Attorney for Saba Sands II continues to make point that County Commission denial of the request for a variance would constitute a ‘taking’
Almost exactly 10 months after he submitted the original application to Sarasota County’s Environmental Permitting Division, the attorney for a Siesta Key property owner has provided new material maintaining his assertion that construction of a three-story house should be allowed fully seaward of the county’s Gulf Beach Setback Line.
The application also seeks to use Beach Access 10 as the means of reaching the house. That access is the extension of Calle de Invierno west of Beach Road, the attorney, Robert Lincoln of Sarasota pointed out. It was platted in 1926, and the county never has vacated the portion used for Beach Access 10, he told The Sarasota News Leader in a March 12 telephone interview.
The delay between the original submission of the application in May 2017 and his providing responses to county staff comments — which he filed on March 16 — was rooted in “a lot of confusion,” Lincoln added during the interview.
“We’ve been trying to work with staff,” he said. “It’s a little bit of a chicken and the egg [situation] with them.”
On Feb. 27, Weiqi Lin, a technical specialist in the county’s Environmental Permitting Division, had provided notice to the Saba Sands II project team that the application submitted on May 18, 2017 would be deactivated if county staff received nothing from the team by March 16.
The manager for Saba Sands II is attorney William A. Saba of Sarasota.
The new material is under Environmental Permitting Division staff review to determine whether it is complete, county Media Relations Officer Drew Winchester told the News Leader this week.
Acting as the agent for the limited liability company, Lincoln acknowledged in his March 16 responses that the land west of the house at 654 Beach Road was purchased in 2012, “about 33 years after the Coastal Setback Code was adopted in 1979,” as county staff had put it.
That code, staff noted, restricts and limits development seaward of the county’s Gulf Beach Setback Line (GBSL). County staff also had pointed out that, in 1999, the County Commission denied a request of the previous owner of the property for a Coastal Setback Variance for construction of a house.
“Furthermore,” staff continued, “[Saba Sands II] should be aware that the [commission] has denied all variance requests for any new residential structures westward of Tenacity Lane in that neighborhood since 1979. Please explain what has changed on the property since the 1999 denial that demonstrates why strict enforcement of the provisions of the Coastal Setback Code would impose an unreasonable or unjust hardship on the land,” staff wrote, with emphasis in the document.
“[T]he Coastal Setback Code does not prohibit a landowner from obtaining a variance [for construction] simply because the property is purchased after the Code was adopted,” Lincoln responded. Citing a 1980 3rd District Court of Appeal decision in Florida, Lincoln made it clear that the “[m]ere purchase of a property subject to a regulation related to standards such as setbacks does not convert a hardship imposed by the regulation into one that is ‘self-created.’”
Additionally, Lincoln pointed out, “A prior denial of a variance does not establish that a later denial is not an undue hardship on the land. The County has never previously asserted that the denial of a variance disqualifies a property owner from making a later application for a variance. If that were the case, the first denial would eliminate all economic use of the property and constitute a taking.” Lincoln cited a 1992 judicial ruling to support that view.
Lincoln was referring to the state’s Bert J. Harris Jr. Private Property Rights Protection Act, which says, “When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner of that real property is entitled to relief, which may include compensation for the actual loss to the fair market value of the real property caused by the action of government ….”
Lincoln further pointed out that the County Commission granted four variances for construction of single-family homes on lots seaward of Tenacity Lane between 1988 and 1995. All of them, he added, had the same amount of habitable space as that planned for the Saba Sands II structure. “In those cases,” he wrote, “as with [the Saba Sands II property], denial of the variance would have precluded all reasonable or economic use of the property and constituted a taking.”
The total living area of the Saba Sands II house would be 3,496 square feet; a deck would encompass 277 square feet; and a 20-foot-wide paver driveway, privacy fence and related landscaping “would preempt approximately 4,300 [square feet] of viable dune areas and would have significant, permanent, adverse impacts on vegetation, sand dunes and other beach stabilizing features, and on the coastal system,” county staff wrote.
The County Commission previously has denied some requests for variances for construction seaward of the GBSL in regard to property west of Tenacity Lane, north of the Siesta Public Beach and south of Plaza de Las Palmas, Lincoln continued. “However, to avoid a taking of the lots west of Tenacity Lane, the [commission] then approved GBSL variances for larger structures and/or greater density to lots fronting Beach Road, in exchange for imposing conservation easements on the lands west of Tenacity Lane. Thus, the policy and practice of the County has been to allow property owners who own or control adjacent property on Beach Road and west of Tenacity Lane to obtain reasonable use of the Tenacity Lane lot by transferring some or all of [their] rights to the Beach Road lot.”
