Icard Merrill land-use attorneys plead with County Commission for wider array of changes in county’s Coastal Setback Code

Commissioners agree to discuss proposals in the future

Although two partners with the Icard Merrill law firm in Sarasota recently urged the Sarasota County Commission to approve more changes to the County Code regarding coastal construction, the board members voted unanimously to proceed with only the tweaks that staff had proposed.

Commissioners did agree, though, that they could address additional modifications at a later time.

At one point during the Jan. 31 public hearing, Commissioner Nancy Detert said she found it amusing that the two attorneys, William Merrill III and Matthew Brockway, are “the guys that come and try to rewrite our rules for us weekly.”

Looking at the men in the audience, she noted that two County Commission seats will be open in 2024 without incumbents seeking re-election. She was referring to Commissioner Michael Moran’s District 1 seat and her District 3 seat. (See the related article in this issue.)

“Then you get to sit here and rewrite our rules,” Detert told Merrill and Brockway. “Otherwise, I think we’ll do that ourselves.”

During the hearing on an ordinance to amend the county’s Coastal Setback Code — Chapter 54, Section XXII of the County Code —Brockway told the commissioners that he believes the Code should be rewritten to reference the Florida Department of Environmental Protection’s Coastal Construction Line of Control, instead of the County Code’s continuing to include provisions related to the county’s Gulf Beach Setback Line (GBSL).

Established in 1979, as county staff has noted, the GBSL is the figurative line in the sand that was implemented in an effort to prevent landward structures from storm surge and other flooding events. The GBSL was created to help protect dunes and coastal habitat.

As explained on the Florida Department of Environmental Protection (FDEP) website, the Coastal Construction Control Line (CCCL) Program “regulates structures and activities that can cause beach erosion, destabilize dunes, damage upland properties or interfere with public access. CCCL permits also protect sea turtles and dune plants.”

FDEP adds, “Recognizing the value of the state’s beaches, the Florida Legislature initiated the CCCL Program to protect the coastal system from improperly sited and designed structures that can destabilize or destroy the beach and dune system. Once destabilized, these valuable coastal resources are lost, as are important recreation, upland property protection and environmental habitat values.

“Adoption of a CCCL establishes an area of jurisdiction in which special siting and design criteria are applied for construction and related activities,” FDEP continues. “These standards may be more stringent than those already applied in the rest of the coastal building zone because of the greater forces expected to occur in the more seaward beach zone during a storm event.”

Attorney Brockway used graphics during the Jan. 31 hearing to illustrate one concern raised by the County Code.

On the northern part of Siesta Key, he said, the GBSL is located landward of Beach Road, a line of residential construction, and 500 to 700 feet of beach that is landward of the Mean High Water Line (MHWL).

Therefore, he continued, owners of properties seaward of the GBSL on that part of the Key have to go through the county’s Coastal Setback Variance (CSV) application process to obtain County Commission approval for construction seaward of the GBSL.

He then showed the commissioners a map illustrating the location of the property at 655 Beach Road. That parcel stands landward of Beach Road, with the GBSL running right through it, he noted.

“There’s no reason,” Brockway stressed, that the owner of that property should have to seek a Coastal Setback Variance from the commissioners to add new construction on the parcel.

All pertinent issues regarding beach habitat as it relates to construction could be handled during the county’s permitting process if the GBSL were eliminated from the County’s Setback Code and county staff had to rely on FDEP’s Coastal Construction Control Line, Brockway pointed out.

(The Sarasota County Property Appraiser’s Office website says the owner of the parcel at 655 Beach Road is 655 Beach RD LLC. The Florida Division of Corporations notes in its records that the manager of that limited liability company is Casto Siesta Key Investor LLC, which is located at 5391 Lakewood Ranch Blvd., Suite 100. As The Sarasota News Leader has noted, that property management company is listed in a number of limited liability company records for properties on Siesta Key. Among them is the parcel standing at 99 Beach Road, whose owner recently won commission approval of a CSV for a new pool and deck that would be about 46 feet seaward of the Gulf Beach Setback Line.)

