Commissioners Knight and Mast stress constituents’ alarm over developers’ attorneys’ assertions to county staff
On March 24, Sarasota County Commissioner Tom Knight won the full support of his board colleagues in directing County Attorney Joshua Moye and County Administrator Jonathan Lewis to collaborate on “a written opinion regarding the applicability of the Live Local Act to parcels zoned [Residential Estate-1 and Open Use Estate].”
Knight’s motion asked that the opinion include a “specific analysis of whether those districts satisfy the [state] statutory requirement that commercial, industrial and mixed-use development be allowed as [a] permitted use, not requiring an exception, and how that interpretation lies within the intent and purpose of the Live Local Act.”
Commissioner Joe Neunder seconded the motion.
“There’s just a lot of communities on edge,” Knight stressed during the discussion this week. People from every County Commission district are worried, he added, about where Live Local Act projects legally can be constructed.
The more information that the Office of the County Attorney can provide the board members, to pass along to their constituents, Knight continued, the better residents may feel about the Live Local Act process.
Knight did note that the City of Plant City leaders had won a court case involving a developer’s interpretation of the Live Local Act.
That case focused on Walden Lake LLC’s efforts to construct 1,530 multi-family residential units and 468 townhomes on a former golf course, the Plant City Observer reported.
“I agree wholeheartedly,” Commissioner Mark Smith said after Knight offered his remarks and read his motion.
Smith added that he was aware of communities other than Plant City that had won litigation over concerns about interpretations of the Live Local Act. He would forward the relevant documents to County Attorney Moye, Smith said.
“We’ll look at the other cases,” Moye told the commissioners, “just to see if there are some arguments that we feel strongly about.”
Commissioner Teresa Mast told her colleagues, “I also think it would be helpful to know what best practices are” in local governments’ handling of Live Local Act applications. She expressed her support for Knight’s motion, as well.
“The law isn’t particularly clear,” Lewis pointed out, “and there isn’t a lot of legal precedent or best practices yet.”
Knight proposed a second motion that he ended up withdrawing. That called for adopting a policy that would require the commission to pursue a 12th Judicial Circuit Court opinion on any developer’s legal challenge related to the denial of a Live Local Act application proposed on property with open-space zoning or on one or more parcels with conservation easements.
Neunder also seconded that motion.
Moye asked for clarification about whether Knight was calling for the OCA to file litigation seeking declaratory action from the court or whether Knight was seeking an opinion from the OCA about whether such action should be pursued.
“I would prefer we ask our staff to send it for a [declaratory judgment] action,” Knight responded.
“That’s something that the board can do,” Moye responded. However, he cautioned, if the county lost, the court’s decision could trigger a county payment to the applicant of up to $250,000 in attorney’s fees.
Then Moye explained that staff receives outside attorneys’ interpretations of laws and policies on a routine basis, and the OCA always vets them for validity. “We push back on anybody who submits us their own interpretation,” Moye added. “I just want to make sure you’re aware of that.”
At that point, County Administrator Lewis told Knight, “Just because they submit something” — whether directly to the OCA or to other county staff members — “doesn’t mean that their interpretation is [accepted]. … We [get] letters all the time from people telling us how we’re supposed to do things.”
The board members can convey that to their constituents, to help ease residents’ concerns, Lewis suggested.
The commissioners receive such correspondence, as well, Lewis noted.
“Our community looks at the five of us to protect them from the government,” Knight said. “I think it’s important that we get briefed on [these Live Local Act proposals] right now, so that we are up-to-date on what’s going on in our districts.
Mast emphasized the need for the commissioners to communicate with their constituents, to ensure that the latter have the most current information possible, including any interpretations of the state law.
When Chair Ron Cutsinger asked for clarification about whether Knight wanted to withdraw the second motion. Knight responded that he did.
‘A lot of emails’
Although Knight had made it clear on the agenda for the board’s March 24 regular meeting that he wanted to launch a discussion of the Florida Legislature’s Live Local Act, regarding affordable housing, Commissioner Mast “beat him to it,” so to speak.
She had received “a lot of emails” that discussed her constituents’ worries about the zoning districts where Live Local Act developments could be constructed, Mast said, and she expected her board colleagues had, as well. As a result, she continued, she had reviewed the county video of the January presentation that Matt Osterhoudt, director of the county’s Planning and Development Services Department, provided the board.
Mast added that she is aware of House Bill 1389, which the Legislature approved during its recent session; the bill contains amendments to the Live Local Act, clarifying the types of areas where the projects can be planned.
(The law would take effect on July 1, if Gov. Ron DeSantis signs the, the legislative webpages say.)
Knight noted later that that bill passed on a vote of 98-4 in the Florida House and a vote of 35-0 in the Florida Senate. Those votes, he said, indicated to him how much concern the legislators also had been hearing about the law, statewide.
In the meantime, Mast indicated that she would like to see more information provided on the county’s Live Local Act webpages regarding how county staff manages the applications it receives; perhaps a flow chart, “or a tutorial,” she suggested.
