Attorney informs 12th Circuit Court judge about state appeals court decision that affects Horton-Smith case
Before oral arguments began on Sept. 28 in the D.R. Horton-Smith family lawsuit — which seeks the overturning of the Sarasota County Commission’s denial of a single-family home development next to the Celery Fields — the attorney for the plaintiffs brought up a recent Florida appeals court ruling that is expected to have some bearing on the case.
Jacob Schumer, of the Grosshans Group in Winter Garden, told 12th Judicial Circuit Judge Hunter W. Carroll that Deputy County Attorney David Pearce had made him aware earlier that day of the Sept. 10 ruling by the Fifth District Court of Appeal. That dealt with the deadline for court action after parties have engaged in what is called the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA). D.R. Horton and the Smith family — which owns the land slated for the Texas-based company’s project — had pursued the FLUEDRA process, before turning to the court.
That Fifth District Court of Appeal (DCA) decision asserted that the language of the state law makes it clear that the issuance of the recommendation of the Special Magistrate who presides over a FLUEDRA mediation must be issued before the proverbial clock starts ticking on when a court complaint may be filed. (See the related article in this issue.)
Attorney Schumer told Carroll that he and Pearce had discussed the ruling and believe that their “best course of action” may be to file supplemental briefings in the D.R. Horton-Smith family case.
“I think that is ultimately fine,” Carroll responded, adding that he planned to issue a request that day for a county response to the Fifth DCA ruling in a separate case.
Carroll gave the attorneys 15 days to file their briefs, calling the appeals court ruling “a small issue” in the context of the D.R. Horton-Smith family litigation.
During his argument, Schumer did point out that D.R. Horton and the Smith family had two days left to file their petition with the court, to meet the provision of state law for such action, “and the county seems to concede that with their argument.”
Carroll did not indicate when he might rule in the case, though he did request a copy of the transcript of the hearing to facilitate his writing of the order.
A document filed with the court subsequent to the session on Monday says that he took the arguments “under advisement” and will issue an order at a later date.
In the meantime, during its regular meeting on Oct. 6, at the Robert L. Anderson Administration Center in Venice, the Sarasota County Commission will be presented with a proposed settlement in the D.R. Horton-Smith family case.
The discussion will be part of County Attorney Joshua Moye’s report to the board that day, the agenda shows.
The Anderson Administration Center stands at 4000 Tamiami Trail in Venice. The meeting will begin at 9 a.m.
A lack of ‘competent substantial evidence’
On Sept. 28, after concluding the business about the Fifth District Court of Appeal ruling, attorney Schumer proceeded to make arguments he had offered in detail in his briefings in the D.R. Horton case.
Schumer has maintained that the County Commission did not rely on what is called “competent substantial evidence” before the members voted unanimously to deny the rezoning in the aftermath of the February 2025 hearing on the D.R. Horton-Smith family rezoning application.
A document produced by the City of Safety Harbor explains, “In the case of a quasi-judicial hearing, the decision-making body is not allowed to utilize popular sentiment or unsubstantiated evidence as the basis for making a decision. All decisions must be based upon substantial competent evidence. Substantial competent evidence consists of relevant evidence that a reasonable person would accept as adequate to support a conclusion, and must relate to the merits of the application. This may include the factual testimony of lay witnesses and the opinion testimony of experts.”
The D.R. Horton-Smith family application focused on plans for the construction of 126 homes on the nearly 51 acres that the family owns along Raymond Road. The site is adjacent to the 300-acre Celery Fields Regional Stormwater Project, which has evolved over about three decades to become an internationally known bird-watching destination. As residents have testified during a variety of hearings in recent years, hundreds of species are documented in the Celery Fields during the winter months.
The rezoning petition, Schumer contended to Judge Carroll this week, “was for a very reasonable, single-family development consistent with the developments around it …” The density proposed was about 2.48 units per acre, he noted.
“The applicants met or exceeded all objective criteria under the zoning code,” Schumer pointed out, including the county Comprehensive Plan’s Future Land Use designation for maximum density in that area.
