Circuit Judge Carroll to address county motion to dismiss complaint filed by SITC, whose principal is Cox of Halfacre Construction
On Aug. 25, 12th Judicial Circuit Judge Hunter W. Carroll has scheduled a hearing on Sarasota County’s motion to dismiss a second complaint filed against the local government in regard to a policy decision that the County Commission made in early April.
The plaintiff is SITC Inc. It is one of two companies that have filed suit against the county commissioners as well as the county itself.
The hearing also will deal with a motion made by an attorney representing Commissioner Tom Knight to dismiss the case against Knight as an individual, not just a county official. (See a related article in this issue.)
Carroll has set aside 90 minutes for the hearing, which will begin at 1:30 p.m. The document notes that Carroll “has a ‘hybrid courtroom, “which will allow participants to either appear ‘in person’ or via Zoom.” The order includes the Zoom sign-in information.
In the meantime, the county and another set of plaintiffs are awaiting Carroll’s decision in an earlier county motion to dismiss a Live Local Act complaint over the county’s policy. As of the deadline for this issue of The Sarasota News Leader, Hunter had not issued his decision in that case, which was brought 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.) After conducting that hearing on June 30, Carroll informed the parties that he had numerous other rulings to make, but he would try to issue an order in that case as soon as possible.
On April 7, as the News Leader has reported, the County Commission voted unanimously to implement a policy that interpreted the state’s Live Local Act — which was crafted in an effort to spur more affordable housing construction — to mean that any property zoned for open use, agricultural or residential purposes is ineligible for Live Local Act initiatives. Commissioner Knight and Commissioner Joe Neunder were the primary advocates for implementing the county policy, acting on behalf of a multitude of concerned residents, they said, who feared that developers would end up constructing high-density projects in areas intended for low density.
In the case of property zoned Open Use Estate-1 — the designation of the SITC site — just one dwelling per 5 acres is permitted.
SITC Inc., whose registered agent is John J. “Jack” Cox III, president of Halfacre Construction Co. in Sarasota, initially filed its lawsuit against the county in May. Then, on July 2, the company’s attorney — Christopher G. Oprison of DLA Piper LLP in Miami — filed an amended complaint with about 70 pages of exhibits, court records show.
The amended lawsuit explains, “This action arises from [the County Commission’s] coordinated, deliberate, multiyear effort to obstruct, delay, and deprive [SITC] of the ability to exercise its property rights and to develop and use its property in accordance with Florida law. That coordinated effort culminated most recently in [the county’s] unlawful and bad faith denial of [SITC’s] application for a multifamily residential development on property designated as Open Use Estate (‘OUE1’) under the County’s Unified Development Code (‘UDC’),” Oprison wrote. [The UDC contains all of the county’s land-use and zoning regulations.]
“In denying that application,” he continued, “[county staff members] acted outside the scope of their official authority and in direct contravention of the Florida Live Local Act … The Live Local Act mandates that local governments authorize multifamily and mixed-use residential development as a permitted use, as of right, in areas zoned for commercial, industrial, or mixed-use purposes, provided certain statutory conditions are met,” Oprison added.
“Properties zoned for OUE-1 permit multiple commercial and industrial uses by right, including retail, office, service, agricultural, infrastructure-related activities, and other for-profit business activities that fall squarely within the Act’s statutory definitions,” he explained. “Under the Act, the presence of such permitted uses renders the Property ‘zoned for commercial, industrial, or mixed use’ as a matter of law.”
However, in his argument before Judge Carroll in late June, Deputy County Attorney David Pearce made the point that the Yeshua’s/Curco application stretched aspects of the state law in regard to the types of business activities taking place on Open Use Estate property.
Moreover, Pearce talked of the fact that the 2026 Florida Legislature had amended the Live Local Act through House Bill 1389 to clarify that parcels with such a zoning designation were not intended to be used for Live Local Act projects. Further, he told Carroll, “The Open Use Estate zoning district is specifically intended to retain the open character of land, encourage agricultural activity and protect low density residential areas from incompatible uses.”
Nonetheless, SITC contends 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 that amendment, which was July 1.
With the implementation of the new commission policy, Oprison pointed out in the complaint, county staff has refused to proceed with a review of SITC’s plans for “approximately 504 residential units at a density of approximately 11.6 units.”