One key facet that should be cited for each application, Mast said, is where the development would be built, if it won staff approval. “I think that would be extremely helpful,” she added.
The Live Local Act pre-empts the traditional local government review of land-use applications. Instead, staff members sign off on projects that comply with all of the state’s specifications for such affordable housing construction. Therefore, Mast also requested that the county’s Live Local Act webpages explain what the commissioners have authority over and what must be handled administratively.
Assistant County Attorney Stephen J. Shaw, whose areas of expertise include land use, came to the podium to address some of Mast’s concerns.
Shaw stressed that the Live Local Act “states that … applications have to be administratively approved, meaning [they do not] come to this board.”
The portion of the statute regarding where projects can be constructed is “fairly broad,” he continued. “Any area that is zoned for commercial, industrial or mixed use also has to allow Live Local Projects.”
The uses in a particular zoning district are what govern the Live Local Act locations, Shaw also emphasized, not the types of districts, as noted by their names.
“When staff receives an application,” he said, staff makes note of the zoning district where the development would be built, along with the uses allowed in that district. Then staff determines whether the proposed project could be constructed in that district.
“The key here that I am dealing with — at least in my district,” Mast told him, “is that I think everybody is extremely supportive of affordable housing. … I think the question here is compatibility” and the inability of the public to participate in public discussions about the applications.
She acknowledged that Live Local Act proposals for South County sites also have been submitted to staff.
Again, Mast emphasized the need for a flow chart on the county’s Live Local Act webpages, as well as clear, concise communications with county residents.
“That would fall to me,” County Administrator Lewis responded.
At his direction, the county’s Planning and Development Services and Communications department staff members, Lewis added, are “working on a whole variety of things” — including, potentially, videos and podcasts — to educate county residents about land-use applications, not just about the Live Local Act.
“We just get so many questions about land use,” Lewis pointed out, as do the commissioners. The staff members are trying to come up with ideas about how best to inform the public on how the land-use application process works in general. Among those explanations would be details about when the County Commission has the final say on projects, as well as when it has no say on developments, Lewis continued.
Mast emphasized again that the commissioners have “no purview” of the Live Local Act applications.
‘A big deal all over the county’
When Chair Cutsinger called on Commissioner Knight for his report that day to his colleagues, Knight explained that he included the Live Local issue on the agenda because, in accord with state law, the five members of the board are unable to talk with each other outside meetings.
“We’re dealing with many of the same issues in our districts,” he added. “I think it is a big deal all over the county right now.”
The most important point he wanted to make, Knight indicated, is that “we know our citizens that we represent expect us to help them.” Yet, with the Live Local Act, he continued, the Legislature has prevented the commissioners from having any control over the process that entails where the developments can be built.
Then Knight pointed out that many of his constituents have been alarmed by language in letters that attorneys representing developers have included in their Live Local Act applications submitted to county staff, such as, “ ‘Must’ and ‘You shall.’ ” Those letters appear to tell county staff what it can and cannot do in determining whether applications comply with the Legislature’s criteria for projects, he said. “That creates some anxiety,” Knight pointed out.
Most of the concerns he has heard, Knight continued, regard county staff’s interpretation of the state law and the potential that projects could win approval on land zoned Open Use Estate (OUE) and Residential Estate (RE), which generally entail larger lot sizes in rural areas.
Then Knight said he hoped that the 2026 legislative bill regarding the Live Local Act will go into effect on July 1, because it “clearly excludes” zoning districts with open space, such as those in rural areas, including OUE.
Knight extended his appreciation to state Rep. James Buchanan, a Sarasota Republican, for chairing a committee that approved the House bill with the amendments.
“We have a situation where developers and their attorneys are trying to stretch the law and use our codes to their liking by saying that Open Use Estate and Residential Estate properties allow commercial uses and that the county [staff] must, therefore, approve their applications,” Knight stressed. “They would stand to gain from their interpretation of the law.”
The commissioners, Knight continued, would be “derelict in our duties” by letting staff accept those attorneys’ interpretations “without question.”
Based on what he has learned about those attorneys’ interpretations of the law, Knight said, “We could see dense, four-story apartment complexes go up on vacant properties almost anywhere,” even in longstanding residential neighborhoods such as Cherokee Park and Oyster Bay in Sarasota, because many people these days work out of their homes. As he understands those interpretations, he continued, attorneys view even piano lessons as a commercial use, which would mean that such neighborhoods could become home to Live Local Act projects.
Even the southern portion of Midnight Pass Road on Siesta Key could see such developments, he added, based on his research.
“It’s disappointing,” Knight told his colleagues, “that communities are hiring attorneys … to protect themselves from the interpretation of this law,” with the commissioners pre-empted by the Legislature from having control over the sites where the projects could be built.
He also is aware, Knight said, that the Live Local Act allows developers to file lawsuits under certain conditions. “If our county’s going to be sued,” he said, “I’d rather be sued by the developers, for trying to protect our citizens in the established neighborhoods. If the staff should err in an interpretation [of the law], I would rather them err on the side of the citizens …”