Holderness’ shielding of agreement with buyer of 99 Beach Road property factors into Special Magistrate’s siding with County Commission in denial of house plans seaward of North Beach Road

Representative of Holderness says Holderness hoped County Commission would buy vacant lot or allow residential construction on it

This is a view of the property where Michael Holderness wanted to construct a house seaward of North Beach Road on Siesta Key. The information below the photo was written by county Environmental Permitting staff. Image courtesy Sarasota County

A Special Magistrate has sided with the Sarasota County Commission on its January 2021 decision to deny the request of a Siesta Key property owner who wanted to construct a new house completely seaward of North Beach Road.

In a March 8 recommendation following three Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA) hearings, Kenneth A. Tinkler, a Tampa attorney, pointed to the fact that, prior to the formal implementation of the commission’s decision, Siesta Beach Lots LLC — whose principal is Michael Holderness — “contracted to prohibit the construction of a single family home on the Property” that was the focus of the Jan. 13, 2021 Coastal Setback Variance hearing.

As it turned out, Holderness had agreed with the buyer of property that Holderness owned at 99 Beach Road on Siesta Key that nothing but a tiki hut could be constructed on the site where Holderness wanted to build the new house, legal documents show.

Further, Holderness had obtained the agreement of the buyer — 99 Beach LLC, which has a Lakewood Ranch Boulevard address — that the document making that assertion would not be recorded with the Sarasota County Clerk of the Circuit Court until one year after the March 2021 sale was concluded.

One reason for that, a paralegal representing Holderness told Special Magistrate Tinkler via email, was to “allow an opportunity” for the county to buy the same property where Holderness wanted to construct the new house.

The Sarasota News Leader learned of the details after obtaining copies of the relevant documents, plus Tinkler’s recommendation, through a public records request this week.

Commissioner Christian Ziegler. File image

During the March 8 County Commission meeting, Commissioner Christian Ziegler talked about the potential county purchase of beachfront property on the northern part of Siesta Key, so the public would have more access to the Gulf of Mexico. Ziegler indicated that one parcel he had reviewed with County Administrator Jonathan Lewis could be connected to Siesta Public Beach. Lot 14 of the Mira Mar Beach Subdivision, which was the focus of Holderness’ January 2021 Coastal Setback Variance hearing, is just north of the public beach park.

In a comment on the News Leader article about Ziegler’s remarks, Holderness wrote about the small percentage of beachfront property that the county owns on Siesta Key. Yet, Holderness continued, “[T]he county invites the public to use 100% of the beach.”

Holderness also pointed out that beach access signs stand in multiple locations on the island, but individuals who use those accesses mostly are “dump[ed] out on privately owned land. See, 90% of ‘the beach’ has no Park & Rec rules as the needed mechanism for [Sheriff’s Office] deputies to properly enforce [county regulations]. … 90% IS LAWLESS AND UNSAFE. We need lifeguards and Park & Rec rules FOR BETTER SAFETY!”

He concluded his thus: “You should thank the commission for addressing acquisition as it would be a great service (added safety added authority) to EVERYONE. No other option!”

The January 2021 Coastal Setback Variance petition

A representative of Holderness had submitted an application to the county Environmental Permitting Division staff, seeking to construct a two-story-over-parking, single-family residence on property platted as Lot 14, Block 7, of the Mira Mar Beach Subdivision, near the intersection of North Beach Road and Columbus Boulevard.

The proposed development would have been about 190 feet landward of the Mean High Water Line, according to a survey performed by Red Stake Surveyors on Oct. 25, 2019, as noted in materials provided to the commissioners. However, county staff pointed out in a memo prepared for the January 2021 public hearing, “[T]he relative elevations present on Siesta Key, as well as the dynamic nature of erosion and accretion along the shoreline, put the [parcel] at increased risk of flooding as a result of tropical storms, hurricanes, and winter cold fronts.”

This is one page of the table of criteria that Commissioner Mike Moran referenced in January 2021 in the board’s decision to deny the Coastal Setback Variance. Image courtesy Sarasota County

Moreover, the staff memo pointed out, “Storm surge is the most destructive force associated with tropical storms and hurricanes. National Storm Surge Hazard Maps produced by the NOAA [National Oceanic and Atmospheric Administration] … predict that Siesta Key may experience storm surge greater than nine feet above ground level during a category three hurricane event.”

