Hearing to be held in person with Zoom attendance offered, as well
At 1:30 p.m. on Monday, Sept. 28, 12th Judicial Circuit Judge Hunter W. Carroll will conduct oral arguments in the case that Texas-based homebuilder D.R. Horton and the owners of the Smith Properties adjacent to the Celery Fields filed in April, to try to overturn the February 2025 unanimous vote of the Sarasota County Commission to deny the rezoning of the land for a 126-dwelling development next to the Celery Fields.
Carroll has set aside 60 minutes for the hearing, the formal notice says. Persons may attend it in person in Courtroom 6-C of the Lynn N. Silvertooth Judicial Center in downtown Sarasota or via Zoom, the notice points out.
In early August, the case was assigned to the new Major Trial Division of the 12thCircuit, another filing in the docket explains.
As The Sarasota News Leader has reported, Sarasota County created the Celery Fields as a regional stormwater project, but the facility has won an international reputation among bird-watchers for the hundreds of migratory species that make the property their home each winter. Numerous speakers testified to that fact during the Feb. 12, 2025 public hearing on the D.R. Horton-Smith family rezoning application.
The commissioners cited the incompatibility of the proposed development with the Celery Fields.
Then, following mediation through what is called the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA), which resulted in revised plans for the development, the board members voted unanimously again on Oct. 21, 2025 to deny the proposed settlement agreement. The modified plans called for 85 single-family homes on the same property that was the focus of the February 2025 hearing.
Attorney Charles D. Bailey III, of the Williams Parker firm in Sarasota, had stressed that the new proposal focused on “a very different project,” including a 60-foot-wide vegetative buffer along the Raymond Road boundary of the development, with a water feature also planned. Over 45% of the community would be open space, Bailey further pointed out.
Then, on April 23 of this year, attorney Jacob Schumer, of The Grosshans Group in Winter Garden, filed the lawsuit against the county, contending that, “despite [D.R. Horton and the Smith family] going above and beyond satisfying the criteria for their requested rezoning [for the project] to alleviate potential effects on neighboring properties, [the commissioners] denied the Application based on generalized concerns regarding the compatibility of the density of the project …”
Schumer added that the proposed density was “consistent with and required by the County’s Comprehensive Plan,” which guides growth in the community.
However, in his June 2 response to the complaint, Deputy County Attorney David Pearce contended that the County Commission did not deviate from the “published permitting criteria,” as Section 124-39 of the county’s Unified Development Code (UDC) requires the commissioners to consider factors other than “just consistency with the Sarasota County Comprehensive Plan,” which guides growth in the community.
The UDC contains all of the county’s zoning and land-use regulations.
Section 124-39 of the UDC “outlines the requirements” for review of rezoning applications, Pearce explains. Among those, he notes, are the following:
Further, Pearce argued that the court has no jurisdiction over the case, as the plaintiffs did not finish the Florida land-dispute resolution process before resorting to the court action.
He cited the ruling in a 12th Circuit DeSoto County case as the basis for that assertion.
On July 15, attorney Schumer filed his clients’ reply in support of their petition, contending, again, that neither the county nor Sarasota Audubon had “[identified] competent substantial evidence that the [D.R. Horton-Smith family rezoning] Application is inconsistent with the [county’s] Comprehensive Plan — the only criterion that may lawfully control the [County Commission’s] decision.”
The phrase “competent substantial evidence” refers to the fact that rezoning public hearings are conducted akin to court proceedings. The commissioners are charged with making their decisions on the basis of findings of fact, so they must eschew opinions they have and opinions that speakers provide during the hearing.
The commissioners then must cite the findings they deem as the basis for a denial of an application.
In his July filing, Schumer initially focused on refuting the county’s arguments related to the FLUEDRA process. He maintains “When a FLUEDRA proceeding concludes — whether by the government’s action, by the magistrate’s termination of the proceeding, or by the owner’s election to end it — finality attaches and the owner may seek review. Petitioners did precisely that. There is no such thing as permanent nonfinality, either in logic or in the law. The Court has jurisdiction.”
An attorney on whom both sides have settled serves as a special magistrate in presiding over a FLUEDRA mediation.
Additionally, Schumer cited the 2024 Florida Second District Court of Appeal ruling in Hillsborough Cnty. v. Dibbs to argue that of the seven reasons listed in the County Commission’s formal resolution of denial of the D.R. Horton-Smith family rezoning application, only one of them referenced inconsistency with the Comprehensive Plan: Future Land use Policy 1.2.17. That policy, he added, “provides that ‘[a]s reflected in Sarasota County Zoning standards, potential incompatibilities… shall be mitigated through site and architectural design techniques,’ including buffers, screening of light and noise, and the location of access.” Schumer continued, “By its own terms, the policy is carried out through the Code’s standards — standards the Application met or exceeded, providing fifty percent more open space than required, enhanced buffer opacity, dark-sky lighting limitations, and building height restrictions.”
Moreover, he pointed out, “[C]omparing the project’s separation distance to other developments … identifies no [Zoning] Code standard the Application failed to satisfy and is not competent substantial evidence of inconsistency with the [Comprehensive] Plan.”
Schumer added, “The balance of the opposition was generalized concern about development and speculation about its effects — neither of which is competent substantial evidence.”
‘The County passed its rezoning code … and now must live with it’
On another point, Schumer contended that the county and the Sarasota Audubon Society — which Judge Carroll allowed to intervene in the case in May — are wrong to argue “that a landowner is not entitled to rezoning merely by proving consistency, and must also show that ‘the status quo is no longer reasonable.’ ”
The county and Sarasota Audubon had cited the 1993 Florida Supreme Court decision in Board of County Commissioners v. Snyder as the basis for that assertion, Schumer noted.
“The County passed its rezoning code, and now must live with it,” he wrote. The Smiths’ property “lies within the Urban Service Area, where the [Comprehensive] Plan concentrates infrastructure and directs that residential development be built ‘at the maximum allowable density’ consistent with neighborhood compatibility and environmental sustainability,’ ” Schumer continued, referring to two county Comprehensive Plan policies.
Thus, Schumer asked the court to quash the resolution that the commissioners approved, for denial of the rezoning petition, and remand the issue to the board “with directions for entry of an order granting the Application.”