County commissioners say they never before encountered a situation like the one that arose May 23
(Editor’s note: This article was updated on July 12 to correct a statement about the source of the 400-page document submitted into the record during the public hearing.)
What portended to be a routine public hearing before the Sarasota County Commission ended on May 23 with board members agreeing they never before had encountered a situation like the one that arose that day.
The commissioners ultimately voted to continue the hearing for the second time since March, and one suggested a change in board policy regarding the manner in which speakers at any public hearing enter documents into the record.
The May 23 agenda called for votes on the Grand Lakes development proposed on 533 acres east of Interstate 75, south of Clark Road and near Twin Lakes Park. The design, which encompasses two neighborhoods, would have up to 1,097 homes.
The Neal Communities project also was the focus of a scheduled, final County Commission vote on a Comprehensive Plan amendment. That would allow Neal’s 2050 Village community to proceed without construction of a commercial center to serve the residents, because such a retail complex is expected to be built in a nearby community proposed under the county’s 2050 Plan. The commissioners voted unanimously on March 14 to approve that privately initiated amendment. Because of the necessity of state review of the proposed change, however, the second required public hearing on the Comprehensive Plan amendment was set for May 23. Staff scheduled the final votes for that day, as well, on other facets of the Grand Lakes project.
Among the latter, Neal Communities needs approval of a Development of Critical Concern for Grand Lakes, because the project would have more than 1,000 dwelling units, county Planner Vivian Roe explained on May 23. Finally, Neal Communities is seeking the rezoning of the property.
The company has been working on various aspects of the project for about two years.
During the public hearing this week, Mary Anne Bowie of Sarasota, an urban planner representing a number of opponents of the project, submitted into the record what was reportedly a 400-page notebook documenting their concerns.
By The Sarasota News Leader’s count, Bowie was one of 18 people to address the commission during the hearing. All but one of them opposed Grand Lakes. Many cited worries that the Serenoa and Serenoa Lakes communities to the north of the site already have just one road for ingress and egress. Serenoa Lakes has 92 houses, while Serenoa has 192 home sites, according to their homeowner associations.
An extension of Ibis Street in that area has been added to the county’s long-range transportation plan, which would give them a second means of access. Yet, a number of the speakers also pointed out that county staff has been unable to provide a timeline for its construction. Tom Kibler, past president of the Serenoa Community Association, noted that the commission on April 25 approved the project as part of the county’s 2040 Thoroughfare Plan.
In the meantime, speakers said, they are fearful that they and homeowners in Grand Lakes will be trapped in their communities for extended periods by emergency situations — such as a recent fire that blocked ingress and egress. Others said they felt the new development would put the existing segment of Ibis Street over capacity.
Collins had different concerns. As he explained in a March 6 email to Deputy County Attorney Alan Roddy, he believes the commission should conduct separate hearings on the Comprehensive Plan amendment, the rezoning petition and the Development of Critical Concern issue. “A CPA [Comprehensive Plan amendment] hearing should be limited to CPA matters, and a rezone hearing record should be limited to rezone matters,” he wrote, adding his suggestion that the board hold three consecutive hearings “to avoid due process and record concerns.”
He raised that point again during the May 23 public hearing.
After the public comments ended, Pat Neal, chair of the Executive Committee of Neal Communities, told the commissioners that he needed more time for his team to look through the 14 sections of Collins’ material and then offer rebuttal.
Acting as chair in the absence of Commissioner Nancy Detert — who missed the meeting because of illness — Vice Chair Charles Hines gained agreement from his colleagues to allow Neal’s group about an hour, during a lunch break, for the assessment of the material.
Seeking a continuance
Following the break, attorney Scott McLaren of the Hill Ward Henderson firm in Tampa stepped to the podium to explain that some of the hearing’s speakers had indicated that if the Grand Lakes petitions were approved that day, a Petition for Writ of Certiorari would be filed in the 12thJudicial Circuit Court in an attempt to overturn the board’s decision. The court’s review, McLaren pointed out, would be “limited to the record created before this commission.”
“To adequately prepare our record and our response to [Collins’ materials],” McLaren said, “we will respectfully ask” for a continuance of the hearing. He emphasized that the group first heard about the 400-page notebook “approximately an hour-and-a-half ago.”
The Neal group would like to ask the board to reserve 15 minutes for rebuttal to the issues that had been raised, McLaren added, “many not previously made orally to this commission.”
Hines sought clarification that all those would be new points, “not repetitive of things considered before by the petitioner [Neal].”
“In fairness,” McLaren responded, “some of these have been [brought up before,” but many are “brand new … certainly the first time we’ve seen these.”
“I didn’t see the notebook,” Hines replied. Nonetheless, he continued, because the document had been given to the clerk for the board, “it becomes part of the record. … It affects us, as well, if we haven’t seen it.”
Then Hines turned to Deputy County Attorney Roddy, who routinely sits in on public hearings related to land-use issues. He was not certain, Hines said, whether the commission ever had encountered this type of situation in the past.
