Construction safety issues emanating from lack of side setbacks from property lines to be one focus of zoning code discussions, city commissioners agree

City staff discusses ramifications of zoning changes implemented as a result of Duany 2002 master plan for Sarasota

The City Commission sits in session on Dec. 4. News Leader photo

Although he did not actually use the expression that dates back to Hollywood’s silent film era, Sarasota City Commissioner Willie Shaw essentially called for “cutting to the chase” on Dec. 4, about 55 minutes into a discussion about the ramifications of new construction adjacent to existing condominium towers.

Residents have to worry about potential damage to their property and city staff has to deal with public safety issues because of zero side setbacks, Shaw pointed out, thanks to changes in the city’s zoning regulations that New Urbanist planner Andres Duany recommended to city leaders in 2002.

Those zoning modifications, implemented around 2005, “put you in handcuffs,” Shaw told Tim Litchet, director of the city’s Neighborhood and Development Services Department, and city Building Official Larry Murphy.

“I think that’s the issue,” City Attorney Robert Fournier agreed.

“It should be made clear that that’s the issue,” Shaw responded.

“I think your hands have been tied,” Litchet told the commissioners. Sometimes it is difficult to foresee the consequences of such modifications, he added. “We’re certainly getting a lesson on that, up close and personal.”

Litchet told the commissioners that he believes the New Urbanist concepts work well on “raw land” but not in areas that already have been heavily developed. The zoning changes made since 2002 “have amplified our challenges.”

For that matter, Litchet pointed out, the maximum 5-foot front setback from the street in downtown zoning districts hampers construction crews erecting new buildings because they have less space for staging.

Tim Litchet (left) and Larry Murphy appear before the board on Dec. 4. News Leader photo

At one point on Dec. 4, Litchet suggested the commissioners consider hiring a new full-time employee just to handle public safety issues related to projects on lots where no side setbacks are required.

The discussion this week resulted from a PowerPoint presentation the board members saw on June 19. It focused on damage at the Essex House that was attributed to the construction of the adjacent Echelon condominium complex. Lottie Varano, president of the Essex House Residents, showed the commissioners slides illustrating the fact that, for example, dozens of wooden two-by-fours — with and without nails embedded in them — had landed in the road near the Essex House garage; a window at the Essex House was broken by a metal rebar fragment flying off a high-speed radial saw; and cement was splattered over newly installed pavers at the Essex House that cost $65,000.

The Echelon is located at 624 Palm Ave., perpendicular to the Essex House property at 707 S. Gulfstream Ave.

A staff memo provided to the board explained that the Echelon is in the Downtown Bayfront zoning district, which allows 100% lot coverage with no building setback requirements.

Following that June presentation, Commissioner Jen Ahearn-Koch won board consensus for staff to review issues related to construction under circumstances Varano and Cindy Land, manager of the Essex House, had described.

An aerial map shows the location of the Echelon property (marked by red flag) next to the Essex House property in Sarasota. Image from Google Maps

However, on Dec. 4, the commissioners agreed that the comments they were hearing that night from staff and the public should be part of their focus on the “form-based code” next year. In January 2018, they plan to begin a series of public meetings that will culminate in the completion of the years-long process to overhaul the city’s zoning regulations.

In fact, Mayor Shelli Freeland Eddie said she was perplexed that the commissioners were even having the discussion on Dec. 4 about the construction concerns, as they related directly to the lack of side setbacks in the downtown zoning districts. “This is the very topic that should go to the top of the list” for the form-based code approval process, she added.

Litchet reminded her that the board in June asked for the report that he, Murphy and Fournier had prepared for the Dec. 4 meeting. She acknowledged that, but indicated continuing frustration that the same issues would have to be discussed again.

Commissioner Hagen Brody took a different view. It had been helpful to him, he said, to hear about some of the legal aspects of the problems with which residents have been contending. That information needs to be addressed in the context of the form-based code, he added.

Freeland Eddie then asked staff to ensure the commissioners have copies of the materials related to Duany’s 2002 recommendations and the resulting zoning changes before they begin their discussions in January.

From 2002 to today

A slide shown to the board in June illustrates the lack of side setback between the Echelon and Essex House property lines. Image courtesy City of Sarasota

During his formal remarks on Dec. 4, Fournier explained that when the city completed the changes in its downtown-area zoning regulations to include Duany’s recommendations, some districts that previously had required side yard setbacks no longer called for them. For example, he said, on South Palm Avenue, between Ringling Boulevard and Mount Street, properties had been zoned Residential Multi-Family (RMF) 6 and RMF-7. They had to have at least 30 feet of side yard setback from adjoining parcels, he continued, along with 30-foot front setbacks and 20-foot rear setbacks.

The Duany master plan for the city was based on a concept that called for the greatest density at the center of an area, with density decreasing the further one moved away from that center. He asked the board members to envision a bulls-eye. That “enveloped really the whole downtown and community redevelopment area.”

He added that he believes the board could consider amending the zoning code to create incentives for property owners in the downtown zones to incorporate greater side setbacks into plans for new construction. For example, Fournier said, a developer could be allowed additional dwelling units or extra height than allowed by the zoning district.

Litchet said he felt that might be a good step.

A slide shows cement splattered on brick pavers at the Essex House. Image courtesy City of Sarasota

Fournier also discussed research he had undertaken in preparing the report. He learned that the State of New York has a statute that enables New York City to require adjacent property owners to enter into written agreements regarding temporary easements or “licenses” in an effort to deal with the potential for damage to existing buildings when new construction is underway.

However, Fournier explained, the State of Florida has no such law that would allow the commission to pursue the implementation of a similar ordinance in the City of Sarasota.

Yet, Litchet talked of frustrations about seeing the city named in legal complaints for trying to assist residents with protective measures. “My staff has such limited options, sometimes, when the 180-foot building is built zero — not even an inch — back [from the side].”

The broken window at the Essex House is visible in this slide. The damage was attributed to a rebar fragment. Image courtesy City of Sarasota

Having dealt with the Echelon issues, Building Official Murphy told the board, “It’s been a very, very tough job” to ensure safety measures remain in place.

The Florida Building Code gives him only so much latitude, he explained, when it comes to construction safety. “I can’t force anything on an adjacent property owner to extend the protections, even though I may deem [that] necessary.”

When Mayor Freeland Eddie asked what he thought the remedy would be, Murphy replied, “I don’t think that this is something that we can fine our way out of,” even when builders evidence “flagrant disregard for public safety.”
However, he said, he can make a construction company cease work until he has gained its compliance with building regulations. “That’s the best remedy that I’ve found in my career.”

When she asked whether the city can revoke construction permits, Litchet responded, “That would be something that would be unprecedented and that we haven’t done.”

We welcome comments from our subscribers