Hearing tentatively set for July 15 in downtown Sarasota
Siesta Key property owner Michael Holderness has petitioned Sarasota County for relief under the Florida Land Use and Environmental Dispute Resolution Action (FLUEDRA), as a result of the County Commission’s Jan. 13 unanimous denial of the variance he needed to construct a house seaward of North Beach Road.
In his March 26 petition, Holderness argues that the denial of the variance essentially is a “total taking,” meaning the county will allow him “no other reasonable and permissible” uses of the affected property. The petition adds, “The dialogue during the [Jan. 13 public] hearing … supports the conclusion that the County does not intend to grant any development order regardless of the proposed use of the Property by the Property Owner.”
Moreover, the petition claims that the denial was “arbitrary and capricious because it is retaliatory” and based on Holderness’ “exercise of his constitutional rights in opposition to the County’s engaging in unlawful actions, including, but not limited to, inviting the general public to trespass upon the Property by posting signs stating ‘Public Beach Access’ immediately adjacent to the Property.”
A July 15 Special Magistrate hearing tentatively has been scheduled for Holderness’ representative and the Office of the County Attorney to present their sides of the issue, The Sarasota News Leader has learned. That event has been set to begin at 9 a.m. in the Commission Chambers at the County Administration Center, which is located at 1660 Ringling Blvd. in downtown Sarasota.
However, Assistant County David Pearce, who is representing the county, told the News Leader in a July 7 email that it is possible the hearing could be postponed.
The original hearing date in the case was June 18, Pearce noted. However, at the beginning of the testimony, Sarasota paralegal Michael Barfield of Denovo Law Services LLC, who is representing Holderness, began talking about information that had not been provided to the county. Barfield since has done so, Pearce added in his July 7 email. Yet, because of the county’s preparations for Tropical Storm Elsa, Pearce wrote, he requested that the Special Magistrate handling the case grant him additional time for a response. Special Magistrate Kenneth A. Tinkler of Tampa did so, Pearce pointed out. Although Pearce added that he had filed his answer, Barfield was debating whether to ask for additional time before a hearing is conducted.
In the March 26 FLUEDRA petition, Barfield points out that the pile-supported, two-story-over-parking, single-family residence Holderness sought to build on property identified as Lot 14, Block 7 of the Mira Mar Beach Subdivision on Siesta Key would be a maximum of 189.61 feet seaward of the Gulf Beach Setback Line (GBSL) and a minimum of 295.86 feet landward of the current Mean High Water Line (MHWL).
The property, which contains 9,316 square feet, is zoned Residential Multi-Family-1, which allows six dwelling units per acre, the petition notes.
Following the Jan. 13 public hearing on Holderness’ petition for a Coastal Setback Variance, the county commissioners cited the dynamic shoreline and the impact the construction would have on the dune system as their reasons for their decision to deny the request. A Jan. 13 county staff memo pointed out that the site of the proposed new home is part of a 0.4-mile stretch of beach that the Florida Department of Environmental Protection (FDEP) designated as critically eroded in a July 2020 report. The memo added that that “is the only area with this designation on the north end of Siesta Key.”
Weiqi Lin, a former county Environmental Permitting Division staff member who has his own firm, Port and Coastal Consultants in Sarasota, emphasized to the commissioners — on Holderness’ behalf — that the GBSL had not been updated since it was established in 1979. Further, Lin said, “The beach in this area has been dramatically increased over the past two decades.”
Lin also noted that a building the County Commission approved in 1999, which stands at 104-106 Beach Road, would be 5 feet further seaward than the house Holderness proposed.
Officially, Holderness is pursuing the FLUEDRA action through Siesta Beach Lots LLC, which owns the property where the house would be constructed.
The March 26 petition cited several factors in support of Holderness’ Coastal Setback Variance petition.
Among them, it notes that the MHWL applicable to the parcel accreted 95.4 feet between 1987 and 2001 and then 151.41 feet between 2001 and 2015. Further, it says that a September 2020 survey of the MHWL, approved by the Florida Department of Environmental Protection (FDEP), “demonstrated that the beach condition at the subject property is [a minimum] of 260 ft. landward of the current MHWL” and that that line “moved significantly (105 ft.) more seaward compared with the existing survey conducted on Oct. 25, 2019.”
Additionally, the petition says the house would have been “entirely landward of the existing line of construction” on that part of the barrier island.
The petition contends that the application of the GBSL “is unlawful because coastal setback lines have been preempted by the Florida Legislature … which requires a coastal county to obtain state approval before enacting or applying coastal construction zones and building codes in lieu of the statutory criteria.” The County never obtained such approval, the petition points out.
The county’s arguments
In an April 12 response to the FLUEDRA petition, Assistant County Attorney Pearce included a series of aerial photos of the area of the Siesta Key shoreline that encompasses Holderness’ land. Those photos demonstrate, he noted, that “the beach behind this property has gone through periods of accretion and erosion over time. There are multiple instances where the water line has bisected the lot, including as late as 2013,” Pearce wrote. “Thus, this beach is not stable.”
