D.R. Horton wins Live Local Act lawsuit against Sarasota County

A Sarasota County judge has ruled that a national homebuilder can proceed with its proposal to construct 864 apartments near the Celery Fields  —  in a rejection of how county commissioners interpreted a state law designed to spur more affordable housing.  

In his Nov. 4 ruling, Twelfth Judicial Circuit Judge Hunter Carroll denied Sarasota County's motion to dismiss the lawsuit from the builder, D.R. Horton, saying the case was demonstrative of why the law, the Live Local Act, was created in the first place.

“The Live Local Act’s explicit function is to authorize housing where local zoning dictates housing does not belong, provided the promise of affordable housing is met,” Carroll says. “The act’s displacement of the county’s zoning hierarchy is not a flaw in interpretation; it is the very design the legislature chose.”

Sarasota County Attorney Joshua Moye told county commissioners about Carroll's ruling at their Wednesday meeting.

The Live Local Act allows developers to bypass ordinary development review procedures in areas zoned for commercial, industrial and mixed-use, to encourage affordable housing projects. State legislators passed Live Local in 2023, in part, and adjusted the act in ensuing years, in response to local governments rejecting housing proposals due to NIMBY and other objections. Those rejections, to Carroll's point, created a crisis in a lack of affordable housing the state attempted to address with Live Local. 

Sarasota County commissioners in April, however, decided that properties in residential, rural or open use districts did not qualify for development under the Live Local Act.  

In May, D.R. Horton requested a pre-application conference with Sarasota County to discuss its proposed apartment complex on Raymond Road on property known as the Smith farm, which is in an Open Use Rural district. The developer was informed the project was ineligible for development under the Live Local Act since it was zoned open use rural, and the county declined to process the application. In June, the company filed the lawsuit.

“The judge's order finds that the Live Local Act preempts the county from denying the multifamily development project for the Smith properties, which is adjacent to the Celery Fields,” Moye said, adding he was notified of the decision early Wednesday morning. 

“The order specifically finds ‘because the county's own land development code allows a landowner a few commercial and industrial uses as of right in the Open Use Rural district, the property is considered zoned for commercial, industrial or mixed use for purposes of the Live Local Act,’” Moye told commissioners. “The order directs the county to process the application and treat the property as zoned for mixed use under the Live Local Act.”

The judge’s decision comes a month after commissioners rejected a settlement offer by D.R. Horton to build 126 single-family homes at the site.

There may be other legal criteria and requirements D.R. Horton’s project still has to meet that fall outside the scope of his purview, Carroll writes.

“Nothing in this order should be construed as requiring the county to approve the proposed 864-unit development, deciding whether the application is otherwise consistent with the non-preempted provisions of the county’s land development regulations, or foreclosing the county from applying non-preempted regulations during the review process," Carroll writes. "This order requires only that the county process the application and treat the property as zoned for mixed use under the Live Local Act.”