County Commission asks staff to schedule discussion of ruling during board’s Nov. 17 meeting
The state’s Live Local Act gives home construction company D.R. Horton of Texas the right to construct a Live Local Act project on property next to the Celery Fields, 12th Judicial Circuit Judge Hunter W. Carroll ruled on Nov. 4.
However, as Sarasota County Attorney Joshua Moye pointed out to the County Commission during its regular meeting the same day, “The order does not decide … whether the property satisfies other legal criteria. County staff must still apply the non-preemptive Code requirements through the site development and building permit process.”
Numerous developers proposing Live Local Act projects have filed complaints against the county since the board members voted in early April to direct staff not to process any applications involving land zoned for open, residential or residential estate uses, which includes the property owned by the Cindy L. Smith Revocable Trust and Matt and Cindy Smith, where D.R. Horton has proposed its development. That land is zoned Open Use Rural, which allows for one dwelling unit per 10 acres.
In February 2025, the County Commission voted unanimously to deny the rezoning petition that the company and the Smiths had filed in an effort to enable D.R. Horton to build a community with 126 single-family homes on the nearly 51 acres that has been referred to as “Smith Properties.” Subsequently, this year, D.R. Horton and the Smiths submitted a Live Local Act application that would entail 864 units, 408 of which would comprise fewer than 750 square feet and count as half a unit for density purposes, in accord with a county regulation approved to try to spur the development of affordable homes.
Thus, the company and Smiths’ formal complaint against the county said, the yield would be 660 dwelling units, or about 12.97 per acre.
In the Nov. 4 ruling, County Attorney Moye explained to the commissioners, Judge Carroll found that “the Live Local Act pre-empts the county from denying the multi-family development project … The order rejects the county’s broad contextual view of the relevant portions of the Live Local Act,” Moye added.
Further, “The order directs the county to process the [D.R. Horton/Smith family] application and treat the property as zoned for mixed-use under the Live Local Act,” Moye said.
“Then he told the commissioners, “I can assure you that our office gave it our best and threw everything we had at defending the board’s policy decision. We all knew it was an uphill battle, going against the plain language of the Live Local Act,” he acknowledged.
His team’s “valiant effort,” Moye added, “should not be overshadowed by the ruling.”
Then he pointed out, “Our office is still reviewing the order, as well as its effect on other Live Local Act lawsuits.” He would provide the commissioners a more in-depth report after that analysis had been completed, Moye said, with more expansive remarks planned during his routine report to the commission during its regular meeting on Nov. 17.
After he concluded his comments, Commissioner Teresa Mast suggested that staff schedule what the board members and staff call a “discussion item” on the Nov. 17 agenda, instead of having Moye follow up during his report.
“This is going to be a very significant conversation,” Mast stressed, with an abundance of information to be considered, she indicated.
“This is not what we had hoped for,” Mast said of the ruling. The discussion would allow her, she continued, to get a better understanding of the court’s order and its potential ramifications.
Mast was the board member who made the motion to deny the D.R. Horton/Smith family rezoning petition in February 2025.
When Chair Ron Cutsinger asked Moye whether he could arrange for the Nov. 17 discussion, Moye replied, “Yes.”
Mast ended up making a motion with formal direction regarding the Nov. 17 agenda item, and Commissioner Tom Knight seconded it.
“I think Commissioner Mast is spot on,” Knight said. “I think that, legally, we need to let our county attorney [tell us] how we [can] move forward,” he added.
The motion passed 5-0.
Then Cutsinger told his colleagues and staff, “I’m incredibly proud and impressed with the work the County Attorney’s Office did on this, particularly Dave Pearce,” the deputy county attorney who represented the county in the litigation.
“He put everything he could into it,” Cutsinger added of Pearce, “and I really appreciate … the work on that.”
‘Very disappointed’
In response to a Sarasota News Leader request for comments about the ruling, the Sarasota Audubon Society, which Judge Carroll had allowed to intervene in the litigation, provided the following through its attorney, Shai Ozery, of the Hartsell Ozery firm in Pompano Beach:
“We are very disappointed in the result,” the statement began.