The first aerial photo was taken in 1948. The others were from 1974, 1986, 2001 and then 2006 through 2020.
Further, Pearce pointed out that, in previous correspondence with county leaders, Holderness “indicated his concerns” about the potential effects on Siesta’s beaches of the dredging last year of Big Sarasota Pass to renourish about 1.56 miles of Lido Key Beach.
Pearce also noted that portions of North Beach Road “washed out in 1982 and 1986. In 1993,” he continued, “the County closed a segment of Beach Road due to additional coastal erosion.”
Additionally, Pearce pointed to other potential uses of the property, as allowed by its zoning within the Siesta Key Overlay District regulations. One example, he wrote, would be a commercial parking lot, which could be permitted under a Special Exception. “Another example would be temporary use for community or neighborhood events.”
He did note that Holderness had offered the county a mitigation plan entailing 1,491 square feet of replanted dune habitat and 1,961 square feet of new dune plantings. However, Pearce added, “[T]he mitigation would not equal the expected impacts of 4,000 square feet [of construction].”
Pearce further pointed out that the county’s Coastal Setback Code, which includes the GBSL, was in place before Holderness bought the property from Christy Ramsey — for $3 million, county property records show — in August 2016. Pearce also noted that Holderness “could have minimized the footprint of the residential structure and left off the accessory uses” in the Coastal Setback Variance application he filed with the county. Along with the house, the plans called for a pool, a pool deck, a walkway, a driveway and a landscape retaining wall, Pearce wrote.
Moreover, he continued, the County Commission found that the plans were not consistent with portions of the county’s Comprehensive Plan that call for preservation of dune systems and their native habitats. “The burden of the regulations related to impacts may be felt more strenuously on the subject property than on others,” Pearce continued, “and that burden is hardly unfair because the property is within a dynamic beach and dune system and subject to periodic flooding. A reasonable person would expect that the location and natural conditions associated with the property would limit its potential use.”
Pearce also disputed Holderness’ allegation that the Florida Statutes pre-empt coastal setback regulations; Pearce cited a 2003 ruling of Florida’s Fourth District Court of Appeal regarding Chapter 161.053(4)(b) of the Florida Statutes.
Further, in regard to the allegation that the County Commission denied Holderness’ petition for the variance because of Holderness’ exercising his constitutional rights, Pearce wrote, “There is no record evidence that the Board did anything other than apply the coastal setback code criteria.”
A second round of filings
On May 3, as part of the FLUEDRA guidelines calling for mediation efforts before any hearing is conducted, Holderness’ representative, paralegal Barfield, offered alternatives to the county. Among them, Barfield indicated Holderness’ willingness to sell the county the property “for fair market value.” In fact, he noted that Holderness also would be willing to sell the county Lots 15, 16 and 17 of the Mira Mar Beach Subdivision for fair market value.
Another option called for the county to allow Holderness to transfer the residential density rights “to noncontiguous properties on Siesta Key.”
Yet one more option Barfield listed was for the county to grant a variance “for other allowed uses for Lot 14.”
In a June 8 response, Assistant County Attorney Pearce pointed out that Holderness “has not articulated a specific alternative use for Lot 14. It has submitted no additional plans for the County to consider. … The County does not design specific alternative uses for applicants. Rather, it evaluates plans submitted by applicants.”
Moreover, Pearce noted, on March 1, Holderness executed an access agreement across both Lot 14 and Lot 15 in Block 7 of the Mira Mar Beach Subdivision. That easement, he continued, “benefits the residence at 99 Beach Road. “Siesta Beach Lots, LLC did not disclose this access easement in its [FLUEDRA] petition,” Pearce added. Yet, he continued, the language in the easement describes its location as being “over and across” the sand pathway on Lot 14 and “the southern [10] feet of Lot 15.” Pearce noted that “the sand pathway on Lot 14 runs diagonally across its length. Given this fact, how does Siesta Beach Lots, LLC expect to obtain a coastal setback variance for Lot 14 that would not be contrary to the language of the access easement?”
Pearce added, “Curiously, the termination clause of the access easement indicates that termination could only occur if Sarasota County agreed to purchase the property.”
The Sarasota County Property Appraiser’s Office records show that Holderness sold the property at 99 Beach Road to 99 Beach LLC for $3.5 million on March 1. Florida Division of Corporations records say that that the managers of 99 Beach LLC are Anthony Martin and Marijo C. Martin, whose address is 5391 Lakewood Ranch Blvd., Suite 100, in Sarasota. The limited liability company was registered with the state on Feb. 23, the records add.
Further, Pearce wrote in his response to Barfield, “Assuming Sarasota County would be interested in purchasing Lot 14 or the other lots,” Holderness had not indicated a price at which he would sell them, and he had not provided any recent appraisals of the property. The Florida Statutes requires a valid appraisal, Pearce pointed out.
Additionally, if a transfer of density rights “could be lawfully accomplished,” Pearce continued, Holderness has not indicated a location for that purpose.