Petitioners’ attorney cites ‘several surprising legal errors’ in recommended order
A Florida administrative law judge has ruled in favor of Sarasota County in a challenge over the County Commission’s 2022 approval of the expansion of Lakewood Ranch into the northeastern part of the county.
Two East County residents — Eileen Fitzgerald and Mike Hutchinson — filed a complaint in late 2022 with the Florida Division of Administrative Hearings (DOAH), contending that the board’s action violated provisions of the county’s Comprehensive Plan, which guides growth in the community.
On Dec. 20, 2023, Administrative Law Judge Hetal Desai explained in her Recommended Order that Fitzgerald and Hutchinson — who were joined by Intervenor Becky Ayech, president of the Miakka Community Club — had asserted that the amendment that the commissioners approved on Oct. 25, 2022 was not compliant with the Comprehensive Plan because it was “not based on relevant and appropriate data and analysis”; that it was inconsistent with state law governing the future land use element of a comprehensive plan; and that it was inconsistent with provisions of the Comprehensive Plan.
Desai added of Hutchinson and Fitzgerald, “Challengers assert the changes will allow ‘a premature conversion of agricultural and rural land that inappropriately compromises and is inconsistent with the Comp Plan’s goals of preserving the rural characteristics of the area.’ They believe the changes would allow excessive development that would reduce environmental and compatibility protections, and would be inappropriate given the existing farmland and character of the rural area within which the subject property lies.”
Lakewood Ranch Southeast, as the planned new development is called, would contain about 5,000 homes on 4,120 acres.
Conversely, Desai continued, the county and LWR Communities LLC — formally, the master developer of the new residential community, which also was allowed to intervene in the case — argued that the amendment did not change the future land use of “Rural” for the affected site “or its underlying zoning. Instead,” Desai pointed out, “the Amendment changed the optional development overlay that applies to the specific site. This Amendment is consistent with any applicable goals, objectives, and policies of the Comp Plan.”
Further, she explained, the October 2022 county ordinance “was based on [the following]:
- “(1) Data from a professionally accepted source.
- “(2) Data collected through the appropriate application of a professional accepted methodology.
- “(3) Analysis that properly reacted to the data available at the time of adoption both in terms of manner and when necessary.”
Desai also pointed out, “Consistent with their burden of proof, Challengers must do more than just allege a land use amendment is not based on the best available existing data. Challengers are required to specifically identify the best available existing data it claims the County could have used but failed to use.”
Desai added, “In summary, there was competent substantial evidence establishing there was extensive data and analysis, taken from professionally accepted sources and gathered through professionally accepted methodologies, to support the Amendment.”
The phrase “competent substantial evidence” refers to the fact that a public hearing such as those that the commissioners conducted in regard to the amendment is akin to a court proceeding. Thus, the board members had to consider evidence and testimony to determine their final decision.
As noted in Desai’s Recommended Order, the Florida Department of Economic Opportunity (DEO) will issue the final ruling in the case. Formally, the Hutchinson-Fitzgerald challenge involved that department, as the DEO staff is charged with determining the consistency of proposed comprehensive plan amendments with the affected comprehensive plans.
Florida attorney Richard Grosso of Plantation, who represented Hutchinson and Fitzgerald in the case, said in a news release that Desai’s “recommendation that the Department find the land use change in compliance with the law is based on several surprising legal errors, completely overlooking or misreading clear legal, mandatory standards governing comprehensive plan changes.”
Shai Ozery of Pompano Beach, co-counsel for Hutchinson and Fitzgerald, added, “We will file formal exceptions to the Order to the Department of [Economic Development], which, based on clear legal violations, we expect to reject the [administrative law judge’s] flawed recommendation.”
During its review of the proposed Lakewood Ranch Southeast amendment, the DEO staff did raise a number of issues. Among them, For example, in its letter to the county, the DEO staff wrote, “The proposed amendment does not establish meaningful and predictable standards as required by 163.3177(1), Florida Statutes.”
For example, the DEO staff continued, Village Transition Zone (VTZ) “Policy 2.1 does not clearly identify all of the general types of nonresidential land uses that are allowed.”
