Facing further legal action, the board on Oct. 14 will consider a smaller house plan for property that has been underwater in past decades
For the third time in three years, a Siesta Key couple is petitioning the Sarasota County Commission to allow them to build a home on Beach Road property that has been documented as having been underwater on numerous occasions in years past.
This time, however, a mediator who worked with the couple and county staff for a number of months on the matter “strongly recommends to the commission that they accept [the latest] proposal,” County Attorney Stephen DeMarsh told the board on March 31 of this year.
Furthermore, Assistant County Attorney David Pearce cautioned, if the commissioners deny the petition again, they could face a lawsuit.
Nonetheless, Siesta Key residents who have opposed any effort to build on the property are expected to voice their arguments again when the County Commission holds an Oct. 14 public hearing on the latest plans. Numerous speakers presented their concerns during the previous board proceedings on the parcel.
This third request for a variance features a house plan that has been scaled down from those in the two previous attempts. Those prior petitions called for construction of the dwelling to be a maximum of 176.5 feet seaward of the Sarasota County Gulf Beach Setback Line (GBSL) and about 672 feet landward of the mean high water line. The latest request entails a project that would be a maximum of 170 feet seaward of the GBSL, with construction 678 feet landward of the mean high water line.
A 4-1 board vote on March 31 cleared the way for the third public hearing on a proposal from Ronald and Sania Allen, owners of the parcel at 162 Beach Road. (Commissioner Charles Hines was in the minority.) That proceeding is scheduled for the afternoon of Oct. 14 in the Commission Chambers in the County Administration Center on Ringling Boulevard in downtown Sarasota.
The background and the mediation
After the County Commission’s April 2014 denial of the couple’s second petition for a variance, the Allens filed a Request for Relief under Section 70.51 of the Florida Statutes, known as the Florida Land Use Environmental Dispute Resolution Act (FLUEDRA), County Attorney Stephen DeMarsh explained to the board on March 31.
The Allens’ representative during public hearings in January 2013 and April 2014, Sarasota attorney William Merrill III of Icard Merrill, threatened legal measures if the commissioners voted against the request for the second time in April 2014. He said the disapproval could be construed as a “taking” of the property by the county.
Then-County Commissioner Joe Barbetta told his colleagues, “We can speculate we’re going to be sued; we can speculate it’s a taking [but] I can’t support [the petition] as it appears.”
Barbetta added, “The lawyer part of me says that there are other uses for this property. … I’ve been here 31 years. I’ve seen that property underwater.”
After voting “No” unanimously in April 2014, the board formally approved a resolution denying the variance petition on May 20, 2014, as part of its consent agenda.
According to a March 24, 2015 memo DeMarsh provided the commissioners, the FLUEDRA statute says, “Any owner who believes that a development order, either separately or in conjunction with other development orders, or an enforcement action of a governmental entity, is unreasonable or unfairly burdens the use of the owner’s real property, may apply within 30 days after receipt of the order or notice of governmental action for relief under this section.”
DeMarsh added that his office worked with Assistant County Administrator Mark Cunningham; Matt Osterhoudt, the county’s senior manager of the Development Services and Environmental Protection department; and Howard Berna, manager of environmental permitting, during the mediation that ensued. As a result, DeMarsh continued in the memo, “The Allens agreed to reduce the size of the proposed home by ten percent to 2,779 square feet of habitable area, and reduce the paver driveway by forty percent to 842 square feet.” The couple also proposed the changes regarding the GBSL and distance from the mean high water line, the memo noted.
Further, the proposed settlement calls for enhancement of dune vegetation as mitigation for impacts to dune habitat, along with a conservation easement and a quit-claim deed to a parcel that is seaward of the lot on which the couple wants to build, the memo says. That second lot may be owned by another entity, according to the Sarasota County Property Appraiser Office, the memo continues. But the Allens would deliver to the county any interest they own in that parcel, the memo points out.
Therefore, the commissioners had the option of holding another public hearing on a variance request, including the terms resulting from the mediation, DeMarsh explained on March 31, or “you could instruct us that the settlement is not one that you would support.”
