Citing potential of ‘horrible precedent,’ county commissioners unanimously deny petition for six-condominium structure at 636 Beach Road on Siesta Key

Detert notes potential for other Beach Road property owners to use square footage of land protected by conservation easements to seek similar variances, if this one were approved

A graphic shows the property at 636 Beach Road and the line of construction (in green) for the house on that parcel and neighboring ones. Image courtesy Sarasota County

Even before the county’s Environmental Permitting Division manager completed his presentation during an Aug. 26 Coastal Setback Variance (CSV) petition hearing, Sarasota County Commissioner Nancy Detert had a question.

Addressing Howard Berna, Detert asked about the potential for the owners of “all the other houses on [Beach Road]” with property covered by dunes and vegetation seaward of those homes to seek approval for larger structures if the board that day signed off on the proposal for a six-unit condominium complex at 636 Beach Road.

The application before them cited “unity of title” of two lots protected by a conservation easement, plus two on which a single-family home stands, in contending that the allowable density for the new construction would be 11 dwelling units.

Referring to other Beach Road property owners, Detert asked Berna, “Do they own their lots in front that probably used to be underwater and now through accretion have sand? Couldn’t they do the exact same thing? Or at least ask permission to do it?”

“I imagine they might be able to ask,” Berna replied, as some do have undeveloped lots seaward of the county’s Tenacity Lane right of way that are not protected by conservation easements. Construction is not allowed on those easements, he noted.

“Can you in good conscience say [that the owners of the 636 Beach Road parcel] would absolutely be the only [ones] out of this group to do that, ever?” Detert asked, referring to the application for the CSV.

“I can’t make that definitive statement,” Berna replied.

As The Sarasota News Leader reported last week, Saba Sands LLC, whose principal is Sarasota attorney William Saba, was seeking board approval to demolish a two-story-over-parking, single-family residence with 3,990 square feet of habitable space and replace it with a new, three-story, pile-supported structure that would contain 17,106 square feet, as Berna explained to the commissioners on Aug. 26.

This graphic shows distance from the proposed new residential structure and from the pool deck to the Mean High Water Line (MHWL). The red line shows the distance the structures would be seaward of the Gulf Beach Setback Line. Image courtesy Sarasota County

At its farthest point, the new construction would be 191 feet seaward of the county’s Gulf Beach Setback Line (GBSL), which was established in 1979, the staff report noted.

The elevation of the first floor, Berna said, would be 18.3 feet, which is “typical for construction on Siesta Key.”

Attorney Stephen D. Rees Jr. of the Icard Merrill firm, representing Saba Sand, stressed that the new building and accessory construction would have no impact on the barrier island’s coastal systems. “I’m making that abundantly clear.”

Rees emphasized that the new building would be 793 feet from the Mean High Water Line (MHWL).

“This is the minimum variance necessary to permit reasonable use of the property,” Rees told the commissioners, referring to state and local regulations regarding private property rights.

He further noted that the design of the new structure would be almost identical to the building at 610-616 Beach Road, for which the owners won a CSV from the County Commission in 2011.

Ultimately, following a hearing that lasted close to two hours, Detert made the motion to deny the CSV petition, winning unanimous support from her colleagues.

An aerial image provided by the attorney for the applicants shows the state’s Construction Control Line in green and the Gulf Beach Setback Line in blue. Image courtesy Sarasota County

She talked about her participation in a public hearing on a similar application, shortly after her election to the board. “I was just taken aback. I found it frankly shocking that [someone] would have the nerve to ask for that kind of a variance. To me, it’s beyond the spirit of the law that was written,” she continued, referring to the GBSL.

Noting that she spent 14 years as a real estate agent and 25 years as a mortgage broker, Detert continued, “I’m not anti-property owner. But, to me, you’ve got what you bought. … It does take a lot of nerve to ask for multiple units on this [636 Beach Road] property. This just sets a horrible precedent, as far as I’m concerned.”

Given all the No. 1 Beach accolades Siesta Key has received, Detert pointed out, “We’re going to attract a lot of investors that want to change the look of it. To me, it’s one of the jewels in our crown here in Sarasota County.”

She would prefer it resemble the natural state of Sanibel Island, she said, “instead of Anna Maria [Island] or even Miami Beach.”

After Commissioner Charles Hines seconded the motion, Commissioner Alan Maio said he also would support it. Maio referred to testimony by Christine Johnson, president of the Conservation Foundation of the Gulf Coast, and Rob Patten of Sarasota, who worked in various environmental and coastal division positions with the county over a period of 40 years.

“Why do we have such strict rules on beachfront development?” Patten asked during his comments. The reason, he said is that shorelines are unstable.

