12th Judicial Circuit Court case begun, and petition submitted to Florida Division of Administrative Hearings, saying Sarasota County violated its policies in approving the plans
(Editor’s note: This article was updated on Aug. 20 to include the fact that Commissioner Charles Hines cast the lone “No” vote against the Grand Lakes petitions.)
Even before the Sarasota County Commission voted 4-1 on July 11 to approve the petitions necessary for Neal Communities’ Grand Lakes development to be built, Pat Neal, chair of the company’s executive committee, indicated he was expecting a lawsuit.
Indeed, not one but two legal initiatives have begun, in an effort to stop Grand Lakes from becoming a reality east of Interstate 75 and south of Clark Road.
On Aug. 10, a number of homeowners in the area around the Grand Lakes site filed a Petition for Writ of Certiorari in the 12th Judicial Circuit Court in Sarasota, contending that in approving the Grand Lakes application, the County Commission violated tenets of its Sarasota 2050 process for Villages. The homeowners also filed a Petition for Formal Administrative Hearing with the Florida Division of Administrative Hearings (DOAH). That argues that a county Comprehensive Plan amendment — which the County Commission initially approved in March and formally adopted in July — will enable Neal Communities to eliminate a commercial center from the design of Grand Lakes, even though Grand Lakes will not be contiguous to a Village with such a center. A county staff report on the proposed amendment said, “‘The commercial and service needs of the [Grand Lakes] residents can be met by the Village Center (approved for 300,000 square feet of non-residential uses) in LT Ranch Village, which will be located approximately 2.5 miles to the east,’” the petition points out.
The amendment is inconsistent with other Sarasota 2050 policies, the petitioners contend.
During a March 14 public hearing, Grand Lakes project team members told the County Commission that not enough residents would live in Grand Lakes to entice retail businesses — especially a major grocery store chain — to become tenants in a commercial center on the site. They also pointed to the plans for the LT Ranch Village. In the meantime, however, they said enough retail businesses already exist in close proximity to the Grand Lakes site to serve their residents.
The plans for Grand Lakes that the County Commission approved on July 11 would allow up to 1,097 homes on 533 acres south of Clark Road in an area where other several other 2050 Village developments have been approved or proposed. Another major concern for residents in the Serenoa Lakes and Serenoa communities — which would be the closest neighbors to Grand Lakes — is that Ibis Street is the only immediate access to their homes and the Grand Lakes site.
The DOAH petition asks that the case be assigned to an administrative law judge and that a hearing be conducted to determine whether the Comprehensive Plan amendment complies with Sarasota County policy. Alternatively, the petition calls for the county to withdraw the amendment or otherwise remedy the action taken in July.
David Anderson, president of the Serenoa Lakes Association since 2010, is one of the plaintiffs in both legal challenges.
The Manatee-Sarasota Sierra Club and 1000 Friends of Florida Inc. “are providing financial support and legal assistance” to the plaintiffs, Anderson pointed out to The Sarasota News Leader in an Aug. 13 telephone interview.
The website of 1000 Friends of Florida says it is the “state’s leading not-for-profit smart growth advocacy organization. … We promote vibrant, sustainable, walkable, livable communities which provide residents with affordable housing choices and transportation alternatives.”
Gayle Reynolds, Sarasota conservation chair of the Manatee-Sarasota Sierra Club, told the News Leader this week that that organization has more than 3,400 members.
Along with homeowners who will be near Grand Lakes, Anderson pointed out to the News Leader, people who use the county’s facilities at Twin Lakes Park — which is close to the Grand Lakes property — have voiced concerns about the potential intensification of traffic as a result of the development. Some of them testified about their worries during county public hearings on the proposed project.