He and Deputy County Attorney Pearce have differed in their arguments about “how to read the Sarasota County Code,” Schumer acknowledged. “And even if you give the county the benefit of their best argument,” Schumer contended, “we would still prevail …”
He continued, “If you read the Code … the way that they do, and give them the authority that they claim they have, that essentially renders the Code without any kind of meaningful criteria.”
“The Code actually holds the [County Commission] to one standard,” Schumer added: consistency with the Comprehensive Plan, which guides growth in the community.
Yet, he said, “The county argues that there are many, many more criteria …”
Among the evidence of inconsistency with the Comprehensive Plan that the county cites, he said, is the fact that the Smith Properties would be the only land utilizing Raymond Road. Yet, Raymond Road, he said, “is the only road frontage on the Smiths’ property. Therefore, Schumer continued, if the county argument regarding inconsistency on that factor is valid, “then, basically, that property is never going to be developed.”
Comments by speakers during the public hearing in regard to the planned setbacks “of the numerous single-family developments surrounding [the property] and concerns about flooding and wildlife that are already addressed in other parts of the Code are not competent, substantial evidence,” Schumer noted.
“The application met all of the meaningful criteria in the Comprehensive Plan,” he stressed to Carroll. The Future Land Use designation of the site in the Comprehensive Plan is Moderate Density Residential, he noted, which allows for two to five dwelling units per acre. The 2.48 units per acre planned “is well within the range and on the lower side,” Schumer asserted.
“If anything,” he pointed out, “it might have been not dense enough, because [the site is] within the Urban Service Area, where you’re supposed to strive for residential development built to the … maximum allowable density.”
The Urban Service Area comprises those portions of the unincorporated areas of the county where infrastructure such as water and sewer lines and roads already are available to serve communities.
Further, Schumer told the judge, the county’s Unified Development Code (UDC) — which contains all of the land-use and zoning regulations — says that “potential incompatibilities between land uses shall be mitigated” through site and architectural design techniques, including perimeter buffers; and location and screening of sources of light, noise and location of road access. “Every single one of those techniques was actually addressed in the application,” he pointed out.
Among the other five county policies that the county contends the application did not comply with, Schumer continued, was one providing for adequate buffering of public conservation lands. Yet, he said, the D.R. Horton-Smith family application provided “twice as much as actually required by the Code.”
He contended that the county’s finding of inconsistency rested in the view that “some reasonable mind would think that there should be more [buffering].” That deviates from the Code, Schumer added.
Another policy related to floodplains, he continued. It says that no development should be allowed in areas where 100-year flood events are expected. However, Schumer pointed out, the applicants provided “uncontested evidence” that they would compensate for that. If the existence of a floodplain is enough to deny a rezoning petition, he argued, then the County Commission would be justified in denying the rezoning of “a whole lot of properties.”
The construction plans would have been able to meet the criteria for flood mitigation as provided in a different part of the Code, he added.
Another policy called for discouraging “incompatible uses where traffic on abutting local streets would substantially and adversely affect … traffic control and public safety.” Again, Schumer contended, the application met all the necessary criteria on that point.
Finally, he noted that Future Land Use Policy 1.1.1 says that the “present zoning may … stay more limited based on special circumstances identified during project review. This is not a carte blanche for the county to deny all rezoning requests,” he stressed. “This is a specified exception for when the rest of the county Zoning Code provides for something less than what the Future Land Use element [of the Comprehensive Plan] designates.
Schumer contended, “If ‘special circumstance’ can mean anything that a reasonable person could consider a special circumstance, then, again, there’s basically no criteria.”
He asked Judge Carroll to find that the rezoning application “met all the criteria … and that there was no competent substantial evidence supporting denial,” and then order the County Commission to review the application appropriately.
The Comprehensive Plan and the County Code
During his argument to the judge, Deputy County Attorney Pearce contended — as Schumer had mentioned — that the County Commission had to consider facets of the County Code, as well as consistency with the policies in the Comprehensive Plan, in considering the rezoning application.
