Given issues emphasized in recent legal rulings that went against Sarasota County, commissioners deny proposal to amend land-use regulations involving barrier island lots

Siesta organizations had expressed opposition to amendment

Stephen Rees Jr. is the attorney who had proposed the land-use change. Image from the Icard Merrill website

On July 9, the Sarasota County commissioners ended up voting 4-1 to against a proposed amendment to the county’s zoning and land-use regulations, involving nonconforming lots of record on the county’s barrier islands,

The majority found that the measure was not consistent with the county’s Comprehensive Plan, which guides growth in the community.

Commissioner Ron Cutsinger cast the “No” vote, which followed a 1-4 vote on a motion he had made that did find the proposed amendment to be consistent with the Comprehensive Plan.

The public hearing on the issue included an approximately 8-minute-long exchange of questions posed by Commissioner Mark Smith, who lives on Siesta Key, and answers from County Attorney Joshua Moye. Several of Smith’s questions focused on the barrier island’s residential density and intensity of construction, based on two 2023 legal rulings that went against the county over a prior commission’s approval of two high-rise hotels for the Key.

Cutsinger did end up joining his colleagues in opposing the actual adoption of the proposed ordinance, which would have amended the county’s Unified Development Code (UDC); that part of the county’s Code of Ordinances contains all of the zoning and land-use regulations.

As The Sarasota News Leader has reported, Sarasota attorney Stephen Rees Jr., with the Icard Merrill firm, had advocated for the amendment in February, when the commissioners voted on a series of possible changes to the UDC that had been filed with county Planning and Development Services staff. Typically, staff opens up a period twice a year for what it calls “privately initiated” UDC amendments — those suggested by individuals outside county staff — and those that staff members themselves believe should be incorporated into the UDC.

Rees acknowledged during the July 9 public hearing that his work with a client who was interested in new home construction on Siesta had prompted his proposal.

The amendment would have permitted the combinations or re-combinations of nonconforming lots of record on the county’s barrier islands under one of two conditions:

  • If the resulting lot complied with the minimum area, width and density standards.
  • If the lot would be within a Residential Single-Family (RSF) or Residential Estate (RE) zoning district and the action would “reduce the number of dwelling units that may be constructed.”

However, Siesta resident Lourdes Ramirez, who won those 2023 legal challenges against the county — and who since then has become president of a new organization called Protect Siesta Key — argued that the amendment would violate county Comprehensive Plan Future Land Use Policy 2.9.1, which limits residential density and intensity on the barrier islands to the level in place as of March 1989.

Image from the Protect Siesta Key website.

In her 2021 challenges of the votes related to the hotels, she successfully argued in a Florida Division of Administrative Hearings (DOAH) case and in a 12th Judicial Circuit Court lawsuit that the commissioners seated in October 2021 approved a UDC amendment that violated that same future land-use policy.

Attorney Rees maintained during the July 9 public hearing that his proposal would lead to less density on the barrier islands. He used graphics to point out that, for example, each of four nonconforming lots recorded prior to the implementation of modern zoning regulations could be home to a small house.

Yet, he continued, the UDC does not allow for a developer to combine two of those lots in a Residential Single-Family zoning district on a barrier island, so one new house could be constructed on them, while a second residence could be built on the other two lots.

This is one graphic that attorney Stephen Rees showed the board during his presentation. Image courtesy Sarasota County
This is a second graphic that attorney Stephen Rees showed the board, to illustrate his proposal. Image courtesy Sarasota County

One of three public speakers during the hearing, Cape Coral attorney Ralf Brookes, who served as an assistant Sarasota County attorney in the early 1990s, argued, conversely, that the amendment would allow a developer to purchase a house standing on four nonconforming lots, tear it down, and build two or three new homes in its place.

However, Commissioner Smith said it seemed to him that the small, 1920s-era platted lots that had been mentioned during the hearing established residential density, even though they are considered nonconforming lots by modern zoning standards.

When he questioned Brookes about that Brookes responded, “You’re talking about homes that are sitting on two, three, four of these substandard lots.” Then Brookes reiterated his earlier comment that a builder could tear down a house standing on several of those lots and replace it with up to three homes.

“But we’re talking about 1920s lots,” Smith repeated his point. They were in place when Future Land Use Policy 2.9.1 regarding residential density on the barrier islands was implemented in 1989, Smith said.

Brookes countered that very few of those 1920s lots are left.

During his rebuttal, attorney Rees told Smith, “You were hitting it on the head. … You’re talking about existing vested rights” to build homes on those old lots.

