Companion bills in Florida Legislature call for FDEP to make decisions on requests for shoreline construction in coastal counties

Goal is to prevent ‘adverse environmental effects’ and provide for greater property protection during storm events

State Rep. Fiona McFarland. Image from the Florida House website

In December 2023, Florida Rep. Fiona McFarland, R-Sarasota, has introduced a bill in the Legislature that, if passed, would take away the authority of the Sarasota County Commission and other local government bodies to approve special exceptions or variances for construction on the coast.

The authority would be delegated instead to the Florida Department of Environmental Protection (FDEP), the bill says. It would apply to all coastal counties and municipalities.

House Bill 1079 explains, “Exceptions to locally established coastal construction zoning and building codes may not be granted unless previously approved by [FDEP] before December 1, 2023.”

A legislative staff analysis of the bill points out that Pinellas County is the only affected county that has such codes that have won FDEP approval.

A legislative staff analysis of McFarland’s House Bill 1079 explains, “DEP regulates coastal construction to protect Florida’s beaches and dunes from imprudent construction that can jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, endanger adjacent properties, or interfere with public beach access.

Coastal construction is defined as “any work or activity likely to have a material physical effect on existing coastal conditions or natural shore and inlet processes,” the bill adds.

Over the past several months, the Sarasota County Commission has approved controversial Coastal Setback Variances for construction on Siesta Key, which residents fought because the sites had been documented to have been underwater or bordering on the Gulf of Mexico in years past.

Most recently, on Nov. 28, 2023, the board members voted 3-1 to grant a variance to the owner of property located at 168 Beach Road, so she could build a single-family home that would stand 208.25 feet seaward of the county’s Gulf Beach Setback Line (GBSL). That line was established in 1979 to protect dunes and other beach habitat, which, in turn, protect landward structures in the event of storm surge and other flooding events.

Former Florida Senate President Bill Galvano, a Bradenton attorney who represented the applicant, pointed out that the two-story house over parking would be about 500 feet from the Mean High Water Line. He stressed that research showed that the beach had been accreting at a rate of approximately 18 feet a year since 2001.

This graphic illustrates facts about the beach in the area where the 168 Beach Road parcel is located. Image courtesy Sarasota County

However, 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 presentation that day: “There’s been dynamic changes in this part of the beach. Sands come; sands go. There’s nocrystal ball that I [can use to] assure you that there will be sands here in the future.”

Another member of the petitioner’s team, Weiqi Lin, principal of a Sarasota firm called Port and Coastal Consultants, also emphasized to the commissioners that the 168 Beach Road parcel never had been underwater.

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.”

Nonetheless, following the November 2023 public hearing, only Commissioner Mark Smith, who also is a long-time Siesta Key resident, opposed the granting of the variance. “The entire site is in a dune habitat,” he pointed out.

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.”

Commissioner Michael Moran made the motion to approve the variance, saying that 50-year-old houses in the same vicinity had withstood storms, and photos presented to the board during the hearing clearly showed that the beach was accreting.

Moran also discussed 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 talked about the fact that the entire parcel is completely seaward of the Gulf Beach Setback Line, and he emphasized that his client had been paying the annual property tax bills that she had received for it.

Just months earlier — on July 11, 2023 — all of the commissioners except Smith approved a Coastal Setback Variance for an 11-unit condominium complex that would take the place of decades-old construction standing at 70 Avenida Veneccia and 77 Beach Road on Siesta Key. County Environmental Specialist Staci Tippins had pointed out that the property “is within [the county’s] Coastal High Hazard Area,” which — she noted — was established by Coastal Policy 1.1.1 in the county’s Comprehensive Plan. That area is “subject to storm surge from a Category 1 [hurricane],” she added.

This graphic depicts a cross section of the site plan for the 11-unit condominium complex between Avenida Veneccia and Beach Road. Image courtesy Sarasota County

The Comprehensive Plan, which guides growth in the county, says, “The Coastal High Hazard Area, defined by section 163.3178(2)(h)9 [of the] Florida Statutes, is the area below the elevation of the category 1 storm surge line, as established by a Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model, and is an area particularly vulnerable to the effects of coastal flooding from tropical storm events. As indicated in the inventory, the coast line of the Gulf of Mexico is subject to hurricane impact. Sarasota County has experienced structural damage caused by relatively minor hurricanes, tropical storms, and near-miss situations. It is therefore expected, based on past storm events and increased level of development along the coast, that future hurricanes of larger magnitude could have a greater effect on storm surge and ultimately its destructive impact along the county coastline.”

At the conclusion of that hearing, Commissioner Smith said he believed the construction proposal was too intense for the affected area.

During the commission’s regular meeting on Jan. 30, Smith notified his colleagues of the House bill that McFarland had filed, to make certain they were aware of it. None of them responded to the information.

‘Potential environmental impacts and greater risk of hazards’

The legislative staff analysis of McFarland’s bill says, “The [state’s] coastal construction control line (CCCL) defines the portion of the beach-dune system that is subject to severe fluctuations caused by 100-year storm surge, storm waves, or other forces such as wind, wave, or water level changes. A 100-year storm is a shore-incident hurricane or any other storm with accompanying wind, wave, and storm surge intensity that has a one percent chance of being equaled or exceeded in any given year.”

The bill itself points out, “Seaward of the CCCL, new construction and improvements to existing structures generally require a CCCL permit from DEP. Due to the potential environmental impacts and greater risk of hazards from wind and flood, the standards for construction seaward of the CCCL are often more stringent than those that apply to the rest of the coastal building zone. Permit applicants must show that the proposed project will not result in a significant adverse impact. CCCLs are set by DEP on a countywide basis and are currently established for the majority of Florida’s coast.”

This graphic shows the Coastal Construction Control Line, in red, in Sarasota County. Image courtesy FDEP

Further, the bill discusses the Mean High Water Line, explaining that that “is the point on the shore that marks the average height of the high waters over a 19-year period. The mean high-water line is generally the boundary between the publicly owned shore (the land alternately covered and uncovered by the tide) and the dry sand above the line, which may be privately owned. Generally, construction is prohibited within 50 feet of the mean high-water line, known as the 50-foot setback. Any structures below the mean high-water line that are determined by DEP to serve no public purpose; to endanger human life, health, or welfare; or to be undesirable or unnecessary must be adjusted, altered, or removed.”

Then the bill notes, “Above the mean high-water line is the ‘seasonal high-water line,’ which accounts for variations in the local mean high water, such as spring tides that occur twice per month. The seasonal high-water line is used to create 30-year erosion projections of long-term shoreline recession based on historical measurements. DEP makes 30-year erosion projections of the location of the seasonal high-water line on a site-specific basis upon receipt of a CCCL permit application. With certain exceptions, DEP and local governments may not issue CCCL permits for the construction of major structures that are seaward of the 30-year erosion projection.”

On Jan. 29, the bill’s history shows, the House Agriculture, Conservation & Resiliency Subcommittee had given the measure a “favorable” finding.

The companion Florida Senate Bill 298 won unanimous support in the Environment and Natural Resources Committee in early December 2023, as well as unanimous support on Jan. 18 in the Fiscal Policy Committee.

Because this is an election year, the Legislature opened its session on Jan. 9; the session is scheduled to conclude on March 8.