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SEERD Working For You

Below you can read the entire appeal that SEERD filed on Monday, August 21st, in the appellate division of the 12th Circuit Court in Sarasota.


Filing # 180173641 E-Filed 08/21/2023 09:32:39 PM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR SARASOTA COUNTY, FLORIDA SARASOTA EAST-ENDERS FOR RESPONSIBLE DEVELOPMENT, INC., a Florida Not-for-Profit corporation, BRENDA STOCKS, an individual, and STEVEN HIGGINS, an individual Petitioners, v. SARASOTA COUNTY; a political Subdivision of the State of Florida; and THE CLASSICAL ACADEMY OF SARASOTA, INC., a Florida Not-for-profit corporation Case No.: Petition filed pursuant to Fla. R. App. P. 9.100(f)(2) Respondents. _________________________________________________________ PETITION FOR WRIT OF CERTIORARI _________________________________________________________ Jane Graham, Esq. FBN 68889 jane@sunshinecitylaw.com jane@jcgrahamlaw.com Sunshine City Law 737 Main Street, Suite 100 Safety Harbor, Florida 34695 (727) 291-9526 Attorney for Petitioners Sarasota East- enders for Responsible Development, Inc., Brenda Stocks, and Steven Higgins.

PETITION FOR WRIT OF CERTIORARI Petitioners, Sarasota East-enders for Responsible Development, Inc., (“SEERD”) a Florida not-for-profit corporation, and Brenda Stocks and Steven Higgins, individuals, (collectively “Petitioners”) respectfully file this petition for writ of certiorari (“Petition”), and allege: INTRODUCTION It is a truth universally acknowledged1 in the record that The Classical Academy of Sarasota’s (“TCA”) K-12 school operating on Fruitville Road is admired within the community as an excellent educational institution with a commendable curriculum of classical literature and history, strong moral and ethics training, and articulate students. However, TCA’s immaculate reputation is irrelevant as to whether Sarasota County followed the law in approving TCA’s special exception to allow 1310 students and athletic fields on Bee Ridge Road, a quiet area surrounded by single-family homes and churches. The Sarasota County Board of Commissioners (“Commission”) departed from the essential requirements of law by ignoring criteria under Section 124-43(c)(2)(3), which requires Special Exception applicants to 1 With apologies to Jane Austen. Austen, Jane, 1775-1817. (1813). Pride and Prejudice: a novel. In three volumes, London: Printed for T. Egerton, Military Library, Whitehall. 1

include information necessary to demonstrate that noise from the proposal will not be injurious to the neighborhood, and to consider the consequences of the Special Exception. This failure to follow the law resulted in a miscarriage of justice because, despite the Applicant representing that the school will comply with the County noise ordinance, school functions are explicitly exempted from the County noise ordinance. Therefore, Petitioners will be precluded from challenging noise disruptions in the future. The Commission further failed to apply the law by failing to comply with criteria under Section 66-76(b) to require a limited Cultural Assessment Survey for the Property site as noted in the Pre-Application. In addition, the Commission approved the Special Exception Application without competent substantial evidence to: 1) support the criteria that the use was adequately buffered to separate noise from the surrounding single-family neighborhoods, and 2) support the criteria relating to neighborhood impacts from traffic because Applicant’s traffic study contained numerous flaws. For these reasons, the Court should issue a writ of certiorari quashing Resolution 2023-156. THE PARTIES 1. Petitioner, SEERD, is a Florida not-for profit corporation. 2

SEERD is composed of residents who live across from and in close proximity to 8000 Bee Ridge Road, Sarasota, Florida, 34231. 2. SEERD is a grassroots group dedicated to preserving and protecting the East-End community and ensuring that planning and development occur in a way that preserves the local environment and community. A.191; A.1397. SEERD was established as a not-for-profit corporation interested in transparent and responsible accountability between residents and governmental agencies involved in development and growth management in northeastern Sarasota County. A.318. 3. SEERD Membership is open to individual property owners within close vicinity to 8000 Bee Ridge Road, Sarasota. A.1397. 4. SEERD’s president Roger Zacks and several members objected at the Sarasota County Planning Commission hearing on June 15, 2023 and Sarasota County Commission hearing on July 12, 2023. A.1666; A.7; A.1638; T:32:18-25-T.350:6. SEERD also submitted extensive written objections submitted into the record, including their attorney’s legal analysis of the Application’s flaws, and a report by traffic engineer Andrew Roark, PE reviewing the Applicant’s traffic study. A.190-A.305; A.318-A.400; A.1397- A.1430. 5. Petitioner Brenda Stocks owns and lives at the property located 3

at 4576 Legacy Court, Sarasota, FL, 34241 in Heritage Oaks Golf and Country Club, A.683, located less than 750 feet away from the proposed TCA site on at 8000 Bee Ridge Road. Ms. Stocks received notice by mail of the Application. A.179. Ms. Stocks objected during the Sarasota County Planning Commission hearing on June 15, 2023 and at the Sarasota County Commission hearing on July 12, 2023. A.7; A.1651. T.68:21-70:25. She also submitted written objections which were entered into the record. A.682-683. 6. Petitioner Steven Higgins owns and lives at the property located at 4449 Samoset Drive, Sarasota, FL, 34241 in Heritage Oaks Golf and Country Club, which is roughly 2000 feet away from the Grace Church Property. Higgins objected during the Sarasota County Planning Commission hearing on June 15, 2023, A.7; A.1666 at 1:08. He also submitted written objections which were entered into the record. A.942-944. 7. RespondentSarasotaCounty is a governmental entity and political subdivision of the State of Florida duly authorized by law to approve special exceptions within its boundaries. Fla. Stat. § 125.01; Section 124-26(a)(5), Sarasota Unified Development Code (“UDC”)(considering and approving or denying requests for Special Exceptions.) 8. Respondent, The Classical Academy of Sarasota, Inc. (“TCA” or “Applicant”), is a Florida not-for-profit corporation. A.10. Applicant is the 4

