Mediation session scheduled for June 17 at County Administration Center in downtown Sarasota
In the latter part of November 2024 — just weeks after Hurricane Milton came ashore at Big Sarasota Pass and inundated Siesta Key — the Sarasota County Commission voted unanimously to deny the application of a property owner who wanted to construct a multi-story home well seaward of Beach Road on that barrier island.
As county staff had pointed out, the site of the proposed new home — southwest of the parcel located 560 Beach Road — is fully seaward of what is known as the county’s “line in the sand” regarding new buildings on the barrier islands: the Gulf Beach Setback Line (GBSL). Established in 1979, the GBSL protects dunes and beach habitat, which, in turn, protect landward structures from storm surge and other flooding events.
The Saba Sands II lot does not have an address; it is described in property records as Lot 13, Block 22 of the Sarasota Beach Subdivision, with zoning of Residential Multi-Family-1, which allows for six units per acre.
Sarasota attorney William Saba bought the property in 2012. The Nov. 19, 2024 hearing focused on his plans for a two-story, two-unit condominium complex over a grade-level garage that would stand 229 feet seaward of the GBSL.
Howard Berna, manager of the county’s Environmental Permitting Division, explained that the proposed construction site “is predominantly 4.5 feet above the Mean High Water Line,” and it is within a Federal Emergency Management Agency (FEMA) velocity zone.
In making the motion to deny the requested variance, Commissioner Mark Smith, a long-time Siesta resident, pointed out that Saba’s plans were not in compliance with policies in the county’s Comprehensive Plan, which guides growth in the community.
(The board’s formal resolution denying the variance, approved on Jan. 15 of this year, cites Environmental Policies 1.1.1 and 1.2.1, as well as the Management Guidelines for Dune Systems.)
Further, Smith emphasized the fact that “One hundred percent of the building” would be constructed on dune habitat, which one county policy prohibits.
“I live in the area,” he added, “and the dune system does work” to protect landward properties during storms, “although when you have a tidal surge like [Hurricane] Helene,” flooding still occurs.
Yet, Saba did not give up on his plans after that hearing, The Sarasota News Leader has learned. On June 17, as part of legal action that he pursued against the county, in accord with state law regarding property rights, a mediation session has been scheduled at the County Administration Center standing at 1660 Ringling Blvd. in downtown Sarasota.
The session will begin at 9:30 a.m. “The hearing will be informal and open to the public,” Deputy County Attorney Pearce explained in a May 8 letter to owners of contiguous property and members of the public who spoke during the November 2024 public hearing.
Attorney Ken Tinkler of Tampa, acting as a Special Magistrate in accord with the applicable state statute, will preside over the session. Sarasota attorney Morgan Bentley, of Bentley Goodrich Kison, will represent Saba Sands II LLC, which was the entity that formally applied for the Coastal Setback Variance that the commissioners denied. Deputy County Attorney Pearce will represent the county, case documents indicate.
‘Without legal basis’
In a Jan. 22 letter to commission Chair Joe Neunder, Bentley wrote that Saba Sands II was applying for relief under Section 70.51 of the Florida Statutes, known as the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA). The County Commission’s denial of the variance request came “without a valid legal basis … and [was] contrary to the essential elements of law,” Bentley asserted.
After voting for the denial, he maintained in the letter, the commissioners instructed County Attorney Joshua Moye “to enumerate some reasons” in support of that decision. Since that took place after the vote, Bentley emphasized, the action “suggests [that the commissioners’ action] “was arbitrary and unsupported.”
He also wrote that witnesses who testified during the hearing in opposition to the project “provided no more than mere unfounded speculation and focused overwhelmingly on issues irrelevant to the Variance …”
In his letter, Bentley also pointed out that the Saba Sands II parcel comprises about “1.13 acres of land abutting Tenacity Lane and Calle del Invierno … Bentley added, “that the property “is not located on state-designated critically eroded beach.”
While he acknowledged that the property is seaward of both the state’s Coastal Construction Control Line (CCCL) and the GBSL, “the County often grants variances allowing construction seaward of the GBSL, as the surrounding properties illustrate. The state already provided a preliminary concurrence to the proposed building placement as consistent with the state CCCL,” Bentley further noted.
Moreover, he continued, on Nov. 19, 2015, “the Property was the subject of a Final Judgment Confirming Ownership of Accreted Lands in favor of Saba Sands. … As a result, Saba Sands owns the platted lot and associated accreted lands to the mean high-water line of the Gulf of Mexico.”