Citing such facts, and the impact the construction would have had on the native dune system, the commissioners voted unanimously to deny the petition for the Coastal Setback Variance.

Siesta Beach Lots LLC then chose to pursue relief under the FLUEDRA provisions of Florida law. The role of the Special Magistrate, Tinkler explained in his March 8 recommendation, is “to determine ‘whether the action by the governmental entity or entities is unreasonable or unfairly burdens the real property.’”

In other words, the Special Magistrate had to decide, based on evidence and testimony, whether the Sarasota County Commission made it impossible for Holderness to enjoy reasonable use of the property.

Tinkler conducted the final hearing on the matter on Feb. 28.

Michael Barfield. File photo

A day later, on March 1, Michael Barfield, a paralegal who helped represent Holderness during the hearings, contacted Tinkler via email to report that he had received documents late the previous afternoon that disputed statements he had made during the Feb. 28 hearing.

After reviewing the pertinent materials, Assistant County Attorney David Pearce — who represented the county in the proceedings — provided a detailed overview of his assessment of them to Barfield and Tinkler.

First, Pearce noted that the County Commission conducted the hearing on Holderness’ Coastal Setback Variance petition on Jan. 13, 2021. Then, on Jan. 20, 2021, he continued, Holderness entered into a contract for the sale of the 99 Beach Road property.

Pearce then wrote that a Jan 22, 2021 addendum to the contract said the sale was “contingent upon a restrictive covenant which prevents the construction of a multi-family [home], single family residence, or a building on Lot 14 without the prior written consent of the buyer. However,” Pearce added, “the seller [Holderness] is authorized to construct a tiki hut and/or stage social events on Lot 14.”

This is part of the January 2021 addendum to the contract between Michael Holderness and 99 Beach LLC. Image courtesy Sarasota County

He then pointed out, “Notably, the addendum specifies that the restrictive covenant ‘shall not be recorded for a period of at least one year from the date of closing [on the 99 Beach Road property].’”

Further, Pearce wrote, the addendum specified that the transaction also was contingent upon “reasonable access to Lot 15 and access to the water … The addendum specifies that the Access Agreement shall be personal to the buyer and shall not run with the land,” meaning that it was valid only for the new owner of the property at 99 Beach Road.

Finally, Pearce pointed out, the Access Agreement said it would “automatically terminate in the event that the Beach Lot is sold to the municipality,” meaning the county.

Then Pearce explained that, on Feb. 26, 2021, the County Commission formally approved the resolution denying the Coastal Setback Variance to Siesta Beach Lots and Holderness. Quoting the Florida Rules of Appellate Procedure, Pearce added, “An order is rendered when a signed, written order is filed with the clerk of the lower tribunal,” meaning the clerk of court. Thus, the County Commission decision legally went into effect before the end of February 2021.

Yet, on March 1, 2021, Pearce continued, Holderness and the buyer of the 99 Beach Road property “entered into an unrecorded Building Restrictive Covenant Agreement” that specified that Siesta Beach Lots “‘shall not build, construct, or otherwise permit any residential single-family structure, residential multi-family structure, commercial structure (other than the tiki hut described [above], or similar structure … on the Restricted Property.’” Pearce further noted that the document said the tiki hut could stand no taller than 15 feet, and it had to be used in connection with Siesta Beach Lots’ “beach rental management business …”

This is the top of the March 2021 Building Restrictive Covenant Agreement. Image courtesy Sarasota County

Additionally, on March 1, 2021, Pearce continued, Holderness and the buyer of the 99 Beach Road property entered into the Access Agreement, which said that the new owner “shall have access over and across the sand pathway on Lot 14,” as well as the southern 10 feet of Lot 15.

Then, he pointed out, Holderness’ FLUEDRA petition was filed on March 26, 2021.

Summing up the situation, Pearce wrote that even before the commission’s formal resolution of denial was approved on Feb. 26, 2021, Holderness had agreed to limit development on Lot 14.

