Feb. 14, 2022 vote of county’s Board of Zoning Appeals a factor in County Commission’s July 12 Coastal Setback Variance hearing for Siesta applicant

Board of Zoning Appeals overturned county zoning administrator’s finding that plan for 11 new condos affected by alley between lots

Had it not been for a Feb. 14, 2022 public hearing that took place before the Sarasota County Board of Zoning Appeals, the applicant for a new, 11-unit condominium complex encompassing parcels fronting on Siesta Key’s North Beach Road and Avenida Veneccia most likely would be seeking fewer units during a July 12 hearing scheduled before the County Commission.

By the time that February 2022 Board of Zoning Appeals hearing ended, all but one of the board members had voted in favor of a motion that overturned a 2021 determination by Zoning Administrator Donna Thompson.

Matthew Brockway, an attorney with the Icard Merrill firm in Sarasota who is representing the applicant in the July 12 Coastal Setback Variance petition, contended that Thompson had erred in finding that Sunset Beachfront Resort LLC could not combine the land that the limited liability company owns seaward of the Tenacity Lane alley with the company’s property landward of that alley in calculating how many new dwelling units could be constructed on the site.

In fact, a county staff memo included in the July 12 agenda packet points out that the amount of land involved with the variance request — 2.383 acres — “could support up to 14 units based on the Residential Multi-Family-1/Siesta Key Overlay District (RMF-1/SKOD) zoning, which allows 6 units per acre.”

The staff report also notes, “The proposed construction will increase the habitable area seaward of the Gulf Beach Setback Line (GBSL) by more than 500%.”

The GBSL is the county’s figurative line in the sand established in 1979 in an effort to try to protect dunes and beach habitat which, in turn, protect landward structures from storm surges and other flooding events.

Further, the staff report says, “The proposed project includes more than 9,000 square feet of new impervious area [and] it is located on the north end of Siesta Key, a dynamic section of shoreline with relatively low average elevations, which makes the area vulnerable to inundation during storm events.”

As The Sarasota News Leader has reported, Sunset Beachfront Resort LLC, which has a Columbus, Ohio, address, has applied for a Coastal Setback Variance (CSV) to tear down two multi-story, wooden frame structures located at 70 Avenida Veneccia and 77 North Beach Road so a new building can be erected in their place. The construction would extend a maximum of 75 feet seaward of the Gulf Beach Setback Line (GBSL).

During the Feb. 14, 2022 Board of Zoning Appeals (BZA) hearing, Thompson explained that the county’s Unified Development Code (UDC), which contains all of the zoning and land-use regulations, does not make it clear that density can be transferred across a road or an alleyway. (As noted in one of her slides, “Density is defined as the maximum number of residential dwelling units per gross acre of land …”)

Therefore, Thompson added, the implication is that such transfers are prohibited.

She showed the BZA members sections of a document dating to 1929 to make it clear that the Tenacity Lane alleyway was dedicated to public use.

It would be up to the County Commission, she said, to make a policy decision on whether to allow the transfer of density that Sunset Beachfront Resort was seeking.

Brockway had requested that the Board of Zoning Appeals declare that his clients had sufficient combined property to make it possible to build 12 dwelling units on the site. The seaward lots had enough land to justify four units, based on their acreage, while the landward lots had sufficient acreage for eight units, Brockway told the BZA members.

Brockway also had cited three examples of transfers of density for development on Siesta Key to counter her determination, Thompson pointed out.

The first, Thompson explained, involved the settlement of a dispute related to a Coastal Setback Variance application.

The second, she said, was related to construction of a residential building at 610-612 Beach Road. In that situation, she pointed out, former Zoning Administrator Brad Bailey handled the issues. During a Coastal Setback Variance hearing that — again — regarded a settlement, she added, the County Commission approved the requested action.

Finally, Thompson told the BZA members, the third example related to a variance involving the property located at 636 Beach Road. In that case, the property owner wanted to replace a single-family residence with a six-unit condominium complex. The County Commission denied that request following a hearing on Oct. 20, 2020, she added. That application indicated that a street vacation would be necessary to transfer density across Tenacity Lane, Thompson noted.

Later, a new application was submitted, she continued, and the County Commission approved the variance on a 4-1 vote in December 2021.

The staff report for that hearing said that the request involved the sixth one submitted for that property since 1998.

With that December 7, 2021 vote, the commissioners agreed to the construction of four new dwelling units in a building that would replace a single-family home dating to 2000.

The late Commissioner Nancy Detert opposed the request, citing testimony by Howard Berna, manager of the county’s Environmental Permitting Division, that the property involved in that CSV request was separated by Tenacity Lane, as well. Essentially, Berna said, the owner of the property wanted to transfer the density from two lots seaward of that alley to the two landward of it, to have enough land to justify the requested density of the new structure.

Yet, in making the motion to approve that variance, Commissioner Michael Moran pointed out, “I doubt that Tenacity Lane has ever had a car on it — ever. This isn’t a road that’s going through [the applicant’s] property.”

