Public hearing with Special Magistrate set for Sept. 11 in downtown Sarasota
At 9 a.m. on Thursday, Sept. 11, at the Sarasota County Administration Center in downtown Sarasota, a Special Magistrate is scheduled to conduct a hearing regarding a challenge, under the guidelines of a state law, to the County Commission’s Feb. 12 denial of a rezoning petition that would have allowed Texas-based company D.R. Horton to construct 126 homes in close proximity to the Celery Fields.
On April 23, attorney Jacob Schumer of The Grosshans Group in Winter Garden, notified commission Chair Joe Neunder and County Administrator Jonathan Lewis that D.R. Horton and the owners of the property where the development was planned — formally the Cindy L. Smith Revocable Living Trust — had decided to pursue the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA), as provided for in Section 70.51 of the Florida Statutes.
“We believe that the denial of [the rezoning] Petition … is unreasonable and unfairly burdens the Petitioners’ use of the property,” Schumer wrote, referring to the Smith family and D.R. Horton.
Schumer contended that the commission’s unanimous vote of denial of the rezoning petition was “based solely on incompatibility,” as cited in the formal resolution that the board members approved on March 26. That resolution contained “additional justifications without elaboration, despite there being no discussion of any change in the previously approved motion,” he wrote.
Schumer added, “While there was significant lay opinion and various statements in the staff report of potential impacts, the sole properly proven and conceded fact relied on for these denials was that this would be the sole development utilizing direct access to Raymond Road. However, there was no evidence whatsoever that such direct access would cause any issue which would justify a denial under the [County] Code.”
Moreover, he pointed out, “The Petitioners, in an effort to address the compatibility concerns raised by the community and the County, went far beyond what was required by the County’s Code and Comprehensive Plan to minimize impact to the surrounding areas. Despite this, the County rejected the Petition based on compatibility concerns which were not supported by competent, substantial evidence. As such, we are invoking the FLUEDRA procedure so we can cooperate on a plan to develop the Smith property in a manner that complies with the Comprehensive Plan and makes sense for the County and the surrounding neighborhood without further dispute,” Schumer added.
“Competent, substantial evidence” is a term used in regard to quasi-judicial public hearings conducted by local government bodies; those are akin to judicial proceedings. Local government attorneys explain to board members that they must be able to point to valid reasons for denial of a land-use application. Then, those reasons are incorporated in a formal resolution of denial of a petition.
In the county’s formal response to Schumer, Deputy County Attorney David Pearce wrote, “[B]ased on the unique nature of this property due to its proximity to the Celery Fields, the owner should reasonably expect the property would have limited development potential.”
The County Commission, Pearce added, “afforded procedural due process to [the] Petitioner, it followed the essential requirements of the law in the application of its UDC [Unified Development Code] and Comprehensive Plan, and its decision is supported by competent substantial evidence.”
Therefore, Pearce wrote, “the County requests that the Special Magistrate find that the development order is reasonable and does not unfairly burden Petitioners’ use of its property.”
Compatibility and stormwater concerns
During the board discussion after Chair Neunder closed the Feb. 12 hearing, Commissioner Teresa Mast explained that that she long had pointed out that infill developments — such as the Horton project would be — offer the community an opportunity for more affordable housing to be constructed.
“And I totally respect the private property rights of the Smith family,” she added.
Yet, Mast said, “This is a really unique parcel requiring a very unique project.”
Commissioner Tom Knight noted the efforts that the board already had begun taking to try to improve the handling of stormwater in the county, given the 2024 hurricane season flooding of many areas that were not in designated floodplains.
A number of the speakers during the Feb. 12 hearing showed the commissioners photos of flooding on the Smith property and in the surrounding environs, as a result of those 2024 storms.
Commissioner Mark Smith told the audience, “To me, it’s pretty simple. The area floods, and bringing [construction] fill into a site that floods is going to disperse the water elsewhere. … We’re not supposed to do that. We apparently have done that in the past, and this is where we are today.”
Immediately after D.R. Horton’s plans for the Smith Properties were announced in 2023, advocates for the wildlife at the Celery Fields — including leaders of the Sarasota Audubon Society — and county residents who live near the development site expressed strong opposition to the proposal. They contended that the new community so close to the popular county tourist destination would drive away the hundreds of species of migratory birds that make their home there during the winter season.
Although the Celery Fields was created as a regional stormwater project, it has become a destination for bird-watchers from around the world, as Sarasota Audubon members testified during the Feb. 12 County Commission hearing on the D.R. Horton proposal.
(A Sarasota News Leader check of Cornell University’s eBird program data this week found that the Celery Fields remains second only to Fort De Soto Park in Pinellas County among Florida’s “hotspots” this year for spotting species. It is third on the list for all years.
In the county response to the FLUEDRA filing, Deputy County Attorney Pearce noted that Sarasota Audubon members’ surveys conducted at the Celery Fields beginning in 2001 had “recorded the presence of more than 200 bird species over the years.”)
During the first Neighborhood Workshop on the D.R. Horton plans — held in late May 2023 — speakers protested the intensity of the new residential community, with about 170 homes proposed at that time. (It was not until after the majority of the county’s Planning Commission members voted to recommend that the County Commission deny the rezoning request that the company reduced the number of homes.) Speakers also expressed concerns about stormwater runoff from the development.
The FLUEDRA process
The Special Magistrate who will conduct the Sept. 11 hearing is Mark P. Barnebey of Bradenton, the hearing Notice says. The event will be held in the Commission Chambers of the downtown Sarasota Administration Center, which stands at 1660 Ringling Blvd.
