorari, which sought to overturn the County Commission’s 4-1 vote of approval for Grand Lakes on July 11, 2018. Commissioner Charles Hines cast that lone “No” vote after the final public hearing in July 2018.
The petitioners’ attorney, Ralf Brookes of Cape Coral, filed an amended complaint on Aug. 17, 2018.
The Neal Communities development has been opposed by a number of people who live in the area where it is planned, especially homeowners in the Serenoa and Serenoa Lakes neighborhoods to the north of the Grand Lakes site. As indicated by their testimony during public hearings on the proposal, many of the residents are concerned about the fact that only one road will provide ingress and egress to the Grand Lakes property for the time being. Others argued that the number of homes would create too intense a community for the acreage and that the Grand Lakes residents occupying those homes will exacerbate general traffic conditions in the area.
However, in a Jan. 9 telephone interview with The Sarasota News Leader, attorney Scott McLaren of Hill, Ward and Henderson in Tampa, who represented Ibis Road as an intervenor in the case, said of Mercurio, “He accurately applied the law as the appellate courts require him to apply it.” The petitioners’ claims, McLaren added, “were meritless.”
McLaren told the News Leader he believed the petitioners pursued the case “just to try to delay the project.”
“Our client filed the application, jumped through all the hoops … to ensure that all the requirements of the application were satisfied,” McLaren added. “We satisfied them.”
On the other side of the case, petitioner David Anderson, president of the Serenoa Lakes Community Association, said in a Jan. 9 email to the News Leader, “I disagree with the ruling of the court and Sarasota County, and we are evaluating an appeal to the 2nd District Court of Appeals in Lakeland.”
As a matter of policy, the Office of the County Attorney does not comment on ongoing litigation, staff has told the News Leader.
A separate action is underway in the Florida Division of Administrative Hearings (DOAH) to try to prevent the construction of Grand Lakes. A hearing on the DOAH case was held in Sarasota in early December 2018.
Recommended orders from the parties in that case were due on Dec. 31, 2018, the docket shows. Typically, a DOAH decision is filed several months after the hearing has been conducted, attorneys have told the News Leader.
The background
In their August 2018 complaint, the petitioners in the Circuit Court case explained that Grand Lakes would be a Sarasota 2050 development. They pointed out that the Sarasota 2050 Resource Management Area chapter of the county’s Comprehensive Plan sets the framework for “an incentive-based system that encourages a compact development form; simultaneously implementing a number of public benefits, allowing for continued growth and economic development that preserves environmentally sensitive lands and open space.”
They noted that Neal Communities had sought the rezoning of the Grand Lakes site from Residential, Estate-1/Conservation Subdivision — which allows one dwelling unit per 2 acres — to Village Planned Development. The latter district, they continued, is used in conjunction with Sarasota 2050 projects.
In his six-page order, Judge Mercurio laid out his reasoning on each of the plaintiffs’ arguments. In reviewing the case background first, Mercurio pointed out that a public hearing on Ibis Road’s petition for the rezoning was continued by the County Commission from May 23, 2018 to July 11, 2018.
He noted that the plaintiffs had argued “that they were denied procedural due process” because the commission limited the testimony of their expert planner, Mary Anne Bowie of Sarasota.
According to the transcript of the May 23 hearing, Mercurio wrote, the commission gave Bowie only 5 minutes to address a number of facets of the Ibis Road proposal that, in her view, violated county Sarasota 2050 regulations. (The County Commission’s public hearing policy allows 5 minutes per person in most circumstances. As recently as Dec. 12, 2018 when the board conducted a public hearing on the proposed Siesta Promenade mixed-use development at the northwest corner of the intersection of U.S. 41 and Stickney Point Road, the board gave each speaker only 3 minutes. That decision came after then-Chair Nancy Detert said she had received 90 cards from people planning to address the issues that day.)
Mercurio noted in his order that the petitioners also had raised the point that Bowie was not allowed to speak during the continued hearing on July 11.
