Feb. 3 hearing set on Saba Sands’ protest of County Commission denial of petition for construction of new condominium complex at 636 Beach Road on Siesta Key

Special Magistrate to conduct proceeding under the guidelines of Florida Land Use and Environmental Dispute Resolution Act

Kenneth A. Tinkler is an attorney with the Carlton Fields firm in Tampa. Image from the Carlton Fields website

A hearing has been scheduled for 9 a.m. on Wednesday, Feb. 3, for Special Magistrate Kenneth A. Tinkler of Tampa to consider a petition to overturn the Sarasota County Commission’s unanimous Aug. 26, 2020 denial of a Coastal Setback Variance that was sought by the owners of the property at 636 Beach Road on Siesta Key.

The hearing will be conducted in the County Commission Chambers on the first floor of the County Administration Center on Ringling Boulevard in downtown Sarasota. Seven hours have been set aside for it, according to the formal notice. The hearing will be open to the public, the notice says.

Last year, Saba Sands LLC filed a Request for Relief through the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA), arguing that the commissioners’ action was “unreasonable and unfairly burdens Owner’s reasonable, investment-backed expectations for use of the Land.”

The principal of Saba Sands LLC is Sarasota attorney William Saba.

Saba Sands sought the Coastal Setback Variance (CSV) so it could demolish a two-story-over-parking, single-family residence with 3,990 square feet of habitable space and replace it with a three-story, pile-supported structure that would contain 17,106 square feet. The new building would contain six condominiums, county staff reported. Seaward of it, two other undeveloped lots Saba Sands owns contain dune habitat, staff showed the board members.

Along with the condominiums, the new construction would include a pool, a deck, a retaining wall and a driveway.

The maximum any of the construction would stand seaward of the county’s Gulf Beach Setback Line (GBSL) would be 191 feet, Howard Berna, manager of the county’s Environmental Permitting Division, told the commissioners during the Aug. 26, 2020 hearing.

The GBSL was established in 1979 to protect coastal habitat and dunes, which, in turn, protect landward structures from storm surge and other flooding events. County leaders have referred to it as a figurative “line in the sand.”

On Aug. 26, 2020, Saba Sands’ attorney, Stephen D. Rees Jr. of the Icard Merrill firm in Sarasota, told the commissioners during the public hearing that the CSV the company was seeking “is the minimum variance necessary to permit reasonable use of the property, referring to state and local regulations regarding private property rights.”

Nonetheless, Commissioner Nancy Detert, who made the motion to deny the petition, said that the construction would set “a horrible precedent.”

While she stressed, “I’m not anti-property owner,” Detert also said, “To me, you’ve got what you bought. … It does take a lot of nerve to ask for multiple units on this property.”

A graphic shows the property at 636 Beach Road and the line of construction (in green) for that parcel and adjoining ones. The red line represents the Gulf Beach Setback Line. Image courtesy Sarasota County

She voiced concern that if the board approved the CSV, that would open up the potential for the owners of “all the other houses on [Beach Road]” with property covered by dunes and vegetation seaward of those homes to seek approval for larger structures.

Attorney Stephen D. Rees Sr., also of Sarasota, is representing Saba Sands in the FLUEDRA action, the petition says.

In filing the Request for Relief on Nov. 23, 2020, Rees stressed that Saba Sands wants to construct the new building only on the two lots that already are developed on the property. “Owner before acquiring Title to the Land carefully studied prior Board approvals for Coastal Setback Variances on SIMILAR properties expressly identified within the Owner’s Variance Application Narrative and discussed both within a Powerpoint [sic] presentation and testimony by Owner’s Agent at the public hearing,” Rees wrote with emphasis in the FLUEDRA petition. The commissioners approved multiple residences and multi-story buildings “as a reasonable use” on those other properties, he added; thus, Saba Sands expected “to be treated similarly, fairly and equally under the criteria of [the County Code].”

The county Environmental Permitting staff’s own analysis of the Saba Sands proposal found that the Mean High Water Line “‘is approximately 782 feet from the proposed construction,’” Rees continued. Staff also concluded, he wrote, that no direct impacts on the protected native dune habitat or dune vegetation were anticipated.

Rees further pointed out that, according to the 2002 Sarasota/Charlotte County Beach Feasibility Study Report, the shoreline at the Saba Sands property “‘has accreted at an annual rate of 6.8 [feet per year] between 1987 and 2001 and 2.4 [feet per year] between 1974 and 2001,’” according to the county staff report.

Additionally, Rees wrote, the staff report noted that the Florida Department of Environmental Protection’s 2018 Critically Eroded Beaches in Florida report “‘did not designate this area of the beach as critically eroded.’”