In response to a News Leader request for comment about the legal challenges, Scott McLaren of the Hill Ward Henderson law firm in Tampa — which represents Neal Communities — wrote in an Aug. 14 email, “Neal Communities applied for and received approval from Sarasota County to develop its property consistent with all regulations, laws, and ordinances, and consistent with its private property rights protected by the U.S. and Florida Constitutions. The County staff thoroughly reviewed every aspect of Neal’s application and concluded that the application complied with all requirements — and the Board of County Commissioners agreed. These plaintiffs have filed 2 lawsuits against the County alone and strategically chose not to sue Neal Communities, whose property rights are at stake here. The plaintiffs’ efforts to avoid litigating against Neal are futile, because Neal Communities will intervene and vigorously defend against these meritless claims that were obviously interposed solely for purposes of delay.”
As a matter of policy, Sarasota County does not comment on litigation, the Office of the County Attorney has said on multiple occasions.
During the July 11 public hearing, Commissioner Charles Hines was the lone board member to vote against the project.
Hoping for the best
From the beginning of the process with Grand Lakes, Anderson of Serenoa Lakes told the News Leader, “We wanted [the Neal Communities representatives] to know — and the commissioners — that we were very, very organized,” he said of the plaintiffs. “We were very, very fact-based” in opposition to the development, he added, making certain the focus stayed on the facts. Emotions had to be kept in check, he said.
The opponents, he continued, reviewed the Grand Lakes application in the same manner county staff was supposed to have reviewed it. “We paid for a court stenographer to be at all [the public] hearings,” he added. “That was critical.”
The transcripts enabled members of the group to pore over details provided by county Planning and Development Services staff and the Neal Communities project team.
Before the County Commission vote on July 11, Anderson pointed out, Pat Neal had asked him more than once during the hearings — outside the Commission Chambers — whether people were planning to file a lawsuit. “I said, ‘No,’” Anderson told the News Leader. He gave Neal that answer, he said, because the group wanted to provide the County Commission “every opportunity to vote this down.”
“When we got to the final stage of this [on July 11], it became abundantly clear,” he said, that, in spite of the record of what he contends are multiple problems with the application — which his group had documented — the vote was going to go in Neal’s favor.
In fact, the group’s objections — compiled in a document that Neal told the board on May 23 encompassed about 400 pages — prompted the commission that day to continue the final hearing on Grand Lakes until July 11. That was to allow both the Neal Communities team and the commissioners the opportunity to review the challenges and enable the Neal representatives to respond to them.
During the May 23 public hearing, a Fellow of the American Institute of Certified Planners, Mary Anne Bowie of Sarasota, had spoken for the residents who have become the plaintiffs in the legal challenges filed this week. She gave the 400-page document to the clerk to the board during that session.
Along with Anderson, the petitioners in the 12th Judicial Circuit Court case are Keath Cuyler, Mitchell Goldberg, Ronald Newmark, Arthur Cooper, Karie Backman and Douglas Watts. (Cooper, Backman and Watts are not parties in the DOAH challenge, however.) All of them live within close proximity to the proposed site for Grand Lakes, the Circuit Court petition notes. Cooper’s property, for example, is just 120 feet away from it, and Backman’s is only 130 feet away.
The Circuit Court petition explains that Neal Communities sought a rezoning of the Grand Lakes site from Residential, Estate-1/Conservation Subdivision — which allows one dwelling unit per 2 acres — to Village Planned Development. The latter district, it continues, is used in conjunction with Sarasota 2050 projects. The petition explains that the Sarasota 2050 Resource Management Area chapter of the county’s Comprehensive Plan sets the framework for “an incentive-based system that encourages a compact development form; simultaneously implementing a number of public benefits, allowing for continued growth and economic development that preserves environmentally sensitive lands and open space.”
“As a direct and proximate result” of the County Commission’s approval of Grand Lakes, the petition continues, the plaintiffs “will be adversely affected by increased development, including impacts from additional density approved in the rezoning.”
During the telephone interview with the News Leader, Anderson explained that residents living near the property had pointed out many times during the Grand Lakes application process that they “had worked in a very cooperative manner with the Bispham family,” which later sold the land to Neal Communities. The Bisphams had sought an earlier rezoning of the property to allow the construction of 258 houses, Anderson added. In 2015, Anderson said, he pointed out to the County Commission that the Bisphams’ plan was economically feasible and provided for the best use of the land.
