Sarasota County faces two more Live Local lawsuits, four others move forward

Although Sarasota County commissioners received some relief in a Sept. 17 ruling by Judge Hunter Carroll of the 12th Judicial Circuit Court, lawsuits brought by developers may continue in their quest to build affordable housing residential developments in largely rural areas in the northern part of the county.

Carroll's decision affects cases brought by three of the four developers and/or property owners challenging the commission’s assertion the proposed developments do not qualify for local denial prohibitions under Florida’s Live Local Act. 

And since that ruling, two more lawsuits have been filed against the commission’s unanimous position taken during an April 7 meeting that properties zoned Residential Estate (RE) and Open Use Estate (OUE) do not qualify for development under the Live Local Act.

A memo sent to commissioners by Sarasota County Attorney Joshua Moye dated April 3 had cautioned the county could face an “uphill battle” likely resulting in litigation and fees should they interpret OUE and RE zoning as exempt from provisions of the Live Local Act.

Carroll, in the Sept. 17 decision, ruled commissioners are shielded from personal litigation when acting in their official capacities, but offered no opinion on the merits of the lawsuits brought by the developers, allowing them to move forward versus the county.

None of the commissioners — Tom Knight, Teresa Mast, Joe Neunder, Mark Smith or Ron Cutsinger, all named individually in the suit — responded to a request to comment on the ruling.

The first four plaintiffs are:

• New Pope Holdco III LLC, which seeks to build a 2,250-unit multifamily development at 421 Tatum Road, currently site of Tatum Ridge Golf Course just north of Fruitville Road. New Pope Holdco II owns 206.5 acres there, zoned RE-1.
• Sitc Inc., which owns properties at 2000 Lorraine Road, 0 Dog Kennel Road, as well as 9800 and 0 Cameo Farm Lane, all zoned OUE.
• D.R. Horton Inc., Cindy L. Smith Revocable Living Trust, and Matt Smith and Cindy L. Smith, which plan to build 864 apartments, of which 408 would be fewer than 750 square feet in order to count for one-half density on 50.85 acres along Raymond Road near Celery Fields. The property is zoned Open Use Rural.
• Yeshua’s Love, which owns 8893 Fruitville Road zone OUE. Curco Land Holdings has signed a contract to purchase the property, contingent on the county’s processing and approval of its Live Local development application for the 23.69-acre site, where it plans 352 apartments, with 40% reserved for those earning at or below 120% area median income.

In the New Pope and Sitc Inc. cases, Carroll ruled that further finding discovery against commissioners in their personal capacities must wait until resolution of any future motions regarding any amended complaint that, if filed, would include allegations of any ex parte communications, Sunshine Law violations or other irregularities.

In the Yeshua’s Love case, Carroll ruled against the county’s request for injunctive relief, allowing its complaint to move forward.

The newest plaintiffs include:

• 1900 Land Holding LLC, which owns 29.97 acres at 1900 Lorraine Road zoned OUE-1, which ordinarily allows a density of one dwelling unit per five acres. Using the Live Local Act, it alleges it is entitled to build a 389-unit mixed income multifamily project.
• Sara De Cota Development, which owns 14.97 acres at 0 and 5058 Sacramento St. zoned OUE-2, which allows a density of one dwelling unit per two acres. It is also the only contested property west of Interstate 75, located near University Town Center.

All plaintiffs allege those zone districts qualify to be developed under the Live Local Act, which preempts local governments from denying administrative approval of projects in certain zone districts providing they include 40% of the housing units priced as affordable/attainable to occupants earning 120% or below area median income. 

The Florida Attorney General’s Office also appears to agree with them. An opinion letter dated Sept. 16 written by Deputy Attorney General Greg Slemp notes “preemption provisions to portions of flexibly zoned districts, including planned-unit developments, that are permitted for commercial, industrial or mixed use” are applicable.

Further, terms such as  “commercial use,” “industrial use” and “mixed use” inclusions in zone districts are broadly defined in the Act. Open Use Estate and Residential Estate zoning districts in Sarasota County qualify as mixed-use and for non-residential uses by right because they permit animal boarding, animal hospitals and veterinary clinics, riding academies or public stables, all deemed mixed-use under the Act. 

Carroll’s ruling comes with deadlines for further action. The SITC and New Pope plaintiffs have 20 days to amend, and the county then would have 20 days after that effective date to respond. The county also has 20 days to answer in Yeshua's Love/Curco. All of those periods began Sept. 17. 

A version of this article originally appeared on sister site YourObserver.com.