County attorney explains in memo that board not obligated to conduct new hearing
On Oct. 21, the Sarasota County Commission will be asked to consider a new proposal from Texas-based developer D.R. Horton for a residential community close to the Celery Fields in the eastern part of the county.
The company also is asking for a public hearing on the updated plans, which involve about a third fewer homes.
A memo from County Attorney Joshua Moye, included in the Oct. 21 agenda packet, explains that the proposal resulted from a state-authorized arbitration process that the company — and the owners of the property D.R. Horton wants to develop — pursued after the County Commission voted unanimously on Feb. 12 to deny a rezoning petition that D.R. Horton had submitted to county staff.
The discussion is No. 36 on the board’s Oct. 21 agenda. The meeting will begin at 9 a.m. in the Commission Chambers of the County Administration Center standing at 1660 Ringling Blvd. in downtown Sarasota.
In February, the agent for D.R. Horton — Sarasota land-use attorney Charles D. Bailey III of the Williams Parker firm — said the company was proposing to build 126 homes on 50.82 acres that lie about 1 mile east of Interstate 75 and south of Palmer Boulevard. The figure had been decreased from the original application for about 170 dwelling units.
On May 23, 2023, when representatives of D.R. Horton conducted the initial, county-required Neighborhood Workshop on the plans, county residents decried the idea of such an intense residential development, so close to the Celery Fields, a popular bird-watching destination, and expressed worries about the potential that the new construction would result in significant stormwater issues for surrounding communities.
During the 2024 storm season, residents took photos of the site — called the Smith Properties— that showed it underwater; they presented a number of those photos to the County Commission on Feb. 12.
On April 23, attorney Jacob Schumer of The Grosshans Group in Winter Garden, notified commission Chair Joe Neunder and County Administrator Jonathan Lewis that D.R. Horton and the owners of the property — formally the Cindy L. Smith Revocable Living Trust — had decided to pursue the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA) against the county, as provided for in Section 70.51 of the Florida Statutes.
“We believe that the denial of [the rezoning] Petition … is unreasonable and unfairly burdens the Petitioners’ use of the property,” Schumer wrote, referring to the Smith family and D.R. Horton. The language he used references state law related to the rights of property owners.
The company and the Smiths alleged in their FLUEDRA action that the denial of the rezoning petition was “based on compatibility concerns which were not supported by competent substantial evidence,” County Attorney Moye wrote in his Oct. 8 memo that is included in the Oct. 21 agenda packet.
A rezoning hearing is considered a “quasi-judicial” proceeding, meaning that it is akin to a court hearing. The commissioners must rely on credible testimony and evidence, instead of opinions, to make a decision on the request.
On Sept. 11, Moye continued in his memo, the Special Magistrate selected to preside over the FLUEDRA process conducted mediation. Several members of the public attended the session “and voiced their concerns,” Moye added. “At the conclusion of the day,” he wrote, D.R. Horton “and the County reached a tentative settlement. However, the parties still needed to work out the details.”
On Oct. 1, Moye continued, the parties reconvened. “The applicants presented a new binding development concept plan for an 85-unit subdivision. Additionally, the subdivision design reduced the number of entrances from two along Raymond Road to a single subdivision entrance in the southwest corner of the property, which is designed to limit impacts to the birds and other wildlife at the Celery Fields,” Moye pointed out.
During the Feb. 12 hearing, a number of members of the Sarasota Audubon Society testified that the Horton project described that day would prompt the hundreds of species of birds that winter at the Celery Fields — and those that frequent it year-round — to relocate from the land.
One speaker cited the example of Ackerman Park, which stands in the northern cells of the Celery Fields. Ducks used to winter in the park, Kathryn Young, a member of the board of directors of the Sarasota Audubon Society, told the commissioners. Then, after an apartment complex was constructed nearby, she said, the birds stopped coming to the park. She had data from Cornell University’s eBird program to underscore the decline in the number of species found in Ackerman Park after the construction began in 2020.
Although the Celery Fields is a regional county stormwater project, county residents have told County Commissions for years that the site has become one of the primary bird-watching locations in Florida. The Celery Fields also is internationally known, a number of speakers testified during the Feb. 12 hearing.
On May 23, 2023, during the first Neighborhood Workshop on the original Horton proposal, Jeanne Dubi, then-president of the Sarasota Audubon Society, stressed to the project team members, “Whatever is done, we must protect the Celery Fields and the wetlands.”
Other facets of the new proposal
The new D.R. Horton plan that resulted from the Oct. 1 mediation, County Attorney Moye wrote in his memo, “also calls for an enhanced buffer along the edge of the property closest to the Celery Fields …” That would include a pond with a littoral shelf, a berm and a vegetative screen with 0.7% opacity, Moye noted. Further, he wrote, “The settlement … includes a ‘dark skies’ element which eliminates all streetlights within the proposed subdivision and directs all lighting away from the Celery Fields.”
In regard to the latter feature, the proposed settlement says, “No streetlights or other pole-mounted lighting fixtures shall be installed or maintained on any street, road, or right-of-way within the Development.” Additionally, it calls for the subdivision construction engineering plan to include a lighting plan, which would “identify the placement and positioning of any outdoor lighting within common areas,” such as the clubhouse and community pool, as well as lighted signs.
Yet another part of the settlement agreement says no “residential lots shall be located within 200 feet of the property boundary adjacent to Raymond Road.”
The agreement also calls for the County Commission “to conduct a new quasi-judicial hearing on the improved application,” Moye continued. “The Board is not required to approve the new application at that hearing. Rather,” he pointed out, the commission “is free to consider all the evidence presented at that new hearing. If the Board rejects the settlement agreement, the parties will return to the FLUEDRA process to conduct an evidentiary hearing to determine whether the Board’s denial of the rezone petition was unreasonable or unfairly burdened the use of the property.”
The recommendation of the Special Magistrate following the evidentiary hearing is not binding, Moye noted.
“If the Board believes a new hearing is warranted based on the improved design,” he added, “it should vote to approve the settlement agreement.”