Smiths and Texas-based company have asked 12th Judicial Circuit Court to overturn commission’s unanimous vote in February 2025
In a June 2 filing, Deputy Sarasota County Attorney David Pearce has asked the 12th Judicial Circuit Court in Sarasota to dismiss the April complaint filed by Texas-based home construction company D.R. Horton and the Cindy L. Smith Revocable Trust, which seek to overturn the County Commission’s 2025 refusal to allow the company to construct a single-family home community next to the Celery Fields in the eastern part of the county.
Initially, in his response to what formally is the D.R. Horton-Smith family’s Petition for Writ of Certiorari, Pearce contends that the court has no jurisdiction over the case, as the plaintiffs did not finish a Florida land-dispute resolution process before resorting to the court action.
He cites the ruling in a 12th Circuit DeSoto County case as the basis for that assertion.
Yet, he also provides details in his 66-page response to dispute a variety of the company’s and the Smith family’s arguments about the County Commission’s denial of their application to rezone the 50.82-acre “Smith Properties” — as the land has been called — for the construction of 126 homes.
Pearce explains initially that the county “disagrees with the rationale” of the Circuit Court’s ruling in Reardon v. DeSoto Cnty. and, therefore, believes the 12thJudicial Circuit Court does indeed have jurisdiction in the D.R. Horton-Smith family case. In accord with the latter statement, he writes that the county also believes that the petitioners have not met the standards for winning the court’s reversal of the County Commission’s unanimous vote to deny the plaintiff’s rezoning application.
Pearce first reprises an argument that he made in a similar case against the county, noting that the Circuit Court suggested that it had no jurisdiction in Reardon v. DeSoto Cnty. because the petitioners “did not finish the [Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA)] process, which is the last prerequisite to judicial action.”
D.R. Horton and the Smiths began the FLUEDRA process before abandoning it and pursuing litigation, Pearce points out.
Then, after noting that the county believes that the Reardon case “was decided in error,” Pearce writes that he had provided a “detailed argument about the Reardon decision” in the county’s response to the petition filed against the county by Saba Sands II. That case pertains to the County Commission’s denial of an application from Sarasota attorney William Saba to construct a new home on property fully seaward of the Gulf Beach Setback Line (GBSL) on Siesta Key. The GBSL was established in 1979 in an effort to protect dunes and beach habitat, which, in turn, protect landward structures from storm surge and other flooding events.
In the county response to the D.R. Horton-Smith family case, Pearce cites sections of the FLUEDRA law, with some emphasis, to support his assertion about the lack of jurisdiction:
He includes Section (24) of the law, as well. It says, “The procedure created by this section is not itself, nor does it create, a judicial cause of action. Once the governmental entity acts on the special magistrate’s recommendation, the owner may elect to file suit in a court of competent jurisdiction. Invoking the procedures of this section is not a condition precedent to filing a civil action.” Again, Pearce adds the emphasis.
The primary issue in the Reardon case is “tolling,” which refers to the suspension of the deadline for taking a specific step, based on other action.
“The Reardon court … concluded that FLUEDRA proceedings have the effect of suspending finality or ripeness of the development order for purposes of subsequent judicial proceedings, preventing judicial review until the Special Magistrate proceedings are concluded,” Pearce writes.
“Development order” in the D.R. Horton-Smith family case refers to the County Commission’s denial of the rezoning application.
In FLUEDRA cases, the parties agree on an attorney who serves as a Special Magistrate in trying to reach a mediated settlement. If such an agreement can be reached, then the Special Magistrate offers it to the affected local government for its consideration. The local government board does not have to accept the recommendation, members of the Office of the County Attorney have explained.
Pearce then points out, “Unfortunately, the Reardon decision did not involve a situation wherein a petitioner abandoned the FLUEDRA proceeding. Thus, the Reardon court did not consider a situation involving abandonment of the FLUEDRA proceeding by a property owner. However, the effect of the Reardondecision would apparently mean a property owner cannot abandon a FLUEDRA proceeding, because such an action would mean the Court lacks jurisdiction because the “ ‘the last prerequisite to judicial action’ ” had not been pursued.
Plaintiffs fail to meet the necessary criteria for their petition
After addressing the Reardon issues, Pearce explains that in this type of litigation, when a circuit court reviews a local government’s development order, Florida Rule of Appellate Procedure 9.030(c)(3) says the court must consider three discrete issues: “(1) whether procedural due process was afforded by the local government; (2) whether the essential requirements of the law have been observed by the local government; and (3) whether the decision of the local government is supported by competent substantial evidence in the record.” He cites the 2001 Florida Supreme Court ruling in Broward Cty. V. G.B.V. Int’l, Ltd., as the basis for that assertion.