“This proceeding has seen an unusualamount of information dumped into the record on paper,” Roddy replied, concurring with the fact that the commissioners had not had the opportunity to review it all.
“In light of fairness,” Roddy continued, “allowing [the Neal team] 15 minutes to respond to the things that were put into the notebook … is entirely fair. It doesn’t mean opening up the whole hearing again.”
The board does have discretion to waive the rebuttal time in a quasi-judicial proceeding, Roddy added, referring to the rezoning issue regarding Grand Lakes.
The Comprehensive Plan amendment is considered a legislative issue.
“This is a little strange,” Hines said. “I’m questioning about us,” he added, as the board members are the ones charged with making findings of fact in a quasi-judicial proceeding.
“What I’m hearing is, suddenly, there’s a major document … and it [was not provided to the commissioners in advance of the meeting]. And suddenly, because they hand it to the clerk, it is now in the record. … When do we get a chance to see it? Do we have to accept it into evidence that way?”
“It’s been turned in,” Roddy replied. However, he conceded that materials people typically hand to the clerk for inclusion in the record are transcripts of their remarks during a hearing and slides they have shown the board in making their points. “What I’m hearing is there’s a 400-page notebook of things that weren’t presented to the board, given to the clerk. If the applicant did that to the commission, I have an idea the board would have a negative reaction to it,” Roddy said.
The commissioners could continue the hearing for 90 days, for example, Roddy pointed out, so they would have time to review the material before making their decisions.
If documents have been reviewed by the board, he added, “I think they’re part of the record.” However, putting documents into the record without discussing them first with the board “makes them questionable as evidence,” Roddy told Hines.
A person would have to raise an objection to a particular point and give the board a chance to deal with it before saying the board had made an error on that particular point, Roddy said.
“It has been extraordinary in this case how much material seems to have been submitted late,” he added.
What he found problematic, Hines responded, “is something being allegedly put in the record and then a threat of litigation, and litigation comes, and a court reviews what was allegedly [in the record] … and we may not have reviewed [the material].”
Hines added, “I’ve never seen anything like this. This is like the judge or the jury not seeing the evidence, and the appellate court saying, ‘This was in the record,’ and the jury never saw it.”
“This isn’t a courtroom, but it’s darn close in these types of proceedings,” Hines pointed out.
If a complaint were filed in court to overturn a County Commission decision, Roddy said, and the heart of the case was material the board never had seen before making its decision, he would use that fact in arguing on the board’s behalf.
Yet another concern
Commissioner Alan Maio then noted that people still were stepping forward, appearing to be handing more materials to the clerk. He asked Hines “to tell everyone to sit down.”
“Maybe from this point forward,” Maio continued, “no one approaches the clerk …” Instead, he suggested the commission change its procedures to require that materials be handed to the Sarasota County Sheriff’s Office deputy who is present for all meetings, and then the deputy would show the material to the county attorney before handing it to the clerk, “just so we’re not in this predicament again.”
In the 20 years he had served on the county Planning Commission and later on the County Commission, Maio added, he also never had seen a situation such as the one that had arisen that day. “I’m as concerned as Commissioner Hines.”
Hines then noted that Neal had used all but “a minute 58 seconds” of the 5 minutes the county’s rules allow for rebuttal during a quasi-judicial proceeding. He suggested to McLaren, Neal’s attorney, that the 15 minutes McLaren had proposed for rebuttal cover just the new material. “Is that reasonable?”
“Yes, sir,” McLaren replied.
Commissioner Paul Caragiulo sought clarification that the commissioners still would be able to ask questions they wanted answered before making their decisions, if the hearing were continued.
“We can ask the petitioners questions,” Hines replied. “We can ask our staff questions.”
“Everything I have so far is something for our staff,” Caragiulo told him.
Then Commissioner Michael Moran referred to the 400-page notebook, saying he was taking as positive an approach to the situation as possible. “I’m going to assume that this was not intentional … not some legal maneuvering here.” Still, he said, if the Neal team needed more than the 15 minutes, he was willing to allow extra time.
Hines finally asked County Administrator Jonathan Lewis when the continued hearing could be held. Lewis replied that time was available on the board’s afternoon agenda on July 11, if the board was going to restrict the discussion to the new rebuttal and questions. Otherwise, Lewis said, the item would have to be pushed to the afternoon agenda on Aug. 29, as the board would be taking its usual summer break after the early July meetings.
McLaren told Hines, “Respectfully, July 11 would work for us.”
Hines emphasized again that the time set aside would not be “a whole new entire hearing,” with public comments.
Then McLaren suggested that the Neal team would like to submit a written statement covering its review of the 400-page notebook.
Roddy responded that that might be helpful in limiting the time devoted to the continued hearing.
Moran made a motion calling for the continuance to July 11 in the afternoon session, with the Neal team’s written rebuttal to be provided to the commissioners with the other backup material for that agenda, so they could review it before the meeting.
Maio seconded the motion, and it passed unanimously.