New nonprofit Keep the Country supporting Bern Creek Loop residents in their action
Two long-time residents of the northeastern part of Sarasota County have begun a formal state process to challenge the Sarasota County Commission’s Oct. 25 approval of a Comprehensive Plan amendment to facilitate the construction of up to 5,000 homes in an expansion of Lakewood Ranch into the county.
Michael Hutchinson and Eileen Fitzgerald, who live on Bern Creek Loop, near the property where the development is planned, filed their petition on Nov. 28 with the Florida Division of Administrative Hearings (DOAH).
They contend that the commissioners’ adoption of an ordinance creating a Village Transition Zone within the county’s 2050 Plan for development east of Interstate 75 is inconsistent with the county’s Comprehensive Plan, which guides growth in the county.
Among their arguments, they say that the amendment “is not based upon the relevant and appropriate data and analysis.”
They point out that they “provided oral and written comments, recommendations, and objections to the County” in regard to the amendment during all stages of the adoption process. In those materials, they add, they cited “violations of existing Comprehensive Plan policy objectives and goals, including but not limited to the adverse impacts the Amendment has on the neighboring low-density single-family community and other low-density single family development in the area. [They] rely upon the protections provided by the Sarasota County Comprehensive Plan and Florida Statutes against concomitant impacts of increased densities and intensities in the community including but not limited to incompatible uses, loss of environmental lands, significant reduction of and degradation of open space and greenbelt buffers, loss of agricultural lands and uses, as well as other intrusions that will detract from the long-term desirability and livability of their rural community.”
The petition also focuses on the impact the development would have on traffic. A news release issued this week about the DOAH challenge says, “The additional vehicle trips … will overload roadways, such as Fruitville Road and University [Parkway], that are already experiencing serious congestion and projected to be even more congested in the year 2045.”
Hutchinson and Fitzgerald’s attorneys are Shai Ozery and Robert N. Hartsell of Hartsell’s eponymous law firm in Pompano Beach. The website indicates that the firm specializes in land-use and environmental law.
The news release notes that a nonprofit organization created earlier this year, Keep the Country Inc., “is providing funding support for the challenge.” Keep the Country’s goal, the release notes, is “to preserve and protect the rural areas of northern Sarasota County.”
A Nov. 29 document in the Florida Division of Administrative Hearings docket shows that Administrative Law Judge Hetal Desai has been assigned to the case. A Tallahassee native, she practiced commercial and employment litigation in Miami and New York before returning to Tallahassee in 2002, the Community Foundation of North Florida says. (Desai is a member of that Foundation’s board, it notes.) She served as assistant city attorney for the City of Tallahassee for nearly nine years, the Foundation adds.
Desai became an administrative law judge for the state in November 2017, her LinkedIn account says.
A process that began in February
Rex Jensen, president and CEO of Schroeder-Manatee Ranch (SMR) — the developer of Lakewood Ranch in Manatee County — told the County Commission in February that the 2050 Plan did not have a 2050 development zone that would allow SMR to construct a Sarasota County version of Lakewood Ranch in keeping with the design of the Manatee County communities.
Residential density under the Village guidelines in the 2050 Plan was too dense, he said, while the density of a Hamlet was insufficient to support SMR’s investment in the necessary infrastructure — such as water and sewer lines — to serve the new communities.
Therefore, Jensen put together a project team — including a planner with the Stantec consulting firm in Sarasota — to create the Village Transition Zone.
However, after the County Commission gave its initial approval to that proposal, and the document was transmitted to the state’s Department of Economic Opportunity (DEO) for review, as required by state law, DEO expressed some concerns about facets of the 2050 Plan amendment. Caleb Grimes of the Grimes Galvano law firm in Bradenton — who also was part of Jensen’s project team — called the DEO comments as mischaracterizations.
Nonetheless, during an Oct. 26 telephone interview with The Sarasota News Leader, Sarasota attorney Susan Schoettle, who worked for a number of years in the Office of the County Attorney, noted the rarity of those DEO comments. For the most part, she said, the department’s staff has provided responses on Comprehensive Plan amendments that have seemed “to be very pro forma.”
Given the DEO comments and concerns raised before the County Commission by two esteemed Florida experts in planning and growth management, Schoettle added, she felt a group would have good odds in winning a formal challenge to the commission’s approval of the Village Transition Zone.
The two individuals to whom she referred are Richard Grosso and Charles Gauthier. Both of them addressed the County Commission during the Oct. 25 public hearing, in opposition to the plans for Lakewood Ranch Southeast.
As the News Leader has reported, Gauthier at one time was chief of the Bureau of Local Planning within the Florida Department of Community Affairs. Prior to that position, he served as the department’s growth management administrator.
