County staff proposed construction of a berm in the same general location to keep sand from continually piling up on North Beach Road but has backed away from that plan
Editor’s note: This story was updated early in the afternoon of Nov. 6 with new information from Sarasota County staff.
The Florida Department of Environmental Protection (FDEP) has issued a Field Warning Notice to Siesta Key property and business owner Michael Holderness regarding “[e]xcavation and filling for the installation of a sand fence … seaward of the Coastal Construction Control Line (CCCL) without a valid permit from the Department,” The Sarasota News Leader has learned.
The structure borders North Beach Road, beginning just south of the Avenida Messina intersection, which is adjacent to Beach Access 2.
Issued on Oct. 20, the FDEP notice references a complaint and a field inspection that occurred the previous day. The applicable rules, the notice continues, are Chapter 161 of the Florida Statutes, which is the Beach and Shore Preservation Act, and Chapter 62B-33 of the Florida Administrative Code, which pertains to coastal construction and excavation.
“The activities observed during the Department’s field inspection and any other activities at your property that may be contributing to violations of the above-described statutes or rules should be ceased,” the notice adds.
Holderness was advised to contact FDEP personnel within 15 days of receipt of the notice. “The Department is interested in reviewing any facts you may have that will assist in determining whether any violations have occurred,” the notice adds.
In a related matter, Holderness provided the News Leader copies of emails he had exchanged with Assistant County Engineer Larry Mau regarding steps the county’s Public Works Department plans to take to deal with the continuing problem of sand blowing onto North Beach Road. According to those emails, staff plans to construct a berm, with plantings, to try to keep the sand off the road.
Residents in recent years have complained about the fact that county staff does not keep the section of North Beach Road just south of Beach Access 2 clear for pedestrian and bicycle use.
In a Nov. 3 email, Mau attached a sectional showing the location of the sand staff planned to remove from the road and the site of the proposed berm. “It is critical that we move this project quickly,” Mau added to Holderness, noting that he hoped Holderness had discussed the plans “with relevant neighbors” so staff could “move forward with the work …”
When the News Leader asked county staff about the plans, Howard Berna, the county’s Environmental Permitting Division manager, stressed that this is an effort to keep sand off the road. He also emphasized that a path would be created through the berm to ensure people can reach the beach.
Nonetheless, Mike Cosentino, who owns the nearby 10 Beach Road property, expressed dismay to the News Leader about the potential for the berm to block public access to the shore.
Early in the afternoon of Nov. 6, county Media Relations Officer Drew Winchester told the News Leader he had just learned from the county’s Public Works Department staff members that they have backed away from the plans for the berm. They would need a state permit for that project, Winchester said, so they have decided not to pursue that at this time.
Complaint lodged about the new fencing
The News Leader learned that Cosentino notified Berna about the new fencing on the morning of Oct. 19. Berna, in turn, contacted Kelly Cramer, an environmental specialist with FDEP. Cramer signed the notice that went to Holderness.
Additionally, Cosentino sent Berna photos of the fencing and a sign attached to the structure. The sign says, “Sand Fence. Keep the sand on the beach & between your toes (not on the asphalt).”
The sign also asks the public not to touch the fencing, as it is fragile.
When the News Leader questioned him about the notice, Holderness responded in a Nov. 3 email with language that mirrored the message on the sign: “ It’s not a ‘fence.’ It’s a sand fence [designed] to keep the sand on the beach and off the asphalt. The fine sand blows and that causes the beach to lose elevation … Therefore, the owner installed [the fence] to keep the turtle nests from being washed over.”
In the spring, Holderness fought a figurative battle with county Environmental Permitting staff over chain-link fencing that he helped install on his property and a parcel owned by Siesta Gulf View LLC, which is managed by Andy Cooper of Siesta Key. One of the photos sent to Berna in October appears to show the “sand fence” along the border of the Siesta Gulf View property.
In April, county staff issued affidavits to Holderness and Cooper, warning them that they had violated the county’s Coastal Construction Ordinance by erecting the chain-link fencing on property seaward of the county’s Gulf Beach Setback Line (GBSL). That figurative line was established in 1979 to protect dunes and native beach vegetation so they, in turn, could provide protection to landward property in the event of storm surge and other flooding events.
At that time, Holderness told the News Leader he erected the fencing as a means of keeping people from violating federal and state advisories for social distancing to prevent the spread of COVID-19. After the county closed its beaches in late March, Holderness pointed out, members of the public continued to gather on the private beach parcels on Siesta Key.
Ultimately, that chain-link fencing was removed.
In response to News Leader questions about the FDEP Field Warning Notice issued to Holderness, Alexandra Kuchta, FDEP’s deputy press secretary, wrote in a Nov. 5 email that, during the Oct. 19 site inspection, FDEP staff observed a fence “installed seaward of the Coastal Construction Control Line (CCCL) that is blocking pedestrian access from Beach Road to the open beach. No DEP authorization was obtained prior to installing the fence.”
She added that, as of that morning, FDEP had not received a response from Holderness about the warning. She noted that he had 15 days from receipt of the FDEP letter to “provide the department with the necessary facts to complete its regulatory review.”
Kuchta also explained, “DEP’s Coastal Construction Control Line (CCCL) Program regulates construction waterward of the CCCL and landward of mean high water to protect beach and dune systems, upland property and development, sea turtles and to maintain public beach access. Regulated activities include the construction of all structures such as homes, condominiums, hotels, amenities, and armoring structures such as bulkheads, revetments and seawalls. Any kind of protection structure, ground alteration or vegetation removal activity seaward of the CCCL requires a permit.”
She added, “DEP has a number of compliance and enforcement tools available to address potential violations. Depending on the nature of the violation and circumstances surrounding the event, DEP will determine which measure is best-suited.
Moreover, Kuchta continued, “Our state’s beaches are among its most valuable natural resources and DEP is committed to their protection. DEP takes these violations very seriously and will be pursuing formal enforcement in this matter. Removal of the sand fence and, if necessary, restoration of the grade will be required as part of the action. In addition, penalties may also be assessed.”
When the News Leader contacted the county about the fencing, Berna of Environmental Permitting responded that FDEP is taking the lead on the issue at this point. “Once that process has been completed, county staff will take additional steps, if needed,” he added.
Thank you for bringing attention to the latest unlawful blocking of public access by Mr. Holderness. But how is the county blocking public access with a sand berm construed as rectifying an unlawful fence? The reason for the “sand berm,” emailed to me by Howard Berna, was to block car headlights. Now the county has changed its claim, and asserts its proposed sand berm is meant to keep sand off the road. Yet the county has allowed 3 feet of sand to block access to Beach Road for 20 years. I find this disconcerting.