Opponents of Grand Lakes development lose challenge through Division of Administrative Hearings

County attorney reports on conclusion of case

A graphic explains features of the proposed Grand Lakes community. Image courtesy Sarasota County

Once again, opponents of a Neal Communities development called Grand Lakes have failed in an attempt to stop the project. This was their final effort to try to halt construction of up to 1,097 homes on 533 acres south of Clark Road and east of Interstate 75.

In August 2018, Sarasota County residents who live near the site planned for Grand Lakes filed two legal challenges, arguing the County Commission erred in approving Grand Lakes.

On March 14, 2018, representatives of Ibis Road Investors, a Neal Communities affiliate, asked the commission to amend the Sarasota County 2050 policies involving new neighborhoods east of Interstate 75. (Grand Lakes is proposed on Ibis Street, 2 miles south of Twin Lakes Park.)

The Ibis Road team members argued that Grand Lakes did not need a retail/commercial Village Center for the residents, as required by Sarasota 2050. The LT Ranch Village, slated to be built 2.5 miles east of Grand Lakes, would have a Village Center with 300,000 square feet of non-residential uses, they told the commission.

In the meantime, Grand Lakes residents would be close enough to existing businesses that could satisfy their retail and office needs, the Ibis Road team contended.

Kelly Klepper, senior planner/project manager with Kimley-Horn and Associates of Sarasota, which served as a consultant to Ibis Road, pointed out that the closest retail center to Grand Lakes would be just 3.6 miles away, even with the current road network.

A page in a market study undertaken for Grand Lakes shows details about nearby retail businesses. Image courtesy Sarasota County

Finally, Klepper argued that national and regional retailers with whom the team had been in contact had shown no interest in locating businesses in a Village Center in Grand Lakes.

Then-Commissioner Paul Caragiulo pointed out that supermarkets need 8,000 to 10,000 rooftops “to really show any viability.”

As a businessman himself, Commissioner Michael Moran told Klepper, “I wouldn’t even consider doing a mailer there,” if the community had only 1,000 homes, “let alone putting an office there.” It is a question of how many residents can “feed” commercial properties, Moran added.

As a result, the County Commission voted unanimously to approve the Comprehensive Plan amendment that Ibis Road sought. The amendment modified the Sarasota 2050 development regulations to allow the elimination of what the policy refers to as a “Village Center” of mixed uses if another Sarasota 2050 development in the area will have such a center.

The final order in the DOAH case

The Grand Lakes opponents filed a challenge of the legality of that amendment with the Florida Division of Administrative Hearings (DOAH).

Florida Administrative Law Judge Francine Ffolkes. Image from Twitter

In response to evidence and testimony provided during a two-day hearing conducted in Sarasota in December 2018, Administrative Law Judge Francine Ffolkes issued a Recommended Order in February to the Florida Department of Economic Opportunity (DEO). (The DEO must review county comprehensive plan amendments before the amendments can go into effect.)

Ffolkes found that the proposed change to the Sarasota 2050 policy was “in compliance” with the applicable chapter of the Florida Statutes, DOAH records show.

“Sarasota 2050 is a system designed to encourage preservation of open space by allowing the transfer of density into developments called Villages and Hamlets,” Ffolkes explained in her Recommended Order. It also “offers … property owners significant density incentives, as well as opportunities for non-residential development if they develop their properties according to the Sarasota 2050 Village criteria,” she continued.

“Within these Village Areas,” she continued, “there are multiple property owners,” and “several Villages [may be] within each Village Area.

Under the 2050 regulations, she wrote, “Villages have a minimum open space requirement of 50 percent and the remainder of the Village is called the Developed Area.” The latter, she noted, comprises the Village Center and the Neighborhoods.

Ffolkes also noted, “Every Village must have a Village Center that includes non-residential uses. In practice, not every Village Center was required to include a commercial use … “

The county’s witness, she added, testified during the December 2018 hearing that “[e]ach new Village subsequent to the initial Village in a Village Area was evaluated to see if it could support its own commercial use, or whether it could be supported by the commercial component of other Villages in the Village Area.”

A graphic presented to the County Commission in March 2018 shows planned Sarasota 2050 villages in the vicinity of the Grand Lakes site. Image courtesy Sarasota County

Ffolkes continued, “LT Ranch Village was the initial Village approved in the South Village Area [of Sarasota County], and it sets the framework for the entire Village Area. It has a Village Center that includes 300,000 square feet of commercial retail development. A typical Publix shopping center with a Publix and a few other in-line restaurants and stores is approximately 60,000 to 80,000 square feet. Subsequent Villages, such as that proposed by Ibis Road, may be developed within the South Village Area. Where it is shown that the commercial needs of subsequent Villages within the South Village Area may be met by the LT Ranch Village Center, subsequent Villages need not include a commercial component.”

Ffolkes also noted, “The evidence established that Ibis Road provided a market study to the County to show that the commercial needs of its residents would be met by the LT Ranch Village Center.”

On April 15, the DEO issued its Final Order in the case, based on Ffolkes’ recommendation, County Attorney Frederick “Rick” Elbrecht reported to the County Commission during its regular meeting on April 23.

“The [Sarasota 2050] amendment is now in effect,” Elbrecht added.

Elbrecht pointed out in an April 16 memo to the commission, that, as a result of the DEO order, the rezoning necessary for the construction of Grand Lakes — which the commission approved on a 4-1 vote in July 2018 — also is in effect. (Commissioner Charles Hines cast the “No” vote.)