He did note that, while Schumer also maintains that the County Commission failed to follow the Code in regard to the county Planning Commission’s study of the application, Section 124-39(c)(7) of the UDC makes it clear that the County Commission “may grant or deny [an] application or modify [an] application to a zoning district consistent with the Comprehensive Plan” after it has received the Planning Commission’s recommendations on the affected application.
Moreover, Pearce pointed out, the UDC says that the Comprehensive Plan “does not require an immediate upzoning based on the Future Land Use Map itself.” Thus, the County Commission did not have to approve plans conforming with the future land use designation of Moderate Density Residential.
Then Pearce explained that the County Commission has to adhere “to the goals, objectives and policies of the Comprehensive Plan itself” in ensuring that a rezoning application is consistent with that plan. Future Land Use Objective 1.3 says, “The Future Land Use Map — or the FLUM — shall be primarily implemented through the application of the zoning and land development regulations,” Pearce added. “So that is a requirement that dovetails with the requirements of [UDC] Section 134-39. If the board is going to ensure the requirements of the Future Land Use Map are adhered to,” he said, “it does so through the application of the zoning and land development regulations.”
Further, Pearce noted that Future Land Use Policy 1.3.1 says, “The Sarasota County zoning regulations shall set forth a hierarchy of zoning districts and associated buffering/open space requirements, based on the density and intensity of permitted uses, for the purpose of establishing appropriate development ratio standards commensurate with the parcel size and compatibility with adjacent uses.”
Additionally, he said, Future Land Use Objective 2.3 states, “Maintain governing regulations for Residential land uses and protect the quality and integrity of established residential neighborhoods from adjacent incompatible development.”
Yet another Future Land Use Policy — 2.3.6 — says, “Appropriate densities within each density range shall be determined, in part, by the land uses and land designations surrounding the parcel,” Pearce read.
“So, again,” he told the judge, “you have language within the Comprehensive Plan that tell you to go back and look at various standards that are contained within the zoning regulations.”
Pearce also noted that Schumer has argued that only one Comprehensive Plan policy was cited in the board’s resolution of denial on the basis of inconsistency. “But that’s not true,” Pearce added, and then proceeded to refer to the resolution itself, which he had provided in an appendix with his Motion to Dismiss the D.R. Horton-Smith complaint. He listed six Comprehensive Plan policies with which the commissioners found the rezoning application to be inconsistent.
Among them, he noted that Future Land Use Policy 1.2.2A “requires protecting environmentally sensitive lands, conserving natural resources and protecting floodplains.”
Pearce further pointed to Future Land Use Policy 1.25, which says that “no unmitigated development within a 100-year floodplain is the basic requirement.”
Pearce told the judge that Nancy Simpson, a certified floodplain manager and land use planner, “testified about potential flooding issues” on the Smith family’s land.
(Simpson’s LinkedIn account says she is the founder and CEO of Hoover Floodplain Consulting LLC in Sarasota.)
‘This alone warrants denial’
As part of the county’s portion of the hearing, Shai Ozery, of the Pompano Beach law firm Hartsell Ozery, represented the Sarasota Audubon Society, which Carroll had allowed to intervene in the case.
Ozery noted that representatives of the organization provided data and expert testimony during the February 2025 hearing to illustrate how the development of the Smiths’ land would result in fewer bird species coming to the Celery Fields.
Among those speakers, he said, was Robert Wright, who has 35 years of experience in environmental engineering and implementing and administering environmental management programs. Wright had testified, Ozery noted, that the mitigation the rezoning application had promised would “not solve [the] issues of incompatibility.”
Ozery pointed out that Raymond Road not only would provide the access points for the proposed D.R. Horton community, but it also serves visitors to the Celery Fields boardwalk, from which visitors observe many of the avian species.
The Celery Fields, he also tressed, is an “environmentally sensitive area.”
“The [county] staff report [for the rezoning hearing] found that the application … may have an impact on the residents and the wildlife in the surrounding area,” he added. “This alone warrants denial.”