Florida AG letter undercuts Sarasota County in Live Local legal fight

Sarasota County has spent months arguing that Florida’s Live Local Act does not allow developers to build large apartment complexes on land zoned primarily for rural uses. Now, Attorney General James Uthmeier’s office says the county has it wrong.

In a Sept. 16 letter responding to Sarasota County’s request for legal guidance, the Attorney General’s Office concluded that rural properties allowing even limited commercial uses — such as veterinary clinics and plant nurseries — can qualify as mixed-use land eligible for development under Live Local.

The letter casts new doubt on the county’s long-running fight over the controversial law, giving ammunition to developers suing the county in six ongoing cases and potentially clearing a path for more than 7,500 housing units that have been put on pause.

Area real estate developers and a church have sued Sarasota County after commissioners voted in April to block six of the projects proposed under Live Local, setting up a court battle to determine whether local governments have the power to keep the state’s affordable-housing law from reshaping agricultural areas. 

But before the lawsuits were filed, commissioners asked the Attorney General to weigh in on their position. Since then, the number of Live Local applications in the pipeline has tripled to 18, most of them eyeing rural land Sarasota County argued was off limits. 

The Attorney General’s legal analysis is advisory, meaning it is not binding like a judge’s ruling, although legal experts say the courts give it significant consideration.

“It’s persuasive in a court of law,” said Christine Robinson, chief executive of the Argus Foundation and a former county commissioner and prosecutor. “It’s not case law, but it is something that the court gives weight.” 

The Live Local Act lets developers bypass local zoning rules and public hearings if they meet the law’s affordable-housing requirements.

The dispute in Sarasota County centers on an earlier version of the law. State lawmakers amended the 2023 Live Local Act earlier this year to restrict projects on rural land but left open a short window for developers to submit applications under the previous rules. 

That version allowed qualifying apartment complexes on any property “zoned for commercial, industrial or mixed-use.”

The county maintains that agricultural properties do not become mixed-use simply because their zoning allows limited commercial activities. County attorneys have argued in court that uses such as veterinary clinics and plant nurseries are ancillary to the underlying residential zoning.

Uthmeier’s office reached the opposite conclusion.

A judge will ultimately decide whose interpretation is correct. But the Attorney General’s letter has dealt the county its first blow over the legal position it has used to block the projects.

Suncoast Searchlight requested comment from county officials Thursday morning but did not receive a response before publication. The county generally declines to comment on matters that affect pending litigation.

Commissioners have previously said they were reacting to a steady barrage of concerns from residents over the impact of the proposed developments, fearing the county would not be able to build infrastructure fast enough to keep up. 

But County Attorney Joshua Moye warned of an “uphill battle” in court when the board unanimously voted to halt the Live Local projects on April 7. 

Following that meeting, Commissioner Teresa Mast moved for the county to seek outside legal opinions, including a request for the Attorney General’s Office to provide guidance.

Developers have since seized on Moye’s warning in their lawsuits. An attorney for the Live Local developers pointed to Moye’s interpretation, accusing commissioners of “knowingly weaponizing governmental power” with the “stated intent to intimidate.”

missioners themselves were initially named as defendants, but a judge last week dismissed them from most counts, removing their potential personal liability. The judge left open a window for the other side to present more evidence of wrongdoing.

All six court cases are still proceeding, with trials expected by August 2027.

Sarasota’s transparency questioned

The Attorney General’s letter does not resolve the lawsuits, and opponents of the Live Local projects question how much legal significance it should carry.

Critics note that the Sept. 16 letter is not an official opinion because it is not numbered as such or published with the other official opinions on the Attorney General’s website.

But they still worry the letter will now soften the county’s stance, potentially prompting commissioners to backpedal or settle the pending lawsuits altogether.

“The county has some very strong arguments that support its policy position that have been well briefed before the court,” said Susan Schoettle, a former deputy county attorney and a legal adviser to the Audubon Society, which has intervened in a Live Local case. “The impacts to the county would be devastating.”

But Robinson, the CEO of the Argus Foundation, questioned the county’s transparency through the process.

She criticized current county leadership, noting that neither commissioners nor staff brought up the recent letter from the Attorney General’s Office or the two latest lawsuits filed against the county during a Live Local update at Tuesday’s meeting.

She also noted that taxpayers could be on the hook for legal fees now standing at $1.5 million should the county lose.

“Everybody up on that dais knew about this,” she said, “and they just did not talk about it.” 

Others argue the letter should never have been issued in the first place.

It’s unusual for attorneys general to opine on pending litigation, according to the National Association of Attorneys General. It’s also a longstanding policy in Florida.

“In order not to intrude upon the constitutional prerogative of the judicial branch, opinions generally are not rendered on questions pending before the courts,” one 2009 Attorney General Opinion stated.

In this case, however, the county had asked for an opinion before the lawsuits were filed about one month later.

“I don’t think it was the AG’s job to throw out an opinion on a pending lawsuit,” said Matt Procaccini, a Tatum Ridge resident who’s organized opposition to a nearby project. He called the opinion “inappropriate.”

Procaccini noted that the issue comes down to neighborhoods defending against overreach by large developers. 

“I’m standing here trying to defend something that’s a clear property rights issue,” he said.

Derek Gilliam is a watchdog/investigative reporter for Suncoast Searchlight. Email him at derek@suncoastsearchlight.org.