Commissioners also ask staff to learn whether Florida Association of Counties has a position paper on state affordable housing law
As a result of a motion that Sarasota County Commissioner Teresa Mast made during the board’s regular meeting on April 21, in Venice, County Attorney Joshua Moye will hire outside counsel with expertise in land-use issues to provide an opinion about the provisions of the state’s Live Local Act, which deals with affordable housing projects.
Chair Ron Cutsinger sought clarification that Mast was interested in the opinion in regard to the commissioners’ policy vote during their April 7 meeting, when they agreed unanimously that it is their view that Live Local Act developments cannot be built on land zoned for open use, rural or residential purposes.
“Absolutely,” Mast told Cutsinger.
Yet, later, in responding to a question that Commissioner Mark Smith had asked, Mast emphasized her desire to have an independent opinion about the types of property where Live Local Act developments could be built.
The state law was approved by the 2023 Legislature and amended in 2024 and again this year. The latter measure would eliminate parcels with open use zoning from consideration for the developments. However, as of this writing, Gov. Ron DeSantis had not signed the latter measure, House Bill 1389. It specifically rules out the use of open space districts for the projects.
Mast requested that the outside counsel’s opinion be prepared by May 6, when the commissioners are scheduled to conduct a regular meeting. She stressed the importance of that date, so county residents will know “when they can expect to hear this information.”
“I’ll do my best,” Moye told Mast.
Moreover, Mast’s motion directed Moye to seek an opinion from Florida Attorney General James Uthmeier on the same aspects of the law.
As a result of that April 21 discussion, the board also directed the Office of the County Attorney to seek information on other county governments’ interpretations of the state law.
Further, Moye and his staff will contact the Florida Association of Counties (FAC), to determine whether that organization — which represents all 67 of Florida’s counties — has issued a position paper on the Live Local Act. That was the direction of Commissioner Mark Smith in a separate motion. After Commissioner Joe Neunder seconded it, it passed unanimously.
Chair Cutsinger ended up seconding Mast’s motion. Smith cast the solitary “No” vote on it.
In the meantime, County Attorney Moye said that, to his knowledge, the county had not been notified of any developers’ legal action regarding the commissioners’ April 7 policy vote.
The state statute calls for administrative handling of Live Local Act applications. That means that the staff of a local government must adhere to the guidelines of the law in making decisions on projects. No hearings are conducted before local government bodies; the final decisions rest with the staff members.
‘I want to have the most information I can possibly have’
During her April 21 report to her colleagues, Mast said she wanted to reprise an issue that she had been “stewing on quite a bit” since their April 7 meeting.
She likened her requests in her motion to the efforts she used to make after taking her children to the doctor when they were young, she explained. After the doctor offered recommendations about their care, she said, “I’d go and get two or three opinions to try to make sure that the information I received was not only applicable but was helping me to make best decisions.”
Mast added, “When it comes to protecting Sarasota County … I want to have the most information I can possibly have.”
As the board members talked about her motion, Commissioner Tom Knight suggested that county staff also request information from the other 66 Florida counties regarding their positions on the lands that can be used for Live Local Act developments. “Are they trending the same way we are” he asked. “Are we consistent with other counties [in the region]?” he continued, such as Manatee and Charlotte.
“I’m not sure every county has chimed in on it,” Moye responded.
Knight noted that when Matt Osterhoudt, director of the county’s Planning and Development Services Department, provided the commissioners a Jan. 13 presentation about the various facets of the Live Local Act and how staff is handling applications, Knight asked whether the Florida Association of Counties (FAC) had adopted a position on the state law. “You can get 67 different interpretations of a [Florida] statute,” Knight added on April 21.
“I just want to make sure our actions are consistent and fair to the community and fair to the developers,” Knight said. “I agree with Commissioner Mast in having an outside counsel look at [the law in regard to the types of areas where the projects should be allowed],” he continued. Moreover, Knight proposed that the counsel be from “outside of this area.”
“Unbiased,” Mast interjected.
“Maybe out of the Tampa Bay area,” Knight suggested.
Commissioner Joe Neunder characterized facets of the Live Local Act as “nebulous,” noting that, thus far, no definitive opinion about its provisions had resulted from a court ruling.
Neunder then reminded his colleagues that, during their April 7 discussion of the state law, he had proposed a motion to seek a judge’s ruling on the Live Local Act. However, Moye told him that that was not how such litigation should be handled, even though others had told him the opposite, Neunder said.
During the April 21 discussion, Moye pointed out — as he had on April 7 — that “judges are to resolve a dispute, not to give advisory opinions.”
Almost all of the court rulings on the state law thus far, Moye continued, have resulted from developers filing suit against local governments because of the decisions those local governments had taken regarding how the Live Local Act should be interpreted.
After the board’s April 7 action, Moye explained, notice went out about the Sarasota County policy. Therefore, he said, “If any developer or applicant wants to challenge that, they can.” The process would result in what is referred to in legal terms as a “declaratory action,” meaning a ruling by the judge on whether the interpretation is legal, in accord with the judge’s analysis of the law.
The only legal action related to the Live Local Act that he had seen in which a local government had filed suit, seeking a court ruling, involved Hillsborough County, Moye told the commissioners. In that case, the county sued the state, citing conflicts between portions of the state law and the Florida Statute that lays out details about local government comprehensive plans, which guide growth in communities.
Neunder then said he concurred with Knight about the Office of the County Attorney’s hiring a law firm from outside the county to provide the opinion to the commissioners.
Moye did express concern about how he and his staff would choose that firm, stressing that he did not want his office to be accused of hiring attorneys who would be perceived as being “pro-development [or] anti-development …”
He indicated that he also did not want any of the board members to express dissatisfaction later with his decision. “It sounds like there’s a lot of attorneys talking to you guys behind the scenes,” Moye said.
“Typically,” he added, his office would use the firm Nabors Giblin & Nickerson of Tallahassee for the type of work Mast had proposed. Nonetheless, he said that the need for the opinion to be provided to his office by May 6 could dictate which firm he hires.
Mast once more stressed that what she is seeking is “a really unbiased, fair opinion.” She also emphasized, “It’s our responsibilities as leaders to protect allof Sarasota County.”
Circling back to Knight’s remark about FAC’s position on the subject, Commissioner Smith noted that, based on his extensive work with that statewide organization, “and talking to [leaders of] other counties,” he had learned that a wide array of opinions about the state law exists.
Smith initially made a separate motion that directed the Office of the County Attorney to seek an opinion from FAC’s counsel about the policy that the Sarasota County commissioners adopted on April 7.
Yet, while County Administrator Jonathan Lewis pointed out, “We can ask anything the board wants us to ask,” Lewis stressed, “I would be shocked if FAC will answer that question. They represent 67 counties, as Commissioner Knight said, with 67 separate opinions. If they haven’t already done a policy statement on [the Live Local Act in response to direction from the FAC board],” Lewis continued, “their legal counsel’s probably not going to do that just for us.”
Nonetheless, Lewis added, “We can see if they already have an opinion on it.”
Smith then revised his motion to direct the Office of the County Attorney to contact FAC to learn whether the organization has a position on the Live Local Act, “to compare that to what we have.”
Commissioner Neunder seconded that motion, and it passed 5-0.