Judge Carroll to conduct new hearing in Saba Sands litigation involving denial of application for residential construction nearly 230 feet seaward of Gulf Beach Setback Line
During the regular meeting of the Sarasota County Commission on Sept. 22, in Sarasota, County Attorney Joshua Moye publicly informed the board members that the county had prevailed in litigation that Sarasota attorney William Saba had initiated against the county over the commission’s unanimous refusal to grant him a required Coastal Setback Variance in November 2024.
Through his limited liability company Saba Sands II, Saba had applied for the variance so he could construct a three-story, two-unit condominium complex over a grade-level garage, with planned driveway access from Siesta Key Beach Access 10. The building was to stand about 229.3 feet seaward of the county’s Gulf Beach Setback Line. Established in 1979, that line was created in an effort to protect beach dunes and vegetation which, in turn, protect landward structures from storm surge and other flooding events.
This week, during a hearing in a case similar to Saba’s — which also involves the county — attorneys noted a Sept. 10 ruling of Florida’s Fifth District Court of Appeal that has upended the Sept. 11 ruling by 12th Judicial Circuit Judge Hunter W. Carroll in the county’s favor in the Saba Sands litigation.
As a result, Carroll will rehear the Saba Sands case, he told the parties during the Sept. 28 hearing in that second case. (See the related article in this issue.)
The judge formally issued a written order on Sept. 28, giving the Office of the County Attorney until Oct. 13 to respond to the Sept. 25 motion for rehearing that Saba Sands attorney Morgan Bentley of Sarasota filed on Sept. 25.
The FLUEDRA process and the court case
After the County Commission denied Saba the Coastal Setback Variance, he challenged the decision by launching a Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA) process.
Attorney Bentley, of the Bentley Goodrich Kison firm, formally represented Saba Sands II in that action, as well. It was initiated in January 2025.
On Sept. 17, 2025, Saba Sands II chose not to continue that process and, instead, filed a Petition for Writ of Certiorari with the 12th Judicial Circuit Court, seeking a legal quashing of the board’s denial of the variance.
In fighting the litigation, Deputy County Attorney David Pearce pointed to the fact that Saba Sands II did not follow the FLUEDRA process to its conclusion as outlined in state law. He primarily employed an argument about “tolling” to assert that the case had to be dismissed.
As Cornell University Law School’s Legal Information Institute explains, “To toll means to stop the running of a time period, especially a time period set by a statute of limitations.”
Pearce contended that the Saba Sands II petition was not filed with the court in a timely fashion, based on the language in the FLUEDRA law, Section 70.51 of the Florida Statutes.
A 12th Judicial Circuit Court ruling in a DeSoto County case was the basis for his assertion.
A memo provided by the Office of the County Attorney in the agenda packet for the Sept. 22 County Commission meeting explained that, on Aug. 18, 2025, Saba Sands II and the county engaged in mediation in the FLUEDRA case. After the parties failed to “reach a point where County staff were comfortable making a recommended settlement to the [commissioners],” the memo pointed out, Saba Sands abandoned its FLUEDRA petition, “electing not to pursue a non-binding recommendation from the [Special Magistrate presiding over the mediation] as to whether the [commission’s] denial [of the variance] was unreasonable or unduly burdened the use of the property.”
The latter language references state law regarding private property rights.
In referencing the Fifth District Court of Appeal action in his Sept. 25 motion for the rehearing of the court case, Bentley, the Saba Sands attorney, pointed out, “No special magistrate recommendation issued here, much less was one acted upon by the County.”
Moreover, Bentley wrote, Carroll misapprehended the transcript of the hearing on the Saba Sands complaint. “Saba Sands did not concede that it abandoned the FLUEDRA proceeding; it conceded only that the mediation session ended without agreement.”
Therefore, Bentley added, Carroll should vacate his Dismissal Order and reinstate the Saba Sands Petition for Writ of Certiorari.
The Fifth District Court of Appeal action, in detail
In his Sept. 25 motion, Bentley provided details about the Fifth District Court of Appeal ruling in Traska v. Board of County Commissioners of Brevard County.
The lower court that heard the case had dismissed, with prejudice, the petition for mandamus that a landowner had filed. (As Cornell Law School’s Legal Information Institute explains, “A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.”)
