Petitioners cite lack of ‘competent, substantial evidence’ to back up board’s decision
The nationally known, Texas-based developer that has been working with a Sarasota County family on plans for a single-family home development close to the Celery Fields Regional Stormwater Project has dropped pursuit of a state land-use dispute resolution process and, instead, filed a complaint against the county in the 12th Judicial Circuit Court, The Sarasota News Leader has learned.
The formal Petition for Writ of Certiorari seeks to overturn the County Commission’s February 2025 denial of a rezoning petition filed by D.R. Horton. The company wants to construct homes on 50.82 acres owned by the Cindy L. Smith Revocable Living Trust and Matt and Cindy L. Smith, as the complaint points out.
Circuit Judge Hunter W. Carroll has been assigned to the case, court records note. Carroll has overseen a number of land-use cases involving the county in recent years.
As The Sarasota News Leader has reported, the commissioners voted unanimously on Feb. 12, 2025, to deny the application for the 126-home project, citing the plans’ incompatibility with the Celery Fields.
Although the Celery Fields was created as a stormwater project, it has won an international reputation among bird-watchers for the wide variety of migratory species that make the property their home each winter, as numerous individuals testified at the 2025 hearing.
After mediation through what is called the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA), which resulted in revised plans for the development, the board members voted unanimously again on Oct. 21, 2025 to deny the proposed settlement agreement. The modified plans called for 85 single-family homes on the same property that was the focus of the February 2025 hearing.
Attorney Charles D. Bailey III, of the Williams Parker firm in Sarasota, had stressed that the new proposal called for “a very different project,” including a 60-foot-wide vegetative buffer along the Raymond Road boundary of the development, with a water feature also planned. Over 45% of the community would be open space, Bailey further pointed out.
However, after County Attorney Joshua Moye explained the terms of the settlement agreement, Commissioner Teresa Mast called for the denial of the settlement and made the motion for that action. She was the first member of the board to express opposition to the plans in February 2025. The Smiths’ property is in her District 1 territory.
Commissioner Mark Smith seconded the motion, and it passed 5-0.
The Circuit Court petition, which was filed on April 23 by Jacob Schumer of The Grosshans Group in Winter Garden, contends that, “despite [D.R. Horton and the Smith family] going above and beyond satisfying the criteria for their requested rezoning [for the project] to alleviate potential effects on neighboring properties, [the commissioners] denied the Application based on generalized concerns regarding the compatibility of the density of the project …”
Schumer added that the proposed density was “consistent with and required by the County’s Comprehensive Plan,” which guides growth in the community.”
He maintains in the complaint, “[T]here was no competent substantial evidence supporting any legal reason for the County’s denial.”
The phrase “competent substantial evidence” refers to the fact that the type of public hearing that the commissioners conducted on the D.R. Horton application in February 2025 mirrored a court case, including the necessity of the commissioners basing their decision on the evidence and testimony that was presented, instead of their or the public’s opinions about the plans.
Schumer argues, that based on judicial precedents, “[T]he Circuit Court must grant a petition for certiorari where there was not competent substantial evidence to support denial for the reasons stated [in the formal, written denial, which the board members approved in March 2025].”
Schumer filed eight appendices with the petition; those added up to more than 2,500 pages, by count of the News Leader, as indicated in the case docket in the 12th Judicial Circuit Court records.
Typically, the News Leader has found, the Office of the County Attorney files a response to Petitions for Writ of Certiorari within 30 days. The office does not comment on pending litigation.
Details of the petition
As Schumer explains in the petition, Smith Properties is located about 1 mile east of Interstate 75, “south of Palmer Boulevard on the east and south side of Raymond Road, slated for dense infill development by the Sarasota County Comprehensive Plan.”
He adds that the site “is abutted on the East, Southeast, South and Southwest by residential developments similar to the [D.R. Horton/Smith family’s] proposed 2.48 unit/acre development, with the densities of these surrounding developments ranging from 1 to 4.5 units/acre.”
The northwest boundary of the property is adjacent to the southernmost corner of the Celery Fields, Shumer further notes, acknowledging that the “400-acre flood mitigation zone also [is] used as a park.” The new county Administration Center, which will replace the facility that was used for decades at 1660 Ringling Blvd. in downtown Sarasota, is underway north of the site, he adds.
