Attorney representing property owner says his illustrations based on topography of property and data available through software system county uses
On Sept. 8, Sarasota County Commissioner Nancy Detert admitted to being swayed by graphic illustrations showing how an applicant seeking a Coastal Setback Variance (CSV) had a home design that was less flood-prone than a county alternative that would have complied with the county’s Coastal Setback Code.
In that case, involving plans for a new home seaward of the county’s Gulf Beach Setback Line (GBSL) on property at 7136 and 7140 Point of Rocks Circle on Siesta Key, she joined her colleagues in approving the proposal.
On Sept. 29, she voiced frustrations with another set of graphic illustrations shown by the same attorney who represented the Siesta Key property owners — Matt Brockway of the Icard Merrill firm in Sarasota.
This time, Detert ended up casting the solitary “No” vote after Commissioner Michael Moran made a motion to approve the CSV petition, and Commissioner Christian Ziegler seconded it.
“I think it’s our job as policy makers to make rules and maintain them,” Detert said, referring to the county’s Coastal Setback Code. “The job should be to make the house fit the lot,” she added, “not the lot to fit the house.”
“We’re in the middle of a huge growth pattern,” she added. “This one, for me, is too far.”
In fact, before Moran offered his motion, Detert made a motion to deny the petition. None of her colleagues seconded it, so it died.
Before the hearing ended on Sept. 29, Detert addressed county Environmental Specialist Staci Tippins, who made the staff presentation: “I’ve read your report. It’s very good. … I’m seeing a new trend.”
“[The Icard Merrill team has] better software than you have,” Detert told Tippins. “It worked last time, so here we are again.”
Detert then asked Tippins about the accuracy of Brockway’s presentation in regard to how storm surge could affect his client’s preferred location for a new home with 5,300 square feet of habitable area, as well as 1,540 square feet of accessory structures — plus an impervious driveway comprising 9,100 square feet — on property located at 711 Casey Key Road in Nokomis.
Following the Sept. 8 hearing, Tippins explained, she reviewed the graphics that Brockway had presented to the board that day. “What was not shown,” Tippins said, “was storm surge. … There is software out there that models storm surge.” She also noted that that was not what Brockway had shown the board on Sept. 29, in regard to the Casey Key homeowner’s proposal.
(The owner of the property at 711 Casey Key Road is Mark Demilio, who paid $2,025,000 for the vacant land in September 2020, Sarasota County Property Appraiser’s Office records show.)
“Do we need to change our rules to accommodate new technology,” so the representative of a petitioner would have to submit such illustrations to staff in advance of the hearing?, Detert asked.
“It would be helpful to receive some information ahead of time,” Tippins replied, so staff could vet it and be prepared to answer any board questions about such graphics.
During his rebuttal, Brockway said that the flooding graphics were “being used for illustrative purposes only.” He emphasized that his client had to submit a survey to county staff as part of the application package. Further, Brockway pointed out, the project team had used the details of the property’s topography and the county’s own Geographical Information System software to prepare the illustrations. “The information is out there.”
Nonetheless, Detert said she was hopeful that Matt Osterhoudt, director of the Planning and Development Services Department — which includes Environmental Permitting — would look into potential changes in Coastal Setback Variance procedures that would help the commissioners in their decision making in light of Brockway’s use of the graphics.
Then Detert pointed out that the Coastal Setback Code calls for the granting of a variance that allows the minimum construction necessary to permit reasonable use of coastal property.
“When you’re constructing a whole new house,” she added, “you have options” to place the structure so it results in the least negative impacts possible on the site.
As the county staff report had noted, Detert continued, this would be only the second house in the immediate area to receive a CSV for construction fully seaward of the Gulf Beach Setback Line (GBSL), and the owner of that other house — standing at 715 Casey Key Road — submitted a letter of support for the petitioner in this hearing. “They use each other for precedence.”
The county staff report also explained that the pile-supported, two-story-over-parking house at 711 Casey Key Road would be the only new single-family residence seaward of the GBSL “where none previously existed.” The owner of the property at 715 Casey Key Road received a CSV in 2005 to demolish an existing home and build a new one, plus accessory structures, “no further seaward than the existing residence and patio,” the report noted.
If the commission approved the variance for the owner of the parcel at 711 Casey Key Road, Detert asked, would the commission be able to turn down future petitions reflecting similar circumstances?
In response to another question from Detert, Tippins said that the applicant could minimize the intrusion on the coastal system seaward of the GBSL. (The GBSL is the figurative “line in the sand” established in 1979 to protect coastal habitat and dunes which, in turn, protect landward structures from flooding and other storm events.)
During his presentation, Brockway maintained that his client’s plans represented the minimum, reasonable use of the property.
The pool deck would be 47 feet seaward of the GBSL, he pointed out, but the house would stand only 28 feet seaward of the GBSL, and the construction would be 192 feet landward of the Mean High Water Line.
Moreover, he stressed, the house would be “behind the established line of construction” on that part of Casey Key Road, and the first finished floor would be at 18.3 feet NAVD. The latter acronym refers to the Federal Emergency Management Agency (FEMA)’s designation for base flood elevation.
Further, as he did on Sept. 8, Brockway emphasized that the county’s Coastal Setback Code discusses “minimum reasonable use” of property, “not the minimum reasonable construction.” The site is zoned Residential Estate-2, he added, and the minimum reasonable use of land in that zoning district “is a single-family home with accessory uses.”
In making the motion to approve the variance, Commissioner Moran noted Brockway’s information that the house’s location would be consistent with the line of construction in that area of Casey Key. Although Tippins had pointed out that the location of the Florida Department of Environmental Protection’s Coastal Construction Control Line (CCCL) is not a criterion for County Commission consideration during CSV petition hearings, Moran said he nonetheless found it meaningful.
Further, Moran noted Brockway’s testimony that the County Commission sitting in 2008 granted a variance for construction on the same parcel, even though nothing ever was built. (Tippins said staff was unable to find a record of that in its preparations for the Sept. 29 hearing.)
Chair Alan Maio pointed to the fact that the new house would have to conform to FEMA elevation standards. His home, which is on a creek, had an 8-foot elevation, Maio said. According to FEMA, the structure needed to be at 11 feet, Maio added, so he and his wife had it elevated so it would stand at 11.5 feet NAVD.
Further details of the construction plans
During his presentation, Brockway showed the board members graphics illustrating the location of the property on the southern third of Casey Key. The two houses immediately to the north and south of his client’s parcel are located partly seaward of the GBSL, he noted.
Moreover, Brockway presented the board a list with the sizes of the 10 houses to the north and south of the 711 Casey Key Road property, which have been built since 1995. His client’s new home would be smaller than all of them, he added.
And, just as with the property on Point of Rocks Circle, he explained, the land located at 711 Casey Key Road “slopes downward from the Gulf to the street …” The middle section “has the highest elevations,” he said.
An alternate location of the structures suggested by county staff, Brockway pointed out, would be more subject to flooding.
Further, Brockway noted the fragmented coastal hammock remaining on the land. “Were we to shift the house farther landward,” he said, as staff had proposed, “we would encroach on that” without even considering the siting of the driveway.
Finally, Brockway talked about county regulations regarding septic fields, as no central sewer system is available in the area of the property. The County Code says a septic field cannot be closer than 50 feet to a well, he said, and a well is on the parcel. A minimum of 2,000 square feet is needed for the septic field, he added. Thus, the location of the new house is constrained by those county regulations, Brockway pointed out.
(Both Commissioners Maio and Moran cited the latter factor as another reason they were willing to approve the CSV.)