Forty percent of the SITC units would be priced for households earning at or below 120% of the Area Median Income of the North Port-Bradenton-Sarasota Metropolitan Statistical Area (MSA), the application said.
Every year, the U.S. Department of Housing and Urban Development (HUD) releases updated figures for the Area Median Income of each MSA.
The site is located at 2000 Lorraine Road, 0 Dog Kennel Road, 9800 Cameo Farm Lane and 0 Cameo Farm Lane, the lawsuit added. “The Cox family has owned the Property and adjacent acreage for nearly 30 years and has long treated the land as a long-term investment located in the path of Sarasota County’s northeastern growth,” Oprison wrote.
“That growth has already occurred immediately across Lorraine Road, where Neal Communities broke ground in February 2020 on Windward, a development planned for approximately 900 single-family homes and villas,” he continued.
“The County also approved the Waterside DRI [development of regional impact] approximately 0.25 miles north of the property which authorizes 5,144 residential units, 300,000 square feet of commercial/retail office uses within the Village Center, 90,000 square feet of neighborhood commercial uses, and 60,000 square feet of public/civic space,” Oprison pointed out.
A proposal in contravention of county policies and intent of state law
In the county’s July motion to dismiss the SITC complaint, Deputy County Attorney Pearce noted that the Cox property slated for the Live Local Act project comprises 43.42 acres outside the county’s Urban Service Boundary. As Pearce explained, the latter, as defined in the county’s Comprehensive Plan — which guides growth in the community — is the figurative border around the area where the county “ ‘has planned, or is in the process of planning, for the facilities needed to support development including roads, sewage collection and water transmission lines, stormwater management facilities, schools and public libraries.’ ”
Among the relevant county policies Pearce cited in his motion, in support of the County commission policy, was Future Land Use Policy 2.2.1 (A) in the Comprehensive Plan. It says, “ ‘Within the Rural Area, as designated on the Future Land Use Map, the approval of development shall acknowledge that the continued use of agricultural lands is a primary function of the Rural Area and is necessary for a sustainable community.’ … Thus,” Pearce pointed out, “multi-family apartment buildings are not ordinarily allowed in the Open Use zoning districts.”
Further, Pearce cited the 1959 Florida Third District Court of Appeal ruling in Alianell v. Fossey in contending that “SITC wrongly names the individual county commissioners as defendants in their official capacity in this case …”
Further, Pearce wrote, the Live Local Act requires local government approval of an application “only if the proposed development ‘is authorized under the [Live Local Act],’ ‘satisfies the county’s land development regulations for multifamily developments in areas zoned for such use’ and ‘is otherwise consistent with the comprehensive plan,’ except for provisions establishing allowable density, floor area ratio, height and land use.”
He pointed out, “The amended complaint pleads no facts demonstrating SITC’s proposed development satisfies all applicable multifamily development regulations or is consistent with the non-preempted provisions of the comprehensive plan.”
Arguing against the inclusion of the commissioners in the complaint
In regard to SITC’s inclusion of the county commissioners as defendants in the case, Pearce cited a judicial precedents and state law to demonstrate that that action was inappropriate.
For example, he noted the 1989 U.S. Supreme Court ruling in Will v. Michigan Dept. of State Police, which says, “ ‘[A] suit against a state official in his or her official capacity is not a suit against the official but rather a suit against the official’s office. As such, it is no different from a suit against the State itself.’ ”
Moreover, Pearce pointed out, Florida Statute 768.28(9)(a), which was approved by the Legislature this year, says, “Any officer, employee, or agent of the state or one of its subdivisions may not be held personally liable … or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.”
He added, “Although the statute does not define ‘bad faith,’ courts have equated ‘bad faith’ to an actual malice standard.” For that, he cited the 2021 ruling by the U.S. District Court for the Northern District of Florida in Turner v. Phillips.
“SITC would have this Court believe that the individual commissioners acted through actual malice, malicious purpose, or reckless indifference toward SITC when the Board interpreted the provisions of the Live Local Act and concluded it did not apply to Open Use and Residential Estate zoning districts,” Pearce continued. “But there are no facts pled in the four corners of the amended complaint which would rise to such level of conduct. None of the actions or statements cited in the amended complaint are specifically directed toward SITC,” he noted, citing the Florida Third District Court of Appeal’s 1990 ruling in Boehm v. American Bankers Ins. Group, Inc.