Residents of neighboring area argue that their appeal of a staff determination regarding housing density bonus should have been concluded before the board took action
As a two-hour-and-45-minute July 10 public hearing was coming to a close, it became clear that the fate of a 37-home development proposed in the eastern part of Sarasota County would come down to the vote of the County Commission chair.
Commissioners Michael Moran and Nancy Detert already had made their feelings known about a project called Arbour Lake Reserve, which would be built under the guidelines of the county’s 2050 Plan.
Having listened to public testimony and staff remarks that conflicted over several points — including the proposed number of dwelling units for the approximately 49-acre site — Moran said, “I’m continuously fascinated by how the government can make things so difficult.”
He was not comfortable, he indicated, with all the answers to questions that had arisen.
“I think the applicant has done their best to deal with the hand they were dealt,” Detert added. “But it was a misdeal, frankly.”
Commissioner Alan Maio, who made the motion to approve the rezoning petition for the Arbour Lake Reserve property, told his colleagues that he was reassured by staff testimony on a number of points.
Among them, he noted that the half-mile-long segment of Boleyn Road, east of Debrecen Road, leading up to the new development would be reconstructed to county specifications. He also talked about statements made by Robert Laura, watershed engineering manager in the county’s Stormwater Division, that the builder, Sam Rodgers Homes of Lakewood Ranch, would have to demonstrate to staff that the project was “not going to flood anyone.”
The property is part of the Phillippi Creek Basin, Laura explained. Staff will ask Sam Rodgers Homes for a model depicting the drainage conditions post-construction, he continued, which staff will compare to details on the model showing existing conditions. If staff believes the construction would increase flooding in the area, Laura added, the developer would have to redesign the project.
Maio later told his colleagues, “I do believe that [the project team] will be put through an arduous, rigorousprocess on the stormwater.”
Yet another focus of concern for commissioners were the canopy trees lining much of the Boleyn Road stretch the developer would have to improve, according to a stipulation with the binding development concept plan for Arbour Lake Reserve.
Donald A. Neu of NeuMorris LLC in Sarasota, agent for Sam Rodgers Homes, explained that the project team would have a certified arborist on site when the roadwork is going on, to ensure the trees are protected.
Maio also pointed out that although a 2009 proposal for the site containing 25 homes already has county approval, it does not take into account the tenets of the 2050 Plan. The latter would cluster the homes and provide more open space. The 2009 project, Maio noted, is “just a regular subdivision with a cul-de-sac at the end.”
Commissioner Christian Ziegler, who seconded Maio’s motion to approve the rezoning petition, talked of his respect for the people who had addressed the board during the public hearing, especially the Boleyn Road residents, who want to preserve their rural lifestyle.
“We’re going to have a lot more of these [difficult decisions] as we start cutting up that land out east,” Ziegler added.
“People are coming to Sarasota. It’s a fact,” he continued, and that means more housing developments.
Ziegler added, “The No. 1 way you get affordable housing done, I believe, is you increase inventory.”
One further concern involved how water and sewer lines would be extended to the Arbour Reserve property.
Neu explained that a those lines would be constructed in the right of way of the extension of Lorraine Road, entering the site from the southeast corner of the property.
Maio had voiced concern that they would follow Boleyn Road, with the construction posing another threat to the canopy trees.
Finally, when Hines called for the vote, he joined Maio and Ziegler in approving the petition.
Questions about increased density
One other issue that prompted considerable commission discussion pertained to public comments regarding an upcoming Board of Zoning Appeals hearing.
Several of the speakers pointed to language in the county’s Unified Development Code (UDC) — which combines the zoning and land development regulations — that they contend should have prevented a density bonus from being applied to the project.
They explained that county Planning and Development Services Department staff allowed the developer to use the section of the Arbour Lake Reserve site designated “Greenway Resource Management Area” as a “sending area” for Transfers of Development Rights (TDRs).
However, both Planner Vivian Roe — who provided the staff presentation on Arbour Lake Reserve — and Matt Osterhoudt, director of Planning and Development Services — asserted that staff had adhered to the county policies regarding TDRs under the 2050 Plan.
Through use of a TDR, a developer essentially agrees to preserve more environmentally sensitive space in one area in exchange for the right to build a greater number of homes in another area.
In a March 9, 2016 presentation to the commission, Alan Parsons, then county Planning Division manager, explained that a TDR “is the right to build one housing unit. … These rights can be sold or given to others.”
The process includes sending areas and receiving areas, he continued. After sending the rights to build housing units to another piece of property — the receiving land — the sending parcel no longer has those rights to build units. Additionally, that means the receiving property ends up with the right to construct extra units, he pointed out.
“You actually build up density in [Sarasota] 2050,” Parsons added. The goal is “to concentrate development to the least environmentally sensitive lands … [and] to incentivize protection of connected environmental features and open spaces …”
On July 10, Osterhoudt and Assistant County Attorney Josh Moye advised the commissioners that the Board of Zoning Appeals (BAZ) issue had to be considered separately from the Arbour Lake Reserve rezoning petition.
Nonetheless, Cassandra Meyer, a Boleyn Road resident, argued that one section of the UDC made it clear that the appeal to the BZA necessitated that the rezoning petition be put on hold.
