Affidavits of Violation issued by county staff in response to owners’ failure to remove fencing on private beach property on Siesta Key

Next step in process would be Code Enforcement Special Magistrate hearing, during which fines could be imposed, but COVID-19 crisis has put such proceedings on hold

Fencing extends along Siesta Beach Lots’ property line seaward of North Beach Road and perpendicular to the shoreline. Rachel Hackney photo

On April 7, Sarasota County staff formally issued Affidavits of Violation to two limited liability companies whose principals have erected fencing on private property on Siesta Beach, The Sarasota News Leader has learned.

Both affidavits point out that on March 24, county staff documented that chain link fences had been installed in violation of Chapter 124, Article 7, Section 124-102, of the Sarasota County Code, which encompasses the Siesta Key Overlay District (SKOD) zoning regulations.

Section 124-102(4)(c) says, “All uses and structures must comply with all other application regulations including, but not limited to, the Coastal Setback Code Chapter 54, Article XXII of the County Code.”

The affidavits note, “Section 124-102(4)o.1.iv states, “Chain link fencing is prohibited in the required minimum street yard.”

Additionally, Section 54-723 of the Coastal Setback Code, which pertains to the county’s Gulf Beach Setback Line (GBSL) and the Barrier Island Pass Twenty-Year Hazard Line (PHL) requirements, prohibits construction or excavation seaward of the GBSL and waterward of the PHL, except under specific circumstances.

Each affidavit includes language from that part of the code, which explains, “Construction means the placing, building, erection, extension, or material alteration of any structure the use of which requires a permanent or temporary location on the ground or attachment to a structure having a permanent or temporary location on the ground. ‘Construction’ shall include, but is not limited to, the installation of parking lots, driveways, tennis courts, swimming pools, patios, or any similar hard surfaced structures.”

Mike Holderness (far right) works with an assistant on the fencing that extends along the Siesta Gulf View property line, seaward of North Beach Road. Rachel Hackney photo

The affidavits proceed to point out that the Siesta Beach Lots LLC chain link fence “had been installed at or near the southern boundary” of that company’s properties. The fence was under construction perpendicular to the shore “and appears to be near the unimproved Columbus [Boulevard] Right-of-Way and an unimproved shore-parallel Right-of-Way seaward of Beach Road. The seaward end of the fence,” that affidavit says, “was in close proximity to the waterline along the shore of the Gulf of Mexico. No authorizations were found in county records for this construction and a Stop Work Order was posted.”

The affidavit adds that, on March 25, a Notice of Violation was prepared, giving Siesta Beach Lots an April 3 deadline for removal of the fencing. However, on April 6, the affidavit says, county staff observed that the fencing remained on the beach.

In regard to the Siesta Gulf View LLC fencing: That affidavit notes that it was constructed near the northern boundary of that company’s property. As with the Siesta Beach Lots fence, the affidavit continues, a Notice of Violation was prepared on March 25, with an April 3 deadline for compliance. Likewise, on April 6, county staff found the fence remained in place.

A sign attached to a section of fencing near 99 Beach Road refers to Gov. Ron DeSantis’ Executive Order that went into effect on April 3, which advised people to be ‘safer-at-home.’ Rachel Hackney photo

Each affidavit says that if the Code Enforcement Special Magistrate “finds that one or more violations of the Sarasota County Code exist … staff recommends the following corrective action: Remove the entire chain link fence immediately. All fence posts and materials shall be removed from the beach to a location landward of the Gulf Beach Setback Line.”

The GBSL is the figurative “line in the sand” designed to protect dunes and beach vegetation which, in turn, protect properties landward of the GBSL in times of storm surge and other types of flooding. For any construction to take place legally seaward of the GBSL, a property owner has to obtain a Coastal Setback Variance from the county.

Both affidavits were signed by Howard J. Berna, the environmental supervisor and Code Enforcement official of the county’s Environmental Protection Division.

The affidavit issued to Siesta Beach Lots includes a form signed by Chance Steed, a county Code Enforcement officer, who attested to the fact that the county attempted to serve the company with the Notice of Violation on March 26 but was unable to do so. Therefore, Steed also attested to the fact that he posted the Notice of Violation on both the Siesta Beach Lots parcels where the fencing stands. Additionally, he stated that the county sent the notices to the company by first class mail on March 27.