The county’s Comprehensive Plan shows that the Smith property has been designated for Moderate Density Residential Development (MODR), Schumer continues, “a designation which requires residential developments to be zoned for between two and five units per acre.”
That is the Future Land Use designation of the site, he does note.
Moreover, the property is within the county’s Urban Service Area, which — he points out — is an area that “should be developed at the ‘maximum allowable [density] to utilize existing infrastructure and prevent urban sprawl,’ ” as written in the Comprehensive Plan. Schumer refers to the existing zoning of the property — Open Use Rural, which allows one dwelling unit per 10 acres — as “outdated zoning” for the land, as it is “around 1/20th of the minimum called for by the Property’s MODR designation.”
In designing the D.R. Horton development “to minimize any impacts on the surrounding properties, including Celery Fields,” Schumer continues, the company and the Smith family provided for 50% more open space than the County Code required; perimeter setbacks on Raymond Road that were 10 times greater than the County Code called for — “including dense agricultural buffers”; setbacks along the east and south boundaries “that were four times more than required”; “dark sky “ protections for wildlife at the Celery Fields; “building height restrictions”; and “a general design concentrating density around the central stormwater pond to minimize impact on surrounding properties.”
Then Schumer explains that the Sarasota County staff presentation about the D.R. Horton proposal for the February 2025 hearing “did not state any opinion” on whether the application should be approved or denied. However, he contends, the potential justifications for denial that were included in the written staff report in the agenda packet “cited criteria which are not bases [sic] to deny under the [County] Code, or otherwise did not explain why they would constitute a reason for denial.”
Moreover, he writes, the approval criteria in the staff report “included several items whose sole relevance under the Code is that the Planning Commission must show that it had ‘studied and considered’ the items in forming its recommendation.”
The Planning Commission members are charged with conducting hearings on land-use applications and proposed Comprehensive Plan amendments. They make recommendations following those hearings in regard to how they believe the County Commission should handle the applications.
Schumer further argues, “The Staff Report [in the February 2025 agenda packet] alters the language from the UDC [the county’s Unified Development Code, which contains all of the land-use and zoning regulations], often removing the word ‘whether’ and adding ‘could/could not’ and ‘does/does not’ alternatives where none exist.”
Additionally, he points out that “many members of the public opposed allowing any development” on the Smith property, “requesting that the Property be kept as a floodplain absorbing water for the rest of the surrounding properties.”
Schumer also notes that members of the public “expressed concern over construction activity at any neighboring development and the effect it would have on the wildlife of the abutting Celery Fields.”
He further contends that the commissioners voted to deny the application “citing solely ‘incompatibility,’ without elaboration.”
However, as the News Leader reported after the hearing, Commissioner Mast referenced a comment that attorney Bailey had made on behalf of D.R. Horton, saying, “For me, this last piece of the puzzle does not fit. It is not compatible, in my opinion, with what this gem is.” The “gem,” she made clear, is the Celery Fields.
She was a member of county staff, she noted, when the decision was made for the county to purchase the property that became the Celery Fields Regional Stormwater Project.
Bailey had pointed out to the commissioners that a policy in the county’s Comprehensive Plan encourages infill development within the Urban Service Area, which is the portion of the county with infrastructure — such as roads and utility lines — already in place to support new communities.
An infill development, Bailey said, is “the most difficult [to achieve]. You’re the last piece of the puzzle” amid surrounding communities.
Moreover, Mast added that she had gone through “a very methodical process” to make her decision, noting that she had read each of the “hundreds and hundreds” of emails that people had sent to the commissioners about the residential housing proposal.
“And I totally respect the private property rights of the Smith family,” she said. Yet, Mast continued, “This is a really unique parcel requiring a very unique project.”
Commissioner Tom Knight said of the Celery Fields, “It simply is a cherished area,” and he pointed to the efforts the board already is taking to try to improve the handling of stormwater in the county, given the flooding of many residential areas during the 2024 storm season that were not in designated floodplains.
Schumer does note that, on April 23, 2025, D.R. Horton and the Smiths chose to pursue the FLUEDRA process in an effort to construct a scaled-down development. Yet, he adds, in spite of the plans calling for only 85 homes, the commissioners “rejected the proposed settlement without a public hearing.”