However, the county and Ibis Road argued that the plaintiffs “were not prejudiced by the five-minute limitation because they were allowed to submit several hundred pages of written materials relating to their objections to the development.” In fact, the submission of that material on May 23 prompted former state Sen. Pat Neal, chair of the Neal Communities executive committee, to ask the County Commission to give his project team time to pore over the documents and prepare responses to them. The commissioners agreed, which led to the vote to continue the hearing until July 11, 2018.
Mercurio wrote, “The Court finds that because extensive written materials containing Petitioners’ arguments were made part of the record evidence Petitioners were not prejudiced by the limitation in speaking time” for Bowie on May 23, or by the board’s refusal to allow more public comments on July 11, 2018.
Other facets of the order
Among the arguments they raised in their case, the petitioners contended that Ibis Road’s market study did not include the necessary commercial/retail market analysis as set forth in county regulations, Mercurio noted.
The petitioners said the County Commission was wrong to approve Grand Lakes without a commercial center, as provided for in the Sarasota 2050 regulations. Such a center, they pointed out, is designed “to serve the daily and weekly retail/commercial, office, civic and government uses and services needs of [the] residents.” The goal is to promote walkability in the community, the petitioners added.
However, the Neal Communities project team explained to the County Commission that an insufficient number of residents would live in Grand Lakes to generate enough interest by even a grocery chain to build a store there. They also discussed the close proximity to the property of a number of commercial centers.
The study Ibis Road submitted — which was prepared by a real estate sales and marketing professional, Mercurio pointed out in his order — “showed that there is sufficient retail/commercial development to support Grand Lakes,” Mercurio wrote. “For example, there already exists more than 500,000 square feet of retail space within three miles of the subject property.”
Thus, Mercurio added, “The Court finds that the [County Commission] did not depart from the essential requirements of the law regarding the completion of a market study.”
On another point, Mercurio continued, the petitioners argued that county regulations require a minimum width of 500 feet of “Greenbelt” in a perimeter around a developed area in a Sarasota 2050 community. Yet, part of the Grand Lakes Greenbelt was designed to contain roads, they said.
The roadways, Mercurio found, are consistent with county policy regarding open space. “[They] provide access to the new single-family homes to be constructed in the development, thereby being an approved, permitted portion of Open Space.” Because they qualify as open space, he continued, “they likewise qualify as an appropriate part of the 500 foot Greenbelt perimeter.”
Yet another argument the petitioners made, Mercurio wrote, was that Grand Lakes has been designed with lakes in the Greenbelt that actually will be regional stormwater facilities, features not permitted in the Greenbelt.
The amended complaint the petitioners filed on Aug. 17, 2018 said, “The purpose of establishing a [Greenbelt] around each [Sarasota 2050] Village is to help define these as separate and compact communities.” The amended complaint added that the proposed Master Land Use Plan for Grand Lakes “identifies five large ‘Stormwater’ areas and two small Stormwater areas within the 500-foot wide Greenbelt areas.” Further, the plans identify those stormwater areas “as ‘Stormwater/Publically Accessible Lakes,’” the amended complaint said.
Therefore, the petitioners argued that the width of the Greenbelt should have been increased to allow for the width of those stormwater ponds.
The petitioners further pointed out that regional stormwater facilities are prohibited in Greenbelts.
“There is no record,” Mercurio pointed out, that the proposed water bodies conform to the definition of regional stormwater facilities in county regulations. “Additionally,” he continued, “Petitioners’ argument is refuted by the written opinions of both a professional engineer and a Stormwater Technical Specialist opining that the lakes in the development are not [regional stormwater facilities].”
Another argument the petitioners made, Mercurio noted, is that Grand Lakes would not have sufficient open space as specified in Sarasota 2050 regulations. Fifty percent or more of a site must be open, according to the petitioners, who also argued that the regional stormwater facilities and/or manmade lakes could not qualify as open space under the guidelines. “This claim is without merit as these waterbodies may be counted toward Open Space,” Mercurio wrote, adding that he had noted that earlier.
In fact, in July 11, 2018 rebuttal to expert planner Bowie’s assertions, the Ibis Road project team wrote to the County Commission, “The water bodies in Grand Lakes are in fact ‘Man Made Lakes’ based on their size and function. Man-made lakes are explicitly permitted in the Open Space area by [a section of the Sarasota 2050 regulations].”