Property owners will be able to undertake projects within 10 feet of structures, as long as they first sign waivers of liability to protect county if problems arise
Sarasota County staff recommended against the change. Nevertheless, the County Commission has approved an amendment to the County Code that will enable property owners to undertake maintenance dredging within 10 feet of seawalls, docks and other structures under specific circumstances as outlined in the county’s Navigable Waterways Maintenance Management Program.
Paul M. Semenec, project controls manager in the county’s Public Works Department, explained to the commissioners on Dec. 11, 2018 that staff was worried that allowing such projects would heighten the potential for legal liability for the county.
“The main concern,” he said, “is not knowing how the docks, boat lifts [and] seawalls are constructed,” as well as the depth at which pilings are embedded. “It’s entirely possible that no embedment was done, and [the pilings are] simply resting on top of the rock … or hanging in the sediment.”
If sediment were removed from around a piling that was not embedded, Semenec continued, “a shift or a more catastrophic failure may occur.”
“If the homeowner is willing to sign a [hold harmless] waiver [regarding the county],” Commissioner Alan Maio countered, “I think that goes a long way towards mitigating any fears we may have.”
Maio pointed out that many canals, especially in the area around Nokomis and Englewood, have become so narrow that property owners have become very limited in their ability to use boats.
Indeed, five property owners who addressed the County Commission during the Dec. 11 public hearing pleaded for the change in the County Code.
“The homeowners bear the risk,” Englewood resident Ed Andrews stressed to the board.
Mary Madore of Bayshore Drive in Englewood said she and her husband have a Boston Whaler. “It’s getting harder and harder to get out” on the canal. “We pay a premium to live on the waterway. … I want it to keep its worth.”
“Where is the real hurt to the county?” Maio asked Semenec, if the property owners are willing to absolve the county of any liability if a problem occurs.
“That’s a good question,” Semenec replied, deferring to Deputy County Attorney Karl Senkow.
“Certainly, having a hold harmless agreement is helpful to defend against any claims,” Senkow said, “but you still very often have to engage in [legal] activity … [to] affirmatively address those [claims].”
Ultimately, Maio made the motion to approve the change in the County Code, and Commissioner Michael Moran seconded it.
Commissioner Charles Hines said he did not like to disagree with staff members’ recommendation, “but I think they’re being a little overly conservative.” With protection for the county built into the amendment, Hines added, “I think this is a program that will really benefit a lot of people.”
Laying the groundwork
Prior to the public hearing, Jonathan Harn, chair of the county’s Waterways Advisory Council, presented the annual report from that group to the County Commission. He pointed out that in 2001, a county ordinance established the Navigable Waterways Maintenance Management Program “to provide a method to maintain waterways by dredging them. Dredging waterways, as needed, helps to maintain environmental quality, navigability and boater safety,” Harn pointed out.
“Our program requires an owner-driven petition process,” he stressed. “[Additionally,] when projects are completed, the benefitting properties are assessed the project cost.”
Harn noted that two years ago, at the recommendation of the council, the County Commission reduced the petition signature threshold from 80% to 67%, because of the difficulties property owners had had in reaching the 80% mark, so they could proceed with a project.
Nonetheless, Harn continued, no new projects have been completed since 2015.
In 2017, he said, the council members “spent a significant amount of time trying to determine how to increase the program’s effectiveness.” A 2016 project that had met the petition threshold requirement was deemed not to be feasible because of a setback requirement, he added. Property owners affected by that decision attended each of the council’s quarterly meetings in 2017 “to voice their dissatisfaction with this verdict,” he noted.
As a result, “and with assistance from staff” and the Office of the County Attorney, Harn told the commissioners, the council drafted the recommendation to amend the County Code to address the 10-foot setback requirement. The revision includes the necessity of the property owner requesting a project to sign a waiver of liability against the county.
Harn pointed out that the proposal also mandates an engineering investigation of the encroachment area. If an engineering firm determines that dredging closer than 10 feet to a structure appears to be feasible, then the owner would be able to proceed with the project, as long as the owner were willing to sign a hold harmless waiver.
The goal of the dredging is to remove silt that has accumulated, “just restoring [a canal] to [its] previous [depth],”Harn said when he addressed the board during the public hearing.
Semenec told the commissioners that staff had added into the proposed ordinance amendment a provision for the property owner to pay up to an additional $5,000 for that engineering study.
“Not all canal geometries are straightforward,” Harn noted, “especially those based on the natural topography. The proposed process to reduce the 10-foot setback accommodates this situation and gives a practical lifeline to move the project forward if it is supported by those affected.”
Harn stressed to the commissioners that the revised ordinance would be applied on a case-by-case basis “to give projects that are constrained by canal width and existing structures a chance of succeeding.”
Semenec then explained to the board that the Englewood issue that prompted increased attention to the issue involved a waterway in which the channel was designed to be 20 feet wide. However, he pointed out, the project would have encroached within 2 to 8 feet of four different structures — a dock, a boat lift, a boat ramp and a seawall.
After learning that the project could not go forward because of the county ordinance, Semenec said, the property owners asked the Navigable Waterways Council to approach the commissioners about a change in the ordinance. The council did that last year, Semenec reminded the board, and the commissioners then directed staff to come back with a proposal.
The staff decision not to support the County Code amendment, Semenec noted, followed consultation with companies that handle dredging and with engineers, as well as with staff of other local governments with dredging programs. “I was surprised to learn that dredging companies impose a setback on themselves,” he added.
As for the engineers: Semenec noted that their concern focused on having to deal with lack of substantiated information about how a particular structure has been built and the resulting potential for it to shift during dredging.
All the other local governments with which staff consulted, Semenec added, impose a setback of at least 10 feet.
Zeroing in on the hold harmless issue
In response to questions Commissioner Maio raised about the hold harmless action, Deputy County Attorney Senkow brought up the question of whether the liability waivers would be enforceable if a property were sold after dredging within the 10-foot area had been undertaken.
“Is there a way to make hold harmless go with the property deed?” Maio asked.
“I think we can require a notice to purchasers,” Senkow replied. “If it is the will of the commissioners,” he added, “I think we would do our very, very best to protect and insulate the county.”
Then Maio asked Semenec whether the commission would have final say on whether a project could go forward. Semenec responded that the board would make that decision.
Commissioner Hines pointed out that that would enable the board members to deal with any issues pertinent to a particular project request.
Commissioner Moran characterized the code amendment as “simply giving us the latitude” to allow a project within the 10-foot setback area.