County attorney anticipates adoption of policy to prompt developers’ litigation
On a unanimous vote this week, the Sarasota County Commission directed staff to implement a policy that interprets the state’s Live Local Act to mean that parcels zoned for residential, rural or open use are ineligible for affordable housing projects in accord with the guidelines of that state law.
Originally, Commissioner Mark Smith made a motion that focused just on Residential Estate and Open Use properties. However, during the final Open to the Public comment period, after the board members concluded their April 7 agenda business, Lourdes Ramirez, president of the Sarasota County Council of Neighborhood Associations (CONA), pointed out that, during their Live Local Act discussion that day, Commissioner Joe Neunder had proposed that all parcels zoned for residential purposes be eliminated from consideration, as well.
Chair Ron Cutsinger told her that the board members would take another vote as soon as the final person spoke during that public comment period.
Commissioner Smith ended up making the revised motion with wording that County Attorney Joshua Moye had suggested, on the basis of the board discussion and Ramirez’s remarks. Commissioner Tom Knight seconded it.
During the earlier discussion that day, Moye noted that he and his staff had proposed the policy option in a memo he had provided to the commissioners on April 3. That memo was a response to a March 24 board discussion that Commissioner Tom Knight had launched.
However, the option in that memo focused just on property zoned Residential Estate-1 and Open Use. Those were the zoning districts that Commissioner Knight had emphasized on March 24 as his primary concern.
During the regular board meeting on March 24, Knight brought up residents’ anxiety over the implications of the state affordable housing law that passed in 2023 and was amended in 2025.
Moye also told the board members on April 7 that if they were to adopt a policy that day declaring that the county’s interpretation of the state statute was that Open Use and Residential Estate properties were exempt from consideration for Live Local Act developments, it would take effect immediately. None of the proposals submitted to county staff under the provisions of that act thus far had reached the stage for determination about whether they qualified for approval, he noted. Therefore, the policy would prevent staff from agreeing to any plans for projects that would be located in the affected zoning districts.
Moye further explained that any applicants opposed to the new policy could file suit against the county, contending that the policy violated the state law. Then, he pointed out, a judge would make the final decision.
He did warn the commissioners that the Live Local Act gives the winning party in such litigation the opportunity to collect up to $250,000 in attorneys’ fees and costs from the losing party. The potential of such a payment would apply in each separate case filed against the county, he pointed out.
Chair Cutsinger offered caution about that factor, too. Still, the commissioners emphasized their desire to protect their constituents.
Commissioner Neunder had planned a motion himself, he said. However, that called for the Office of the County to pursue what is known as a judicial “declaratory ruling” on whether the county could remove parcels zoned residential, Open Use and Residential Estate-1 from Live Local Act consideration.
Moye explained that that would not be a valid legal process.
Neunder finally agreed to support Smith’s motion.
A Sarasota News Leader review of the list of proposed Live Local Act developments in Sarasota County, as shown on the county website, found that only one of them was not planned for property zoned Open Use Estate or Residential Estate-1. That sole project has been proposed on property located on approximately 2.8 acres located at 5104 and 5110 N. Lockwood Ridge Road in Sarasota that is zoned Office, Professional and Institutional (OPI).
‘I would rather be on the side of our citizens’
During his report to his colleagues as part of their routine business on April 7, Commissioner Knight noted that he had continued to track local government litigation involving Live Local Act projects, as he had noted during the March 24 discussion. “Most of the cases I’m seeing are prevailing,” he said, referring to developers losing to the local governments.
“There’s a lot of anxiety in our communities and established neighborhoods that we’re hearing from,” Knight added, reprising a point he made on March 24.
Then Moye brought up the memo that his office had sent the commissioners on April 3. That memo explained that parcels zoned OUE and RE-1 do qualify for Live Local Act projects, he noted:
In response, Moye pointed out that if the commissioners agreed to adopt what he characterized as a “good faith policy” eliminating use of such Sarasota County zoning districts for affordable housing projects under the guidelines of the state law, that would give an applicant the opportunity to pursue a declaratory action “against us.”