In the Saba Sands II case, Lincoln noted, such a transfer is not possible, because the property is not under common ownership with lands to the east that front Beach Road, nor has it been for at least 50 years.
With one exception, the Saba Sands II land, he continued, “is the only property lying west of Tenacity Lane,” from the public beach north to Big Sarasota Pass, that is not owned directly or in common with lands east of Tenacity Lane with Beach Road frontage; subject to a conservation easement imposed as a result of a prior GBSL variance; or previously developed, with or without a variance, he added. The exception is a parcel west of Tenacity Lane, he wrote; it was transferred to the Conservation Foundation of the Gulf Coast “in support of a variance application for a parcel immediately to the east.”
Lincoln also pointed to a number of changed circumstances since 1998, when the prior request for a variance on the Saba Sands II property was denied:
- The shoreline has continued to accrete.
- “Exotic vegetation has further degraded the proposed affected area.”
- Saba Sands II obtained a title judgment establishing ownership to the Mean High Water Line, increasing the size of the property from 9,800 square feet to 39,370 square feet.
(Sarasota County Property Appraiser Office records show the land area considered for taxable purposes in 2017 was 13,082 square feet. The market value it assigned to the land was $156,000. Saba Sands II paid $175,000 for the property in November 2012.)
- This project has a smaller footprint than the one that the County Commission denied in 1999. The earlier application, Lincoln noted, called for a footprint of 2,368 square feet, compared to 1,590 for the Saba Sands II project.
Continuing opposition to the project
Twice in the past six months, Victoria Ochoa, a yoga instructor who also manages property on Siesta Key, has urged Siesta Key Association (SKA) members to fight the proposal for the Saba Sands II project. She is among creators of a Facebook page, Save Siesta Key Beach Access 10, designed for that purpose, she announced last fall.
One major reason Siesta Key’s beach is so beautiful, she told SKA members on Oct. 5, 2017, is because of all its marshes. Those areas also are a primary habitat for wildlife, she pointed out.
Any owner of property on the island will see the value of that land decline if Saba Sands II is successful in winning County Commission approval of the variance, Ochoa said. Such board action would open the door to even more construction along the Gulf of Mexico, she added. More buildings, she noted, translate into less beach.
Original opposition to the plans began last June, led primarily by Sherrill Mills, who has lived for more than 40 years at 560 Beach Road. She owns the parcel seaward of her house, which is adjacent to the site where Saba Sands II proposes the new structure.
In a document she distributed last June, Mills wrote, “IF SABA SANDS IS GRANTED THESE VARIANCES THE PRECEDENT ESTABLISHED BY THAT ACTION WILL OPEN WIDE AN ENTIRELY NEW ROW OF DEVELOPMENT ON SIESTA BEACH SEAWARD OF THE GULF BEACH SETBACK LINE AND SEAWARD OF ALL EXISTING BUILDINGS!!!”
The environment and street access
As for the county staff concerns about the impact on the existing ecosystem, Lincoln pointed to an environmental report prepared by the Steinbaum and Associates ecological consulting firm in Sarasota, which was submitted with the original application in May 2017. “[T]he area impacted by the project has already been heavily impacted by invasive and exotic species,” he wrote. Because mitigation is planned as part of the project, he continued, the house and associated structures “would not have significant, permanent adverse impacts to vegetation.”
He added, “As established by the survey and site plan,” the house would be more than 400 feet from the existing shoreline and the beach has accreted over the past 50 years. Those facts, along with the proposed construction techniques, he added, are the primary reasons the project would have no “significant, permanent adverse impacts to sand dunes, other beach stabilizing features, or the coastal system.”
As for the proposed 20-foot-wide paver driveway: County staff pointed out that Beach Access 10 is closed to vehicular traffic “and provides a pedestrian footpath through native dune vegetation to the open beach. Public interests would likely be affected” if Beach Access 10 were utilized “for private property access,” staff wrote.
In his formal response to the staff questions, Lincoln noted that the revised engineering drawings also submitted on March 16 “include those areas of Calle Del Invierno and Tenacity Lane that are necessary to provide access to the Subject Property. … The Owner has an absolute right to use Tenacity Lane and Calle Del Invierno for access to the Subject Property. The County has an obligation to maintain those streets in an open condition to permit access to the Subject Property. Any act of the County to deny the Owner the right to use them for access constitutes a taking of the Subject Property.”