He then referenced a March 20 letter from the mediator, Carlos Alvarez, to the commissioners, in which Alvarez wrote, “My purpose in this letter is to highly recommend to you that you approve the proposed agreement that your staff and the Allens have worked so hard to procure in the last nine months. It is an agreement that not only meets and exceeds the goals of the Dispute Resolution Act but, more importantly, meets and exceeds all applicable requirements under the Sarasota County Code including the Coastal Setback Code.”
Alvarez pointed out that County Commission established its Gulf Beach Setback Line in 1978, putting the parcel at 162 Beach Road entirely seaward of that line. To build on such property, he continued, an owner must request a variance and “demonstrate, among other things, that the requested variance is the ‘minimum variance necessary to permit reasonable use of the property.’ [The emphasis is Alvarez’s.] This criteria assures that a ‘reasonable use’ for the Allen Property will be allowed to proceed if impacts to the beach-dune system and related impacts, as reflected in the Coastal Setback Code, are minimized.”
Alvarez continued in his letter, “In this matter, the parties have crafted a settlement that convincingly meets the ‘reasonable use’ with ‘minimum variance’ criteria as applied by Sarasota County.
Alvarez then noted facets of comparable, “apples to apples” construction. For example, he wrote, Siesta Key single-family homes built on the Gulf of Mexico after 1999 have a mean of 5,936 feet of living space —habitable area — and the median square footage is 4,946. The Allens’ latest proposal calls for a home with 2,779 square feet of living space, he added. Furthermore, “The existing Gulf-front house next to the Proposed Allen Home has 2579 square feet of living space (built before the GBSL was applicable) and can be allowed to expand in the future” to more than 4,000 square feet of living space under the provisions of the Coastal Setback Code regarding modifications to existing structures, he wrote.
That house also has a larger footprint than the design the Allens have proposed, he added, and it is seaward of the location where the Allens plan to build.
Alvarez also offered his opinion that “The overall dune/beach ecosystem in this area of Siesta Key will not be compromised or jeopardized by the construction of the Proposed Allen Home or the granting of this variance.”
Finally, Alvarez wrote that he had visited the site three times “and spent considerable time looking at the area around the site, including possible blockage of coastal view angles. I do not expect any [his emphasis] potential significant blockage of views” in the aftermath of the construction of the Allens’ house.
Board discussion
Following DeMarsh’s March 31 remarks, no commissioner spoke. “The silence is deafening,” Chair Carolyn Mason said. “What is your pleasure?”
Assistant County Attorney David M. Pearce then clarified for the commissioners that they were not being asked to approve the variance petition, only to hold another public hearing on the request.
“If we do nothing, Mr. Pearce, what happens?” asked Commissioner Al Maio, who represents Siesta Key.
The time period set aside for the FLUEDRA mediation had expired, Pearce told the board. “What you would probably risk is a lawsuit from the owner of the property, seeking a remedy,” Pearce added; that might entail a Harris Act challenge.
“I do think it should be clearer that we are recommending [the settlement],” DeMarsh said of himself and his staff.
Then Maio made a motion to approve the request for another public hearing. Commissioner Hines reiterated that this latest proceeding — the fourth, dating from 1992 — would involve a smaller house and construction further from the Gulf of Mexico.
Commissioner Paul Caragiulo then seconded the motion, with Hines casting the only “No” vote.
Opposition expected again
During the two previous attempts by the Allens to secure a variance, a number of Siesta Key residents appeared before the County Commission to urge the board to deny the request. Catherine Luckner, vice president of the Siesta Key Association (SKA), told members during the organization’s Oct. 1 meeting that the SKA would fight this latest proposal as well.
Former SKA board member Peter van Roekens, who lives in the Terrace East condominium complex near the parcel, has asked that anyone opposing the project appear before the County Commission on Oct. 14 to argue against the petition, Luckner added.
The parcel the Allens own is in a section of the beach with “pretty good dune accretion,” she pointed out, which would provide protection to Siesta Village in the event of significant flooding.
SKA President Michael Shay also noted that because Ronald Allen is a Realtor, he felt Allen had to have known about the county’s 1992 denial of an effort to build on the property. The Allens bought the parcel in 2009, county records show.
If the County Commission approves the latest petition, Luckner said, “It does beg the question of who else will have a go [at building beyond the Gulf Beach Setback Line].”
“It would be a terrible precedent if [the commission] did allow [that],” said audience member Steve Lexow. “How do you say, ‘No,’ to anyone else?”