Board members make the change retroactive to Jan. 1
It took less than two-and-a-half minutes on April 6 for the Sarasota County Commission to accomplish an objective that members set months ago: eliminating the ability of as few as 20 registered voters to submit proposed, publicly initiated Comprehensive Plan amendments.
Moreover, in their unanimous approval of the change in the County Code, they made it retroactive to Jan. 1.
A group of Miakka Community Club members used Section 94-85 of the code a couple of years ago to try to reduce the allowed residential density for new developments on about 6,000 acres near the intersection of Fruitville Road and Verna Road. At the time, developers and land-use attorneys decried the action — and the Comprehensive Plan provision that allowed it. They contended that the language in the County Code could lead to chaotic planning processes. More importantly, they stressed, it enabled the public to infringe on the rights of private property owners.
After the Miakka Community Club situation arose, Laura Benson, then-chair of the county’s Planning Commission, wrote a letter to the county commissioners last summer, urging them to review the language in the code and to consider revisiting it.
During the Feb. 24 County Commission meeting, Chair Alan Maio brought up the letter and then announced that, on March 9, he and his colleagues would discuss the potential of a public hearing this spring on revising Section 94-85 of the County Code.
On March 9, six speakers urged the commissioners to eliminate the language regarding the citizen initiatives. Among them, David Langhout, vice president of the Kolter Group, said, “We ask you … is there anything more fundamentally dangerous” than to enable 20 people to determine “what any other landowner can or cannot do with its property?”
On the April 6 commission agenda, the public hearing on the proposed County Code amendment was listed as “Presentation Upon Request,” which is a designation for an issue that county staff believes will not be controversial. Any board member may request a presentation. For this item, none did.
In the April 6 agenda packet, a county staff memo did note that the Planning Commission members’ letter asked for a staff analysis that “would include a comparison of other jurisdictions’ policies on the initiation of Comprehensive Plan amendments to the County.”
The memo added, “In a review of regional jurisdictions … staff found no similar provision where a group may initiate an amendment that would then become a publicly initiated amendment.” Further, in review of policies nationwide, the memo continued, “[S]taff also found that jurisdictions require an owner or authorized agent of the [affected] property to be the applicant,” which results in a privately initiated amendment. However, the memo said, elected officials do direct their staffs to pursue publicly initiated amendments.
During the April 6 public hearing, Chair Maio pointed out that he had no cards for speakers wishing to address the board on the topic, either in person or via remote meeting technology.
(Becky Ayech, leader of the Miakka Community Club at the time the group used the provision in the County Code, told The Sarasota News Leader by email on April 5 that she was unable to attend the session because of a personal matter.)
Then Maio pointed out that the Office of the County Attorney had provided information to the board members that made it clear they could set the effective date of the amendment as Jan. 1, “immediately upon filing [of the County Code change] with the Office of the Secretary of the State of Florida.” (That filing is standard procedure for such amendments; it typically takes two or three days for the process to be completed, staff has told the News Leader.)
Commissioner Michael Moran made the motion, including the language regarding the Jan. 1 retroactive date, and Commissioner Ron Cutsinger seconded it.
Then Commissioner Nancy Detert asked County Attorney Frederick “Rick” Elbrecht for assurance that the board could “make rules that are retroactive.”
Because the measure the board was addressing that day was a procedural rule, Elbrecht responded, “It can be retroactive.”
No further discussion ensued.
When Maio called for the vote, the amendment passed unanimously.
A history and suggestions
Although no one appeared at the meeting to voice objections to the board’s planned action this week, members of the public did share with the News Leader emails they had sent to the commissioners in advance of the vote.
Among them, R.N. Collins of Sarasota, who often has addressed the board on land-use proposals pertaining to the eastern part of the county, provided a copy of an email he wrote to Commissioner Detert on March 12. He sent it, he told the News Leader, after her March 9 questioning of Michele Norton, manager of the county’s Planning and Zoning Division, about how the provision for the publicly initiated Comprehensive Plan amendments ended up in the County Code. (Norton said staff was unable to find the genesis for that language.)
Collins explained the following to Detert:
In 1986, he wrote, with emphasis, “The CPA [Comprehensive Plan amendment] pre-application process that allowed a single person to submit a “request to proceed” with Comprehensive Plan amendments was adopted as part of the County Code.
“The procedure required the planning department to review the proposed amendment and present the ‘request to initiate’ the CPA to the [County Commission] for approval. No fees were required until the request to proceed was approved.”
Then, in 1990, he continued, “The CPA procedures were rewritten and adopted as part of the County Code to ensure compliance with Florida Statutes.
Again, with emphasis, Collins continued, “The procedures established separate criteria for processing ‘Private Sector-Initiated’ CPAs [Comprehensive Plan amendments] and ‘County-Initiated’ CPAs. The County-initiated procedure retained fee-free requests to proceed from individuals.”
Next, in 1992, Collins pointed out, “The County Code was amended to require 20 or more registered voters to request a CPA be processed as a County-initiated amendment.
“This amendment also eliminated the request-to-proceed stage for all Private Sector-Initiated CPAs. Privately initiated CPAs could no longer be derailed by the [commissioners] simply by denying the request to proceed. They would be guaranteed public hearing consideration if [the applicants] paid a multi-thousand-dollar application fee,” he added, with emphasis.
“Abolishing the public’s right to submit a ‘request to proceed’ was, however, thought to be contrary to the spirit of the state mandate on public participation in the comprehensive planning process,” he noted:
“‘It is the intent of the Legislature that the public participate in the comprehensive planning process to the fullest extent possible. Towards this end, local planning agencies and local governmental units are directed to adopt procedures designed to provide effective public participation in the comprehensive planning process.’” (Community Planning Act of 1977; see Section 163.3181 of the Florida Statutes, Collins noted.)