A graphic explains facets of the Comprehensive Plan amendment associated with Grand Lakes. Image courtesy Sarasota County

Deputy County Attorney Alan Roddy represented the county in the legal challenge, Elbrecht noted on April 23.

No commissioner offered a comment after Elbrecht provided the update.

In December 2018, in a companion case the Grand Lakes opponents filed in the 12th Judicial Circuit Court, the presiding judge also issued a favorable ruling for Sarasota County. Circuit Judge Frederick P. Mercurio said the County Commission applied the correct law and regulations in its July 2018 actions.

The petitioners had contended that the commission violated county regulations regarding green and open space on the site and that it was wrong not to allow their representative more time during public hearings to detail their objections to facets of the project.

Responses to the conclusion of the cases

A Sarasota County graphic shows details about Sarasota 2050 Villages and resource management areas east of Interstate 75. Image courtesy Sarasota County

One of the plaintiffs in both the Circuit Court case and the DOAH challenge was David Anderson, president of the Serenoa Lakes Community Association. Serenoa Lakes is north of the Grand Lakes site.

In response to a Sarasota News Leader request for comment following County Attorney Elbrecht’s comments this week, Anderson wrote in an April 24 email, “We disagree with the DEO’s decision that the County is free to ignore one of the Sarasota 2050 Plan’s three Core Principles — New Urbanism — when approving Village developments east of I-75.

“The DEO Final Order dismays us,” he continued. “We particularly disagree with its finding that the Core Principles are merely ‘support material’ that cannot be used to evaluate the consistency of development orders with the Comprehensive Plan. “

Anderson added, “We are displeased that the county has seemingly chosen to encourage low density, automobile-dependent sprawl rather than defend the fundamental framework of the 2050 plan, which is intended to strike a balance between the development community’s desire for increased density and the public’s desire for development that pays its own way, for compact, walkable interconnected development, and large areas of open space.

A graphic shows the proposed location of Grand Lakes. Image courtesy Sarasota County

“This result,” Anderson wrote, “is especially discouraging after the Twelfth Circuit denied our petition for writ of certiorari. Our petition asked, among other things, that the county apply its 2050 plan environmental protection regulations to South Creek. We are displeased that the county chose to submit — and the court based its decision upon — a decades old map, one that does not label any creek, as evidence that South Creek does not exist east of I-75 in spite of the fact that the county’s own Geographical Information System maps, all current [U.S. Geological Survey] USGS topological maps, and the testimony of two of the developer’s expert witnesses that the creek does traverse the property.”

In the 12th Judicial Circuit Court case, the petitioners argued that the Grand Lakes application to the county included an outdated map that did not label creeks on the development site. They contended that the latest USGS topographical map for the area showed South Creek traversing the northwest corner of the property and continuing along the western boundary.

“Under the current map,” their amended complaint said, “it is apparent that the proposed [Grand Lakes] Master Land Use Plan seeks to develop within environmentally protected lands.”

A graphic the project team provided the County Commission shows details about the open space planned in Grand Lakes. Image courtesy Sarasota County

Because of the 100-year floodplain and South Creek, the petitioners argued, “large portions of the Grand Lakes site are unsuitable for the proposed development under the [county’s] Land Development Code.”

The News Leader also contacted Gayle Reynolds of the Manatee-Sarasota Sierra Club for comments, as that nonprofit and 1000 Friends of Florida Inc. provided “financial support and legal assistance” to the plaintiffs, as Anderson pointed out to the News Leader in an Aug. 13, 2018 telephone interview.

In an April 24 email, Reynolds wrote, “The Sierra Club supported the challengers of the Grand Lakes rezoning and amendment … approved by the [Sarasota County] Board of County Commissioners. Contrary to the public interest, Mr. Neal’s rezone petition and amendment sought to dismantle key elements of the 2050 Plan.” (Pat Neal is chair of the executive committee of Neal Communities.)

She added, “We believe the long term effects of those changes, as approved by the [commissioners] and now [Administrative Law Judge Ffolkes and Circuit Judge] Mercurio will prove to be devastating to the environment and quality of life for all residents going forward.

“The diminishment of Village open space and greenbelt requirements and the requirements for contiguous commercial town centers have now been removed, most remarkably, by the [County Commission] and now the opinions of [the judges],” Reynolds continued.

“Our community endured a very long, arduous and expensive process to develop the 2050 Plan. The promise of 2050 was to create a better form of development, based on the principles of New Urbanism. That promise has been chipped away, reduced to nothing more than traditional urban sprawl and the very same gated, tract house subdivisions the public was promised the 2050 plan would end.

“There is no level playing field for the public with this Board of County Commissioners,” Reynolds wrote.

“The only recourse citizens have is to take to the courts, if they have standing. But that’s an extremely expensive and high risk game for average citizens and now the courts are failing us as well,” she concluded her statement.

The News Leader also contacted Scott McLaren of the Tampa law firm Ward Hill Henderson, who represented the project team — Ibis Road Investors — in the legal challenges. Both Administrative Law Judge Ffolkes and Circuit Judge Mercurio allowed Ibis Road to participate in the cases as an intervenor.

Referring to the DEO, McLaren wrote in an April 24 email, “The Department’s ruling was correct, and demonstrates that our client complied with all applicable regulations and requirements from the get-go. The arguments against our project were unsupported by any evidence and were simply interposed for delay. We are pleased that the Department has put petitioners’ unwarranted challenge to rest.”

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