After declining a second chance to move proposed new construction further landward, Casey Key Road property owners fail to win county Coastal Setback Variance

Commissioners voice aversion to destruction of native dune habitat

A county slide shows the house built in 1950 at 3761 Casey Key Road in Nokomis. Image courtesy Sarasota County

In January, Sarasota County Environmental Permitting staff gave owners of the property at 3761 Casey Key Road in Nokomis an opportunity to modify plans for construction of a new house and pool. That was because the design would destroy a minimum of 651 square feet of native dune habitat, county staff explained to the County Commission on Sept. 24.

Additionally, the plan would put the new construction a maximum of 92.25 feet west of the county’s Gulf Beach Setback Line (GBSL). The latter is the figurative “line in the sand” established to preserve dune vegetation and, as a result, provide better protection to structures landward of the line when storm surge events occur.

The county’s environmental policies stress that “beach habitat shall be preserved,” Howard Berna, manager of the county’s Environmental Permitting Division, pointed out to the County Commission on Sept. 24.

That day, the commissioners gave the attorney and consultant working for the owners of the 3761 Casey Key Road parcel another opportunity to revise the plans.

“I’m concerned about the beach vegetation,” Commissioner Alan Maio announced after the staff presentation on the request for a Coastal Setback Variance (CSV) for the project. “If I was the petitioner or his representatives, I would ask for a continuance.”

If they were willing to adjust the design to move the new construction further landward, Maio added, the petition for the CSV would “have a better chance at approval,” from his perspective.

“They’re basically rebuilding anyway,” Commissioner Nancy Detert pointed out, referring to the on-grade structure that has been on the property since 1950.

It was Detert who had asked Berna whether the owners of the property could adjust their plans to shift the new house and pool closer to Casey Key Road.

A graphic shows the location of the 3761 Casey Key Road property. Image courtesy Sarasota County

During staff’s first review of the proposal, Berna replied, he made such a suggestion. The owners could ask for variances regarding the county’s requirement for a 25-foot setback from Casey Key Road and for a reduction in the setback for the side yard, he added. Yet, they did not change their plans before staff’s second review of their CSV application, Berna noted.

Another issue Berna pointed out on Sept. 24 is the fact that the representatives of the petitioners have maintained that the two-story pool pavilion would be about 77.5 feet from the Mean High Water Line (MHWL). When staff members visited the site, Berna said, “We measured the [distance of the] wet sandy beach from the bottom of the steps [of a dune walkover structure on the parcel] …” They found the wrack line to be only 21 feet away from those steps. Thus, Berna continued, staff estimated that the MHWL actually is only 40 to 45 feet from the westernmost point of the proposed new construction.

Additionally, Berna pointed out that a number of turtle nests have been documented in the dune area that would be eliminated by the new house and pool. Having dealt with nesting sea turtles on the county shoreline over the past 19 years, Berna added, he could assert that it is “quite likely” that turtles “would make use of that dune area.”

The second chance at a redesign

“I normally wouldn’t do this,” Chair Charles Hines announced after Berna’s presentation, but “I think it’s worthwhile to maybe give some hints.”

With Maio and Detert clearly leaning against approving the variance, Hines made it clear that he would cast the third vote necessary to deny the CSV petition.

No one had signed up to address the board on the issue except the representatives of the property owners, Hines added. (Berna had noted that the petitioners were unable to be present for the public hearing.)

While petitions for Coastal Setback Variances always are difficult because of property rights issues, Hines pointed out, in the case of the proposal for 3761 Casey Key Road, “This is almost an entire pool, a significantpart of the deck and some living space” that would extend seaward of the GBSL, “plus the destruction of a significantamount of native habitat.”

This slide shows the dune habitat that would be affected by the new construction. Image courtesy Sarasota County

Hines added, “There’s room on this property” to redesign the project with a “nice home” and allow the owners reasonable use of the land.

In response to a question from Commissioner Maio, County Attorney Frederick “Rick” Elbrecht explained that the board members themselves could not ask for a continuance. They would need to vote to grant the variance, or not, depending upon the presentation made on behalf of the petitioner, Elbrecht added.

“That’s what I presumed,” Maio responded.

With no comment on the commissioners’ remarks from Weiqi Lin of Port and Coastal Consultants of Sarasota, who was representing the owners, the hearing continued.

A graphic uses yellow areas to show the sites of sea turtle nests on Aug. 1 on the property at 3761 Casey Key Road. Image courtesy Sarasota County

At the end of Lin’s presentation, Maio made the motion to deny the request for the variance; Detert seconded it; and it passed unanimously.

Before the vote, however, Lin argued that he should be given an extra 5 minutes for rebuttal.

“What are you going to rebut?” Hines asked him.

He had planned to address some of the commissioners’ concerns during that rebuttal, Lin replied, and offer another proffer from the property owners.