Further, “VTZ Policy 3.3 allows alternative greenway buffer configurations and defers the design criteria of the buffers to the land development regulations.”
However Bradenton attorney Caleb Grimes, who represented the developer during the County Commission hearings, dismissed the review agency comments as mischaracterizations. The DEO staff provided “some technical assistance,” he told the County Commission on Oct. 25 2022, stressing that the DEO had failed to review all of the data that the project team had provided.
A Grimes Galvano letter to then-County Commission Chair Alan that included formal responses to the DEO findings emphasized that those comments “are suggestions and do not form the basis of a challenge.”
Attorney Robert N. Hartsell of Pompano Beach also represented Hutchinson and Fitzgerald during the DOAH proceedings.
Further, in the news release, Hutchinson pointed out that “although residents of Sarasota County, and particularly rural residents, may have lost this initial battle, the fight against the destruction of rural lands by urban sprawl will continue.”
The hearing on the Hutchinson-Fitzgerald challenge was conducted from July 17 through July 20, 2023 and on Aug. 21, Desai noted in her Recommended Order.
The reasoning behind the Lakewood Ranch Southeast proposal
Rex Jensen, president and CEO of Schroeder-Manatee Ranch (SMR), which formally is the developer of Lakewood Ranch, initially laid out the plans for the new section of Lakewood Ranch during a presentation to the commissioners in February 2022. The discussion followed the delivery of a Jan. 21, 2022 memo to County Administrator Jonathan Lewis and Matt Osterhoudt, director of the county’s Planning and Development Services Department, from Jensen and Pat Neal, a former state senator who heads up Neal Communities. Jensen and Neal explained in that letter that Lakewood Ranch “is on the verge of building out on existing entitled property.”
However, instead of designing Lakewood Ranch Southeast in accord with the county’s regulations for either Villages or Hamlets under the guidelines of the 2050 Plan — which governs growth east of Interstate 75 in Sarasota County — Jensen wanted to create a development with less density than a Village but more than that allowed in a Hamlet. His goal, Jensen told the commissioners on Feb. 8, 2022, was to have enough density to make it financially feasible to run water and sewer lines to, and through, the new communities.
Thus, Jensen proposed an amendment to the Comprehensive Plan calling for what he christened the Village Transition Zone (VZT). It would have a base residential density of two dwelling units per gross developable acre, and it would maintain the Village standard of 50% open space.
(For a Village, Desai explained in her Recommended Order, the minimum density is three dwelling units per gross developable acre; for a Hamlet, the maximum is one. However, she noted, the base density for a Village Transition Zone could be increased by the County Commission as an incentive for construction of affordable homes.)
Following Jensen’s remarks that day, Commissioner Michael Moran — now the board chair — called Jensen “a visionary.”
‘A train wreck happening’
On Oct. 25, 2022, Moran made the motion to approve the Village Transition Zone amendment. “For over 20 years, I’ve been saying that you do not need to be a land planner to know that the growth is going to happen out East and in the North Port area,” Moran pointed out. Such new residential development, he continued, “is in dire need of true master planning.”
Moreover, Moran contended, Lakewood Ranch Southeast is not a new community. It is an extension of Lakewood Ranch in Manatee County, he said, though he noted that people might disagree with his view.
Thirteen speakers voiced opposition to the amendment during the October 2022 public hearing.
“I’m very concerned about a train wreck happening,” Johannes Werner of Sarasota told the board members that day. “This is a time of rising sea level” and hurricanes that intensify before they make landfall, he pointed out. A homeowners insurance crisis already is underway, Werner added. “Yet, you’re about to approve thousands of new homes. … We’re actually speeding [the train] up at this point.”
Werner also was the first speaker during that hearing to refer to Lakewood Ranch Southeast as urban sprawl.
Consistency with the Comprehensive Plan
In her Recommended Order, Administrative Law Judge Desai explained that the Lakewood Ranch Southeast parcel comprises approximately 6.5 square miles north of Fruitville Road, south of the Sarasota County/Manatee County line and University Parkway and east of I-75.