Barnebey is a principal of the Blalock Walters law firm, its website notes.
The Notice points out, “This hearing will be informal and open to the public.”
Further, it explains that, in accord with state law, the Special Magistrate first will attempt to mediate the dispute. “If the parties cannot agree to an amicable resolution the Special Magistrate shall consider the facts and circumstances in order to determine whether the decision of the [County Commission] is unreasonable or unfairly burdens the real property …” That language reflects state law that relates to the rights of property owners in regard to their being able to make the best use of their land.
The Special Magistrate then will make a recommendation that the County Commission will consider, the Notice points out.
Owners of land contiguous to the Smith Properties site “and any substantially affected person who submitted oral or written testimony [during the Feb. 12 hearing],” with specific objections to, or support for, the D.R. Horton rezoning petition “may request to participate in the proceeding,” the Notice adds.
However, the Notice says, “The participation of such persons shall be limited to addressing issues raised regarding alternatives, variances, and other types of adjustments to [the rezoning petition] which may impact their substantial interests, including denial of the [rezoning petition].”
Four hours has been reserved for the hearing, the Notice points out.
An April 28 memo to the County Commission from County Attorney Joshua Moye explains that the FLUEDRA process entails “an informal non-binding mediation …” The pertinent language in the state statutes, he continued, provides that “[a]ny owner who believes that a development order [such as a rezoning], either separately or in conjunction with other development orders, or an enforcement action of a governmental entity, is unreasonable or unfairly burdens the use of the owner’s real property, may apply within 30 days after receipt of the order or notice of the governmental action for relief …”
The proposed use of the property
Schumer, the attorney for the Smith family and D.R. Horton, pointed out in his Request for Relief that the property where the company planned its development comprises 50.82 acres. It is approximately 1 mile east of Interstate 75; it lies south of Palmer Boulevard and Raymond Road.
The Future Land Use designation of the site, as shown in the county’s Comprehensive Plan — which guides growth in the community — is Moderate Density Residential (MODR). The property is within the Urban Service Area, Schumer added, which means that it has access to county infrastructure such as water and sewer lines.
Citing policies in the Comprehensive Plan, Schumer noted, “[T]he County must locate housing within the Urban Service Area where supporting infrastructure is available and must strive for residential development to be built at maximum allowable density that effectively balances the need for housing with other compatibility considerations.”
He continued, “Properties with a designation of MODR are required to have a density of not less than 2 units/acre, with a maximum of 4.99 units/acre. See FLU Policy 2.3.3. Currently, the Property is zoned for Open Use Rural, which allows for one unit per 10 acres — well below the minimum called for by the Comprehensive Plan.”
Schumer further noted, “The Property is abutted on the East, Southeast, South and Southwest by residential development. The densities of these surrounding developments range from 1 to 4.5 units/acre. The property is abutted to the North and West by the Celery Fields flood mitigation property owned by the County. Celery Fields abuts at least four developments of greater density and intensity than requested by the Petitioners — the Sarasota County Administrative Building and Concord Apartments developments to the north, as well as the RSF-2 [Residential Single-Family-2] and RSF-3 residential developments to the South and East of Celery Fields.”
D.R. Horton proposed a density of 2.48 units per acre, which, Schumer pointed out, “is less than the maximum typically called for by the Urban Service Area policy’s objective to maximize density within the area and thus avoid urban sprawl.”
Further, Schumer wrote, “[T]he plan calls for 50% more open space than required by the [County] Code, perimeter setbacks on Raymond Road that are ten times more than required, setbacks along the East and South boundaries that are four times more than required, and a general design to concentrate density within the central stormwater pond to minimize impact on surrounding properties.”
‘Several criteria for denial’
In contrast to Schumer’s assertions, Deputy County Attorney Pearce noted in the county’s response to the FLUEDRA filing that the March 26 resolution of denial of the rezoning application “cited several criteria from Section 124-39 of the Unified Development Code,” which contains all of the county’s land-use and zoning regulations.
He listed those in the document.
Among them, the resolution said, “The gradual and ordered growth contemplated in the Comprehensive Plan can be best accomplished through the approval of a land use which is less intense than the intensity designated on the Future Land Use Map of the Comprehensive Plan,” “There are not substantial reasons why the property cannot be used in accordance with the existing zoning,” and “The proposed change will create a drainage problem.”
Further, Pearce noted that the Feb. 12 hearing began at 9 a.m. and did not conclude until 3:17 p.m., with “[m]ore than sixty people” testifying.
Pearce added that the Special Magistrate is required by Florida statute to consider “the facts and circumstances set forth in the request for relief …”
Those circumstances, he continued, include the following:
Pearce also explained that the “Smith family assembled six parcels … through different acquisitions between 1963 and 1970” to create the site where D.R. Horton proposed its development. He included historical, aerial photos showing the land in 1948, 1974 and 1986. “The properties have remained largely unchanged since the construction of two residential homes,” he pointed out, which are located at 1771 Raymond Road and 1871 Raymond Road.
However, he continued, “There are some environmental and drainage issues. County staff identified a single grand tree on the south portion of the property. The property is located within the Phillippi Creek Basin of the Sarasota Bay Watershed. Runoff is generally sheet flow from north to south into an existing drainage canal. Approximately 65% of the property is located within Flood Zone AE within the one percent annual chance of flooding (100 year). An additional 15% of the property is within the Flood Zone X with a 0.2 percent annual chance of flooding (500 year).”
He proceeded to discuss facets of the Unified Development Code, the criteria for rezoning petitions and the Comprehensive Plan to underscore all of the factors that the County Commission needed to consider in addressing D.R. Horton’s petition.