“We’re voting on what’s submitted,” Hines told him, suggesting that Lin had missed an opportunity to offer those other details when Lin made his 20-minute presentation.

After Lin protested again, Elbrecht concurred with Hines’ earlier assertion: “There would be nothing to rebut at this time,” Elbrecht pointed out.

“There is no other evidence or testimony,” Hines said.

The commission did have the discretion to reopen the public hearing, Elbrecht noted.

After Hines made no move to take that step, Maio said, “I think, in this instance, several of us have said that there was an opportunity to make it a reasonable use of the property,” referring to a revision of the construction plans.

Then, when Lin and an attorney for the property owners remained at the podium, Maio requested that Hines “ask these gentlemen to sit down,” adding that, apparently, they were not familiar with how the commission conducts public hearings.

(Lin was a member of the Environmental Permitting Division for many years.)

Finally, Maio pointed out, “We got out in front of this, expressing our concerns. They should have been addressed … and they weren’t.”

He added that county regulations would allow the property owners to submit another CSV petition within the coming months; they would not have to wait a full year, as county regulations require with other types of applications.

A graphic shows the existing conditions at 3761 Casey Key Road. Image courtesy Sarasota County
A graphic shows how the proposed new construction would destroy dune habitat. The bright green areas are the proposed mitigation sites. Image courtesy Sarasota County

However, Maio cautioned that a new petition is allowed to go forward only if it has substantial changes from the original petition for a Coastal Setback Variance. “We have given them some thoughts on how to change this,” he added.

Detert also pointed out that the letters of support for the project that had been provided to the board “are all form letters … so they’re pretty meaningless.”

“If we grant this [variance],” she continued, “we’re setting a bad precedent … 92 feet past the [GBSL].” Such a vote might encourage other residents in the immediate area to begin requesting variances, she added, so they could pursue new construction closer to the beach.

“I think we’ve given them every chance to do the right thing,” Detert said of the petitioners. “Pretty much you bought a little cottage … probably an original cabana, and you’re going to make huge improvements. … [The design] invades native dune habitat, which has been pointed out to [the petitioners.”

Lin countered that one of the petitioners is “a member of the Mote Marine Research Lab. … They love the environment.”

Property ownership

A limited liability company bought the property at 3761 Casey Key Road in 2017. The Sarasota County Property Appraiser’s Office records show that LAK 3761 LLC paid $361,200 for the parcel in October of that year.

In March 2016, the D. Kevin Kodrick Revocable Trust paid $1,750,000 for the property.

The deed for the 2017 transaction also names Lynn A. Kodrick individually and as “Trustee of the Lynn A. Kodrick Revocable Trust.” It further names D. Kevin Kodrick as an individual.

According to records maintained by the Florida Division of Corporations, LAK 3761 was established in September 2017. The manager of LAK 3761 is Lynn A. Kodrick of 3761 Casey Key Road, the Division of Corporations records note.

The total taxable value of the property this year is $1,400,900, the Property Appraiser’s Office records say.

Other facets of the presentations

This graphic shows other facets of the plans. The red line represents the Gulf Beach Setback Line. Image courtesy Sarasota County

During their presentations, Lin, the consultant, and Berna of the county staff explained that the owners of the 3761 Casey Key Road parcel in Nokomis had proposed construction of new dune vegetation areas encompassing 708 square feet. That would serve as mitigation for the destroyed 651 square feet of habitat, they said.

Lin stressed that new plantings would encompass more square footage than would be lost. However, Berna pointed out that the mitigation areas would be perpendicular to the beach. New vegetation “provides limited values to the dune system as it goes further away from the beach,” he explained.

This is a 1986 aerial of the property. Image courtesy Sarasota County
This is a 2010 aerial of the property. Image courtesy Sarasota County
This is a 2018 aerial of the site. Image courtesy Sarasota County

One area of new plantings was planned on the south side of the property, encompassing 220 square feet, Berna noted. The other, comprising about 488 square feet, was proposed on the north side of the parcel.

Additionally, Berna explained that the elevation of the first floor of the proposed new home would stand about 19.3 feet above the ground, in compliance with the latest standard set by the Federal Emergency Management Agency (FEMA). The elevation of the pool and the first floor slab would be about 8.4 to 8.9 feet above ground level, he said.

However, data show that a 15-year storm event — with waves cresting above the surge from the Gulf of Mexico — would be in excess of 11 feet. Thus, Berna noted, the pool “would be at risk during a 15-year storm event.”

Further, Berna showed the commissioners a series of slides depicting changes in the shoreline in front of the property over the past decades. In 1986, he added, “The water line is touching this parcel boundary.”

By 2007, he continued, “The beach has demonstrated some level of accretion,” but part of that shoreline width was lost by 2010.

In 2018, Berna said, “The active surf zone … is further landward.”