Changing nature of shoreline and destruction of dune habitat for the project — in spite of vegetation mitigation plans — cited as reasons for decision
Citing the dynamic shoreline and the impact the proposal would have on the dune system, the Sarasota County Commission unanimously has denied a request by Siesta Key property owner Michael Holderness to construct a two-story-over-parking, single-family home entirely seaward of North Beach Road.
The structure would have stood on Lot 14, Block 7, of the Mira Mar Beach Subdivision, near the intersection of North Beach Road and Columbus Boulevard.
Commissioner Nancy Detert was absent from the Jan. 13 public hearing. Chair Alan Maio reported that she was “a little under the weather.”
As a county memo provided to the commissioners in advance of the session explained, “A study of aerial photos taken between 1948 and 2020 shows that a portion of the parcel [where the construction was proposed] was intermittently submerged throughout this time as a recently as 2013 … Though the proposed development is located approximately 190 feet landward of the MHWL [Mean High Water Line] according to information from a survey performed by Red Stake Surveyors on October 25, 2019,” the memo continued, “the low relative elevations present on Siesta Key, as well as the dynamic nature of erosion and accretion along the shoreline, put [the parcel] at increased risk of flooding as a result of tropical storms, hurricanes, and winter cold fronts.”
The memo further stressed, “Storm surge is the most destructive force associated with tropical storms and hurricanes. National Storm Surge Hazard Maps produced by the NOAA [National Oceanic and Atmospheric Administration] … predict that Siesta Key may experience storm surge greater than nine feet above ground level during a category three hurricane event.”
As county Environmental Specialist Staci Tippins noted during the board’s Jan. 13 regular meeting, the plans called for the structure to stand a maximum of 189.61 feet seaward of the Gulf Beach Setback Line (GBSL). County staff has explained that the GBSL is the figurative “line in the sand” to protect the coastal dune systems and habitat which, in turn, protect landward structures from storm surge and other flooding events.
The portion of the site plan that would be most seaward, Tippins said, would be a landscaping retaining wall.
The Jan. 13 staff memo also pointed out that the site of the proposed new home is part of a 0.4-mile stretch of beach that the Florida Department of Environmental Protection (FDEP) designated as critically eroded in a July 2020 report. The memo added that that “is the only area with this designation on the north end of Siesta Key.”
However, Weiqi Lin, a former county Environmental Permitting Division staff member who has his own firm, Port and Coastal Consultants in Sarasota, emphasized to the commissioners on Holderness’ behalf that the GBSL had not been updated since it was established in 1979. Further, he said, “The beach in this area has been dramatically increased over the past two decades.”
Based on historical MHWL data sets from the county and the FDEP, Lin noted, the beach accreted at a rate of 6.8 feet a year between 1987 and 2001. It continued to accrete at an annual rate of 10.09 feet per year from 2001 to 2015, Lin pointed out.
The MHWL had moved 105 feet more seaward between the time of the October 2019 survey, Lin said, and another survey Red Stake Surveyors conducted in September 2020.
Further, a building the County Commission approved in 1999, which stands at 104-106 Beach Road, would be 5 feet further seaward than the Holderness house, Lin added.
Moreover, Michael Barfield, a paralegal with Denovo Law Services LLC in Sarasota, joined Lin in emphasizing the mitigation Holderness planned in response to the impact the construction would have on 3,043 square feet of dune habitat. The ration of the mitigation area to the existing dune habitat expanse, Lin said, would be 1.13 to 1.
In her report, Tippins of Environmental Permitting noted, “About 70% of the parcel is covered with dune habitat …”
Holderness proposed 1,181 square feet of new plantings, she said. Further, the staff memo noted that a 676-square-foot area “within the construction envelope,” which would be impacted by the re-grading of the site, would be replanted after the project was completed.
(Tippins explained that 83 cubic yards of beach-compatible fill was proposed to be used to increase the elevation behind the landscaping retaining wall.)
After purchasing the property in 2016, Barfield told the commissioners, Holderness planted extensive dune vegetation on the site. The aerial photos Tippins had presented to the commissioners, Barfield added, showed “this dune covering coming back and the accretion of sand …”
Barfield also stressed that Holderness’ construction plans represented the “minimum use of the property,” in compliance with the county’s Coastal Setback Code. “There’s not portion of the property that … can be developed that is landward of the Gulf Beach Setback Line …”
Moreover, he continued, the Holderness building would have one-seventh the footprint of the structure at 104-106 Beach Road. Additionally, Barfield said, Holderness proposed creating a conservation area over the parcel he owns seaward of the construction site, so it never could be developed.
Along with the house, which would have a footprint of 2,519 square feet, Tippins pointed out, a pool would comprise 252 square feet, while a pool deck would encompass 212 square feet.
