An Osprey couple’s attorney says he would prefer not to litigate, but the county’s not allowing his clients to build the house would be ‘a categorical taking’
Facing the threat of a lawsuit, the Sarasota County Commission nonetheless voted unanimously this week to deny the request of Siesta Key property owners seeking a variance, for the third time in almost three years, to build a home completely seaward of the county’s Gulf Beach Setback Line (GBSL).
“To deny this variance would place an unreasonable hardship on the land because, without the variance, there’s no reasonable or economically viable use available for the property,” William Merrill III, an environmental attorney and partner with the Icard Merrill firm in Sarasota, told the board on Oct. 14. Denying the petition “would be a categorical taking and thus an unreasonable hardship,” he added.
Commissioner Paul Caragiulo, who was not on the board when Ronald and Sania Allen of Osprey submitted the previous two petitions for a variance, acknowledged that he is the “pro-property rights guy and pro-business guy.” Yet, he said he felt allowing the Allens to construct the 2,779-square-foot home on a Beach Road lot that has been submerged in past decades would set “a precedent I’m really not comfortable with, and, ultimately, maybe we do need a judge to tell us what to do in a very specific situation like this.”
What he would be comfortable with, Caragiulo continued, would be having county staff look into the prospect of purchasing the parcel at 162 Beach Road.
Commissioner Al Maio, who represents Siesta Key, seconded the motion. “I can’t come up with a reason that I should vote differently than three prior county commissions voted,” he said, referencing a 1992 denial of a variance request for construction on the site before the Allens purchased the land.
Commissioner Christine Robinson pointed out, “I’ve been particularly hard on coastal variances in the past …” This petition, she added, “has tremendous impact on the surrounding residences, especially when you start talking about some of the pictures that we have seen.”
During his presentation during the Oct. 14 public hearing in Sarasota, Howard Berna, the county’s manager of environmental permitting, showed the board and about 35 audience members photos of the parcel — the earliest dating to 1948 — “highlighting the dynamic nature of our coastal system.”
The property was underwater in that first slide. In the latest one, taken in January of this year, vegetation and a natural dune system are evident. Berna pointed out that the area has become an “important feeding area and resting area for a number of shorebirds, including snowy plovers.” The latter is an endangered species that has been nesting on Siesta Key for the past several years.
While she felt Merrill did “the best job that I think anybody could do for his clients,” Robinson continued, she did not believe this third site plan requested by the Allens was “the minimum necessary for the reasonable use of the property.”
Siesta Key residents who urged the commissioners to deny the request voiced their satisfaction with the vote.
“I’m pleased that it went this way,” Wade Matthews, conservation chairman of the Sarasota Audubon Society, told The Sarasota News Leader outside the Commission Chambers after the public hearing. The most important concern, he added, “was the precedent that this would set.”
Peter van Roekens, secretary of the Terrace East condominium complex in Siesta Village, accepted congratulatory handshakes and remarks, after having urged residents to fight the Allens’ latest petition.
“We’re thrilled,” he said, noting that the decision was a difficult one for the board. “I think they made the right one again.”
The past and present
As Berna explained to the board, the Allens’ original petition called for a home with 4,744 square feet of living area, a 2,000-square-foot paver driveway and a 420-foot pool and deck. All of the construction would have been 200.16 seaward of the GBSL.
The second site plan encompassed 3,088 square feet of living space and a 1,421-square-foot paver driveway. The construction would have been 176.5 feet seaward of the GBSL.
The third petition was for a house with 2,779 square feet of living space and an 842-square-foot paver driveway, with the construction 170 feet seaward of the GBSL.
Because county code requires a 20-foot setback of construction from the street to the property line, and the Allens wanted to move the house further from the Gulf of Mexico, Berna added, the couple also was seeking a 4-foot variance so the structure could be built just 16 feet from the street.
“They’ve gone as low as they feel they can go,” Merrill said of his clients’ latest plans. “We do feel that this is pretty much our last stance before we have to go to litigation. We don’t want to do that. The other option would be for the county to buy it.” He added that the county’s Comprehensive Plan “encourages public acquisition if preservation is contemplated.”
Merrill asked the board “to take what we think is the easiest and best route today,” which would be to approve the variance.
Changes in the plans
The house would be 700 feet from the mean high water line, Merrill told the commission, “over two football fields away” from the Gulf of Mexico. It also would be 10 feet landward of the house on the adjacent parcel, just to the north.
As he did in his two previous presentations of the Allens’ petitions, Merrill noted that the lot was platted in 1926. From Beach Access 3 to Siesta Public Beach, the parcel at 162 Beach Road and one other lot southeast of it are the only two pieces of property seaward of the GBSL, fronting Beach Road, without any residential units, he pointed out. Some of the parcels have more than one house, he added.
The size of the house would be “well below the average sized single-family home” built on Siesta Key since 1994, Merrill said. The average house, he continued, has 4,281 square feet of habitable space. According to data from the Sarasota County Property Appraiser’s Office, he noted, the mean size of habitable space in homes built on Siesta Key since 1999 is 5,828 square feet. “We’re less than half of what the typical home is on the Gulf on Siesta Key since 1999,” he stressed.