contract purchaser of the Property. A.53. JURISDICTION AND VENUE 9. This is an action seeking certiorari review of Sarasota County Resolution No. 2023-156 (“Resolution”), which approved Special Exception Petition No. 1874 to permit an elementary, middle, and high school for the property located at 8000 Bee Ridge Road, Sarasota County, Florida. A.1. 10. Petitioners seek issuance of a writ of certiorari quashing, setting aside, reversing or otherwise invalidating the Resolution. 11. Review of quasi-judicial decisions of a commission shall be commenced by filing a petition for writ of certiorari in accordance with Florida Rule of Appellate Procedure 9.100(b) and (c) and Florida Rule of Appellate Procedure 9.190(b)(3). 12. This action is brought without limitation pursuant to Florida Rule of Appellate Procedure 9.100 and Florida Rule of Appellate Procedure 9.190(b)(3). This Court has jurisdiction pursuant to Article V, section 5(b), Florida Constitution, which provides that a circuit court shall have the power to issue a writ of certiorari. 13. Venue is proper in this Court pursuant to section 47.011, Florida Statutes. 5

TIMELINESS A party must file a petition for a writ of certiorari within thirty days of rendition of the order on review. Fla. R. App. P. 9.100(c)(1). An order is rendered when a signed, written order is filed with the clerk of the lower tribunal. Fla. R. App. P. 9.020(h). Resolution 2023-156 was stamped as filed with the Clerk on July 20, 2023. Therefore, the petition in this action is timely filed on August 21, 2023. Fla. R. App. P. 9.420(e); Fla. R. Gen. Prac. & Jud. Admin. 2.514(a)(1)(C) (extending a deadline that falls on Saturday or Sunday until the end of the next day that is not a Saturday, Sunday, or legal holiday). FACTS On March 15, 2023, TCA submitted a Petition for Special Exception (“Application”) for a parcel located in unincorporated Sarasota County, 2.3 miles east of Interstate 75 along the Southside of Bee Ridge Road, identified as Sarasota County Property Appraiser Record Parcel No. 0257020001 (“Property”). A.47. I. Subject Property and previously approved Special Exceptions 14. The Property, approximately 41.22 acres located at 8000 Bee Ridge Road, is currently zoned OUE-1 (Open Use Estate, 1 unit/5 acres). A.19-A.20. The Property is designated Rural on the adopted 6

Comprehensive Plan Future Land Use Map. A.175. The Property included the Grace Community Church place of worship, an active place of worship since 1985, and a pre-school in operation since 2000. A.20. 15. A Special Exception is a use that would not be appropriate generally or without restriction throughout a zoning district but which, if controlled as to number, area, location or relation to the neighborhood, would promote the public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity or the general welfare. Section 124- 43(b), UDC. Such use may be permissible in a zoning district as a Special Exception if specifically provided in this UDC. However, such uses are not deemed to be appropriate within a zoning district without demonstration by the applicant that the Special Exception use complies with the procedures and criteria of Section 124-43, UDC. 16. On December 10, 1985, the Commission adopted Resolution No. 85-482, approving Special Exception No. 1031 on the Property to allow a Place of Worship within the OUE-1 (1 unit/5 acres) zone district (5-0 vote). A.21. On October 20, 1992, the Board adopted Resolution No. 92-266, approving Special Exception No. 1296 on the Property to allow a Place of Worship within an OUE-1 zone district (5-0 Vote) due to the previously approved special exception expiring. A.21. On October 25, 2000, the County 7

Commission approved Resolution 2000-253 to allow the Property to be used for a House of Worship with a Child Care Center. A.150-155. Resolution 2000-253 included several stipulations which are covenants running with the land. A.153. 17. To the east of the Property is Bayside Community Church of Sarasota. An RSF-1 (Residential Single-Family, 2.5 units/acre) zone district known as the Heritage Oaks Golf and Country Club is located to the south, a multi-development consisting of a golf course and single-family homes. A.20. To the west is St. Patrick’s Catholic Church. A.20. To the northwest is an RE-2/PUD (Residential Estate, 1 unit/acre/Planned Unit Development) zone district known as the Laurel Oaks Estates which consists of a golf course and single-family homes. A.20. To the north, across from Bee Ridge Road, is an RSF-1 subdivision known as the Hammocks which consists of single-family homes. A.20. II. Application 18. TCA’s Application requested a special exception to allow an educational facility for elementary, middle, and high school on 41.2 acres. A.76. TCA’s current campus has approximately 750 students at the 8751 Fruitville Road location. TCA’s goal is to grow enrollment to 1310 students from Pre-K to twelfth grade at the Bee Ridge location. A.76. 8