Another speaker during the hearing, John Hutchens, who identified himself as a developer and property owner on Siesta Key for the past seven years, expressed full support for Brockway’s proposal. “I believe this modification will greatly streamline the GBSL process going forward,” Hutchens said.

On the card that he signed to speak during the hearing, Hutchens identified himself as being with “Casto Vacation Properties.”

Additionally, William Merrill III of Icard Merrill addressed the board members on the ordinance staff had recommended.

“I have done as many of these Coastal Setback Code variances as anyone in the county, I can assure you,” he told the commissioners. “The Code, in my opinion, needs a much greater overhaul [than county staff has proposed].”

Merrill characterized the changes staff had recommended to the Code — at the direction of the commission — as “nit-picky.”

He added that Icard Merrill had submitted to county staff a 17-page document with recommendations for changes in the Coastal Setback Code. That was included in the commission’s agenda packet for the Jan. 31 meeting, Merrill noted. “We never got an explanation” from staff, he continued, in regard to the omission of those suggestions from the proposed ordinance.

In the past, Merrill continued, commissioners have asked why the GBSL should be kept in the County Code, when the state has its own Coastal Construction Control Line Program. “I’ve heard that many, many, many times.”

Moreover, Merrill said the Coastal Setback Code, with its “highly technical issues” and references to state law, is difficult for the commissioners to deal with as they consider variance petitions.

Merrill suggested that the board members ask county staff to undertake further review of the Icard Merrill document.

First steps and the potential for later ones

Following the public comments, Commissioner Michael Moran told Matt Osterhoudt, director of the county’s Planning and Development Services Department, within which the Environmental Protection and Permitting divisions exist, that he was unaware of the Icard Merrill proposals until Merrill and Brockway addressed them that day.

Moran acknowledged that the document was in the board packet, adding, “I’ll take ownership of that.”

However, he continued, “It didn’t settle in with me, the magnitude of it, until just now.”

Moran added, “I think it’s a reasonable conversation for staff to come back,” perhaps after conferring with the Office of the County Attorney on the proposed new language in the Coastal Setback Code.

Moran also suggested that staff respond to each of the Icard Merrill proposals, as he expected the attorneys had put much “time and energy” into them.

Osterhoudt reminded Moran that the hearing that day focused on guidance the commissioners had given last year to the Environmental Permitting and Environmental Division staff members in regard to tweaks to the Coastal Setback Code.

Most of the Icard Merrill comments, Osterhoudt pointed out, represented “a shift” from the direction the commissioners had communicated to staff.

Rachel Herman, manager of Environmental Protection, had noted that many of the proposed changes before the board members that day pertained to clarification and “clean-up” of language in the Code. Osterhoudt recommended that the commissioners go ahead and approve the ordinance and then they could discuss other changes at a later time.

Moran replied that he would appreciate the opportunity to discuss the Icard Merrill recommendations in the future. “We make policy decisions,” he added. People who apply those decisions had been standing before the commissioners that day with “reasonable, thoughtful comments,” Moran said.

Then Commissioner Detert expressed a desire to follow Osterhoudt’s recommendation. “This is going to be Step 1,” she said of approving the ordinance staff had presented.

Detert also emphasized, “This is a topic I’ve harped on for the six years that I’ve been here. … Eventually, we get to the parts I want fixed.”

Finally, she said, “I’ll be happy to support the work that’s started already.”

Commissioner Mark Smith noted that he is an architect who has dealt with Coastal Setback Code issues over the past 30 years. He applauded staff, he added, for cleaning up the language in that part of the County Code.

Like Moran, Smith apologized for not having read the Icard Merrill document in the agenda packet, which — Smith noted — had more than 1,000 pages of materials for all of the business items.