Michael Holderness, who both owns and manages property on Siesta Key, is the principal of Siesta Beach Lots. Andy Cooper of Siesta Key is the manager of Siesta Gulf View.

This aerial view shows the property owned by Siesta Gulf View LLC, whose Sarasota County Property Appraiser’s Office record lists ‘in care of Andrew Cooper, 145 Beach Road.’ The parcel is outlined in red. Image from the Sarasota County Property Appraiser’s Office

Holderness has told the News Leader that he erected the fencing as a means of keeping people from violating federal and state advisories for social distancing to prevent the spread of the novel coronavirus COVID-19. Although Sarasota County closed its publicly owned and operated beaches and beach accesses as of 6 a.m. on March 21, neither the state nor the county has imposed any restrictions on private beach property, such as the parcels where the fencing stands.

This aerial image shows one of the two parcels, outlined in red, where Mike Holderness erected fencing. The parcel immediately east of it also is fenced. Holderness owns the property at 99 Beach Road, too, which is next to the Columbus Boulevard intersection. It is visible in the image, as well. Photo courtesy Sarasota County Property Appraiser Bill Furst

In an April 13 email to the News Leader, Holderness wrote that he would not have needed the fence if the Sarasota County Sheriff’s Office had official means to enforce the social distancing directive, “especially during a pandemic.” The U.S. Centers for Disease Control and Prevention (CDC) has called for people to gather in groups no greater than 10 and for everyone to remain at least 6 feet from each other. (In an earlier email, Holderness indicated that a better message for the public would be “physical distancing,” instead of “social distancing.”)

Further, he continued in the April 13 email, the area where the fencing stands “is a neighborhood, not a county park,” and he said it was “swarmed after [the] county closed [the] main beach …”

In a March 19 email to Berna of Environmental Permitting, on which he copied the News Leader, Holderness wrote that he was thankful county leaders had decided to close the public beach. Holderness added, “NOW what the heck are we going to do?,” referring to private beach parcel owners. “HOW DO YOU PLAN TO CONTROL INTENSITY NOW??? … YOU KNOW THAT COUNTY ISN’T CLOSING PRIVATE BEACHES so how are owners going to protect themselves?”

He has maintained that he will not take down the fencing.

The Code Enforcement process

After an Affidavit of Violation has been issued in a Code Enforcement case, the next step would be presentation of the evidence before a Code Enforcement Special Magistrate during a hearing. In an April 13 email to the News Leader, Kim Francel, the county’s public records coordinator, reported, “There is no schedule for a [Special Magistrate] hearing [in these cases].”

That is a result of state and county actions in response to the COVID-19 crisis.

This is the section of the Sarasota County Code detailing penalties for violations. Image courtesy Sarasota County

As for the potential ramifications of failing to remove the fencing, Section 54-726(b)(1) of the County Code says each day of any violation of the Coastal Setback Code “shall constitute a separate and distinct offense.”

A fine for a violation may not exceed $250 per day for the first violation or $500 per day for a repeat violation, according to Section 2-349 of the County Code. Further, that section says, “A certified copy of an order imposing a fine … shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the Violator.”

Additionally, it continues, “Any per diem penalty imposed pursuant to this section shall continue to accrue with interest at the statutory rate until:

  • “The Violator has complied with the Order rendered by the Special Magistrate and the Code Enforcement Officer has executed a Certificate of Compliance: or
  • “The amount due (principal plus interest) to satisfy the lien exceeds the assessed value of the property against which the lien has been filed,” as determined by the Sarasota County Property Appraiser’s Office; or
  • “The Office of the County attorney files an action to foreclose the lien on the Property.”

Three months after the filing of any such lien that remains unpaid, the code points out, the Office of the County Attorney may foreclose on the lien.

The westernmost Siesta Beach Lots parcel where the fencing stands had a market value of $88,700 in 2019, the Sarasota County Property Appraiser’s Office record shows. The parcel comprises 10,248 square feet, or 0.235 acres. The second Siesta Beach Lots parcel is just east of the first one, and it comprises 8,909 square feet, or slightly more than two-tenths of an acre, the Property Appraiser’s Office records note. However, that record also says, “There are no values associated with this parcel.”

The Property Appraiser’s Office record for the Siesta Gulf View parcel says its market value in 2019 was $57,700. It encompasses 22,299 square feet, or approximately half an acre.