19. The County Development Review Coordination Team held a pre-application meeting for the Application on December 17, 2020 and completed a checklist form. A.158-A.169. The Historic Resources section of the checklist stated at A.161: A Cultural Resource Assessment Review and site visit has been completed for this parcel under Chapter 66, Sec. 66-73. Based on this review, it has been determined that a recorded archaeological site lies adjacent to this parcel to the east (8So2284, Burger 1986), which may extend on this parcel. Based on this information, the parcel is considered to have a high probability for containing a component of this site, or another site, however, its presence and potential significance is indeterminate. Therefore, a limited Cultural Assessment Survey is required with areas of the potential effect under Chapter 66, Sec. 66-76(b). 20. There is no record of a “limited Cultural Assessment Survey” being conducted for this Property in the Record. See A.1-1665. 21. The Application included a Binding Development Concept Plan (“Concept Plan”). A.74. The Concept Plan showed an athletic field area on the southwest side of the property. A.74 22. Phase 1 of the school allows up to 300 students to use the existing 48,000 square footage of buildings and facilities presently found on site. A.76. The Application stated that as student enrollment grows additional structures will be added as part of Phase 2. 9

23. The Applicant proffered the following stipulations regarding noise and lighting, at A.77: Proffered Stipulations: 1. There shall be no outdoor announcements or bell system permitted on the school campus. This does not prohibit the use of an outdoor public address (PA) system for sporting events associated with the athletic fields provided the PA system does not exceed the allowable decibels at the property line consistent with the Sarasota County Noise Ordinance. 2. There shall be no outdoor activities permitted after 10 pm and the athletic field lighting shall be turned off by 10 pm. 24. The Application did not include a noise study or any analysis by an expert in acoustics on potential impacts to the surrounding area. A.46- 157. 25. The Application included a Traffic Report Operational Analysis prepared by Stantec Consulting Services, Inc, dated March 2023. A.79- A.93. 26. The Application included an Environmental Narrative prepared by Kimley-Horn, dated February 2023. A.140-149. 27. Section 124-43(C)(2), UDC provides Application Submittal. No application shall be accepted for a Special Exception that does not meet the minimum district requirements 10

of Article 6 and any applicable use standards in Articles 7 and 8. a. Written Application. A written application for Special Exception shall be submitted indicating the Section of this UDC under which the Special Exception is sought and stating the grounds on which it is requested. ... The application shall include information necessary to demonstrate that the grant of Special Exception will promote the publichealth, safety and welfare, be in harmony with the general intent and purpose of this UDC, will not be injurious to the neighborhood or to adjoining properties, or otherwise detrimental to the public welfare...28. Section 124-43(C)(3) requires (bolding added): Application Sufficiency. Applications for a Special Exception shall be accompanied by a clear statement and accounting that presents the applicant’s purpose for the requested Special Exception. The statement shall include those facts that clarify the need for the Special Exception, the Special Exception application's context, and the consequences of the Special Exception... III. Staff Review and Neighborhood Opposition 29. The County Development Review Coordination Team held a pre-application meeting for the Application on December 17, 2020 and completed a checklist form. A.158-A.169. 11

30. Applicant held a neighborhood workshop virtually by ZOOM on February 6, 2023. A.171. There were over ninety-six attendees, many with questions and concerns about traffic, compatibility, noise, wetlands impacts, and lighting, as well as complaints about short notice provided for the meeting and connectivity issues with the ZOOM link. A.172-174. IV. Planning Commission Hearing 31. On June 15, 2023, the Sarasota Planning Commission held a public hearing for the Application and recommended approval of the Application under the proposed Resolution by a 5-0 vote. A.8. Video link available at A.1666.

  1. Applicant did not have any experts in noise testify at the hearing.

  2. Thirty-four people testified in opposition to the Application, citing

concerns with traffic noise, safety, wetland impacts, and compatibility. Twenty-three people testified in support of the Application, largely citing their positive experiences with TCA at a separate location on Fruitville Road and without providing specific facts relevant to the criteria of Application under review. V. Land Use Petition Staff Report 34. The Land Use Petition Staff Report (“Staff Report”) dated July 12, 2023 states at A.25: 12

Additional impacts that could occur include noise and lighting. Per the Unified Development Code, Section 54-118(d)(4) – Sound Control states the lawful noncommercial public gatherings such as school functions are exempt from the sound generating enforcement of the noise ordinance. 35. The Staff Report cites the Applicant’s proffered stipulation to cease all outdoor activities and recreational lights by 10 pm. A.44. The Staff Report contains no further analysis or explanation on noise impacts. 36. The Staff Report states under “Historical Resources,” “staff has reviewed and has no comment.” A.42. There is no mention of the cultural assessment survey previously required in the pre-application or record of same. A.42. VI. County Commission Hearing 37. On July 12, 2023 the County Commission unanimously approved the Application via Resolution 2023-156 at the public hearing. 38. Eighteen people testified in opposition to the Application, citing concerns with traffic noise, safety, wetland impacts, and compatibility. Ten people testified in support of the Application, largely citing their positive experiences of the TCA’s school at a separate location. 39. SEERD President Roger Zacks testified in opposition at the Sarasota County Commission hearing on July 12, 2023. A.1666; A.7; A.1638; T:32:18-25-T.350:6. SEERD also submitted extensive written 13

