June 30 hearing focuses on effects of County Commission’s April 7 policy vote on application for project at 8893 Fruitville Road
On June 30, 12th Judicial Circuit Judge Hunter Carroll told the attorneys representing applicants for a Live Local Act project in Sarasota County and members of the Office of the Sarasota County Attorney that he will “get an order out as soon as I can” in regard to the legality of the County Commission’s elimination of lands zoned Open Use Estate from consideration for affordable housing projects under the state law.
The approximately 33-minute-long hearing focused on the county’s June 9 Motion to Dismiss the May 15 complaint and a follow-up, May 28 motion that were filed by Yeshua’s Love Biblical Fellowship of Sarasota County Florida Inc. and Curco Land Holdings LLC. (The Florida Division of Corporations says Robert C. Benedict of Englewood is the registered agent for Curco.) The companies are seeking to construct a Live Local Act development on property located at 8893 Fruitville Road, in the rural, eastern part of the county.
In the May 28 filling, the plaintiffs requested that Carroll grant a preliminary injunction against the county to keep any commissioner or county employee “from violating the Live Local Act” by enforcing the commissioners’ policy that excludes properties zoned Open Use Estate from being considered for Live Local Act developments.
On April 7, as The Sarasota News Leader has reported, the County Commission voted unanimously to implement a policy that interpreted the state’s affordable housing law to mean that any property zoned for open use, agricultural or residential purposes is ineligible for Live Local Act initiatives.
Further, the plaintiffs’ motion asks that Carroll award Yeshua’s Love Biblical Fellowship and Curco “their reasonable attorneys’ fees and costs,” as provided for in the Live Local Act. The law says, “If a civil action is filed against a county for a violation of this subsection, the court must assess and award reasonable attorney fees and costs to the prevailing party. An award of reasonable attorney fees or costs pursuant to this subsection may not exceed $250,000.”
County Attorney Joshua Moye had cautioned the commissioners about that provision as they discussed potential action in regard to the state law.
In requesting dismissal of the motion, Deputy County Attorney David Pearce explained to Carroll on June 30 that the county views a Live Local Act amendment that Gov. Ron DeSantis signed — which went into effect on July 1 — to be a legislative clarification that property zoned Open Use Estate, like that in the Yeshua’s-Curco application, is not intended to be used for Live Local Act projects.
The amendment was part of 2026 House Bill 1389.
“The Open Use Estate zoning district,” Pearce explained “is specifically intended to retain the open character of land, encourage agricultural activity and protect low density residential areas from incompatible uses.”
Nonetheless, the plaintiffs contend that the fact that the Legislature approved House Bill 1389 in its 2026 term defeats the county’s motion to dismiss the case, since the plaintiffs’ submission of their application to county staff preceded the effective date of the amendment.
At the outset of his argument, Pearce also explained that the 2025 version of the Live Local Act, Florida Statute 125.0155, provides for affordable housing developments to be built on property zoned for commercial, industrial or mixed-use purposes, “which is ordinarily what you would assume to be within the urban area.”
Contrary to the assertion of the plaintiffs’ lead attorney — Chad Manausa of the Grimes Galvano firm in Bradenton — Pearce stressed that the plaintiffs’ interpretation of the Live Local Act to mean that “any for-profit business [is] a commercial use or an industrial use eviscerates all the protections associated with the Eucludian Zoning System.”
The Boston University School of Law explains that the 1926 Supreme Court ruling in Village of Euclid — an Ohio municipality — v. Ambler Realty Co., was the basis for the understanding that local government bodies “have the right to zone by dividing the town or community into areas in which specific uses of land are permitted. [That] is considered the traditional and most common form of zoning in the United States.”
Pearce used much of his time during the hearing to delve into the details of what Sarasota County’s regulations allow on parcels zoned Open Use Estate.
In his Motion to Dismiss, Pearce wrote, “By way of example, the Open Use Estate zoning district allows ‘[a]rtesian wells, aeration facilities and wastewater treatment facilities [] as a limited use’ because ‘necessary urban services cannot be efficiently or economically provided to lands in this district in the foreseeable future.’ ”
Yet, he continued, the plaintiffs “would argue that by allowing such a use, the Open Use Estate zoning district should [now] be considered zoned for industrial use. Such an interpretation would risk extending the statute to virtually all residential or rural districts, contrary to the limiting language expressly included by the Legislature.”
He added in the motion, “The nonresidential uses permitted within the Open Use Estate zoning district are tightly constrained and structured as compatible uses supporting the overall character of the districts. As such, they do not reflect a zoning scheme that is for commercial, industrial, or mixed-use, but rather one that is fundamentally residential or agricultural with limited allowances for certain limited, compatibility-based nonresidential uses.”