“The ‘not fewer than 20 registered voters’ clause was the product of balancing the State’s assertion that ‘the planning process should have continuous citizen involvement, with residents helping establish the [comp plan] goals and objectives and formulating planning proposals’ and the need for a mechanism to prevent a bad actor from exploiting a fee-free procedure that requires [County Commission] attention,” Collins explained.
In 2019, Collins pointed out, with emphasis once more, then-Deputy County Attorney Alan Roddy wrote, “‘A group of 20 or more private parties may petition the Board to ask the Board to start a County-initiated amendment … But staff is not required to process citizen-initiated amendments as being County initiated unless the Board first agrees to accept them as such.’”
Collins’ conclusion, he told Detert, was that “[a] partial repeal [of the language in the County Code] is a better solution [than a full repeal].”
Detert responded to Collins on March 15, thanking him for the history. “When looking to change something,” she added, “I always like to know how we got to the current position.” She invited him to offer “any further suggestions you may have on this topic.”
Collins did so. Among them, he pointed out that only the County Commission can change the Future Land Use Maps contained within the Comprehensive Plan. Further, whenever 20 or more voters petition the commission to change one of those maps — as the Miakka Community Club group did in 2019 — the commission “can use its discretion to deny the authorization to proceed. It can kill the proposal before a single public hearing is held,” Collins added with emphasis.
Among his other suggestions, Collins provided the following:
- “The county-initiated [Comprehensive Plan amendment] procedures give the public several opportunities to give meaningful input early in the process. The County is required to consider and respond to public input before and after public hearings are held.
- “Privately initiated CPA procedures, on the other hand, offer fewer opportunities for public input. The applicant is free to ignore the public comments. And they often do, right up until the first public hearing.”
- “Repealing the voter-petition process won’t change the current privately initiated amendment process.
- “Other than a [Future Land Use Map] change, one person can force the County to process a comp plan amendment. All they have to do is pay a fee. They don’t even have to be a county resident.
- “One person can make the County process a CPA. They can force the County to hold public hearings and take votes.”
- “Privately initiated CPAs often involve land that isn’t owned by the applicant.”
Collins explained, “For example, a developer paid for a privately initiated CPA to change the county thoroughfare plan. He did not own the [rights of way] that were affected. He owned only a tiny fraction of the area impacted by the amendment. When the public objected to processing wide-ranging thoroughfare changes as a privately initiated CPA — which avoided the county-initiated CPA procedures that give the public opportunities to actually help shape the proposal before it goes to a public hearing — the [commissioners] thanked him for getting the job done.”
- “Repealing the voter-petitioner process won’t stop individuals from proposing changes to what can be built on other people’s property,” Collins continued. “It just raises a barrier for folks who don’t have the $5,000 application fee.”
- “Repealing the voter-petition process will return us to the time before the process was adopted when an overworked and understaffed planning department demanded every good idea from the public be accompanied by multi-thousand-dollar fee before it would be considered.
“That’s what’s happening today when groups want to propose a zoning text amendment to clarify the [Unified Development Code, which contains all the county zoning and land-use regulations]. There is no mechanism to appeal to the Board when a good idea is turned down by the planning department. If [members of the public] don’t have $5,000 their ideas are not heard.”
- “A limited repeal that prohibits voters from petitioning for a County-Initiated CPA ‘to change the future land use map designation for property’ is better than a full repeal.
“This approach will retain the voter-petition process benefits of increased public participation.
“And it will align the rights of fee-free voter-petitioners with the rights of fee-paying individuals,” Collins wrote.
Susan Schoettle-Gumm of Sarasota, an attorney who also has addressed the commissioners during public hearings on land-use issues, sent an email on April 5 to all of the board members.
“I am surprised that I did not hear any discussion of options to maintain this entry point for the public (for example by requiring a deposit and additional signatures — 100, 200, etc.) instead of eliminating it entirely,” she wrote regarding Section 94-85 of the County Code.
“The citizen initiated amendment process does not ‘rezone’ someone else’s property or trample on anyone’s real property rights (instead of imagined ones),” she continued, though she acknowledged that “the process does contemplate Comp Plan changes that would affect lands not necessarily owned by the citizens submitting the proposal.”
“In fact,” she continued, “there have been some ‘privately’ initiated Comp Plan amendments in the past that were not limited to lands owned by the applicant(s). Those are the amendments that I would expect to cause outrage and concern. Not a group of concerned citizens who are motivated by concern for the broader community and maintaining quality of life,” she wrote.
Another Sarasota resident, Tom Matrullo, sent the board members an email on the morning of April 6.
“So captured by the business and development community’s thinking are you, our elected officials, that you have failed to frame the subject so that it could honestly and openly be debated in depth in an open forum — prior to simply deleting citizens from the Code with a stroke of your pen,” he wrote.
“Please consider: We live here. We pay taxes. We care about what becomes of Sarasota County. The shaping of this land and its uses affects us all, despite the talk of ‘private property’ that in truth is not relevant to the discussion.”
“Kindly don’t think this elision of our rights will slip by a dormant, covid-obsessed public,” Matrullo continued. “The deletion of citizens’ powers by their own elected officials is usually not a crowd-pleaser.
“Land use, planning and development evoke many rich perspectives that you have not brought to the table, so it seems ‘democratic’ to allow others to do that. In the past, you have at times shown you are able to listen to good sense. Now would be a time to do so once again,” Matrullo continued.
“Do not delete this right of our citizens. If you wish to discuss it, hold a public forum and invite the folks who for so long have helped make Sarasota something very special. Take your time. Our community’s future is worth that, don’t you think?” Matrullo concluded his email.