Office of County Attorney points out that if commission does not approve future application for variance for construction on specific beach parcel to be transferred to Holderness, settlement likely to be declared null
With no discussion during their regular meeting on Nov. 19, the Sarasota County commissioners voted unanimously to approve a mediated settlement in federal litigation filed by Siesta Key businessman Michael Holderness through his company, Siesta Beach Lots LLC.
The settlement entails the exchange of beach property between the company and the county, as well as plans for Siesta Beach Lots to seek county approval for construction on the solitary lot it would receive. If the necessary Coastal Setback Variance for building seaward of the county’s Gulf Beach Setback Line (GBSL) is denied, a memo from the Office of the County Attorney to the commission pointed out, Siesta Beach Lots likely will declare the settlement “null and void.”
Further, the agreement calls for the county to pay Siesta Beach Lots $500,000 upon the closing of the property transaction.
“Time is of the essence of the Agreement,” the document says.
Established in 1979, the GBSL was implemented to protect native beach habitat, including dunes, whose existence protects landward structures from storm events, including significant flooding.
Commissioner Mark Smith made the motion to approve the settlement, and Commissioner Teresa Mast seconded it.
Before the vote, County Attorney Joshua Moye reviewed key facts of the case, noting that Siesta Beach Lots’ contention was that the county owed it compensation for the “taking” of property the company owns near Beach Access 3 on the northern part of Siesta Key. The county filed a motion to dismiss the lawsuit, Moye continued, but the presiding judge ordered the parties to engage in mediation. That resulted in the proposed settlement agreement for the board’s consideration that day.
‘Invasion by members of the public’
A memo that Moye included in the Nov. 19 agenda packet explained that Siesta Beach Lots had alleged that the county had “physically invaded” its Lots 15, 16 and 17 in the Mira Mar Beach subdivision adjacent to Beach Access No. 3 on Siesta Key. Siesta Beach Lots contended that that “invasion by members of the public” had resulted in the county’s appropriation of “a public recreational easement,” the memo continued.
The limited liability company sought compensation under the Fifth Amendment of the U.S. Constitution, the memo added.
An earlier Office of the County Attorney memo about the litigation, dated April 12, explained that Beach Access 3 “is the extension of Columbus Boulevard seaward of Beach Road to the mean high water line.”
“Siesta Beach Lots specifically contends ‘the County has engaged in various acts and omission [by] promoting, encouraging, inviting and authorizing the general public to continuously and permanently enter into the Lots for recreational purposes without Siesta Beach Lots’ permission” and that the county had interfered with Siesta Beach Lots’ “efforts to exclude the public from the Lots.’ ”
Among those alleged county efforts, the April 12 Office of the County Attorney memo said, is the fact that “the County advertises to the general public the beach accesses on its official website … Additionally,” that memo noted, “Siesta Beach Lots takes issue with a sign which states, ‘Enjoy Your Park.’ ”
Citing a 2018 decision of the 11th U.S. District Court of Appeals in Chmielewski v. City of St. Pete Beach, that memo continued, “Siesta Beach Lots believes this sign, and other signs which list hours of operation and rules governing public use, implies to the public that the County owns the entire portion of the beach, including the Lots [noted in the Nov. 19 memo].”
In the Chmielewski case, the April 12 memo said, “the plaintiffs similarly alleged that a local government had encouraged and invited the public to use their private beachfront property.”
However, the Office of the County Attorney contended that that case was “vastly different” from the Siesta Beach Lots situation. For example, that memo noted, Sarasota County “has signs [indicating] the limited purpose of the site as beach access. It has not invited the public to use any of the private property in the Mira Mar Beach Subdivision.”
Moreover, the April 12 memo said, the area owned by Siesta Beach Lots “is zoned ‘Residential Multi-Family’ on the County zoning atlas, and unlike in Chmielewski the County has never rezoned the property to take away any rights. Unlike the situation in Chmielewski, the County is not running a community center where arts and crafts fairs, yoga, art sales, or a flea market operate. Nor has the County offered the area for public recreation.”
Further, the Office of the County Attorney “believes that Siesta Beach Lots is not the owner of Lots 15, 16 and 17 because they were submerged for a tidal epoch. Once land has been submerged for a period of nineteen years,” the April 12 memo continued, “it is lost for good.”
That memo also noted that it had come to the attention of the Office of the County Attorney “that Siesta Beach Lots has interfered with the County’s maintenance activities associated with Beach Access #3,” as well as with the public’s rights to access the Gulf of Mexico via the access.
The memo pointed out, as well, that the county “installed bollards [about which Siesta Beach Lots complained in its federal lawsuit] to prevent the public from parking at Beach Access #3.”
Nonetheless, “As a direct and proximate result of the County’s policies and actions,” the April 12 memo said, “Siesta Beach Lots claims various vacation rental companies and other resorts on Siesta Key advertise to their customers the availability of [Beach Access 3].”
The Nov. 19 memo pointed out, Siesta Beach Lots “alleges the County has interfered with its efforts to exclude the public from its property. Specifically, Siesta Beach Lots claims it has tried to erect fences, build a gate, post ‘no trespassing’ signs, and has asked law enforcement to enforce ‘no trespassing’ laws.
“Finally,” the Nov. 19 memo said, “Siesta Beach Lots takes issue with the County’s alleged failure to adopt park and recreational rules and regulations applicable to public beaches [or install] ropes and bollards to prevent Siesta Beach Lots from accessing the Lots. Siesta Beach Lots alleged the County has engaged in ‘pretextual County code violations’ and ‘adopted and enforced land use restrictions greatly discouraging or preventing economically beneficial use of the Lots so as to effectively relegate the Lots to public recreational uses only.’ ”
More than a property exchange proposed
The following are the facets of the settlement, the memo noted:
- The county will assume ownership of Lots 15, 16 and 17 in Block 7 of the Mira Mar Beach subdivision and Lot 26 in Block 8. In exchange, Siesta Beach Lots will receive Lot 12 in Block 8.
- The County will erect a kiosk at Beach Access 3 that includes “memorial language for Judith Ann Holderness. This memorial would not transfer any property interest.”
Moreover, the memo noted, the agreement “also envisions Siesta Beach Lots seeking a [Coastal Setback Variance] to develop Lot 12.” County staff would review the proposed construction plans before Siesta Beach Lots files an application for a variance and provide comments on the proposal. Then the County Commission would conduct a public hearing on the variance application.
The settlement calls for Siesta Beach Lots to submit its variance application to the county “no later” than 150 days after the effective date of the agreement.
However, the memo pointed out, the commission “is not obligated to approve the variance.” Nonetheless, the settlement says, “[T]his Agreement shall be null, void, and of no further effect if the Board of County Commissioners denies the … variance application or approves it in a manner not reasonably acceptable to [Siesta Beach Lots].”
The settlement “envisions the closing on the [property] exchange” after the public hearing is conducted on the Coastal Setback Variance application. “After closing,” the memo added, “Siesta Beach Lots would voluntarily dismiss its lawsuit and release all claims against the County.”