Nonetheless, he also emphasized the potential of an “uphill battle” if the board members adopted such a policy, as it “does go against the strict language of the statute and it does go against the legislative history [in regard to the approval of the state law].”
Moye also cautioned that the commissioners could not take any legal action that would target a specific Live Local Act proposal on the basis of the site where it would stand.
“I’m not opposed to doing [what Moye proposed],” Knight responded. Different attorneys have different opinions on the issue, Knight added. “My job is to represent the community.”
After Commissioner Smith attempted a motion, Moye guided him on the language, to make it clear that property zoned Open Use Estate or RE-1 would not qualify for Live Local Act developments.
Commissioner Neunder seconded the motion.
“I know there’s a certain amount of danger involved here,” Smith said. “But I believe that I would rather be on the side of our citizens than on the side of the development community … to protect our neighborhoods and to protect our places out east [where many of those parcels are located].”
At that point, Neunder brought up the motion he had prepared to present to his colleagues that day, which he said he believed was a bit clearer than Smith’s. His motion called for direction to Moye and County Administrator Jonathan Lewis — “prior to any administrative action on OUE or RE-1, or residential, land applications, that our [Office of the County Attorney] file appropriate legal action to the court system for a declaratory judgment on a zoning determination under the Live Local Act …”
Noting that he had undertaken a lot of research into the issues, Neunder added that he believes three other local government bodies are preparing to challenge the Live Local Act over use of parcels zoned for open space or residential purposes.
“This is to protect our citizens,” Neunder stressed. “This is not a constitutional challenge.” The action would prevent county residents from having to come up with the necessary funds to hire attorneys and pursue their own litigation against Live Local Act developments, Neunder added.
Chair Cutsinger suggested that Moye “weigh in on [that motion].”
Then Moye explained that someone needs to bring suit against the county over an interpretation of the state law. All of the relevant cases he had reviewed, he continued, involved a developer’s filing of a complaint against a local government over its interpretation of the Live Local Act, which would result in declaratory judgments.
The only county lawsuit seeking a declaratory judgment was filed against the state, saying the law is unconstitutional, he noted. “I don’t know if this board has the appetite to do a ‘dec’ action [against] the state,” he added.
Even if the commissioners approved the filing of such a complaint against the state, Moye also pointed out, the county still would have the issue of dealing with the Live Local Act applications involving Open Use Estate and RE-1 properties.
Chair Cutsinger clarified that if the board adopted a policy that eliminated certain zoning districts from consideration, then an affected developer could file suit against the county, and it would be up to a 12th Judicial Circuit Court judge to issue a declaratory judgment in the case.
Moye confirmed that that was correct.
Neunder stressed that his goal was to pre-empt the potential that staff could consider any Live Local Act project application involving Open Use Estate or residential zoning. “I think we need to get ahead of this,” he added. Following the discussion that Commissioner Knight launched on March 24, Neunder said, “I’ve had dozens of conversations [with] individuals in our community that are irate; they’re in the dark on this [law’s provisions].”
In response to a question from Neunder, Moye explained that the original Live Local Act bill, approved in 2023, referenced properties zoned for commercial or industrial use. An amendment to the bill approved last year provided definitions, Moye said, that led to the inclusion of “any [zoning] district that had other for-profit uses …”
Moye also pointed out that the county could not pursue what he characterized as a judge’s “advisory opinion. You have to basically have a controversy.”
That was why he had suggested the commissioners consider adopting a policy that would eliminate all Open Use districts and RE-1 districts from serving as sites of Live Local Act projects.
County Administrator Lewis interjected at that point that he believed Neunder and Moye were talking about achieving the same goal. If the board directed county administrative and other staff to refuse to process any application that applied to Open Use Estate or RE-1 properties, Lewis said, then staff would have to notify applicants of that board decision. “And then they would have the opportunity to file [a complaint against the county].”
Moye explained that the board policy could make it clear that the purpose of the OUE and RE-1 districts is not to allow commercial industrial or mixed uses, “as laid out in the Live Local Act.”