County staff report cites facets of plans found inconsistent with county environmental policies
Although previous Sarasota County Commissions denied petitions for variances to allow home construction on the parcel standing at 168 Beach Road on Siesta Key, the current board members have voted 3-1 to approve such a request.
Following a Nov. 28 public hearing, Commissioner Neil Rainford made the motion, and Commissioner Michael Moran seconded it.
The applicant’s representatives pointed to how wide the beach has grown seaward of the property, which meant the planned new two-story home over parking would be about 500 feet from the Mean High Water Line (MHWL). Former Florida Senate President Bill Galvano, an attorney with the Grimes Galvano firm in Bradenton, emphasized that the beach has been accreting at a rate of about 18 feet a year since 2001.
Additionally, a former Sarasota County environmental division staff member who was part of the applicant’s team — Weiqi Lin, who heads up a Sarasota firm called Port and Coastal Consultants — told the board members, “This parcel has never been submerged in water ever since it was platted in [the 1920s].” He did acknowledge, though, that, from 1974 to 2001, the beach accreted only about 1.2 feet per year.
Howard Berna, manager of the county’s Environmental Permitting Division, showed the commissioners slides dating back to 1948 to illustrate one of the primary points he made during his remarks: “There’s been dynamic changes in this part of the beach. Sands come; sands go. There’s no crystal ball that I [can use to] assure you that there will be sands here in the future.”
Lin told the commissioners that he expects the shoal in Big Sarasota Pass, which is just offshore of the area of Siesta Key where the new house would stand, will keep the beach stable for the next 40 to 50 years.
Yet, Catherine Luckner, president of the Siesta Key Association (SKA), pointed out during the hearing that the U.S. Army Corps of Engineers (USACE) won a state permit to dredge that shoal to renourish the Lido Key Beach a few years ago. “The Army Corps never touched [the shoal],” she added, and the dredge for the project came only about one-third of the way into the pass to remove sand.
“But I also know that [the shoal] ebbs and flows,” Luckner said.
Referring to Lin’s statement that the 168 Beach Road parcel never had been underwater. In 1948, Berna further noted, wave action in the Gulf of Mexico “was lapping at this property.”
(During a January 2013 public hearing on proposals to build houses on both the 168 Beach Road and 162 Beach Road parcels, then-Commissioner Nora Patterson, who was a long-time Siesta resident, told her colleagues that she had “absolutely seen that whole area [under water].” She added, “It’s really rough for me to even envision somebody wanting to build on those properties.”)
The maximum elevation in that area of Siesta Key is 4.5 feet, Berna reported during the Nov. 28 hearing. “A large part of it is less than that.”
Further, he told the commissioners, the site is in a Federal Emergency Management Agency (FEMA) velocity flood zone. As FEMA explains, such a zone is “subject to high velocity water including waves …” The zones, FEMA explains, “are defined by the 1% annual chance (base) flood limits (also known as the 100-year flood) and wave effects 3 feet or greater.”
After making the motion to approve the variance, Commissioner Rainford said, “We’ve heard varying testimony today [about the] high risk” associated with construction on the site. However, houses that are 50 years old in the same vicinity have withstood storms, he pointed out, and the beach continues to accrete, as shown in photos presented by the applicant’s team and Berna.
Moran talked about the county’s criteria for approving a Coastal Setback Variance (CSV), noting that the goal of county policies, in accord with state law, is to allow “the minimum variance necessary to permit reasonable use of the property.” Moran stressed, “This goes to the heart of property rights issues and protections and the perils and liability that come along with it.”
Galvano had pointed out that the entire parcel is completely seaward of the Gulf Beach Setback Line (GBSL), which the county established in 1979 to protect dunes and other coastal habitat, which, in turn, protect landward structures from storm surge and other flooding events.
Commissioner Mark Smith, who lives on Siesta Key, cast the “No” vote. Referring to county environmental policies, with which the county’s Environmental Permitting staff said the proposal for construction on the property would be in conflict, Smith added, “The entire site is in a dune habitat.”
If the parcel were designated 100% wetlands, Smith contended, the commissioners would not allow a person to construct a home there. In this case, he added, the applicant will “basically destroy several thousand square feet of dune habitat.”
The county staff report said that the proposed building footprint of 2,868 square feet would represent “34.45% of the total land area of the lot,” which approaches the maximum allowable building coverage of 35% in the Siesta Key Overlay District zoning regulations.
Nonetheless, Chair Ron Cutsinger also voiced support for the variance, citing Galvano’s testimony that the Sarasota County Property Appraiser’s Office had set a value for the parcel that indicates the staff of that office believes a house can be constructed on the parcel.
Galvano reported that the 2023 market value of the land is $1,581,228. The principal owner, Rebecca Keiver of Sarasota, had to pay a tax bill totaling $22,382, Galvano stressed. (Formally, the 8,324-square-foot parcel is owned by 168 Beach Road LLC, which purchased it in December 2019 for $1.5 million from the Burton M. Cooper Credit Shelter Trust No. 1.)
