After being granted the right to join the case, the Intervenors file an answer saying a change in the county’s Comprehensive Plan makes the lawsuit moot
Owners of the property on University Parkway where Whole Foods plans its second Sarasota store have been granted the right to intervene in a lawsuit challenging the Sarasota County Commission’s decision to rezone a rare wetlands site to allow the project to go forward, Deputy Sarasota County Attorney Alan W. Roddy told the County Commission during its regular meeting on March 8. “And they’re interested in expediting it,” Roddy said of the companies.
“The county has not been served [with the complaint by ManaSota 88],” he continued in remarks to the board at the end of its regular business on March 8. “Normally, that is not a technicality we would take lightly. We would insist on being served properly,” he told the board. However, in an effort to expedite the case, he said, the Office of the County Attorney is inclined to waive service, “unless the board has concerns about that.”
No commissioner offered a comment.
Roddy then added that he was not certain what expediting the case “will result in [because] a relatively short time for something to go to trial is a year.”
With still no comments from the commissioners, Roddy said he just wanted to inform them of the plans of the Office of the County Attorney regarding the case. “We will see what we can do to move [it] along.”
Twelfth Judicial Circuit records show that Judge Rochelle Curley signed an order on March 7, granting the Motion to Intervene that was filed on March 2 by BW University Honore LLC, JDL Development LLC, JDL Development II LLC and University-Honore LLC. The first three have identified themselves in court documents as current or past owners of the University Parkway site slated for Whole Foods’ University Station development, while University-Honore LLC lists itself as the lessee of one of the parcels. The registered agent for University-Honore is Paracorp Inc. of Tallahassee, whose manager is Stephen J. Collins of Fairburn, GA. He is the principal of the S.J. Collins Enterprises, the firm Whole Foods has hired for the project, according to Florida Division of Corporations records.
On March 8, attorneys Scott A. McLaren and Shane T. Costello of Hill, Ward & Henderson in Tampa filed the motion on behalf of the Intervenors, seeking the expedited trial, 12th Judicial Circuit documents show.
That same day, The Sarasota News Leader asked Ralf Brookes, the Cape Coral attorney representing ManaSota 88 and three individuals in the lawsuit, why he had not had the county served with the complaint.
Although the law provides 120 days for such service, Brookes explained, “rarely do I ever have to go and serve a county or a city.”
Generally, a local government will waive service and then proceed with an answer, he added.
Moreover, a law firm has to pay to serve a complaint, Brookes pointed out, and the person trying to serve the suit has to track down the chair of a county commission or the mayor of a city, which can be time-consuming.
Brookes is a former assistant Sarasota County attorney, he told the News Leader last week.
The complaint he filed on Feb. 25 says the Sarasota County Commission violated the county’s Comprehensive Plan in voting 4-1 on Jan. 26 to allow the wetlands to be destroyed for the Whole Foods project. County staff had explained to both the Sarasota County Planning Commission and the County Commission that the property remains a functioning wetlands and, therefore, still has value in the environmental system in that part of the county.
The Whole Foods project team countered that prior development allowed on the site had diminished the quality of the wetlands. Furthermore, the Whole Foods representatives pointed to their mitigation plans, which would result in about 41 acres of property being conserved in Manatee County, in the same watershed.
In an answer to the lawsuit, filed in the 12th Circuit on March 8, the attorneys for the landowners and lessee deny that the County Commission’s rezoning of the University Parkway property “is inconsistent with Principle VII.A.2 of the Environment Chapter of the county’s Comprehensive Plan, which states that wetlands shall be preserved except in cases where they are no longer capable of performing defined environmental functions and values, or where no other reasonable alternative exists,” as Brookes wrote in the ManaSota 88 complaint.
The answer also says points to Section VII.A.2, noting that the lawsuit relied an earlier version of the Comprehensive Plan. The current iteration of the plan says the determination of whether any reasonable alternative exists other than disrupting a wetland lies with the county, the answer adds.
During that Dec. 17, 2015 meeting, Matt Osterhoudt, senior manager in the county’s Planning and Development Services Department, said that the forested wetlands at the heart of the rezoning petition “is of high quality, and we have seen it persist throughout the years, given its position within the urban landscape.” Nonetheless, he explained that a modification to the language of the Comprehensive Plan says disruption of a wetlands may be allowed “in cases where no other reasonable alternative exists … as determined by the County ….”
Jeff Garrison of S.J. Collins Enterprises, the developer, told the board that Whole Foods started out with 12 sites in Sarasota County as it sought a location for its second store, but the only suitable land was the property on University Parkway.
The Intervenors’ answer also says, “The proposed development is consistent with the map for [the future land use] of the subject property and the subject area.”
The Intervenors further argue that ManaSota 88 and the three individuals also named as plaintiffs lack standing, as none of this is “an aggrieved or adversely affected party” as defined by the Florida Statutes.