Siesta resident Mike Cosentino threatens another lawsuit over approval of Coastal Setback Variance
Sarasota County Commissioner Nancy Detert acknowledged on March 11 that she had been prepared to vote “No” on another petition involving construction seaward of the county’s Gulf Beach Setback Line.
However, after listening to the presentation of William Merrill III of the Icard Merrill law firm in Sarasota, she said, she had changed her mind. She noted Merrill’s comments about the fact that each of the two new proposed homes would have a smaller footprint at the ground level than the existing structure located at 65 Beach Road on Siesta Key.
Merrill and Staci Tippins, an environmental specialist with the county’s Environmental Permitting Division, explained during the March 11 public hearing that the plans call for demolishing a 2,568-square-foot, slab-on-grade house built in 1971. The parcel then would be subdivided into the two original plats it encompasses in the Mira Mar Beach Subdivision. Afterward, two modern, two-story structures built over parking areas would total 5,260 square feet, Merrill and Tippins told the board.
A staff report provided to the board in advance of the meeting said the first habitable floor would have an elevation of 19.7 NAVD. The latter acronym is a standard used in flood plain areas in regard to elevation.
Merrill testified that the houses’ footprints would be 1,690 square feet and 1,732 square feet, respectively, for a total of 3,422 square feet.
Yet, on the ground level, Merrill pointed out, the house on Lot 19 would have a footprint of only 299 square feet, and the home on Lot 18 would have a ground-level footprint of 291.
The Federal Emergency Management Agency (FEMA) does not allow more than 300 square feet at ground level, for flood control purposes, he explained.
The houses would share an 1,800-square-foot driveway composed of pervious and impervious pavers, Tippins and Merrill added. It would be a maximum of 86.9 feet seaward of the county’s Gulf Beach Setback Line.
As Commissioner Alan Maio noted in making a motion to approve the Coastal Setback Variance (CSV) the petitioner was seeking, the two houses will meet the FEMA guidelines for coastal construction, and they will conform to county building codes.
The slab-on-grade house, Detert agreed, “needs to be done away with.”
Nonetheless, Detert reprised and expanded upon an argument she has made numerous times since she was elected to the commission in November 2016. “I think it would be a nice signature of this board,” she said, “to have literally drawn a line in the sand and stick to it.”
She was referring to the Gulf Beach Setback Line (GBSL), which is the county’s figurative line in the sand designed to protect native coastal vegetation and dunes, which, in turn, protect landward structures from storm surge damage.
Pointing out that she was a Realtor and mortgage broker for 25 years, Detert added that she has been a champion of property rights. Nonetheless, she continued, “I believe you get what you bought. … I think there’s a lot of overreaching going on here.”
Further, she told Merrill, “This is all your fault.”
Her first year on the board, she said, when such a petition was under consideration, she asked him why people would buy property seaward of the GBSL and then “get the nerve” to ask the County Commission for approval to improve the property.
Merrill told her, Detert continued, “‘Ninety-eight percent of the time the board approves [the requests],’ which I found startling and really wrong. … I think [we] should be approving them probably 10% of the time.”
Nonetheless, Detert added, “I don’t want to take it out on this particular project, which is probably better than most that I’ve seen.”
With Commissioner Charles Hines absent from the public hearing, the final vote to approve the Coastal Setback Variance petition was 4-0. Commissioner Christian Ziegler had seconded Maio’s motion.
During the hearing, David Balot, the owner of the home at 65 Beach Road through a limited liability company called 65 Beach Rd., explained that he had not bought the structure with the intent of tearing it down. “I was originally just going to rent the house out.”
However, he continued, he had envisioned his family and the family of his brother using it to spend time on Siesta Key. He and his brother have four children each, he added. He finally realized, Balot said, that “two wives in one house with eight children does not work.”
Balot emphasized, “I’m not a developer. My intent is to actually occupy one house,” while his brother will occupy the other one. That was why they agreed to share a driveway, he noted. The ground floor of each structure will encompass living area, Balot said, while the second floors will have the bedrooms.
Sarasota County Property Appraiser Office records show that 65 Beach Rd. LLC bought the property in April 2018 for $2,650,000. In 2019, the total taxable value of the land and the house on it was $2,334,300, those records also show.
Threat of a new Cosentino lawsuit against the county
One of the two members of the public who addressed the commission during the March 11 public hearing was Siesta resident Michael Cosentino, who has been engaged in litigation against the county since June 2016. He filed a complaint over the board’s 4-1 vote in May 2016 to vacate a 373-foot-long segment of North Beach Road.
“We’re getting ready to move it towards the appellate court,” Cosentino told the commission on March 11.