objections including a legal analysis of the Application’s flaws and a report by traffic engineer Andrew Roark, PE who reviewed the Applicant’s traffic study. A.190-A.305; A.318-A.400; A.1397-A.1430. Brenda Stocks testified in opposition at the Sarasota County Commission hearing. T.68:21-70:25. Steven Higgins submitted prior written comments. A.942-44. VII. Sarasota County’s Special Exception Code 40. Section 124-43(b) provides: A Special Exception is a use that would not be appropriate generally or without restriction throughout a zoning district but which, if controlled as to number, area, location or relation to the neighborhood, would promote the public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity or the general welfare. Such use may be permissible in a zoning district as a Special Exception if specifically provided in this UDC. However, such uses are not deemed to be appropriate within a zoning district without demonstration by the applicant that the Special Exception use complies with this section. 41. Section 124-43(D)(1) provides: Board of County Commissioners Findings of Fact. Before any Special Exception shall beapproved, the Board shall determine that the granting of the Special Exception will promote the public interest, health, safety, and general welfare; that the specific requirements in Article 6 regarding Special Exception uses, if any, have been met by the applicant; that the Planning Commission action on the findings of fact have been considered; and 14

that the following standards, where applicable, have been met: a. The proposed use must be consistent with the intent, goals, objectives, policies, guiding principles, and programs of the Comprehensive Plan; b. The proposed use must be compatible with the existing land use pattern and designated futureuses; c. There must be adequate public facilities available consistent with the level of service standards adopted in the Comprehensive Plan, and as defined and implemented through the Sarasota County Concurrency Management System Regulations, Chapter 94, Article VII, Exhibit A of the County Code; d. The proposed use, singularly or in combination with other Special Exceptions, must not be detrimental to the health, safety, morals, order, comfort, convenience, or appearance of the neighborhood or other adjacent uses by reason of any one or more of the following: the number, area, location, height, orientation, intensity or relation to the neighborhood or other adjacent uses; e. The proposed use must be adequately buffered to effectively separate traffic, visual impact and noise from existing or intended nearby uses; f. The subject parcel must be adequate in shape and size to accommodate the proposed use; g. The ingress and egress to the subject parcel and internal circulation must not adversely affect traffic flow, safety or control; and15

h. The subject parcel is adequate to accommodate the height and mass of any proposed structure(s). 20. Section 66-76 provides: (b)The Director shall require that the owner or applicant provide a site assessment survey or follow the procedure for the protection of significant resources as outlined in subsection (c)(2) of this Article when it has been determined that Significantor Potentially Significant Historic Resources are likely to be present on a development site per the criteria and procedures in Section 66-74 of this Code. For the purposes of this Article, the Director shall determine the likelihood of the presence of Historic Resources based upon the proximity of the resources to known Historic Resources, a review of the History Center data and an evaluation of current and past site conditions, including land disturbances, proximity to fresh water, topographic relief and soil type and any other applicable available data to determine the location of Historical Resources. When the Director determines that insufficient information exists to determine the significance of Historic Resources present on a development site, he or she shall require that the applicant provide a site assessment survey or follow the procedure for the protection of significant resources provided in subsection (c)(2) of thisSection. (c) When significant Historic Resources have been identified, the Director shall make a written determination of either: (i) no adverse effect, (ii) conditional no adverse effect or (iii) adverse effect on significant Historic Resources. Where the final action is to be taken by the Board of County16

Commissioners, the Director’s determination and approval of applications under this Section shall constitute a recommendation to that Board. *** 36. On certiorari petition of a local government decision to the Circuit Court, the Circuit Court provides a “first tier” certiorari review, and determines whether: (1) the local government provided the parties procedural due process; (2) the local government observed the essential requirements of the law; and (3) the local government’s decision is based on substantial competent evidence. Sarasota County v. BDR Invests., LLC, 867 So. 2d 605, 607 (Fla. 2d DCA 2004); City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). STANDING Renard v. Dade County, 261 So. 2d 832, 838 (Fla. 1972) provides three different tests for standing to challenge zoning decisions: 1) standing to enforce a valid zoning ordinance; 2) standing to attack a validly enacted zoning ordinance as an unreasonable exercise of legislative power; and 3) standing to attack a zoning ordinance which is void because not properly enacted. STANDARD OF REVIEW 17

Third Renard Test Petitioners first argue the Resolution is void as improperly enacted based on a departure from the essential requirements of law. The third test in Renard provides, “any affected resident, citizen or property owner of the governmental unit in question has standing to challenge such an [void] ordinance.” Id.; See also Parsons v. City of Jacksonville, 295 So. 3d 892, 895 (Fla. 1st DCA 2020). No special injury is required for a party who attacks a void ordinance. Upper Keys Citizens Ass’n, Inc. v. Wedel, 341 So. 2d 1062, 1064 (Fla. 3d DCA 1977); see also Rhodes v. City of Homestead, 248 So. 2d 674, 674–675 (Fla. 3d DCA 1971). Petitioners Brenda Stocks and Steven Higgins are clearly affected residents and property owners within Sarasota County who own property in Heritage Oaks, in close vicinity to the Property. They are affected based on their stated concerns of compatibility, significant changes to the character of the locale, visual impacts, traffic, noise and light impacts, and enjoyment of quiet and peaceful evenings. A.942-43; A.682-83. Also, Florida courts recognize standing for citizen groups to challenge void ordinances under this test. Upper Keys Citizens Ass’n, Inc. v. Wedel, 341 So. 2d 1062, 1064 (Fla. 3d DCA 1977); See also Save Brickell Ave., Inc. v. City of Miami, 395 So. 2d 246, 247 (Fla. 3d DCA 18