“It is the smallest footprint to make a developable, allowable use of the property,” Barfield told the commissioners.
Finally, Barfield noted that no portion of the site was inundated by the tropical storms Tippins cited in showing the board members photos of flooding in the area of North Beach Road and Columbus Boulevard. Such flooding, Barfield added, “happens all over the county, but that shouldn’t be a factor. We’re talking about whether there’s permanent erosion,” he continued, and, in the case of Holderness’ property, the shoreline has stabilized.
Nonetheless, in making the motion to deny the petition for the Coastal Setback Variance, Commissioner Ron Cutsinger said, “I think this is clearly in an area of dynamic erosion …”
Adding that the construction would necessitate the destruction of dune habitat — “which is very important” — and the fact that it would be about 190 feet seaward of the GBSL, Cutsinger added, “I just don’t think that [the application] merits a variance.”
Commissioner Michael Moran, who seconded the motion, noted that paralegal Barfield had talked about the county staff analysis, included in the board packet, comparing the proposal to county criteria for the approval of Coastal Setback Variances. While Barfield had indicated that the tables in the packet showed the plans were in compliance with those criteria, Moran continued, “There’s lots of facts demonstrating consistency … right next to facts demonstrating inconsistency.” He viewed the proposal as being inconsistent with the relevant county policies and regulations, Moran added.
Commissioner Christian Ziegler noted that, in regard to CSV requests, “Normally, I give a lot of leeway to the applicant.” However, he said, in this case, he, like Cutsinger, had to focus on the nature of the shoreline. “You think you’ve got a good spot now,” Ziegler said, but that could change in years to come.
Speakers oppose the plans
The only two members of the public who addressed the commissioners during the public hearing were Charles D. Bailey III, a partner in the Williams Parker law firm in Sarasota; and Mike Cosentino, who owns property at 10 North Beach Road and who has been in litigation with the county since June 2016 over the board’s approval that year of the vacation of a 373-foot-long segment of North Beach Road.
Bailey was representing one of the three sets of petitioners in 2016 for the road vacation, Dennis and Wendy Madden, who — as J.B. Development of Sarasota LLC — own the property at 89 North Beach Road.
As a representative of a number of clients in land-use petitions, Bailey told the commissioners, “It is very rare that I appear before you expressing opposition to an application …”
As Commissioner Maio was the only member of the current board who also was a commissioner during the May 2016 road vacation public hearing, Bailey said he wanted to provide some history about that proceeding. His clients at that time were joined by the Caflisch family and the Ramseys, the latter of whom owned the property on which Holderness was seeking to construct the new house. All of the petitioners for the road vacation, Bailey continued, had access to their houses via Avenida Veneccia.
North Beach Road, Bailey said, “had regularly been washed out” during storms, and rebuilding it “would have cost the county seven figures.”
A key consideration in the board’s decision to approve the vacation, Bailey noted, was the consolidation of the three sets of petitioners’ parcels seaward of the road with their parcels landward of it, obviating the need for development on those seaward lots, including the one at the heart of the Jan. 13 public hearing.
Holderness attended the May 11, 2016 public hearing, Bailey added, so Holderness was aware of the Ramseys’ intentions.
(During rebuttal, paralegal Barfield asserted that the public easement the May 2016 petitioners granted for public access to the beach over their seaward parcels did not include a provision from the Ramseys declaring that they never would try to develop their seaward lots. Moreover, Barfield said, “Mr. Holderness wasn’t a party to that agreement” in 2016. “That’s a red herring,” Barfield told the board members.)
On behalf of the Maddens, Bailey urged the commissioners to deny Holderness’ request for the Coastal Setback Variance.
When Cosentino next addressed the board members, he said, with a chuckle, “I find myself in the extremely rare circumstances of agreeing with Mr. Bailey.”
Cosentino used most of his 5 minutes to cite a judicial precedent that, he said, should have prevented the vacation of part of North Beach Road. (His case against the county is on appeal with the Florida Second District Court of Appeal.)
He then talked of the fact — as Bailey had — that the three sets of petitioners during the May 2016 public hearing gave up their right to keep people off the petitioners’ parcels seaward of North Beach Road. He read from a transcript of that hearing to underscore his statement, including a question that Commissioner Maio asked Bailey at the time.
Maio inquired that day about whether the proffer from the petitioners would ensure that the public had access to the seaward lots “all the way down to the water, wherever that may be?”
Bailey had assured Maio that that was the intent, Cosentino pointed out.
Referring to the single-family house Holderness wanted to construct, Cosentino added on Jan. 13, “Perhaps Mr. Holderness is building this as a public pavilion, but as a private residence, it just doesn’t work.”
During his rebuttal, paralegal Barfield pointed out to the commissioners, “The battle over Beach Road is not before us. That’s done, and it is not impacted here.”