Four homes in the neighborhood of the Allens’ property were built after the county established the GBSL in 1979, he pointed out, and the average size of living space in them is 2,972.75 square feet.
Further, the house would be elevated 19.4 feet in accordance with Federal Emergency Management Agency regulations for construction in flood zones, he said.
The legal arguments
In response to questions from the commissioners, County Attorney Stephen DeMarsh explained, “What’s different about this petition than maybe others” is whether a denial would be considered a taking. “That’s a case law question.”
Commissioner Charles Hines asked whether DeMarsh could cite case law offering scenarios in which something other than a single-family home could be considered economically viable on the lot.
For example, Hines said, “a beach cabana. … a tiki hut … what if any a factual pattern that gets us away from 1,000 square feet, 2,000, 3,000, 4,000 square foot … and if it’s not that, it’s a taking?”
“I’m not aware of case law specific on that point,” DeMarsh replied.
Assistant County Attorney David Pearce told the board he also was unaware of such an example. However, in a U.S. Supreme Court case involving an allegation of a taking in a coastal situation, Pearce pointed out, one of the justices had said he found it hard to believe that anyone could claim waterfront property had no value, even without a structure on it.
Referencing remarks Merrill made in his presentation, Hines pointed out that two condominium complexes on Siesta Key own vacant property on Beach Road to provide easy access to the beach and to enable owners to have a beach view, respectively. Therefore, he said, another condominium association might be interested in the Allens’ parcel.
In public comments, Jono Miller also noted those vacant lots Merrill had mentioned, saying they “are extremely valuable” to those condominium complexes. If the lots did not have value, he added, the associations “could sell them and make a lot of money.”
In response to a question from Commissioner Robinson, Pearce referenced the U.S. Supreme Court decision in Palazollo v. Rhode Island, in which the high court ruled that purchase of a parcel after a governing body has implemented regulations related to that type of property prior should not be construed as protection against a taking.
However, Pearce continued, a different court case, Penn Central Transportation v. New York City, sets precedent for a court to weigh the fact that strict regulations were in place at the time of purchase.
During his public comments, Miller showed the board a slide of the Gulf of Mexico offshore of the north end of Siesta Key, where the Allens’ property is located. The accretion of the beach is “a result of the shoal that wraps around and protects that section of beach,” he noted. Yet, the City of Sarasota is working with the U.S. Army Corps of Engineers on a proposal to dredge that shoal in Big Sarasota Pass to renourish Lido Key’s eroding beach, he added. “The fact that there is a bunch of sand now [on that section of Siesta’s beach] is fantastic,” he said. Relying on it to remain there, in light of the dredging proposal, he told the board, “is not prudent.”
Miller encouraged the commissioners to pursue appropriate legal means to establish the value of the Allens’ lot “and write these people a check and put this behind us.”
Matthews, who said he had been conservation chair of the Sarasota Audubon Society for about 20 years, stressed the importance of that part of the beach as a nesting area for migratory birds. He went to the site the other day, he continued, “and I found, to my amazement, about halfway between [the Allens’] property and the coastline, there were five piping plovers running around.” Those birds are equally as rare as the snowy plovers, he said, “and I’ve never personally seen one on Siesta Key before.”
Regardless of the fact that bird watching on the island also is a source of economic benefit to the community, Matthews continued, if the board were to grant the variance, it would appear “there is a longstanding coastal setback line that the County Commission does not really feel serous about.”
Another Siesta Key resident, Tim Haake, stressed that the Allens should have been aware of the GBSL when they bought the property. Given the fact that Ronald Allen is a Realtor, Haake continued, the act either was “bad judgment or what I would think of as arrogance,” in that Allen felt he could hire “the right lawyer” to win approval of his petition for a variance.
Referencing the earlier comments about what the minimum construction might be on the parcel, Haake urged the board to make its decision “an emphatic ‘No,’ not even a pup tent with a ‘porta-potty.’”
Van Roekens, secretary of the Terrace East condominium association, asked the board members to recall the denial of the three previous petitions to build on the 162 Beach Road parcel. Especially given the results of a recent study showing Sarasota “is the seventh most vulnerable city in the nation to storm surge,” they should deny this latest petition, he said.
When Van Roekens asked all the audience members “opposed to granting this precedent-setting variance” to stand, the majority of them did so.
The Siesta Key Association sent a letter to the County Commission prior to the public hearing, pointing out that while the shoreline on that part of the beach had accreted, “there is a history of rapid flooding and storm surge. The vegetated dune, described in the Variance Petition, is a defense against storm surge for residential and business properties landward of the GBSL.”
As Commissioner Caragiulo prepared to make the motion to deny the request, he told his colleagues and the audience, “I’m going to tell you that my least favorite portion of this job involves the three letters ‘CSV’ [coastal setback variance]. They’re very difficult.”
“They get tougher and tougher,” Commissioner Maio concurred.