Commissioner Detert only board member to focus on concerns about ‘private beach’ debate
With direction to staff to make tweaks prior to the second public hearing, set for Sept. 28, the Sarasota County Commission this week voted unanimously to approve an amendment to county zoning regulations related to what staff terms “incidental signage.”
In reality, as commissioners pointed out during their Aug. 24 regular meeting, the proposed amendment to the Unified Development Code (UDC) was a staff response to board concerns expressed in March about property owners’ efforts to keep people off their private beach territory.
(The UDC contains all of the county’s land-use and zoning regulations.)
Commissioner Christian Ziegler noted in March that signs marking private beach property had prompted outcries on Siesta Key. Commissioner Detert pointed to similar signage on Manasota Key Beach, as well.
Although the majority of the debate during the Aug. 24 meeting focused on the proposed amendment, Detert said early on, “I think we’re discussing the dynamics of a tree and overlooking the forest.”
Zoning Administrator Donna Thompson did acknowledge the genesis of the amendment was the “private beach” issue, about which residents have complained to the commissioners.
Referring to some of the signs she had seen, Detert pointed out, “They’re just getting ridiculous.”
“We need some clarity on what’s a private beach and what isn’t a private beach,” Detert added, instead of discussing the size of signs allowed on the beach. “I think what we want is some clarity and less fighting instead of more fighting.”
In response to a question she asked him, County Attorney Frederick “Rick” Elbrecht explained that the county is limited in how it can restrict signage on beaches, thanks to a 2017 federal court decision involving Florida’s Panhandle.
The court made it clear, Elbrecht noted, that “[sign] restrictions need to be narrowly tailored” so as not to impinge on First Amendment rights.
“I’m familiar with the problem in the Panhandle,” Detert told him. “They caused a lot of this dispute.”
Later, Detert said, “Because of what happened in the Panhandle, our natural resources no longer belong to everyone, and people do not get to walk on a beach [anymore] just because a beach is there … I think now everybody’s staking out their territory, and we get to discuss how big your sign is for you to stake out your territory.”
The motion that Commissioner Michael Moran finally made on Aug. 24 called for staff to increase the size of allowable incidental signs to 2 feet by 3 feet and to increase the aggregate maximum area of the signs on a single piece of property from 16 square feet to 24 square feet in open use, residential zoning districts.
Additionally, Moran called for the maximum area of any sign on the boundary of a parcel to rise from 4 square feet to 6 square feet.
Further, Moran said that any flag used in lieu of a sign should be no taller than 3 feet.
Detert seconded the motion, but Commissioner Ron Cutsinger asked for a clarification about the height of flags.
The UDC says 6 feet is the maximum height allowed for a flag. “This is countywide,” Cutsinger stressed of the amendment. “I think the 3-foot height thing would be challenging.”
“I think the flag should be no more than a maximum of 2 foot by 3 foot,” Chair Alan Maio responded, with the height a maximum of 6 feet.
Then Commissioner Ziegler voiced concern that such a tweak as Maio had proposed would rule out the 3-foot by 5-foot American flags that many people fly at their homes. “And some … businesses have bigger flags.”
“Let’s exempt the American flag,” Maio suggested, referring to the amendment.
“I don’t think you can do that,” Ziegler told him.
“We’re not limiting American flags,” Maio said.
Following an exchange with County Attorney Elbrecht about potential legal issues — including those that could be construed in regard to the First Amendment — Moran asked whether staff could just modify the language in the amendment to say that flags could be used in lieu of signs, with no other requirements.
Assistant County Attorney David Pearce, who drafted the amendment, told the commissioners that they could use “time, place and manner” factors to provide for flag restrictions. For example, Pearce pointed out, the UDC language could reference the county’s Gulf Beach Setback Line (GBSL) and the Barrier Island Pass Twenty-Year Hazard Line. Both of those figurative lines are used in reference to construction on the county shoreline. They were designed to protect native beach habitat], which, in turn, protects landward properties in storms and other flooding events.
“I suggest that we pass this [motion] with an amendment instructing staff to come back with a definition of signs that would be suitable for this [private beach issue],” Detert told her colleagues.
