Does Sarasota County need lobbyists on panels that adjudicate zoning appeals?

Below is a Jan. 13, 2020 citizen's letter sent to Sarasota County Commissioners in advance of Board reappointing a powerful building industry lobbyist to the Board of Zoning Appeals. Letter below sent 12:30 pm, Jan. 13.  An HT story "Construction advocate on Sarasota County regulatory board is criticized" ran Jan. 13 evening.

TIME SENSITIVE

To: The Board of Sarasota County Commissioners

RE: Reappointment of Jon Mast to the BZA scheduled for Jan. 14, 2020.

Commissioners:

Your agenda for Tuesday, January 14, 2020 calls for you to consider the reappointment of Jon Mast to the Board of Zoning Appeals. Mr. Mast nominated himself July 11, 2017, and was appointed by the Board without Commissioner input. This letter asks that you consider the potential appearance of conflict of interest presented by this BZA member.

Sarasota County Board of Zoning Appeals 11.18.19

The Board of Zoning Appeals is not a mere advisory board. It exercises quasi-judicial authority with power to approve, amend, or deny modifications to approved binding site plans. 

Because of this power to rule on the legitimacy of land uses, this Board’s appointments warrant an extra level of conscientious oversight. The appearance of conflict of interest could jeopardize credibility for a judicial Board. In a document entitled BZASection 23, the County states: 

“no person shall be appointed with private or personal interests likely to conflict with the general public interest.” (2.3.2)

Another document entitled Board of Zoning Appeals Short Course for Board Members states that the Board of Zoning Appeals has “Three Legal Requirements in Exercising Powers”:

Most decisions of the Board of Zoning Appeals are regarded as quasi-judicial decisions.  When they are reviewed by a court, they will be assessed for three criteria (1) whether procedural due process was accorded, (2) whether the essential requirements of law were observed, and (3) whether the findings and decision are supported by competent substantial evidence.  Education Development Center, Inc. v. City of West Palm Beach Board of Zoning Appeals, 541 So. 2d 106 (Fla. 1989). 

On Nov. 18, 2019, I attended a BZA hearing at which a Board Member argued insistently to overturn a decision of Zoning Administrator Donna Thompson. That BZA member is Jon Mast, CEO at the Manatee-Sarasota Building Industry Association, a powerful construction industry lobbying entity.

At the aforementioned hearing, Mr. Mast played a key role in the Board’s decision on the Appeal identified as 19-155651 ZZ. Before he spoke, the board was polled: four members appeared to support Zoning Administrator Donna Thompson’s decision. After Mr. Mast spoke at some length, the vote was called: The Board voted 4-3 to overturn the Zoning Administrator’s decision.

In his discussion, Mr. Mast appealed for interpretive judgment on technical and evaluative matters to a person in the audience. The person whose opinion he sought was neither an independent stormwater expert nor county Staff with the credentials to render an informed evaluation. Rather, Mr. Mast appealed to the appellant Gabbert’s own attorney, William W. Merrill III, asking him whether Mr. Gabbert’s new plan was better than his former plan. I refer you to the hearing video:  http://sarasotacounty.granicus.com/player/clip/4626?view_id=16

At the 1 hour 11-minute mark, Mr. Mast asks Mr. Merrill to interpret the relation of zoning rules to the proposed modification at issue:  (1:11 ff)

At 1:13:40, Mr. Mast asks for Mr. Merrill’s summary qualitative judgment on the matter: 

Mast: “All you want to do is make it better.”

Merrill: “Yes.”

Mr. Mast then personally attested that “over and over and over and over and over” similar stormwater changes have arisen, and that it is normal for them to be ruled as minor changes. He did not point to specific precedents or to staff research on the matter. He simply asserted that similar cases to Mr. Gabbert’s came up “over and over and over and over and over.”

Mr. Mast’s skilled solicitation of an evaluative judgment from Mr. Merrill as to the relative merit of Mr. Gabbert’s new stormwater plan seems to have influenced the final vote. But can Mr. Merrill, the attorney for appellant Gabbert, be considered either an expert on stormwater, or a disinterested observer in this matter? It is open to serious question whether “competent, substantial evidence” was the deciding factor in this instance.

An established protocol should be followed which doesn’t put thumbs on the scale for anyone. We have one: “no person shall be appointed with private or personal interests likely to conflict with the general public interest.” 

Respectfully,

Tom Matrullo

For more on the BZA and this specific hearing, see The Sarasota News Leader, the Herald Tribune (Seidman editorial), and here and here.