1981) (Corporation devoted to safeguarding zoning of area was “an affected citizen” which had standing to attack zoning resolution on the ground it was void). Consequently, SEERD has standing under the third Renard test. Second Renard Test Petitioners also assert that the County failed to require the Applicant to present competent substantial evidence in support of the Application. Because the failure to apply competent substantial evidence results in a decision based on the unreasonable exercise of legislative power, Petitioners meet the second Renard test as well. “An aggrieved or adversely affected person having standing to sue is a person who has a legally recognizable interest which is or will be affected by the action of the zoning authority in question.” Renard at 837. Renard stated, “In determining the sufficiency of the parties’ interest to give standing, factors such as the proximity of his property to the property to be zoned or rezoned, the character of the neighborhood, including the existence of common restrictive covenants and set-back requirements, and the type of change proposed are considerations.” Id. Here, Petitioner Brenda Stocks lives within 750 feet of the proposed site and received notice of the application. A.179. Additionally, 19

there are recorded covenants from earlier special exceptions relating to surrounding area. Resolution 2000-253 included several stipulations which are covenants running with the land. A.153. Steven Higgins also lives and owns property in close proximity to the school, 2,000 feet away, and is also impacted by the covenants from earlier special exceptions. A.153. As stated above, Stocks and Higgins are on record stating concerns for the Application relating to compatibility, significant changes to the character of the locale, visual impacts, traffic, noise and light impacts, and enjoyment of quiet and peaceful evenings, as specifically relating to their personal properties. A.942-43; A.682-83. Due to Stocks’ and Higgins’ proximity, notice, existing covenants, and the character of the neighborhood, both have standing under the second Renard test. Also, SEERD meets the second test of Renard as an organization dedicated to protecting the interests of its members who live in close proximity to the proposed TCA site at 8000 Bee Ridge Road. A.1397. SEERD is a group dedicated to ensuring that planning and development occur in a way that preserves the local environment and community in the “East End” community, substantially composed of members who individually have standing, “many of whom live only a stone’s throw away from the property in question.” A.1397. T:32:22-23; T:33-2-3. 20

ARGUMENT I. The County departed from the essential requirements of law by approving Resolution No. 2023-156. “Whether the essential requirements of law wereobserved”means whether the correct law was applied. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). Failure to observe the essential requirements of law means the commission committed an error so fundamental in character as to fatally infect the judgment and render it void. State v. Smith, 118 So. 2d 792, 795 (Fla. 1st DCA 1960). In quasi-judicial hearings, a departure from the essential requirements of law typically involves the interpretation and application of local ordinances. See Colonial Apartments, LP v. City of Deland, 577 So. 2d 593, 598 (Fla. 5th DCA 1991) (“the correct law applicable in the case was to give the zoning ordinance its plain and obvious meaning”). Quasi-judicial boards do not have the power to ignore, invalidate or declare unenforceable the legislated criteria they utilize in making their quasi-judicial determinations. Miami–Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 375, 377 (Fla. 3d DCA 2003); Alvey v. City of N. Miami Beach, 206 So. 3d 67, 73–74 (Fla. 3d DCA 2016). The County departed from the essential requirements of law for the following reasons: 21

a. The County ignored the criteria under Section 124-43(c)(2)(3) which requires Special Exception applications to include information necessary to demonstrate that noise from the proposal will not be injurious to the neighborhood, and to consider the consequences of the Special Exception. The Applicant seeking the special exception has the burden to demonstrate that the application complies with the reasonable proceduralrequirements of the applicable ordinance. Alvey, 206 So. 3d at 73. Failure to follow procedural requirements of a local government code constitutes a departure from the essential requirements of the law. O’Connor v. Dade County, 410 So. 2d 605, 605–6 (Fla. 3d DCA 1982) (Commission improperly adopted a zoning plan with respect to the petitioners’ property without first seeking the recommendation of the county’s developmental impact committee as required by the Dade County Code); See also Fla. Tallow Corp. v. Bryan, 237 So. 2d 308 (Fla. 4th DCA 1970) (town cannot grant a zoning change under one provision of an ordinance while ignoring the obligatory requirements of the same ordinance).Here, the County’s special exception process requires applicants to, pursuant to Section 124-43(c), UDC (bolding added): (2)...include information necessary to demonstrate that the grant of Special Exception will promote the public health, safety and welfare, be in harmony with the general intent and purpose of this UDC, will not be injurious to the neighborhood or to adjoining 22

properties, or otherwise detrimental to the public welfare. (3) Application Sufficiency. Applications for a Special Exception shall be accompanied by a clear statement and accounting that presents the applicant’s purpose for the requested Special Exception. The statement shall include those facts that clarify the need for the Special Exception, the Special Exception application’s context, and the consequences of the Special Exception. However, the Applicant failed to submit, and the County failed to require the Applicant to submit, information to demonstrate the Special Exception will not be injurious to the neighborhood or to adjoining properties with respect to noise impacts, as required by Section 124-43(c)(2), UDC. See Alvey, 206 So. 3d at 73-74 (finding circuit court appellate panel departed from the essential requirements of law by failing to apply the correct law in its first- tier certiorari review where City failed to make any finding, nor could it without the submission of such evidence, that a proposed zoning amendment would be consistent with the scale of the established neighborhood land use pattern). J. Admin. Commn. v. Peterson, 989 So. 2d663, 665 (Fla. 2d DCA 2008) (When the circuit court does not apply the plain and unambiguous language of the relevant statute, it departs from the essential requirements of law).23