Moreover, Pearce noted, the facts in the case “are evidence demonstrating that Lots 14 and 15 have historically been sold along with the property at 99 Beach Road for the purpose of providing access to the beach and the Gulf of Mexico. A reasonable property owner could not expect to develop the historically low-lying property that is subject to periodic coastal flooding and shoreline instability.”

Further, Pearce pointed out, the facts demonstrate that the County Commission’s denial of Holderness’ Coastal Setback Variance petition could not be considered a “taking,” “because there was still an economically viable use associated with the residence at 99 Beach Road.”

A “taking,” under the provisions of state law, is local government action that prevents a property owner from enjoying reasonable use of a parcel.

Beyond that, however, Pearce wrote, “[T]he Building Restrictive Covenant Agreement and Access Agreement demonstrate that Lot 14 has an economically viable use as access to the beach and for social gatherings” associated with Siesta Beach Lots’ beach rental management business.

Passing along the new details

On March 1, when paralegal Barfield sent his email to Special Magistrate Tinkler with the copy of the Building Restrictive Covenant Agreement, Barfield wrote that both he and attorney Robert Watrous of Sarasota — who had assisted with the case — “were completely unaware of its existence” until Barfield received it late on Feb. 28.

Barfield then acknowledged that the testimony he had provided on the house construction issue during the Feb. 28 hearing was “inconsistent with the restrictions … Accordingly, I felt an obligation to correct the record and provide the document as quickly as possible.”

Barfield added, “As I understand the document, it restricts the ability of Siesta Beach Lots to erect any [his emphasis] structure on Lot 14 except for a Tiki hut.”

Nonetheless, Barfield continued, he and Watrous felt the document did not counter “the determination of whether the County’s denial of the [Coastal Setback Variance] as of January 13, 2021, was unreasonable and unfairly burdened use of the property.”

After receiving Pearce’s email, Special Magistrate Tinkler responded to Barfield, asking for a copy of the Jan. 20, 2021 contract for the 99 Beach Road property, along with any other related materials. Further Tinkler asked Barfield to explain why Holderness and the buyer agreed that the restrictive covenant regarding construction on Lot 14 was to be recorded with the Sarasota County Clerk of the Circuit Court “on the one year anniversary of the Effective Date.”

This graphic shows the location of the parcel where the house was proposed on Lot 14. Image courtesy Port and Coastal Consultants

On March 2, Barfield replied, writing that the buyer of the parcel at 99 Beach Road “was initially interested in purchasing Lot 14 for $3.5 [million] if the Coastal Setback Variance [CSV] was approved.”

After the County Commission denied the variance, Barfield added, the negotiations focused just on the 99 Beach Road property. “Siesta Beach Lots wanted the option to resurrect a deal on Lot 14 if the CSV was reconsidered by the County or, if not, the County acquired the property.”

Therefore, Barfield continued, the restrictive covenant “contained two important provisions …” One would permit negotiations with the buyer of 99 Beach Road if a CSV ultimately won approval; the other would terminate the restrictive covenant if the county bought Lot 14. Siesta Beach Lots asked for the year’s delay in recording the covenant “to allow an opportunity for either of these contingencies to occur,” Barfield pointed out.

“The only parcel of land at issue in the CSV application was Lot 14,” Barfield added. Further, he stressed, “[T]here was no unity of title between Lot 14 and 99 Beach Rd. at the time of the [County Commission’s] decision as those parcels were under different ownership.”

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

Again, Barfield noted his view that “the Access Agreement and the Restrictive Covenant” were not relevant factors for the purpose of Holderness’ “takings claim.”

In his March 8 recommendation, the Special Magistrate pointed out that, in the FLUEDRA petition, Holderness stated that the County Commission’s denial of the Coastal Setback Variance “caused there to be ‘no other reasonable and permissible uses of the Property …’” Yet, Tinkler continued, Holderness already had limited himself “to the construction of a ‘tiki hut’ on the Property,” and that was not prohibited by the County Commission decision.

Tinkler did note that, with the conclusion of the FLUEDRA process, Holderness could pursue “all other available remedies.”