These are part of Sarasota County’s existing standards for construction in Residential Single-Family districts. Image courtesy Sarasota County

The ‘unity of title’ issue

County documents and the discussion this week both noted the general expectation that nonconforming lots essentially will disappear over time, given demand for property and new construction.

At one point, Commissioner Smith, who is an architect, asked county Zoning Administrator Donna Thompson about a relevant issue.

“My understanding,” Smith told Thompson, was that if you had a nonconforming lot or lots, and you were to build across the common lot line … then that lot line would disappear … Am I mistaken?”

“If you filed the unity of title,” she replied, “the lot line would have disappeared.” Yet, she added, “We have found in the past that unity of titles have not always been filed, [and] legal descriptions [of property] have not been changed.” Thus, Thompson continued, the two lots still could exist, even if they were combined under a single property identification number for tax purposes (PID).

As a Nassau County informational document explains, “A property owner who has a structure that straddles two or more lots or who owns two or more contiguous, buildable residential lots … that otherwise comply with the requirements of [a county’s land development regulations] may file a Declaration of Unity of Title to combine these lots for purposes of … assessment.” In fact, the procedures “allow you to combine the lots for purposes of the assessment in perpetuity,” the Nassau County document adds.

Sarasota County Attorney Joshua Moye. Image courtesy Sarasota County

When Smith asked Zoning Administrator Thompson whether any mechanism existed to force people to file a unity of title, she told him she would have to defer to County Attorney Moye.

Later, during his exchange with Moye, Smith asked whether county staff could make property owners go ahead and file the unity of title paperwork of those persons had submitted paperwork to the county indicating they were going to file the unity of title documents after a home was completed on two lots and never did so,.

“Going back would be hard to do,” Moye replied.

Smith tried another tack, asking whether county staff could contact such property owners and remind them that their having a legal unity of title filed was part of the permitting process for their houses.

Moye replied that he and his staff could look into that situation. “I’m trying to give you the ‘It depends’ answer,” Moye added.

Earlier in the exchange, Moye had noted that the number of variables with unity of title situations generally would prevent him from providing answers to Smith’s questions.

Smith also asked Moye about the vested residential density rights that he had discussed with Brookes and Rees. Moye then referenced the litigation over the high-rise hotels on Siesta Key. Different experts in the planning field, Moye said, have different views of that issue.

Enforcing the policies in the Comprehensive Plan

One of the other two speakers during the hearing was Neal Schleifer, vice president of the Siesta Key Condominium Council, which represents 100 associations on the island, with about 7,000 households.

“A comprehensive plan is a comprehensive tool for smart planning designed to protect citizens and guide the county’s actions,” Schleifer stressed to the board. “It shouldn’t be chipped away piecemeal for short-term benefit for the few without careful study and consideration of unintended consequences.”

Neal Schleifer addresses the county commissioners on July 13, 2021. File image

He also reminded the board members that the Condominium Council and other organizations have called for “a comprehensive, independent traffic model” for Siesta, which would factor in the reality that the island is accessible by only two drawbridges. The north and south accesses are used for hurricane evacuations, as well as emergency medical services vehicles trying to reach people who need assistance, he noted.

Problems with the Stickney Point Road drawbridge — such as an incident in March that Schleifer has described as creating chaos for drivers — “should awaken us all, especially commissioners, to the potential problems and future needs,” he continued.

The transportation issue is not the only concern, he noted. Residents have complained, too, he said, about the effects of flooding on the county’s sewage lift stations during recent storms, such as the “Invest 90L” event on June 11. Further study of the county’s stormwater and other utilities infrastructure is warranted, Schleifer added.

He also encouraged the board members to drive around Siesta Key and observe for themselves that “every neighborhood has new construction. … The Key remains a vibrant and highly desirable destination.”

The third speaker was Shari Thornton, who is a candidate without party affiliation in the District 3 County Commission race. She offered remarks on behalf of Ramirez of Protect Siesta Key, as Ramirez could not be present.

When Thornton had completed those, she said that, speaking on her own behalf, she wanted to remind the board members, as well, about the fact that only two means of reaching Siesta by vehicle exist. Increased residential density on the island, Thornton stressed, will make it that much more difficult to evacuate people from the Key during an emergency.

Commissioner Neil Rainford told her, “It sounds like you’re [still] speaking on behalf of Protect Siesta Key.”

Then Rainford, who is a Republican candidate for the District 3 seat, tried to press Thornton on whether she felt that having four new houses on four nonconforming lots would be preferable to amending the UDC to allow for construction of just two houses on four lots.

She referred him to pages in the letter that Ramirez had sent the commissioners, in opposing the UDC proposal.