‘A policy decision’

During the Feb. 14, 2022 hearing, Thompson emphasized again to the BZA members, “The ability to transfer density across a road is a policy decision … That needs to be addressed by the [County Commission].”

In response to a question from BZA member Thomas Arthur, Thompson confirmed that Tenacity Lane is not used as a road. “It is sand.”

Then, replying to a question from BZA member Jon Mast, Thompson acknowledged that the property in the portion of North Beach Road that the County Commission vacated in May 2016 was used in Brockway’s calculation to reach the 12-unit figure for his clients. That is part of the reason, she indicated, that the property landward of Tenacity Lane would support eight residential units.

“It is the alleyway that has not been vacated,” she stressed, “and I have no means to say you can jump that alleyway with your density.”

Could the County Commission vacate the alleyway?, Mast then asked.

“Yes,” Thompson replied.

Mast indicated that, in his view, the BZA’s agreement with Thompson’s 2021 zoning determination in the case could lead to another legal challenge that would end up with the County Commission’s agreeing to a settlement.

BZA member Justin Powell said, “It seems over time … the applicant seems to win” in Coastal Setback Variance hearings when disputes arise over alleys separating parcels under ownership by one entity.

Kelly Fernandez, who was serving as the attorney for Thompson during the hearing, responded that the County Commission could have directed staff to modify the UDC to eliminate any questions about such situations. “They haven’t yet,” she added, “so staff’s left with being consistent with what they’ve done in the past.”

When Brockway made his presentation during the hearing, he also pointed out that, in 2018, Thompson had issued an interpretation that, based on the size of the seaward and landward lots, his applicant could build nine residential units. “We did not include the area of the alley with our density calculation, and we believe that is correct,” he said.

Moreover, he stressed, the 2018 letter “does not require vacation of the alley” for the combination of the density of the seaward and landward property.

That March 5, 2018 letter — a copy of which the News Leader obtained through a public records request — does say that the alley “may not be counted toward density unless it has been vacated or [the owner of the land Sunset Beachfront Resort has purchased] can demonstrate that it has been submerged for a tidal epoch of 18.6 years.”

The National Oceanic and Atmospheric Administration (NOAA) explains, “The National Tidal Datum Epoch (NTDE) is a 19-year time period established by the National Ocean Service for collecting observations on water levels and calculating tidal datum values (e.g. mean sea level, mean lower low water). The NTDE needs to be regularly revised to account for long-term effects of land movement, sea level rise, and changes in tidal constituents.”

Even without the square footage of the alley, Thompson determined that the property owner had enough land to support nine dwelling units.

Brockway then told the BZA members that when he sought a 2021 zoning determination, based on the accretion of the seaward lots since 2018, he believed the total acreage was sufficient for 12 units. Thompson made the determination that those lots could not be combined for the CSV request, he said, because the alley separated them.

In 2018, he noted, the total area of the lots on either side of Tenacity Lane was 1.61 acres. By 2021, Brockway said, accretion had resulted in a total of 2.143 acres.

Thompson’s 2021 “zoning interpretation letter is erroneous,” he emphasized to the BZA members.

His clients had relied on the 2018 letter, Brockway stressed, in their purchase of the Avenida Veneccia/North Beach Road property and in planning for construction on the site. He referenced their “reasonable investment-backed expectations.”

Moreover, he cited a 1915 Florida Supreme Court case, Smith v. Horn, characterizing it as the “seminal case” on such issues. That law said that the vacation of an alley is not necessary for lots on either side of the alley to be considered contiguous.

Later, in response to further board questions, Thompson said, “I can’t quite recall how I arrived at that decision” regarding the alley and the residential density in her 2018 letter. Later, she indicated, she had given more thought to the fact that roads and alleys are public, so they must be vacated before the property on either side of them can be considered contiguous.

Mast ended up making the motion to overturn Thompson’s determination in the 2021 letter for Brockway and to find that the alley did not need to be vacated for the parcels on either side of it to be construed as abutting for density purposes, with the decision on whether to grant the variance to Brockway’s clients left to the County Commission.

BZA member James Piatchuk opposed the motion, having pointed out earlier, “The majority of my life,” the lots seaward of Tenacity Lane were underwater. “It’s only recently that that land has started to poke its head [above the Mean High Water Line]. Siesta Key’s “beautiful white quartz sand continues to accrete …”

County Commission hearing details

The County Commission’s July 12 public hearing on the Coastal Setback Variance requested for the property located at 70 Avenida Veneccia and 77 Beach Road will be held in the Commission Chambers of the County Administration Center located at 1660 Ringling Blvd. in downtown Sarasota. The board meetings, which begin at 9 a.m., no longer are divided into morning and afternoon sessions, so it is not possible, generally, to predict when a specific hearing will get underway.

The CSV hearing is scheduled as a Presentation Upon Request, meaning that if no board member wishes to hear staff’s remarks or the applicant’s remarks, a vote will be taken based on the materials provided in the agenda packet.

The item is the sixth on the July 12 agenda after the Open to the Public comment period, which often finds no individual signed up to address the board.