In the D.R. Horton-Smith family case, Pearce continues, the petitioners “have not argued that the [County Commission] failed to accord them procedural due process. Rather, Petitioners first argue that the Board departed from the essential requirements of the law.”
He adds, “Specifically, [they] contend the Board’s resolution [of denial of the application] erroneously cites ‘nonbinding criteria’ ” from a section of the county’s Unified Development Code (UDC), which contains all of the land-use and zoning regulations.
“Next,” Pearce writes, they argue that “they satisfied their burden” of demonstrating that the facets of the development plans complied with all of the county’s rezoning criteria, which shifted to the County Commission the burden of proving otherwise.
Finally, he continues, they contend that the County Commission decision “is not supported by competent substantial evidence.” The latter phrase refers to the fact that a rezoning hearing is akin to a court case in that the commissioners must rely on evidence and testimony — not statements of opinion — in making their decisions.
Citing multiple judicial precedents, Pearce argues that the County Commission did not deviate from the “published permitting criteria,” as Section 124-39 of the UDC requires the Board to consider factors other than “just consistency with the Sarasota County Comprehensive Plan,” which guides growth in the community.
Section 124-39 of the UDC “outlines the requirements” for review of rezoning applications, Pearce explains. Among those, he notes, are the following:
In addressing, for an example, whether the UDC language requiring the County Commission “to consider ‘whether the proposed change will adversely influence living conditions in the neighborhood,” Pearce points out, “This language is common in a zoning ordinance. Essentially, it is a nuisance standard which asks the decision maker to consider whether the proposed zoning change would create public health or safety hazards such as pollution (including noise or light), mass disruption of public amenities (including fair use of roadways, sidewalks, or utilities), or promote unlawful or immoral activities.” Pearce adds, “The language is also location specific because it looks at the proximity of the proposed use change to the neighborhood. Thus, this subsection is not unconstitutionally vague.”
For another example: In regard to whether the UDC subsection about “ ‘whether the proposed change will create a drainage or flooding problem,’ ” Pearce notes that that “language is commonly used in legal and common parlance and is sufficiently clear so that a reasonable person can understand the meaning.” Yet, he adds, D.R. Horton and the Smiths “complain this language ‘pales in comparison to the specific stormwater management provisions required in other portions of the [Comprehensive] Plan and UDC.’ ”
Pearce also asserts, “The evidentiary burden never shifted to the County because Petitioners failed to demonstrate their project was consistent with the Unified Development Code and Comprehensive Plan.” In this case, Pearce points out, “[T]he existing zoning on the [Smiths’] property is consistent with the comprehensive plan, because the comprehensive plan recognizes that the existing zoning need not be immediately changed” to the zoning that D.R. Horton required for its project.
He adds, “Maintaining the status quo serves the public purpose because of the proximity of the [Smiths’ property] to the Celery Fields. Further,” he writes, “Petitioners offered no proof that maintaining the existing zoning is no longer reasonable.”
As speakers at public hearings on the proposal have stressed, the Celery Fields, located in the eastern part of the county, may have been created as a regional county stormwater project, but the property has become home to hundreds of migratory birds in the winter months. The opportunity to see species that birdwatchers have not encountered elsewhere has made the Celery Fields a destination for both U.S. and international visitors, as Sarasota Audubon representatives have emphasized.
As for the issue of “competent substantial evidence,” Pearce notes that such evidence “may be found in the testimony of lay persons with firsthand knowledge of the vicinity, the application itself, a staff report, map, aerial photograph or the findings of the [county’s] Planning Commission.” For that assertion, he cites the 1957 Florida Supreme Court ruling in De Groot v. Sheffield.
Referring again to that decision, Pearce points out that “competent substantial evidence is such competent evidence as a reasonable mind would accept as adequate to support the [County Commission’s] conclusion.” He adds, “Substantial evidence is a function of quality and not quantity, and thus a single fact may clearly satisfy this test.”
Pearce also provides details about the county staff report prepared for the public hearing on the D.R. Horton proposal, noting, for an example, that the report discussed the fact that “additional residential units could increase traffic, light, and noise in the surrounding area.” Among the staff report’s comments, he continues, is “Noise will cause birds to vacate the Celery Fields,” while “[i]ncreased artificial lighting can cause confusion, disorientation, and exhaustion” for birds.