Then Cosentino threatened to file a new complaint against the board if it approved the CSV petition before it that day. “This meets none of the variance criteria,” he argued of the 65 Beach Road proposal. “This commission does not have the authority to grant this variance.”
Cosentino continued, “I was shocked to not see the county staff bring to your attention” the language in the county’s Future Land Use Policy 1.1.2, which prohibits increased residential density and intensity of construction on the barrier islands.
Although Merrill had testified that the ground levels of the new houses would have combined footprints totaling less square footage than the single existing structure, Cosentino maintained that the houses would not “stay within the existing footprint.”
The county staff report pointed out, “The proposed improvements for both parcels represents a 124% (+3,172) increase in habitable area seaward of the GBSL … representing a substantial intensification of development in the [county’s] Coastal High Hazard Area as defined by the Comprehensive Plan and in conflict with the purposes of the Coastal Setback Code.” The report said the house proposed for Lot 18 would encompass 2,840 square feet of living space, while the structure on Lot 19 would have 2,900 square feet of living space. Both would be located a maximum of 59.67 feet seaward of the GBSL.
The pool, spa and deck on Lot 18 would comprise 2,420 square feet of impervious area, the staff report continued, while the same structures on Lot 19 would take up 2,467 square feet of impervious area.
The petition, Cosentino added, involves “a voluntary demolition that has nothing at all to do” with the County Code requirement for minimum reasonable use of private property.
During his rebuttal, Merrill countered Cosentino’s argument.
Noting his and Environmental Specialist Tippins’ testimony, Merrill stressed that the parcel where the residence stands at 65 Beach Road will be divided into the two original plats.
Balot was not proposing three houses, Merrill pointed out. “We do meet that exact requirement” of the county Future Land Use policy that Cosentino had cited.
Future Land Use Policy 1.2.3, which pertains to residential development in the “adopted Coastal High Hazard Area” does not restrict “the rebuilding of a single family residence on an existing lot-of-record, provided that such property meets all requirements pertaining to construction in the Coastal High Hazard Area.” That area includes the barrier islands.
Merrill earlier had explained that his client, Balot, has “no usable area landward of the GBSL” in which to construct the new residences. Because of the yard setback requirement in county building regulations, Merrill noted, probably only about 10 feet is available for development on the landward side of the property. He described that section of the parcel as a “very, very, very small sliver.”
“You might be able to put a fence, and that’s probably about it,” Merrill added.
After Cosentino concluded his remarks, Chair Michael Moran asked County Attorney Frederick “Rick” Elbrecht whether the board had the authority to make a decision on the CSV petition that day.
Elbrecht confirmed that it did.
One other speaker — Ann Vozzolo, who lives on Avenida del Norte on Siesta Key — told the commissioners she is concerned “overall … about the intensification of development in that area” of the island. “Every time we have a storm, the water comes up to the road.”
Additionally, she voiced worries about property owners who construct new homes “and then they don’t want any of the public to be on the beach in front of their homes,” except for the wet sand area the state designates as public beach.
More details of the plans
During her presentation, Environmental Specialist Tippins explained that the existing structure located at 65 Beach Road is 59.9 feet west of the GBSL at its most seaward point. It is on the northern end of Siesta Key, she noted, “in close proximity to the Big Pass …”
About 87% of the property is seaward of the GBSL, she continued.
The Mean High Water Line (MHWL) is 232.67 feet seaward of the existing house, she added.
After division of the property into the two original plats, she continued, the new homes proposed “are essentially mirrors of each other.”
Showing the board a series of aerial views of the property, Tippins noted that no structures were evident on the beach in 1948. At that time, she added, the beach was about 300 feet wide.
The beach has accreted and eroded over the past decades, she continued. “It’s a very dynamic [coastal] system, and the changes will be pretty regular.”
In 2013, Tippins pointed out, “The water was up to the rock revetment that was protecting Beach Road at the time.”
During his presentation, Merrill explained that, along with the new houses, a breakaway louvered gate will be constructed on the western boundary of the parcels to prevent light from shining onto the beach and potentially disrupting sea turtles during nesting season. County staff had suggested that, he said.
Referring to the rock revetment Tippins had noted, Merrill showed the board a recent aerial photo and said, “It’s all covered now completely,” thanks to the accretion of the beach.
The project entails no direct impacts to the coastal systems, he said. Moreover, he pointed out, Balot had added 1,210 square feet of native landscaping — 610 square feet on one lot and 600 on the other — as “basically mitigation planting.”
Balot’s neighbors support the project, Merrill noted, as evidenced by letters they had provided the board.