The VTZ site, she continued, “is south and southeast of existing developments that comprise the LWR [Lakewood Ranch] community. These developments have many neighborhood amenities. Commercial businesses to the northwest of the VTZ Site serve the people in those LWR communities and the surrounding area.”
Old Miakka, where Intervenor Ayech lives, Desai continued, “is to the east of the southeastern portion of the VTZ Site.”
Desai then pointed out that the county’s 2050 Plan was approved on July 10, 2022; its principles focused on open space, New Urbanism (which emphasizes walkable communities with a mix of uses and amenities) and fiscal neutrality, meaning the county would not have to bear the burden of expenses for the 2050 developments.
“One purpose was to avoid the urban sprawl of large lot subdivisions located east of the [county’s Urban Service Boundary] and to establish central utility services instead of individual property owners relying on wells and septic tanks (which the County believed harmed the environment),” Desai wrote.
Properties within the Urban Service Boundary (USB) are those with readily available county services, including water and sewer lines and roads.
Even before the County Commission approved the Village Transition Zone amendment, she continued, boards had modified the 2050 Plan on a number of occasions. “For example, a part of the Hi-Hat Ranch development had its designation amended from Hamlet to Village,” Desai noted. (Members of the public also strenuously objected to that action, as The Sarasota News Leaderhas reported.)
Among the facets of the VTZ amendment that Desai emphasized in the Recommended Order were the following:
- The VTZ “is only to be used in instances where it can be demonstrated that a Master Developer will commit to long-range planning and oversight of the project through implementation and buildout.
- The VTZ “is only intended for use where there is an existing financing mechanism in the form of a stewardship district capable of making a financial commitment sufficient to construct and maintain the infrastructure necessary to support the development in question. All of the land proposed to be within the VTZ boundary must be within the boundary of such a district.” The emphasis is Desai’s.
She also pointed out that Lakewood Ranch Southeast “will require significant initial capital investment. To facilitate master infrastructure construction up front, rather than through a phased approach, entitlement of the overall project will enable the Developer to commit to repayment of initial capital investments.”
Further, Desai wrote that the amendment did not change the Future Land Use classification of the property; it remains “Rural.”
Moreover, she pointed out that although Hutchinson and Fitzgerald “oppose all development in the VTZ area with a higher density than one dwelling unit per five acres (which is the minimum density in Bern Creek [where they have lived for more than 30 years, DOAH documents say]), the Amendment does not change the one dwelling unit per acre density that applied to the VTZ Site under the Hamlet designation.”
Desai added that, during the DOAH hearing, “competent evidence” established that the Hamlet designation was not appropriate for Lakewood Ranch Southeast, as the “allowable density and other requirements [call for] 100 to 150 homes clustered around a civic focal point with no more than 400 homes.”
County Planner Brett Harrington also testified that the VTZ’s open space requirements were no different than those for a Hamlet, she added.
Further, Desai wrote, the VTZ amendment “specifically capped the total dwelling units at 5,000 …”
Yet another point she made was that even though plaintiff Hutchinson “testified he believed the noise and light from 5,000 homes ‘in an arch around Bern Creek’ would harm wildlife, [neither he, Fitzgerald nor his legal team] provided no scientific or otherwise competent evidence supporting this claim.”
Yet another issue she addressed was what she characterized as “the fear of a density domino effect,” calling it “misguided.” Desai added, “There is no credible evidence that adopting the Amendment supports an increased density on surrounding lands; the Amendment only applies to the VTZ Site. Any other property owners wanting increased density would have to obtain their own amendment to the 2050 Plan and Comp Plan.”
Additionally, Desai noted, “[T]he County considered all existing human and natural environments surrounding the VTZ Site, and the [County Commission] found the buffering protections adequate.” She continued, “Further, the evidence showed that opportunities for the rural lifestyle still exist and are expected to remain for many years. The County considered all existing human and natural environments surrounding the VTZ Site, including the question of the Amendment’s compatibility with adjacent rural lands and uses. Lastly, the placement of the VTZ … is consistent with what the 2050 Plan created for the area.”