Similarly, the Application contains no discussion of the consequences of the requested Special Exception relating to noise impacts on the neighborhood as required by Section 124-43(c)(3). Applicant’s Planner Medred admitted during the Planning Commission hearing that a noise study had not been conducted. A.1666 at video, 3:50-3:52. Resolution 2023-156 includes Conditions #3 and #4 (A.3.), which state: 3. Outdoor announcements or bell system shall not be permitted on the school campus with the exception of a bell announcing the start and end of the school day. This does not prohibit the use of an outdoor public address (PA) system for sporting events associated with the athletic fields provided the PA system does not exceed the allowable decibels at the property line consistent with the Sarasota County Noise Ordinance. 4. Outdoor activities shall not be permitted after 10 pm and the athletic field lighting shall be turned off by 10 pm. A.3. Likewise, the Applicant represented at the neighborhood meeting, A.172: It was also explained that Sarasota County had a noise ordinance, enforced by the Sheriff’s Office, to ensure all school events comply with the County noise regulations and restrictions. However, these conditions were added without any assessment of noise impacts to the neighborhood. Egregiously, County staff admitted in the staff 24

report that these conditions are unenforceable because school functions are exempt from the County noise ordinance. A.25. (“Per the Unified Development Code, Section 54-118(d)(4) – Sound Control states the lawful noncommercial public gatherings such as school functions are exempt from the sound generating enforcement of the noise ordinance.”) (bolding added). Since school functions are exempt from enforcement under the County Noise Ordinance, any impacts to the neighborhood cannot be addressed through the noise ordinance. Despite being put on notice by County staff that the noise ordinance was unenforceable at school functions, the County Commission still approved the Special Exception which failed to address the neighborhood injury and consequences criteria under Section 124-43(c)(2)(3), UDC, and as a result departed from the essential requirements of law. Omnipoint Holdings, Inc., 863 So. 2d at 377 (Quasi- judicial boards do not have the power to ignore, invalidate, or declare unenforceable the legislated criteria used in making quasi-judicial determinations); City of Miami Beach v. Weiss, 217 So. 2d 836 (Fla.1969). This departure in the essential requirements of law resulted in a miscarriage of justice because the school events are exempt from noise enforcement, despite misleading statements by the Applicant which were noted but unaddressed by the County. As a result, Petitioners will be 25

precluded from any meaningful opportunity to challenge such disruptions via County code enforcement in the future. b. The County departed from the essential requirements of law by failing to comply with criteria under Section 66-76(b) to require a limited Cultural Assessment Survey for the Property site as noted in the Pre-Application The County’s Pre-Application Form for the Application stated at A.161: A Cultural Resource Assessment Review and site visit has been completed for this parcel under Chapter 66, Sec. 66-73. Based on this review, it has been determined that a recorded archaeological site lies adjacent to this parcel to the east (8So2284, Burger 1986), which may extend on this parcel. Based on this information, the parcel is considered to have a high probability for containing a component of this site, or another site, however, its presence and potential significance is indeterminate. Therefore, a limited Cultural Assessment Survey is required with areas of the potential effect under Chapter 66, Sec. 66- 76(b). A letter detailing this requirement will follow within five business days. However, there no record of a limited Cultural Assessment Survey ever conducted. (See A.1-1665). Section 66-76, Sarasota County Code of Ordinances, requires: (b)The Director shall require that the owner or applicant provide a site assessment survey or follow the procedure for the protection of significant resources as outlined in subsection (c)(2) of this Article when it has been determined that Significant 26

or Potentially Significant Historic Resources are likely to be present on a development site per the criteria and procedures in Section 66-74 of this Code. *** (c) When significant Historic Resources have been identified, the Director shall make a written determination of either: (i) no adverse effect, (ii) conditional no adverse effect or (iii) adverse effect onsignificant Historic Resources. Where the final action is to be taken by the Board of County Commissioners, the Director's determination and approval of applications under this Section shall constitute a recommendation to that Board.No such recommendation appears in the record. Instead, the July 12, 2023 Staff Report states, “staff has reviewed and has no comment.” A.42. The County’s failure to require Cultural Assessment Survey is a departure from the essential requirements of the law by failing to follow the correct law. Section 124043(c)(2)(c) requires, “Where this UDC places additional requirements on specific Special Exceptions, the application shall demonstrate that such requirements are met.” Here, the Applicant has failed to demonstrate the requirements of Section 66-76 have been met, as citedduring the Pre-Application Conference. This departure of the essential requirements of law results in a miscarriage of justice because it allows development to move forward which could potentially impact irreplaceable cultural artifacts and property which once damaged are impossible to27

recover. Additionally, ignoring code requirements for the protection of cultural resources sets a dangerous precedent capable of repetition in the County which could have further impacts on Sarasota County’s cultural heritage and property. See Dept. of Hwy. Safety and Motor Vehicles v. Alliston, 813 So. 2d 141, 145 (Fla. 2d. DCA. 2002). II. Approval was not based on competent substantial evidence To sustain the Commission’s action on first tier certiorari review, it must be shown that competent substantial evidence was presented to the board to support its ruling. Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469, 476 (Fla. 1993). Each criteria or factor required by the local government's published code for a particular quasi- judicial decision must have evidentiary support. Alvey, 206 So. 3d at 67. This standard of review is not a factual inquiry, but a legal one: Is the quasi- judicial decision supported by any evidence in the record. Id. “Competent” evidence must be credible and based on facts, and cannot be bare allegations, speculation, or conjecture. Dep’t of Highway Safety & Motor Vehicles v. Trimble, 821 So. 2d 1084, 1086-87 (Fla. 1st DCA 2002). A generalized statement, even from an expert, is not competent substantial evidence. City of Hialeah Gardens v. Miami-Dade Charter Foundation, Inc., 857 So. 2d 202, 204 (Fla. 3d DCA 2003). 28