“Sarasota Audubon participated as an amicus curiae (friend of the court), not as a party, as the question reached well beyond a single parcel. Sarasota Audubon’s position was clear, that Florida’s growth management laws in Chapter 163 [of the Florida Statutes] provide that when another state law conflicts with it, Chapter 163 governs unless the competing law meets or exceeds what Chapter 163 requires. Chapter 163 requires counties to plan, to keep their decisions consistent with those plans, to give the community notice, and to hold public hearings before land changes use. The Live Local Act requires none of those things,” the statement continued, so “we believe that conflict should have been resolved in favor of Chapter 163, and we respectfully disagree with the Court’s conclusion.
“However, the order does not approve this development as specifically stated by the Court,” the statement noted, referencing the comment that County Attorney Moye had made. “The County must still apply the regulations the Act does not preempt, including buffering, stormwater, setbacks, and traffic. That review lies ahead, and the public retains a stake in it.”
Then the statement pointed out, “Celery Fields is a County stormwater facility and restored wetland that has become one of Florida’s premier birding sites. Our volunteers have surveyed birds there since 2001, and our Nature Center serves thousands of visitors each year. We will continue to participate and work with the County to keep these special places protected, and to ensure our collective voice is heard.”
The News Leader was unable to reach Jacob Schumer, the Winter Garden attorney handling the litigation for D.R. Horton and the Smiths, nor was it able to reach attorney Charles D. Bailey III, of the Williams Parker firm in Sarasota, who represented the company and the family during the attempted rezoning process.
‘Preemption’
Judge Carroll’s opening line in the Nov. 4 order was, “Preemption. This is what this case is about.”
He explained, “This was is not whether building apartments next to the Celery Fields is wise. Instead, this case is whether the Florida Legislature has prevented Sarasota County from determining whether this is wise.
“This case,” he continued, “sits at the intersection of two values deeply cherished under Florida law: a local government’s authority to shape its own landscape and the State’s authority to establish a uniform baseline for affordable housing.”
Then Carroll pointed out, “Sarasota County, many of its residents, and the Audubon Society have a genuine and understandable stake in preserving the Open Use Rural district as they have long known it. The County designated this land to keep it open, and many residents prefer rolling fields and low horizons to apartment complexes. At the same time, housing costs area high, and the Legislature has attempted to respond to that challenge by removing obstacles from building affordable housing.”
Turning to the 2025 version of the law in the Florida Statutes, Carroll wrote that Section 125.01055(7)(a) “mandates that counties must allow affordable multifamily developments on land ‘zoned for commercial, industrial, or mixed use.’ This statute focuses on what a landowner may do on their land as of right,” he emphasized, “rather than by the label the County assigns to the zoning district.”
Further, Carroll pointed out, “Because the County’s own land development code allows a landowner a few commercial and industrial uses as of right in the Open Use Rural district, the [Smith] Property is considered zoned for commercial, industrial, or mixed use for purposes of the Live Local Act.”
Moreover, he wrote, “The Live Local Act commands that a county ‘must authorize’ qualifying multifamily developments in areas zoned for commercial, industrial or mixed use ‘[n]otwithstanding any other law, local ordinance, or regulation to the contrary.’ ”
Then Carroll explained, “The Live Local Act was enacted to combat a documented, statewide shortage of affordable housing, following a legislative determination that local zoning discretion had become a barrier to provide more affordable housing. The Legislature’s decision to mandate a statewide rule is precisely the type of policy choice preemption exists to enforce.”
Nonetheless, Carroll emphasized the point that County Attorney Moye stressed to the commissioners: “The Court does not decide whether the property satisfies other legal criteria, as those qualifications are not presented in this case. The Court also does not decide whether the County must approve the Petitioners’ application. Those determinations are left for the County to determine in the first instance.”
The 10-page ruling was time-stamped at 7:21 a.m. on Nov. 4.