Patten called statements that people can build seaward of the GBSL because the beach has accreted significantly since 1948 a “polite fiction.” (In 1948 and 1974 aerial photos Berna showed the board, the Gulf of Mexico was much closer to the property at 636 Beach Road.)

Patten stressed that the barrier islands “move; they change.”

Johnson pointed out that the Foundation owns nearly 2 acres adjacent to the 636 Beach Road parcel. The Foundation, she said, “is deeply interested in the well being of all visitors to Siesta Key, whether they be two-legged or four-legged, feathered or furry or sunburnt.” The nonprofit allows pedestrian access to its land, she added.

This aerial view of the property at 636 Beach Road shows the existing house plus the two lots on which a conservation easement was imposed decades ago, outlined in red. Image courtesy Sarasota County

“We believe that public access to nature is important for both our personal health and our economy. At the same time,” Johnson continued, “the access must be balanced with the needs of nature, if we are to enjoy it for years to come.”

Among the wildlife on Siesta, she pointed out, are endangered snowy plovers. “Our preserve is one of the most important nesting areas on the Key, if not in the county,” she said, referring to those birds.

The proposed increase in residential intensity on the 636 Beach Road parcel, Johnson added, “has a high probability” of upsetting the balance between public use of the beach and wildlife’s use of the beach. Six dwellings in place of one, she pointed out, would lead to “increased foot traffic, beach use and lighting pollution.”

More cons than pros

During his presentation to the board, Rees, the attorney for Saba Sands, stressed that the proposal “is really a replacement of structures … while preserving the seaward lots and further protecting the dune system through a conservation easement.”

The entire 636 Beach Road parcel is seaward of both the state’s Construction Control Line, he said, and the GBSL.

Further, he noted that all the parcels in the same area are zoned Residential Multi-Family under the aegis of the Siesta Key Overlay District zoning regulations.

This 1948 aerial shows the 636 Beach Road parcel, in yellow. Image courtesy Sarasota County
This 1974 aerial shows the shoreline at 636 Beach Road. Image courtesy Sarasota County
This 1995 aerial shows the accretion of the beach at that time in front of 636 Beach Road. Image courtesy Sarasota County

Rees also explained that, in researching materials for the CSV petition, the project team discovered that a conservation easement placed on the seaward lots in 1999, as a result of County Commission approval of a CSV, “lacked proper witnesses.” A proffer with the Saba Sands petition, he said, would be the recording of an easement that would correct the defects. Moreover, a result of that, he noted, about 63,205 more square feet of accreted beach would be covered by the new easement. Other conservation easements on Siesta Key, he added, specifically reference the inclusion of additional land as the beach accretes.

Following Rees’ presentation, all the other nine speakers who addressed the board, along with Johnson and Patten, voiced opposition to the proposal for the new construction.

Among them were Dr. Lisa Brothers Arbisser and her husband, Dr. Amir Arbisser, who live at 644 Beach Road; as well as their attorney, Patricia A. Petruff of the Dye, Harrison, Kirkland, Petruff & St. Paul firm in Bradenton.

Rees had argued that six dwelling units is reasonable use of the property at 636 Beach Road, Petruff said. “No, it’s not.” The owners of the land when four previous CSV petitions were granted for the parcel “determined that the reasonable use” was a single-family home, she added, though at one point, she said it did appear that a duplex stood on the site.

Again, referencing Rees’ presentation, Petruff emphasized, “There is no hardship” to allow only one dwelling unit on the parcel.

A male snowy plover keeps vigil at a nest this year on Siesta Key. Photo courtesy of Kylie Wilson of Florida Audubon

Two speakers joined Johnson of the Conservation Foundation in talking about how the proposed new development likely would affect the snowy plovers that nest directly on the sand on Siesta Key Beach. One of them, Robert Luckner, a director of the Siesta Key Association (SKA), pointed out that the plovers “are an imperiled … threatened, protected shorebird species.” Only 98 breeding pairs have been identified as remaining “in the whole state of Florida,” he added. They are vulnerable to disturbances, he said.

Luckner’s wife, Catherine, who is president of the SKA, talked about the importance of the GBSL. “The Gulf Beach Setback is a line of prohibition,” she stressed, noting that it was implemented to allow for stabilization of the beach.

She has photos, she continued, showing the property three doors down from the 636 Beach Road parcel in the aftermath of a “no-name storm” in 2011. The flooding rose up to the level of a park bench next to the Beach Road sidewalk, Luckner said. The water covered people’s knees.

Moreover, she told the board, dredging is underway in Big Sarasota Pass for the first time ever — to renourish Lido Key Beach — and no one can be certain of the effects that will have on Siesta Key. It does not seem appropriate, she added, “to move construction closer to the Gulf of Mexico.”

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