A. Each criteria or factor required by the local government’s published code for a particular quasi-judicial decision must have evidentiary support. Alvey, 206 So. 3d at 67. Section 124-43(D)(1) lists the required criteria which the County Commission must consider when issuing a special exception, which among other criteria includes: he record contains no factually based report from the Applicant on impacts to the neighborhood from noise. A.1-1665. The County Staff Report generally mentions “additional impacts that could occur include noise and lighting.” A.25. However, neither the Applicant nor the County provided any further analysis regarding impacts. During the June 15, 2023 Planning Commission hearing, Applicant did not present any witness with expertise in acoustics to testify whether the Application adequately buffered noises from existing or intended uses. Applicant’s land use planner Bo Medred stated that the buffer on the edge of the property will help absorb the noise but provided no specific facts or basis on which he relied. A.1666. Likewise, the Application baldly asserted Competent substantial evidence was not presented to support the criteria that the use was adequately buffered to separate noise from existing nearby uses. (e)The proposed use must be adequately buffered to effectively separate traffic, visual impact and noise from existing or intended nearby uses; Here, t 29

without any factual support, “The proposed use is adequately buffered to effectively separate traffic, visual impact, and noise from existing or intended nearby uses.” A.51. A generalized statement, even from an expert, is not competent substantial evidence. Miami-Dade Charter Foundation, Inc., 857 So. 2d at 204 (“[N]o weight may be accorded an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually based chain of underlying reasoning.”). A member of the TCA community testified, “noise won’t be the impact the school makes, the character of the teachers, students, and families is what will shine.” T.81:1-3. The public’s unsubstantiated opinions and statements for or against administrative action do not constitute competent, substantial evidence. See Town of Ponce Inlet v. Rancourt, 627 So. 2d 586, 588 (Fla. 5th DCA 1993) (neighbors’ lack of objection was not evidence or sufficient to support variance approval). The record is devoid of any competent substantial evidence that noise is adequately addressed and buffered as part of the Application. Additionally, the County Staff Report admits that “additional impacts that could occur include noise” but then states that the UDC exempts school functions from enforcement under the noise ordinance. A.25. 30

The Applicant failed to meet their burden to support the criteria under Section 124-43(D)(1)(e) with competent substantial evidence. Alvey, 206 So. 3d at 69, (finding the circuit court failed to apply the correct law because the City’s rezoning approval was not based on competent substantial evidence when developer failed to present evidence that supported listed criteria). Even if the Applicant met their burden, which they failed to do, opposition provided detailed reports and testimony based on facts to rebut the presumption and demonstrate how the noise buffer was insufficient and criteria was not met. A.253-272; A.319, A.326, A.350-355, A.357, A.381-83. See Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1091–92 (Fla. 2000) (“Even if the Applicant met the initial burden of showing that the application met the statutory criteria for granting such exceptions, “the burden was upon the [opposing party] to demonstrate, by competent substantial evidence presented at the hearing and made a part of the record, that the [special] exception requested by petitioner did not meet suchstandards and was, in fact, adverse to the public interest.”). “The law...will not and cannot approve a zoning regulation or any governmental action adversely affecting the rights of others which is based on no more than the fact that those who support it have the power to work31

their will.” Allapattah Community Ass’n, Inc. of Fla. v. City of Miami, 379 So. 2d 387, 394 (Fla. 3d DCA 1980) (zoning approval reversed on grounds that it relied on conclusory evidence and failed to account for impacts to the neighborhood). Competent substantial evidence was not presented to support the criteria relating to neighborhood impacts from traffic because Applicant’s traffic study contained numerous flaws. B. The County’s special exception criteria relating to traffic and site access pursuant to Section 124-43(D)(1)(d)(e)(f)(g) includes: d. The proposed use, singularly or in combination with other Special Exceptions, must not be detrimental to the health, safety, morals, order, comfort, convenience, or appearance of the neighborhood or other adjacent uses by reason of any one or more of the following: the number, area, location, height, orientation, intensity or relation to the neighborhood or other adjacent uses; e. The proposed use must be adequately buffered to effectively separate traffic, visual impact and noise from existing or intended nearby uses; ***g. The ingress and egress to the subject parcel and internal circulation must not adversely affect traffic flow, safety or control; andApplicant failed to support the criteria with competent substantial evidence because Applicant’s Stantec traffic study (“Stantec Study”), A.79-A.139, 32

contained numerous flaws, which as a result failed to meet the standard for competent substantial evidence. First Baptist Church of Perrine v. Miami- Dade Cty, 768 So. 2d 1114, 1116 (Fla. 3d DCA 2000) (zoning board properly denied zoning application where recommendation for approval was based on flawed traffic impact study which did not constitute competent substantial evidence); see also Beach Leg. Properties, Inc. v. City of Miami Beach, 2022-18 AP 01, 2023 WL 3743107, at *4 (Fla. 11th Cir. May 25, 2023) (Having concluded that the City failed to follow the essential requirements of law in applying an incorrect analysis, “flawed” and “erroneous” staff recommendations are “invalid” and “d[o] not constitute competent evidence”). In Perrine, neighborhood representatives stated through fact-based testimony to the Zoning Board that the special exception Applicant Church’s traffic study was flawed because it failed to consider the neighborhood traffic impact arising from the requested special exception. Perrine at 1115. Specifically, the study was flawed because projections accounted for less than 100% of the number of additional students permitted under the application, and showed the most frequently used ingress and egress from the school was through a neighborhood street instead of a County arterial street. Id. 33