In 2011, the Florida Legislature and then-Gov. Rick Scott eliminated the Department of Community Affairs. Prior to that, the planners with that state office regulated how cities and counties could change their comprehensive plans, which guide how communities grow. Subsequently, DEO staff was tasked with reviewing comprehensive plan amendments.
Gauthier has been an expert witness in a number of cases, Schoettle told the News Leader.
Grosso “is a public interest environmental and land use lawyer dedicated to advising, advocating and litigating on behalf of clients seeking to use the law to promote and protect the public interest in preserving our natural resource communities, and planet,” his website says. He has practiced before “state and federal administrative tribunals and courts for 35 years,” his website adds.
Schoettle was one of the founders, in June, of Keep the Country Inc. Hutchinson of Bern Creek Loop is the secretary and treasurer of that organization, Florida Division of Corporations records show.
In late October, when the News Leader spoke with Schoettle, she said that the board of that nonprofit was considering filing a challenge through the Florida Division of Administrative Hearings.
‘Allegations of Material Fact’
Hutchinson and Fitzgerald’s DOAH challenge includes a number of “Allegations of Material Fact” to support their filing.
Among them, their attorneys pointed out, were DEO’s comments that county staff “had not provided data and analysis to demonstrate the availability of and planning for public facilities [in Lakewood Ranch Southeast], provide meaningful and predictable standards regarding the intensity and type of nonresidential uses allowed, provide meaningful and predictable standards for greenway, open space and greenbelt requirements and uses and allow only open space uses that are consistent with the definition of open space, and provide data and analysis to demonstrate that the [Village Transition Zone] amendment will not contribute to urban sprawl.”
The 2050 Plan requires that a minimum of 50% of the land in a development be open space, including “greenbelts,” which are buffers around the residential and commercial areas. However, the Village Transition Zone allows that to be reduced to 43%.
Another section of the Hutchinson-Fitzgerald petition talks about the use of greenbelts as clear separators of urban uses from rural uses. That segment adds that the Village Transition Zone amendment reduces the greenbelts from the required width of 500 feet in the 2050 Plan to 50 feet or nothing “in many locations.” It adds, “No greenbelt is required along the west boundary of the property where it is adjacent to conservation lands.”
Additionally, the attorneys wrote, the Southwest Florida Water Management District review of the Village Transition Zone amendment found that it “lacked a potable water analysis, including calculations demonstrating raw water availability and water facilities, to meet the increase in potable water demand” that any Village Transition Zone communities would create.
Moreover, the attorneys for Hutchinson and Fitzgerald noted, “The District also found that the proposed development site is in the Most Impacted Area (MIA) of the Southern Water Use Caution Area.”
Further, they wrote, the District found a lack of binding policies relating to water conservation, and it said that “ ‘areas throughout the site [are] susceptible to flooding, as they are located within floodplain areas, and National Wetlands Inventory data [show] that there may be wetlands that overlap many of these areas.’ ”
The petition also noted that about 17.24% of the site — approximately 710 acres — “lies within the 100-year floodplain …”
Additionally, the petition said, the Florida Fish and Wildlife Conservation Commission (FWC) found that the Village Transition Zone amendment “lacked a wildlife assessment.”
Numerous speakers during county public hearings on the proposal talked of the various wildlife species that inhabit that part of the county. Their remarks were supported in FWC’s findings, the DOAH petition pointed out. FWC staff said the proposed site “has substantial wildlife habitat value, and allowing the proposed development would require specific measures and practices to prevent the development from creating substantial adverse wildlife habitat impacts.”
Moreover, the attorneys wrote, FWC found that the Village Transition Zone amendment “could result in the severance or reduction of ecological corridors and constitute a significant adverse impact to important state wildlife resources through habitat fragmentation, isolation of existing wildlife populations, and [hindrance] of genetic exchange.”
FWC also determined that the amount of development that the Village Transition Zone would allow “is too intense given the habitat and character of the undeveloped land, and the development standards recommended by the [agency] are not included in the [amendment].”
The petition noted that the property primarily has been home to agricultural uses. It also “is wholly outside of the [county’s] Urban Service Boundary, and is outside of the County’s 2050 Plan Countryside Line but for a small area in the northwest corner …”
The Urban Service Boundary divides the county between areas that have services such as water, sewer and roads and those that do not. The Countryside Line is a figurative line that separates the urban portion of the county from the rural sections.
The petition also cited 18 county Comprehensive Plan policies with which Hutchinson and Fitzgerald contend the Village Transition Zone amendment is inconsistent.