County given 20 days to file response, including focus on relevant DeSoto County case
The 12th Judicial Circuit Court judge presiding over a Sarasota attorney’s property rights case against Sarasota County involving a Siesta Key parcel has denied the county’s motion to dismiss the litigation.
However, Circuit Judge Hunter W. Carroll issued that order “without prejudice,” meaning he has opened the figurative door to the county’s using other arguments to halt the case.
Further, Carroll has directed the county to provide a response to the court, explaining why he should not grant what formally is Saba Sands II LLC’s Petition for Writ of Certiorari, The Sarasota News Leader has learned.
In his Nov. 4 order, Carroll gave the county 20 days from that date “within which to serve a reply.” He specifically called on the Office of the County Attorney to address a DeSoto County case in which a 12th Judicial Circuit Court judge addressed an argument similar to the one that the Office of the County Attorney had made in its motion seeking dismissal of the Saba Sands II LLC litigation.
The principal of the limited liability company is William Saba.
As the News Leader has reported, on Sept. 17, attorney Ashley E. Gaillard, with the Bentley Goodrich Kison firm in Sarasota, filed the Saba Sands petition, asking the court “to quash and remand the decision” of the County Commission last year to deny a Coastal Setback Variance that the limited liability company was seeking so it could construct a three-story, two-unit condominium complex and accessory structures about 229.3 feet seaward of the county’s Gulf Beach Setback Line (GBSL) on Siesta Key. Established in 1979, the GBSL is the county’s figurative line in the sand that was implemented to protect beach habitat and dunes, which, in turn, protect landward properties.
The construction plans would affect Beach Access 10, as well, as explained in the county staff report prepared in advance of the Nov. 19, 2024 hearing.
Before seeking court action, Saba Sands had pursued a process authorized by state law — the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA). The goal was to reach a settlement with the county that would permit attorney Saba to proceed with construction on his property, which has no formal address. In August, Saba Sands halted that mediation.
In the petition, attorney Gaillard made the following points:
- “The proposed construction was over 733 feet from the MHWL [Mean High Water Line], which would be one of the furthest setbacks in any of the variances the County has previously approved. “[T]his is because the section of the beach where the Property is located is accreting and not eroding, as has been the case for over 75 years.”
- “The Property is surrounded by both single and multi-family residential properties along Beach Road and Tenacity Lane. Other properties to the north have improved Tenacity Lane and areas west of Tenacity Lane.”
- “The Property is almost three times larger than nearby sites at 1.13 acres; the average nearby parcel size is only 0.37 acres.”
- The Residential Multi-Family-1 zoning of the property allows up to six units per acre, while Saba Sands’ proposal was for just two units.
However, in the Motion to Dismiss the case, Deputy County Attorney David M. Pearce contended that Saba Sands did not file the court petition in a timely manner. He provided dates and details about the FLUEDRA process to support his assertion.
Then Morgan Bentley, one of the founders of Bentley Goodrich Kison, and Gaillard filed a response that disputed Pearce’s contention. They also referenced the DeSoto County case that Judge Carroll cited in his Nov. 4 order: Jason Reardon and Joy Reardon v. DeSoto County. Pearce’s argument that, in accord with the provisions of the FLUEDERA statute, the filing of the Petition for Writ of Certiorari was not timely “is contradicted by the language of the statute strictly construed as a whole, as another Court in this Circuit recently held,” Bentley and Gaillard stressed.
Yet, they added, with more emphasis, “even if the Court adopts the County’s interpretation, in conflict with the holding of another court in this same Circuit just last year, Saba Sands’ Cert Petition is still timely,” based on when the limited liability company gave notice to the county of its filing of the FLUEDRA proceeding and the date that the County Commission formally approved a resolution of the denial of the Coastal Setback Variance.
Bentley and Gaillard also had asked the court to schedule oral arguments in the case, after giving the county an opportunity to respond to their arguments.