Reynolds of the Sierra Club told the News Leader, “The developer knew when he purchased that property that it was going to be very difficult” to make his neighborhoods conform to Sarasota 2050 standards. “He proceeded to change the  plan to fit his site. … That change affects the entire county.”
“Our number remains 258,” Anderson said in the interview with the News Leader.
The Circuit Court case
One of the central contentions of the 12th Judicial Circuit Court case is that Neal Communities did not undertake the required market analysis to determine how much commercial-retail space would be needed in Grand Lakes. The petition says that the Neal project team had to demonstrate that the non-residential needs of the development would be served within the development, as provided for in Sarasota 2050 policy.
No market study accompanied the Grand Lakes application, the petition points out.
Further, the petition argues, Bowie — the expert planner hired by the petitioners for the May 23 public hearing on Grand Lakes — was given only 5 minutes for her testimony. (Five minutes generally is the time limit per speaker during any Sarasota County Commission or Planning Commission public hearing.) That was insufficient time for her to present all the testimony and evidence she had prepared to make her case that Grand Lakes should not be approved, the petition says.
Yet, a Florida 3rdDistrict Court of Appeal decision in 2007 — in Hernandez-Canton v. Miami City Commission — made it clear, the petition continues, that “8 minutes was insufficient and too short a time allotment for [objectors’] expert witnesses to make their presentations in a quasi-judicial hearing …” The petition adds, “The denial of a meaningful opportunity to be heard and present expert opinion evidence before the quasi-judicial [Sarasota County Commission] violates fundamental procedural due process.”
A rezoning is an example of a quasi-judicial hearing.
Additionally, the Petition for Writ of Certiorari says the rezoning violates the county’s requirements for greenways and greenbelts, as required in Sarasota 2050 policy.
In support of part of the argument on those issues, it contends that the Grand Lakes team did not provide county staff updated maps. The petition says, for example, “The decades-old [U.S. Geological Survey] Topographical Map submitted … does not reflect the existing site conditions.”
The DOAH filing
The petition for the DOAH hearing focuses on the Comprehensive Plan amendment the County Commission approved, to enable Grand Lakes to be built without a commercial center. That petition says, “Allowing non-contiguous Villages without a commercial or retail component is … inconsistent with the existing Sarasota County Comprehensive Plan and is not supported by data and analysis [emphasis in the document].” In fact, the petition continues, such a change to the Sarasota 2050 policy was considered before “and was rejected by staff and the County because it was found to be internally inconsistent with the existing Comprehensive Plan in 2014.”
Additionally, the petition notes, county staff members considered the elimination of Village Centers when they were working on the third phase of a revision of Sarasota 2050. Yet, the petition continues, “The County’s analysis on July 24, 2014 importantly found that ‘the provision for non-residential uses through the establishment of mixed use Village and Neighborhood Centers is central to the concept of Villages as an alternative to urban sprawl. … Without the non-residential uses in close proximity and integrated into the residential uses, the Villages resemble other suburban residential development typical of Sarasota County and other communities.”
In the separate Aug. 13 telephone interview with the News Leader, Reynolds of the Manatee-Sarasota Sierra Club explained that she has spent years following the Sarasota 2050 process. After attending the July 11 public hearing, she added, “I couldn’t recognize Grand Lakes as anything … previously approved.”
The changes the Neal Communities team sought, she said, “should have had more discussion” and more time for public review.
The DOAH petition also notes that Chapter 8 of the Future Land Use Element of the county’s Comprehensive Plan says, “Villages are a collection of Neighborhoods that have been designed so that a majority of the housing units are within a walking distance or [one-quarter] mile radius of a Neighborhood Center. Villages shall be supported by internally designed, mixed-use Village Centers (designed specifically to serve the daily and weekly retail, office, civic, and government use and services needs of Village residents) [emphasis in the petition], and the Village shall be surrounded by large expanses of Open Space …’”
The petition adds that the county staff report justifying the policy change for Grand Lakes “offers nothing to reverse the County’s previous findings that the contiguous Village requirement is necessary to maintain internal consistency [with the Sarasota 2050 policies].”