Icard Merrill attorneys cited state law in asserting that land next to Celery Fields appropriate for affordable housing development
After they began pursuing a lawsuit in the 12th Judicial Circuit Court, to try to overturn a February 2025 vote against their proposal for a 126-home community next to the Celery Fields, Texas-based construction firm D.R. Horton and the owners of the site, the Smith family of Sarasota County, also filed a Live Local Act application with the county for an affordable housing development on the land, county documents show.
On April 23, as The Sarasota News Leader has reported, D.R. Horton and the Smiths filed their formal complaint against the county over the County Commission’s denial of the rezoning petition that they had filed for the 50.85-acre site adjacent to the Celery Fields. Then, on May 29, attorneys Bill Merrill III and N. Macaire King, of the Icard Merrill firm in Sarasota, submitted the preliminary Live Local Act application to the county’s Planning and Development Services Department Director Matt Osterhoudt. It called for a total of 864 apartments on the same site that was proposed for rezoning. Of the planned apartments, the letter said, 408 would comprise less than 750 square feet, qualifying as “half units” for density calculations in accord with a board policy that dates back to 2019, in an effort to spur the construction of more affordable housing in the community.
Because of that density allowance, Merrill and King wrote, “[T]he overall number of dwelling units … equates to 660,” or approximately 13 per acre. “Forty (40) percent, or 346 of the 864 units, will be rented to households earning no more than [120% of the Area Median Income for the North Port-Bradenton-Sarasota Metropolitan Statistical Area] for a period of 30 years,” they added.
The U.S. Department of Housing and Urban Development (HUD) issues an annual report for each metropolitan statistical area (MSA) in the nation, showing what the area median income (AMI) is for that year for households and providing details about percentages of that AMI for affordable housing calculations.
Unlike a rezoning application, the County Commission has no say over whether a Live Local Act application can be approved, as that is to be handled administratively in accord with the state law. However, during their regular meeting on April 7, the board members voted unanimously to implement a policy that county staff could not accept applications for Live Local Act developments that would be built on land zoned for open use, rural or residential purposes. The Smith family land slated for the D.R. Horton Live Local Act development is zoned Open Use Rural, attorneys Merrill and King pointed out in a separate letter to Osterhoudt of Planning and Development Services, which the News Leader received in response to a public records request.
Members of the public living in areas of the county with open use and rural zoning had been protesting to the commissioners that their communities should not be considered for Live Local Act construction, as the board members had been pointing out during meetings leading up to the April 7 vote. Such areas entail less residential density, which — residents have stressed — is the reason that people chose to live in those zoning districts.
In response to a News Leader inquiry, the Planning and Development Services staff explained in a June 12 email that the D.R. Horton-Smith family Live Local Act application was deemed ineligible for consideration. Thus, it never had shown up on the “dashboard” on the county’s Live Local Act webpages, which provide a chart with seven active projects.
In taking their April 7 vote, the commissioners acknowledged that the county likely would face lawsuits over applications that it has received. Commissioners indicated that they believe a court ruling is necessary to make clear whether they are correct in believing that those zoning districts are inappropriate for Live Local Act projects, based on language in the state law.
As of late morning on June 23, the News Leader found no record of D.R. Horton and the Smith family’s filing a separate court complaint regarding the county staff’s finding that the Live Local Act application was not eligible for processing.
Stressing validity of Smith family land for Live Local Act development
In the second letter they sent to Osterhoudt of Planning and Development Services, in conjunction with the D.R. Horton-Smith family Live Local Act application, the Icard Merrill attorneys contended that when the original version of the state law was approved, in 2023, the bill “mandated administrative approval of multifamily and mixed-use developments on land zoned for commercial, industrial, or mixed-use so long as certain affordable housing thresholds were met.” However, they continued, the state law “did not define ‘commercial use,’ ‘industrial use’ or ‘mixed-use,’ leaving room for inconsistent local interpretations. In practice,” Merril and King pointed out, “some jurisdictions denied administrative approval solely based on the title of the zone district, rather than the permitted uses within it.”
Therefore, they noted, the Florida Legislature passed another bill, effective as of July 1, 2025, that clarified that the title of the zone district was not the determining factor. “Instead,” Merrill and King added, “the uses permitted by right in the zone district govern eligibility under the Live Local Act.”
In accord with the state law, they wrote, with emphasis, “ ‘Commercial use’ means activities associated with the sale, rental, or distribution of products or the performance of services related thereto. The term includes, but is not limited to, such uses or activities as retail sales; wholesale sales; rentals of equipment, goods, or products; offices; restaurants; public lodging establishments as described in [Florida Statute] 509.242(1)(a); food service vendors; sports arenas; theaters; tourist attractions and other for profit business activities. A parcel zoned to permit such uses by right without the requirement to obtain a variance or waiver is considered commercial use for the purpose of this section, irrespective of the local land development regulation’s listed category or title.”
Then they provide a list of commercial uses “permitted by right” in the county’s Open Use Rural zoning district, as shown in the county’s Unified Development Code (UDC), which contains all of the land-use and zoning regulations. Again, they used underlining for emphasis:
In accord with the UDC regulations, Merrill and King wrote, “OUR qualifies for Live Local projects.”
In similar fashion, they noted industrial uses permitted by right in the OUR zoning districts, in accord with the UDC:
Thus, Merrill and King contended, “[P]ursuant to the Live Local Act, the Applicant’s proposed development of 864 multifamily apartment units (of which 408 are half units) on 50.85 +/- acres (13 dwelling units per acre) with building heights of up to 65 feet must be administratively processed and approved …”