If the site should be preserved from construction, Cutsinger asked, why did the Property Appraiser’s Office put such a high value on it?
Nonetheless, Cutsinger said, “I wish we would have bought [the parcel], frankly, but we don’t buy land unless people are willing to sell it.” He was referring to the fact that the board members seated in 2017 agreed to purchase the adjacent property located at 162 Beach Road.
Commissioner Joe Neunder was absent from the meeting.
The ‘sweet spot’ of reasonable use
During his presentation, Galvano explained that, because the property is fully seaward of the Gulf Beach Setback Line, “There is no other opportunity” to build a home landward of it.
The county staff report explained that the proposed construction site is 208.25 feet seaward of the GBSL. Prior petitions for Coastal Setback Variances for homes on the site called for single-family residences that standing 160.25 feet and 182.1 feet seaward of the line.
The proposed single-family home would be landward of the existing line of construction, Galvano continued, and the new driveway would be permeable.
Almost all of the parcels in the same Miramar Beach subdivision block have been developed, he pointed out.
Moreover, Galvano said, 6,687 square feet of new plantings and other enhancements would be used to mitigate the 4,200 square feet of building impact. That put the mitigation ratio at 1.6 to 1, he added.
(Berna of Environmental Permitting disputed that ratio, saying, “I’m only seeing, at the end of the day, about 4,900 square feet of dune remaining on this site.”)
“We have worked two years with [county] staff,” Galvano noted, to achieve what the applicant’s team considers “that ‘sweet spot’ [of] reasonable use.”
Even though the property is zoned for residential multi-family housing, he continued, the new residence would be just a single-family home.
He also stressed that even if the commissioners granted the variance, the team still would have to go through a permitting process with state officials.
Keiver, the owner of the parcel, told the commissioners that she wants to build a home that she believes “would be … in keeping with Sarasota’s architecture. … I’m hoping I can create a trend in our neighborhood” by encouraging the owners of adjacent structures that are decades old and, therefore, more vulnerable to storm damage, to replace them with modern building code-compliant structures. Her undertaking, Keiver added, also might encourage other homeowners to keep their parcels instead of selling them to companies interested only in constructing what she called “hotel houses.”
Although Berna of Environmental Permitting had talked in detail about past commission denials of variances requested for the property, Galvano emphasized, “This board was elected independently. The idea that simply because a decision was made by a prior board, you are now somehow bound by that” is not true, he added. “This is not judicial precedent. … You’re looking at this anew.”
Yet, another speaker during the hearing, John Sudnik, stressed that if the commissioners grant more and more Coastal Setback Variances for property on Siesta Key, “You’ll put us more and more at risk.”
Sudnik, who is retired from the Fire Department of New York, pointed out that people cannot be forced to leave their homes if a hurricane is approaching. Nonetheless, he continued, “It only takes about 8 to 10 inches of water and then first responders can’t respond to those people who are trapped in their homes. … That is a significant liability.”
One of the primary questions the commissioners should consider, Sudnik indicated, is “Why should we continue to develop in these flood zones?”
(In December 2018, Sudnik was promoted to chief of department of the Fire Department of New York, “the most senior uniformed member of the Department,” Wikipedia points out. )
Another Siesta resident, Mary Smarelli ,commended Berna and other members of the Environmental Permitting staff for doing “an excellent job in preparing their report on this matter.”
She also reminded the commissioners that their late colleague, Nancy Detert, who died in April, said during one Coastal Setback Variance hearing, “ ‘I am not anti-property owner, but, to me, you’ve got what you bought.’ ”
Moreover, Smarelli noted that Lin of Port and Coastal Consultants espoused the GBSL’s protections for owners of landward parcels when Lin was still a member of county staff. On Nov. 28, she added, Lin was “expressing essentially the opposite.”
Moran criticizes Berna over statement in staff report
At one point during Berna’s presentation, Commissioner Moran asked him about a statement in a table that the Environmental Permitting staff had provided in the agenda packet. It explained facts regarding the construction plans that demonstrated consistency and inconsistency of with county policies in the Comprehensive Plan, which guides growth in the community. The table was created to help the board members decide whether the requested variance met the necessary approval criteria.
No. 3 of the Approval Criteria table said, “The requested variance is the minimum necessary to permit reasonable use of the property.”
Moran pointed out that under the heading Facts Demonstrating Consistency of that statement, the table added, “The Board may find that this request is not consistent with this variance approval criteria, as two prior variances were denied for less intensive construction on the property.”
“Was that a mistake?” Moran asked Berna. The purpose of the table, Moran emphasized, is to give the commissioners appropriate examples of consistency and inconsistency. “So why did you put any words [in that column]?”
“It’s something that needed to be pointed out, that there’s past history [of variance denials associated with the parcel],” Berna replied.
“The applicant gave specific consistency examples,” Moran told Berna, referring to Galvano. “Is that appropriate testimony before this board?”
“That would be their statement of their interpretation [of the consistency factors],” Berna responded.
“I’m going to chalk [the statement in the table] up to a mistake, not a slanted opinion,” Moran told Berna.