County Commission agreed with staff that project would destroy functioning wetlands
On June 7, 2017, the Sarasota County Commission unanimously denied a petition that would have allowed the rezoning of property located northwest of 17thStreet and Honore Avenue in Sarasota. Representatives of the Aviva senior living facility had applied for the rezoning so Aviva could construct 85 new independent living units and an adult daycare facility.
However, the project would have meant the destruction of wetlands, county Environmental Permitting staff told the County Commission.
The Aviva project team presented testimony during the public hearing to show how it would mitigate that destruction by creating a new wetlands three times the size of the area lost. Howard Berna, the county’s environmental permitting manager, offered this assertion as part of his response: “When you’re dealing with a natural environment,” in almost every case, “[it is] functioning better than what we can create.” Berna added that “it takes many years” for a man-made wetlands to function as well as a natural one, though the new one may look as good as a natural one in a relatively short period of time.
Berna also pointed out, “The wetlands that are there today … that have been there decades, centuries — however long Florida has been above the sea level … function differently” than wetlands created for mitigation would function until at least several years have passed.
The Meadows Community Association was a joint petitioner with Aviva for the rezoning.
During the June 2017 hearing, Todd Mathes, director of development for Benderson Development, told the County Commission that the project team members had put “four years into this effort. They have considerable expense they have incurred. … For them to walk away with nothing,” he added, “would be a terrible thing. It would be a complete injustice to them.”
Two months after the commission vote — on Aug. 11, 2017 — The Meadows Community Association filed a petition for relief under the Florida Environmental Land Use Dispute Resolution (FLUEDRA) Act. That state law allows “[a]ny property owner who believes that a development order unreasonably and unfairly burdens the use of their property” may invoke the process outlined by the act, a May 1 memo from the Office of the County Attorney explains.
After holding a hearing on the dispute, a Special Magistrate found that the denial of the rezoning petition “was not unreasonable and that it did not unfairly burden the property,” the memo added. The Special Magistrate issued that decision on April 20, the memo said.
County Attorney Stephen DeMarsh noted the outcome during his May 8 report to the County Commission during its regular meeting that day.
Under the guidelines of the FLUEDRA statute, he continued, if the County Commission desired to do so, it could send a letter to the owner of the Aviva facility, explaining the uses of the property in question that are allowed under county zoning regulations.
In the May 1 memo, Assistant County Attorney David Pearce recommended that such a letter be sent.
Commissioner Paul Caragiulo made the motion to send the correspondence, and Commissioner Charles Hines seconded it. It passed 4-0.
Commissioner Michael Moran abstained from the vote, having filed the appropriate paperwork, he said, to explain the necessity of doing so. Moran pointed out that he is a resident of The Meadows and pays multiple association dues related to his ownership of property in that development.
Caragiulo extended his appreciation to Pearce, who handled the FLUEDRA case for the county. “[He] writes a really excellent memo …”
Details of the process
The Aviva rezoning hearing actually began on March 22, 2017, the memo explained, but the board continued it until June 7, 2017.
The parcel at the heart of the issue was 26.8 acres, the memo continued. The Meadows development comprises 1,313 acres, the memo added.
Two wetlands on the Aviva property total 5.8 acres, the memo noted. “The key issue during the Board’s hearing was the application of the [county’s] Comprehensive Plan’s policy which requires preservation of wetlands,” the memo added.
The pertinent section of the Comprehensive Play says, “In cases where a wetland is no longer capable of performing defined environmental functions and providing defined environmental values as described in this section or in cases where no other reasonable alternative exists other than disrupting a wetland, as determined by the county, so alterations may be allowed.”
Both parties in the hearing agreed the wetlands still provided environmental functions, the memo pointed out. However, The Meadows wanted to offer mitigation “in the form of a newly-constructed wetland to the north, which is subject to an easement held by Florida Power and Light,” the memo said.
The county and The Meadows agreed to have Mark P. Barnebey, an attorney with the Blalock Walters firm in Sarasota and Bradenton, hear the dispute under the FLUEDRA process, the memo continued.
Pearce was joined at the hearing by Berna of the Environmental Permitting Division staff and Matt Osterhoudt, director of the county’s Planning and Development Services Department, the memo noted.
While the Special Magistrate agreed with the County Commission’s denial of the rezoning petition, the memo added, “The Special Magistrate also offered that in the long run, the County would be better served environmentally ‘by allowing redevelopment of parts of the smaller wetland or all of the larger wetland with preservation of significant open space area.’”
The memo further noted that the Special Magistrate “acknowledged the FPL [Florida Power & Light Co.] mitigation site may not address all the County needs even if allowed by FLP, but this mitigation could be supplemented with other mitigation. The Special Magistrate also wrote that the Meadows’ proposal provides a notable increase in the intensity of use of the site, and that the Meadows could reduce the number of units it seeks to build.”
Additionally, Barnebey pointed out that the goal of the proposed Aviva project was to expand the facility and services to “allow many of its residents to remain onsite through the various stages of aging,” the memo said.
“The discussion of possible alternatives to the denial of the Meadows’ rezone petition does not change the ultimate conclusion reached by the Special Magistrate determining that the Board’s denial was legally supported,” the memo said.