Then Bentley pointed out, “To make reasonable use of its Property, Saba Sands requested the Variance. The proposed construction is over 733 feet from the MHWL [Mean High Water Line], which would be one of the furthest setbacks in any of the variances the County has previously approved. In part, this is because the section of the beach where the Property is accreting and not eroding, as has been the case for over 75 years.”
Bentley also noted that the average size of nearby parcels is 0.37 acres; the Saba Sands lot is almost three times larger than that.
Moreover, he wrote, “The area is heavily infested with invasive and nuisance plants, including Australian Pines, which pose a threat to the coastline and ecosystem.”
He also explained, “The platted lot by itself without the accreted lands is a conforming lot of record that meets all zoning standards for lot area, width, and depth,” and Saba had no plans to use any of the accreted area for the development.
He further noted that, to access the site, Saba had proposed “improvements of approximately 4,000 square feet of driveway on Calle del Invierno, a dedicated and accepted public right-of-way, and the Tenacity Lane right-of-way.”
Yet, as county staff pointed out in its report for the Nov. 19, 2024 hearing, part of that access to the proposed home would involve the county’s Beach Access 10, which is how Calle del Invierno is designated west of Beach Road — a fact that speakers opposed to the project stressed in their remarks to the board.
Bentley added that Saba had proposed a mitigation plan, as well, to remove the exotic vegetation in a 3,043-square-foot area, with subsequent mitigation involving 3,452 square feet. “The mitigation plan provides in perpetuity for the removal of exotics and replanting of native plants to stabilize beach areas through the creation of a conservation easement over all accretions,” Bentley pointed out. “The conservation easement would protect the dune habitat area in perpetuity, representing .9 acres of new conservation area,” he wrote.
‘Reasonable expectations’
In 40-page response to Bentley’s Request for Relief for Saba Sands II, dated March 7, Deputy County Attorney Pearce cited some of the same county Comprehensive Plan policies that the commissioners pointed to in denying the variance last year.
For example, Pearce wrote, Environmental Policy 1.1.1 calls for all development proposals to be reviewed “ ‘for consistency with the “Principles for Evaluating Development Proposals in Native Habitats.” ’ ”
Those principles, he pointed out, “ ‘allow for de minimis impacts to native habitat …’ ”
That policy also calls for dune systems and native vegetation to be preserved, Pearce continued. Yet, Saba Sands’ construction, as planned, “would impact approximately 5,300 square feet of dune habitat” for the condominium structure and another 4,000 square feet of dune habitat in regard to the driveway to the home via Beach Access 10.
Pearce did note Saba Sands’ proposal for removal of invasive species and supplemental plantings of dune vegetation, along with the plans for the conservation easement.
Yet, Pearce explained, although the variance criteria in the county’s Coastal Setback Code “have been amended several times … the general prohibition against construction or excavation seaward of the GBSL remains unchanged.”
He also wrote that the Coastal Setback Code and applicable Comprehensive Plan provisions “were in place before Saba Sands acquired the property. The pre-existing regulations, by themselves, do not eliminate any reasonable expectations of the owners” — a reference to state law — “but they certainly impact the evaluation of those reasonable expectations.”
As noted in the county staff report for the Nov. 9, 2024 hearing, Pearce also pointed to the fact that the site has low elevation and is within the FEMA velocity flood zone. “[A]s seen in the pictures [provided],” he continued, the site “is subject to storm surge inundation and coastal flooding during storm events, as observed following Hurricanes Debby, Helene, and Milton. … There are no guarantees that any structure built on the property will not have future interactions with Gulf waters.”
Later in his response, Pearce noted that, the Residential Multi-Family-1 zoning of the site under the governance of the Siesta Key Overlay District (SKOD) would make it possible for the land to be used for purposes other than the condominium complex. For one example, he wrote, a commercial parking lot could stand there, if the County Commission granted a Special Exception for that. “Another example,” Pearce pointed out, “would be temporary use for community or neighborhood events.”
Ultimately, Pearce explained, the commissioners applied the criteria in the county’s Code of Ordinances for granting Coastal Setback Variances “and determined that the [Saba Sands] petition did not meet them. … More specifically,” he continued, “the Board found that the requested … residence, and accessory structures, including a pool, pool deck, walkway, driveway, and landscape retaining wall, are not the minimum variance necessary to permit reasonable use of the property,” again, referencing language in state law.
“Saba Sands could have minimized the footprint of the residential structure and left off the accessory uses from its application,” Pearce added.