She also told the commission that she and some of her neighbors had paid $1,000 for two written interpretations of county regulations and an additional $1,000 for the appeal.
Another speaker, R.N. Collins, concurred with Meyer. “We believe that the written interpretation ispart of this proceeding. The zoning administrator says it is.”
Osterhoudt essentially told the commissioners that the residents citing the section of the UDC were not considered an “aggrieved party” in accord with the applicable UDC language.
Moye earlier had said he saw no legal reason the commission had to wait on the conclusion of the BZA process to hear the rezoning petition.
During his remarks, though, Commissioner Moran referenced the Greenway controversy, noting that he had served on the board of the Southwest Florida Water Management District before his election to the County Commission. “These Greenways are not part of some Excel formula to be brought about in some honors algebra [class].”
The project itself
During her presentation, Planner Roe explained that the entire Arbour Lake Reserve site already was zoned Rural Heritage/Estate. However, the developer had asked for the rezoning to add more homes on the property. Instead of one unit per 2 acres, Sam Rodgers Homes was seeking 2 per acre.
The goal of Rural Heritage/Estates in the 2050 Plan, she said, is to “cluster the homes [on smaller lots] and have more open space …”
Arbour Lakes will be a designated Conservation Subdivision, she added, which necessitates that a minimum of 50% of the space must remain open permanently.
After the county Planning Commission approved the petition in September 2018, Roe continued, a member of the public pointed out that the Greenway Resource Management Area (RMA) in the southern part of the property also is part of the county’s 100-year floodplain, as indicated by revised county maps. With the floodplain overlay, she said, the protected open space had to be increased from 19.4 acres to 41.66 acres, leaving only 8.18 acres for the dwelling units.
Charles D. Bailey III, an attorney with Williams Parker in Sarasota who was representing Sam Rodgers Homes, characterized the situation as “The Greenway RMA gobbles up most of the parcel.”
As a result of that discovery, Roe said, staff had to recalculate how much of the Greenway RMA could be used as a sending site, for increased density in the area where the homes would be built.
Instead of the 70 houses the Planning Commission had approved in September 2018, Roe continued, staff determined that the new maximum would be 37.
Bailey told the board several times that he disputed the determination about the Greenway RMA, though he indicated the developer had no issues with the staff decision.
At one point, Chair Hines interrupted Bailey, saying, “I don’t know if you’re trying to set the record for a legal challenge later … because you spent the last 12 minutes going through where you, as a lawyer, disagree with the staff.”
“I’m not setting anything up for a legal challenge,” Bailey replied with a laugh.
After the staff density recalculation, Roe explained, the developer elected not to have the County Commission proceed with a rezoning hearing that had been set for Oct. 24, 2018. The developer’s goal, she added, was to work through the necessary changes to the site plan.
Roe also noted that part of the developer’s plan is to create 25 acres of wetlands. Buffers comprising 100 feet will surround the perimeter of Arbour Lake Reserve, she continued, and three grand trees will be preserved. Pedestrian trails also will be constructed.
None of the 18 speakers who addressed the County Commission during the public hearing supported the Arbour Lake Reserve proposal.
A number of them collaborated in presentations about the UDC language and other applicable county regulations, asserting that the documentation made it clear that the hearing should not proceed that day.
Chris and Mark Bales talked about the changes in the Sarasota 2050 Plan related to staff’s assertion that the Greenway RMA on the Arbour Lake Reserve site could be used as a sending area.
They showed the commission video clips of county public hearings in 2015 when TDRs were discussed, with attorney Bailey visibly pointing to areas that did not include the Arbour Lake Reserve site. “‘Only the pink areas,’” Chris Bales repeated remarks Bailey made in several of the clips as he pointed to areas on the 2050 maps.
“Staff is well aware that the applicant is trying to exploit a loophole he created,” Chris Bales added. “We never had the opportunity to see that Boleyn Road might be a subject of more density.”
“I hope you will deny this,” she told the commissioners. “It’s taken quite a bit of my life.”
Others talked of the closely knit community along Boleyn Road, with the residents appreciating their ability to relish nature and the open spaces.
Andrea Wagler presented a video to illustrate the pastoral nature of the setting, prompting Commissioner Detert to offer compliments and ask how it was produced.
Wagler said residents used a drone.
And while the environmental concerns were a focus of numerous comments, Dr. Douglas J. Deutsch, a resident of the Founders Club — which surrounds much of the Arbour Lake Reserve site — also expressed concerns about the prospect of worsened traffic congestion.
Further, a representative of the county Transportation Planning Division had told residents that both Fruitville and Boleyn roads are rated F for level of service, Deutsch pointed out, and that person had added, “‘You can’t make an F worse.’”
(Ratings for levels of service on roads, like grades in school, range from A to F.)
“In season, on [the two-lane segment of Fruitville Road],” Deutsch said, “it takes between 14 and 18 minutes to get out in traffic, and that’s only if you’re willing to risk a near miss.”
Because the Founders Club is a private community, he said, it does not qualify for a stoplight at its entrance with Fruitville Road. The other access to the Founders Club is on Boleyn Road, he continued, “and there’s no stoplight there.”