Here, there are numerous flaws in the Applicant’s traffic study which were pointed out by SEERD representatives and SEERD’s traffic expert Andrew Roark. At the Planning Commission hearing, SEERD presented numerous objections to the Stantec report, pointing out flaws. A.241-244, A.248, A.335-349. At the County Commission hearing, SEERD submitted a report by Andrew Roark, PE, a traffic engineer expert with over 27 years of experience in transportation consulting specializing in traffic engineering and planning, who analyzed the Stantec traffic report. A.1398. In Mr. Roark’s review, he has found significant flaws with the Applicant’s analysis, including:

  1. Stantec failed to evaluate traffic volume during worst-case conditions/peak hours of the road adjacent to the site, but instead relied on conditions during peak hours of the generator. A.1402. The peak PM hours of the adjacent street in particular varies from the peak PM hours of the generator. Mr. Roark notes that if the peak hours are properly adjusted, “the distribution associated with the peak hour of the adjacent street will also need to be used. This will cascade through the remainder of the analysis.” A.1402.

  2. Roark opined that Stantec “evaluated the zip codes of the new students and the traffic distribution associated with the new students would follow a similar pattern as the existing school, which is heavily weighted to the west. A.1402-03. Then an assumption is made (guess) that since new residential growth is east of the school and the Lorraine Road extension to Palmer Boulevard will provide a more direct route to/from the northeast, that the distribution will change from 78%/22% (West/East) in the AM and 75%/25% in the PM to 70%/30% in both the AM and PM.

34

First, I would like to see what the distribution from the zip codes would be. Second, while changes in land use and roadways could impact the distribution, there is no way to know if it will or by how much. Especially for a private school, which presumably has a high tuition that will not have enrollment based on geography. This is a guess and should not be allowed.” A.1403. 3. The Stantec Study proposes installation of delineators in the centerline of Bee Ridge Road as part of Phase 1 to prevent westbound left turns into the side and northbound left turns out of the site. However, “there was no level of service analysis associated with the nearby roads, Bent Tree Boulevard and Lorraine Road, where U-turns would consequently occur, in order to demonstrate that the additional traffic at these intersections would function within standards.” A.1403. 4. Stantec relied on a background traffic growth rate of 2.0 percent based on a 10-year historical growth on three roadway segments on Bee Ridge Road. Roark stated, “Two issues with this assumption are: (1) “the 10-year growth rate for the segment directly in front of the site [on Bee Ridge Road from Bent Tree Boulevard to Lorraine Road] . . . is far greater (6.11%) than the other two segments (1.05% and 0.78%) [to the west carrying a much larger volume] that were averaged into the growth rate”; only the segment from Bent Tree Boulevard to Lorraine Road should be used for a historic growth rate; and (2) additional residential development and the extension of Lorraine Road cited in Stantec’s report will likely add more traffic to and from the east on Bee Ridge Road, leading to a higher future growth rate than the historic rate. A.1403. For the same reasons stated above, Applicant failed to provide competent substantial evidence to support Section 124-43(c)(3), which requires that Applications for a Special Exception shall “include those facts that clarify the need for the Special Exception, the Special Exception 35

application’s context, and the consequences of the Special Exception.” Here, the Application fails to include facts relating to the consequences of the Special Exception because it fails to acknowledge the impact that it would have on the surrounding neighborhood and residents in terms of increased traffic. Similarly, the Staff Report fails to assess or support these criteria. CONCLUSION The Commission departed from the essential requirements of law and approved the Application which was not supported by competent substantial evidence. Petitioners request the Court grant the Petition. NATURE OF RELIEF SOUGHT WHEREFORE, Petitioners respectfully request that this Honorable Court:

  1. Assert jurisdiction over the parties to the subject matter of this proceeding;

  2. Declare that the Commission’s approval of Resolution 2023-156 constituted a departure from the essential requirements of law;

  3. Declare that the Commission erred in the approval of Resolution 2023-156 in that the decision was unsupported by competent substantial evidence; and

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d. Issue a Writ of Certiorari quashing the Commission’s decision to approve Resolution 2023-156. Dated this 21st day of August, 2023. Respectfully submitted, /s/Jane Graham JANE GRAHAM, FBN 68889 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing document – Petition for Writ of Certiorari– has been delivered to Joshua B. Moye, County Attorney for Sarasota County, 1660 Ringling Blvd., Sarasota, FL 34236 by e-mail on August 21, 2023 at jmoye@scgov.net, and to Stephen Rees, Jr., attorney for The Classical Academy of Sarasota, Inc., at , at by e-mail on August 21, 2023 at srees@icardmerrill.com. CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Petition complies with the font and word count requirements of Fla. R. App. P. 9.045 and Fla. R. App. P. 9.100. /s/Jane Graham JANE GRAHAM, ESQ. FBN 68889 P: jane@sunshinecitylaw.com S: jane@jcgrahamlaw.com Sunshine City Law 737 Main Street, Suite 100 Safety Harbor, Florida 34695 (727) 291-9526 Attorney for Petitioner Sarasota East- enders for Responsible Development, Inc., Brenda Stocks, and Steven Higgins Timm Furen Ginsburg 8470 Enterprise Cir Ste 201 Lakewood Ranch, FL 34202-4105 37 Icard Merrill Cullis





 
 
 

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