In his Motion to Dismiss, Pearce also wrote that, given the 2022 Florida Supreme Court ruling in Conage v. United States, Judge Caroll should reach two conclusions: “(1) the permitted uses allowed in the Open Use Estate zoning district do not meet the definitions of ‘commercial use, industrial use, or mixed use’ in subsections 125.01055(7)(n) [of the Live Local Act]; and (2) the mere presence of certain limited, compatibility-based nonresidential uses does not transform the Open Use Estate zoning district in an area zoned for commercial, industrial, or mixed use.”
The Comprehensive Plan factor
Moreover, Pearce told Carroll during the hearing, the plaintiffs’ assertion that the Legislature originally envisioned lands zoned for open use as sites for Live Local developments “specifically conflicts with the Sarasota County Comprehensive Plan.”
That plan guides growth in the community.
In his motion, he explained, “Approving the Plaintiffs’ proposed development … would violate several provisions of the [Comprehensive Plan],” including Future Land Use Policy 1.3.1. That states, “The Sarasota County Zoning Regulations shall set forth a hierarchy of zoning districts and associated buffering/open space requirements, based on the density and intensity of permitted uses, for the purpose of establishing appropriate development ratio standards commensurate with the parcel size and compatibility with adjacent uses.”
Further, he wrote, Future Land Use Policy 1.3.9 “creates a chart which identifies zoning districts commonly associated with specific future land use designations. … Open Use Estate zoning districts are associated with a ‘Rural’ future land use designation.”
Yet, Pearce pointed out, the state’s Community Planning Act “requires alldevelopment orders to be consistent with the Comprehensive Plan.”
‘Solving the problem of county governments trying to sidestep the Legislature’
Taking his turn before Carroll, the plaintiffs’ attorney, Manausa, pointed out that when the Legislature creates a law that expressly excludes something, that new law “presupposes that the excluded matter was previously covered.” Therefore, if open use districts were to have been excluded from consideration in the original Live Local Act or the 2025 amendment to that law, he said, no reason would have existed for their exclusion to be specified in House Bill 1389.
The legislators “knew they were solving problems” with that bill, Manausa stressed. “They were solving the problem of these county governments that keep trying to sidestep the Legislature every which way they can.”
He also emphasized to Carroll that the Yeshua’s-Curco application for a Live Local Act project was submitted to the county staff late in the summer of 2025. The director of the county’s Planning and Development Services Department, which is handling the Live Local Act applications, “confirmed in writing,” he added, that it “met every eligibility criteria and would be proceeding.” Thus, Manausa said, it advanced to Stage 3, which meant that it would be considered for administrative approval, as explained on the county’s Live Local Act webpages.
Then, in April, Manausa continued, “almost 10 months after we originally submitted our application, [and] we’re told, ‘Hey! You’re good,’ and without any notice to us, or any other affected applicants,” without any formal resolution or advertised public hearing, “the board voted by informal motion to adopt a policy that excluded Open Use Estate districts from their Live Local Act eligibility.”
Immediately, he stressed, the county staff applied that decision to his clients’ application.
The county staff “had no legal authority” to take that step “against a party that was mid-process, after confirmed eligible, after substantial reliance [on the process],” Manausa added.
The county illegally applied the new policy retroactively to an existing application, he emphasized. “The county cannot nullify a state statutory mandate by informal vote any more than it can repeal a state statute by motion.”
Citing a judicial precedent and a state law, Manausa pointed out, “A development is evaluated under the regulations in effect at the time of submission. That makes common sense …”
The county’s action represents “weaponization of government at its finest,” he stressed, “and on the eve of our 250th anniversary of our democracy, it is appalling …”
Carroll laughed after Manausa used the term “weaponization of government.”
The ultra vires argument
Manausa also alleged that the County Commission’s Live Local Act policy decision on April 7 was an ultra vires violation.
As the Legal Information Institute of Cornell Law School explains, ultra vires “is a Latin phrase, meaning ‘beyond the powers.’ Ultra vires plainly means an action by a company or its agent that exceeds the legal scope of its authority.”
Manausa stressed that, on April 7, “Without notice to us, without an ordinance, without a properly advertised hearing and without proper public participation, the [County Commission] voted to take us out of this process.”
Manausa added, “We are not asking this court to approve [the Live Local Act projects submitted to the county]. What we are asking this court to do is to require the county to do what the Legislature required it to do: process this application through the administrative review mechanism of the Live Local Act. Put us back in line.”