The Fifth District Court of Appeal “found that the special magistrate’s duty to prepare a written report under FLUEDRA was compulsory (‘shall’), that to read otherwise would render the words in the statute meaningless, and that futility was not relevant,” Bentley explained.
“The court’s explanation confirms the plain statutory sequence on which Saba Sands relies: initiation of a FLUEDRA proceeding suspends the period for judicial review, and the tolling endpoint is the local government’s action on the special magistrate’s recommendation — not a unilateral cessation of the process by the local government or an asserted abandonment by the landowner,” Bentley added.
The Traska ruling, he continued, “is especially persuasive because it rejects the same practical consequence advanced by the County here: that a governmental entity may rely on an incomplete FLUEDRA process to defeat judicial review. The Fifth District reasoned that the statutory recommendation has concrete consequences, including triggering the special magistrate and local government’s obligation to act under [the provisions of the FLUEDRA law, Section 70.51(21) of the Florida Statutes] and ending the tolling contemplated by section 70.51(10)(a).”
Once the Special Magistrate’s recommendation has been issued, Bentley pointed out, Section 70.51(21) gives the affected local government board “45 days to accept, modify, or reject it — and, absent an agreed extension, inaction is itself a rejection.”
Further, he contended, “A recommendation that the [local government’s action] is unreasonable or unfairly burdens the property’s use may also serve as an indication of hardship supporting later modifications, variances, or special exceptions under section 70.51(25).”
With emphasis, Bentley pointed out, “These are not speculative downstream benefits; they are statutory consequences the Legislature built into the FLUEDRA framework …”
Moreover, Bentley cited a 2007 ruling by the Florida Second District Court of Appeal — in Peninsular Properties Braden River, LLC v. City of Bradenton — in which that court found that the FLUEDRA law “tolls the time for seeking judicial review ‘until the governmental entity acts upon the special magistrate’s recommendation.’ ”
Sarasota County is included in the territory of the Second District Court of Appeal.
Bentley explained, “The facts of Peninsular Properties closely resemble those here. After initiating FLUEDRA proceedings, the owner ‘soon determined that a settlement with the City was not going to be forthcoming’ and filed its certiorari petition more than thirty days after the City’s denial. … The circuit court dismissed the petition as untimely, and the Second District reversed [that decision].”
He added, “Although the court addressed only the constitutionality of section 70.51(10)(a) [of the FLUEDRA law], nothing in the opinion suggests that the owner’s determination that settlement would not be forthcoming ended the tolling period.”
Bentley cited yet another Florida Second District Court of Appeal ruling — in the 2001 case Scott v. Polk County — which — he explained — described the FLUEDRA proceedings “as an informal, nonjudicial process controlled by the special magistrate and parties, while reiterating the statute’s tolling endpoint: ‘until the special master’s recommendation is acted upon by the local government.’ ”
“Notably, in [that ruling],” Bentley continued, “the special magistrate formally filed a ‘Mediator’s Report’ indicating that the FLUEDRA proceeding had culminated in an impasse,” unlike the situation in the Saba Sands case, “where the special magistrate provided no notice and took no action to indicate that the proceeding was terminated.”
Then he pointed out, with further emphasis, “Importantly, the Second District also emphasized the complete and necessary separation between the FLUEDRA process and the judicial process: “The plain language of section 70.51 indicates that the alternative proceedings contemplated by that section are informal and nonjudicial and are controlled strictly by the special master and the parties. No provision within section 70.51 confers jurisdiction on any court of law or otherwise authorizes judicial intervention or involvement in a special master proceeding, because judicial review of a zoning decision is an entirely separate formal process that may be initiated. … The trial court in this instance was therefore without the authority to intervene in the special master proceedings or to otherwise dismiss them. It thus departed from the essential requirements of the law in doing so.’ ”
“Moreover,” Bentley wrote, neither the Pennisular Properties case nor the Scott case “recognizes abandonment, withdrawal, termination of mediation, or the absence of a recommendation as an alternative endpoint to the statutory tolling period. To the contrary, the operative text in both decisions tracks the Legislature’s chosen event: action on a recommendation.”