“I can prepare something that will address the issue, I think,” Pearce replied.
That will be part of the final language the board will consider during the second, required public hearing, which is scheduled for Sept. 28. (In a second Aug. 24 motion, the commissioners voted unanimously to waive the county regulation calling for that second hearing to be conducted after 5:01 p.m.)
A public request for changes to the amendment
Only one member of the public addressed the commissioners during the public hearing — Darrel Peters, a director of the Gulf & Bay Club Condominium Association on Siesta Key.
He asked the board to allow flags to be used, instead of just signs, as noted in the UDC amendment. “Flags are easy to put up; they’re easy to take down,” Peters said. “They’re not offensive, and they’re effective.”
He also requested the modification for the maximum square footage of a sign to be 6 feet, instead of 4. “The county uses 6-square-foot signs right now,” Peters told the board members, showing them a “sandwich board” sign next to a lifeguard stand on Siesta Public Beach. “We use sandwich boards and flags,” he added of the Gulf & Bay Club.
“The problem is the large numbers of people that are moving into the private beach property,” Peters explained. “It’s not language on signs.”
Showing the commissioners a series of photos of Siesta Beach seaward of the Gulf & Bay Club property, Peters pointed out, “Our property has become an extension of the public beach,” which is immediately north of the condominium complex’s site.
Gulf & Bay Club has existed for 35 years, Peters added. “We never marked our beach until October of last year because the problem had grown so severe …”
Among the photos he presented to the board was one taken on the morning of July 25. “That’s the condition of the northern 40% of our beach” on the average sunny Sunday, he noted, referring to the number of people on the sand.
“There are so many people trying to get to the shoreline that it has become an impediment to our owners and our guests trying to get access to the shoreline,” Peters stressed, “so we decided that we would begin to mark our beach. … We had our beach surveyed,” he continued, so the Mean High Water Line (MHWL) could be determined.
Following Peters’ comments, Commissioner Moran voiced his appreciation for “the incredible, thoughtful, non-confrontational presentation and testimony here.”
Moran added, “It seems like a pretty reasonable request,” in regard to the size of the signs.
Zoning Administrator Thompson told the board members, “I don’t have any concerns” over increasing the size of the signs allowed by the amendment.
“Quite frankly,” Thompson acknowledged, “I didn’t give any thought to flags.”
When Chair Maio asked whether the UDC defines flags, Thompson told him, “It’s a very loose definition …”
“So you could end up with a flag like Sarasota Ford [near downtown Sarasota], only it’s on Siesta Key Beach,” Detert pointed out.
Size restrictions for flags are included in the UDC in regard to residential property, Thompson pointed out.
Condominium complexes on Siesta Key are in residential zones, county land-use maps show.
“No matter what we do,” Detert said, “there’s going to be people that don’t keep the rules.”
A potential ‘wrinkle’ for future discussions
State law has been consistent in allowing the public to use the area of any beach seaward of the MHWL.
However, on Aug. 20, a panel of the 11th U.S. Circuit Court of Appeals, in Atlanta, overturned a lower court ruling that had backed waterfront property owners in a battle with the leaders of the Town of Redington Beach. A state law approved in 2018 put restrictions on what is known as “customary use” of the beaches. That use “is a legal concept that involves people having access to property ‘based on longstanding customs,’” the 11th Circuit panel said in its opinion, as reported by the News Service of Florida.
“The 2018 law put in place an extensive process for local governments that want to have ordinances aimed at ensuring customary use of beach areas above the [MHWL],” the article added.
Before the state law went into effect on July 1, 2018, the Town of Redington Beach approved an ordinance allowing the public to continue using dry-sand areas of the beach. As a result, seven beachfront property owners filed suit in 2019, challenging the ordinance, the News Service of Florida reported.
The 11th Circuit Court panel’s decision means the case will go back to the U.S. District Court for “further determination,” the News Service of Florida noted. That review will focus on “whether the town had properly established customary use of the disputed portions of the beach,” the News Service of Florida article added.