While it is clear that the County Commission disagrees with the Live Local Act’s provisions, Manausa continued, “Their disagreement should not be at the expense of my clients.”
He pointed out that the Yeshua’s-Curco complaint “alleges a textbook ultra viresact.”
Then Manausa contended, “Mr. Pearce’s motion ignores a large part of our actual allegations.”
Manausa further stressed to Carroll, “The county cannot escape or void an ultra vires act by arguing in its Motion to Dismiss that its interpretation of the Live Local Act was correct. That’s irrelevant at this point.”
Yet, Pearce told Carroll that the ultra vires argument was not valid in this case. He noted that the commission’s direction to staff was not an illegal act because the board did not change the county’s zoning regulations through adoption of an ordinance. The board members merely interpreted the state law, he pointed out, “So there’s no violation of the Sunshine Law or procedural due process.”
The commissioners gave the direction to staff during an open meeting, Pearce continued. “The Sunshine Law doesn’t require a specific agenda,” he said. “So there’s no violation of the Sunshine Law.”
(The Sunshine Law comprises state open government regulations, including provisions for public meetings.)
Before the hearing concluded, Manausa also asked that Caroll place the case on a streamlined track instead of the general track on which it has been conducted.
“Let’s address that later,” Carroll replied. “Let’s see how long it takes to get through this [consideration of the county’s motion] and what the outcome is,” he added.
The Yeshua’s-Curco application itself
In a September 2025 letter to county staff, attorney William Merrill III, of the Icard Merrill firm in Sarasota, explained that Curco Land Holdings LLC is the contract purchaser of the land located at 8893 Fruitville Road in Sarasota.
“The Property is located in the Open Use Estate,” Merrill wrote, which allows one dwelling unit per 5 acres. “The Property is designated as Rural on the [county’s] Future Land Use Map,” he continued, referring to a section of the county Comprehensive Plan.
“Public water and wastewater currently serve the Property,” Merrill also noted.
“In total,” he wrote, the site comprises approximately 23.69 acres. “The Applicant intends to demolish the existing church in order to develop a total of 350 rental units (14.8 units per acre) in one (1) to four (4) story townhomes and apartment buildings.”
He further pointed out that 40% of those 350 units would be rented to households earning no more than 120% of the Area Median Income (AMI) for the North Port-Bradenton-Sarasota Metropolitan Statistical Area (MSA).
Every year, the U.S. Department of Housing and Urban Development (HUD) sets the household figures for Area Median Income in each MSA. Merrill added that the affordable units would remain at that lower pricing for 30 years.
Then he explained, “Pursuant to Sarasota County Comprehensive Plan FLU [Future Land Use] Policy 1.2.15,” 15% of the units over 13 units per acre, or seven of them, “will be rented at eighty (80) percent of the AMI for five (5) years. At the end of the five (5) year period, the 80 percent AMI units will be rented at 120% AMI for the remaining period of 25 years.”
Attached to the letter were a map showing the zoning of the proposed development site, as well as a concept plan for the dwelling units.
The records maintained by Sarasota County Property Appraiser Bill Furst and his staff show that Yeshua’s Love Biblical Fellowship purchased the Fruitville Road property for $2 million in October 2015. The seller was the First Church of God of Sarasota.
The market value of the land in 2025 was $3,957,170, the records note.
Among the virtual attendees
An attorney for a second Live Local Act applicant, Christopher Oprison of the DLA Piper firm in Miami, was among the attendees of the June 30 hearing via Zoom, this reporter observed. He represents SITC Inc., which filed its own Live Local Act complaint against the county on May 20.
John J. “Jack” Cox III, president of Halfacre Construction in Sarasota, is the registered agent of SITC.
A June 29 hearing on Oprison’s request for that case to be placed on a streamlined track had been scheduled, but the News Leader learned on June 28 that it had been cancelled.
SITC wants to construct 504 dwelling units on approximately 43.42 acres comprising the parcel standing at 2000 Lorraine Road, plus adjoining property on Dog Kennel Road and the parcels located at 9800 Cameo Farm Lane and 0 Cameo Fram Lane, the county’s Live Local Act webpages point out. The site is zoned Open Use Estate-1. The proposed residential density of the development is 11.6 units per acre.
Yet another attendee via Zoom that this reporter noted was a former assistant county attorney, Susan Schoettle-Gumm. A resident of a rural part of the county, she has advocated against more intensive developments in the environs. She also has worked with the Sarasota County Council of Neighborhood Associations (CONA).