This graphic shows distance from the proposed new residential structure at 636 Beach Road and from the pool deck to the Mean High Water Line (MHWL). Image courtesy Sarasota County

Moreover, Rees stressed, “County Staff totally ignored [Saba Sands’] Variance Application discussion … of six properties ‘WITHIN THE NEIGHBORHOOD’ having ‘double lots’ on Beach Road developed as multi-family buildings between the public beach and Ocean Blvd,” including those standing at 228 Beach Road, 304 Beach Road and 610 Beach Road.

Rees also alleged that county staff specifically disregarded facts that were favorable to the Saba Sands application and, instead, chose to show the commission a graphic that illustrated that the new condominium complex proposed at 636 Beach Road would shift the line of construction seaward by 25 feet, which, staff said, conflicted with the criteria of the county’s Coastal Setback Code in regard to determining “‘the minimum variance necessary for reasonable use of the property.’”

Staff further pointed out to the commission that Saba Sands was requesting street-yard setback variances for that shift in the line of construction, which would result “in further intensification and encroachment seaward of the GBSL,” Rees wrote.

All in all, Rees contended, “[T]here was not within the Record of the August 26, 2020 Board public hearing competent, substantial evidence to support the Board’s erroneous, unsubstantiated Findings … that only a single family residential use was a reasonable use [of the property].”

The county’s response

In the county’s formal response to the Request for Relief, Assistant County Attorney David Pearce argued that, because the property located at 636 Beach Road “abuts dune habitat and beach access, and because there is a reasonable existing use, a reasonable person would expect that the location and natural conditions associated with the property would limit its potential use.”

Additionally, he pointed out, although the county’s Coastal Setback Code has “been amended several times” since it was adopted in 1979, “the general prohibition against construction or excavation seaward of the GBSL remains unchanged.”

This section of the proposed site plan shows details of the 636 Beach Road proposal. Image courtesy Sarasota County

He further noted that the lots “immediately to the southeast [of the 636 Beach Road parcel] have single-family residences built on single lots. Saba Sands owns a double lot. Beyond those single-family residences is the Sarasota County Siesta Key Public Beach.”

Pearce also referenced Saba Sands’ argument about the multi-family buildings on six other properties in the neighborhood, writing that Saba Sands “has essentially alleged a ‘class of one’ equal protection claim.” To prevail on such a claim, he added, “Saba Sands must show that they were intentionally treated differently from others who were ‘similarly situated’ and that there is no rational basis for the difference in treatment.”

However, citing a 2010 opinion of the 11th U.S. Circuit Court of Appeals, he stressed, “[T]he comparators must be ‘prima facie identical in all relevant respects.’”

“Except for the example at 610 Beach Road,” Pearce wrote, “Saba Sands has not provided an analysis comparing these properties with its own property.”

Further, Pearce pointed out that the dredging of Big Sarasota Pass to renourish Lido Key Beach — a project of the City of Sarasota and the U.S. Army Corps of Engineers (USACE) — was expected to affect Siesta Key’s beaches, as contended by the Siesta Key Association and Save Our Siesta Sand 2 during a 2017 Florida Division of Administrative Hearings proceeding. (The removal of sand from the pass was underway at the time of the CSV hearing before the County Commission last August.)

This graphic shows facets of the proposed new construction overlaid on the footprint of the existing home at 636 Beach Road. Image courtesy Sarasota County

He also noted that the proposed new construction “would include a nine-foot intrusion into the zoning rear lot setback along Tenacity Lane [an alley on the western side of the parcel] and an almost two-foot intrusion into the zoning street yard setback adjacent to Beach Road.”

And while Saba Sands claims a conservation easement for Lots 28 and 29, seaward of the house at 636 Beach Road, did not include the accreted beach, the county disagreed, Pearce wrote. Nonetheless, he noted that the county does agree that the original easement did not include the necessary “two signatures for execution.” Therefore, he continued, “Pending the outcome of this FLUEDRA proceeding, the County is contemplating the initiation of a code enforcement action to acquire the necessary signatures on this conservation easement.”

More hearing details

In the notice of the Feb. 3 hearing, Special Magistrate Tinkler pointed out that his first attempt will be to mediate the dispute. Then, if the parties cannot come to an amicable resolution, he will consider the facts and circumstances to determine whether the County Commission denial of the CSV was warranted.

The notice also points out, “Owners of contiguous properties to the Subject Property and any substantially affected person who submitted oral or written testimony which stated with particularity objections to or support for [the Saba Sands CSV petition] may request to participate in the proceeding.” However, the notice makes clear that such persons’ participation “shall be limited to addressing issues raised regarding alternatives, variances and other types of adjustments to the [commission decision] which may impact their substantial interests, including denial of the [CSV]. The opportunity to participate will occur at the beginning of [the proceeding].”