He agreed with Detert, Smith said. “This is a good first step”; the other suggestions could be discussed later.

Detert ended up making the necessary motions to approve the amended County Code language, and Smith seconded them. They passed unanimously.

Changes that did win approval

Among the changes the commissioners did approve on Jan. 31, county staff will be able to give developers and property owners the go-ahead

for construction of new development when the footprint seaward of the GBSL or waterward of the Pass Hazard Line “shall not increase”; and the development will be no farther seaward than the existing development.

Further, in several sections, the word “development” has replaced “structure.”

Additionally, staff can approve new accessory structures — such as pools and decks — when those are designed to meet specific criteria. Among the latter are that the structures are no farther seaward or waterward than the existing development on the lot; they do not exceed 1,200 square feet in size; they are not located within, and do not have any impact on, protected native habitat; and they are “located at least 60 feet landward of an existing unstabilized bluffline and landward of the Thirty-Year Erosion Projection Line.”

Staff also will be able to approve applications for the installation of permanent signage “at or landward of the Beach-Dune interface,” when the signage does not include a concrete footer and it is consistent with all other regulations pertaining to signs, as specified in county regulations.

Further, the new ordinance gives staff the ability to approve post-and-rope barriers “within Dune or Coastal Hammock … when necessary to delineate sand footpaths for the protection of the habitat.”

Samples of the proposed Icard Merrill changes

Merrill’s and Brockway’s proposals focused on Section 54-721 of the Coastal Setback Code.

For example, Section (a)(6) says, “Shore Protection Structures adversely affect Coastal Systems and the public’s right of access along the Wet Sandy Beach. In order to minimize these adverse effects, a coastal setback variance for a Shore Protection Structure shall not be authorized unless it is found to be within the public interest. A hardening project or Shore Protection Structure that is found to be in the public interest shall not impede lateral public pedestrian access, and shall minimize adverse impacts to coastal processes and resources, neighboring properties, and the values and functions of the beaches and dune systems, and provide mitigation where determined by the Board of County Commissioners to be appropriate. Permanent disruptions to natural coastal processes and long-term erosion impacts shall be considered in deliberations.”

The Icard Merrill document calls for placing the word “may” in front of “adversely” and striking through much of the second sentence. The revised second sentence would read, “In order to minimize potential adverse effects, a coastal setback variance for a Shore Protection Structure shall minimize adverse impacts to coastal processes and resources, and provide mitigation where determined by the Board of County Commissioners to be appropriate. Permanent disruptions to natural coastal processes and long-term erosion impacts shall be considered in deliberations.”

Further, Section (b) explains, “It is the objective of this article to protect the unincorporated coastal areas of Sarasota County directly exposed to the Gulf of Mexico and those areas along the barrier island passes from erosion and flooding through the establishment of a Gulf Beach Setback Line and a Barrier Island Pass Twenty-Year Hazard Line for Construction or Excavation to attain the following public purposes …”
No. (1) in that section says, “Protect public health, safety and welfare.”

The Icard Merrill document proposes eliminating the following:

• “(2) Reduce and minimize future public expenditures for flood and erosion control measures.
• “(3) Reduce and minimize future public expenditures for relief and/or restoration of projects following natural disasters or gradual erosion.”

Next, the attorneys’ draft notes, Section (b)(7) begins “Support economic, recreational, and aesthetic benefit to all coastal properties and the public through the uniform enforcement of this article.” The Icard Merrill document proposes striking the remainder of (b)(7), which says that article “prohibits Construction and Excavation seaward of the Gulf Beach Setback Line and the Barrier Island Pass Twenty Year Hazard Line except where necessary to preserve minimum reasonable use of an individual property.”

They want Section (b)(8) to read, “Ensure that coastal development is consistent with the provisions of the Sarasota Comprehensive Plan,” eliminating language calling for development to be consistent with provisions of “the Environmental Plan and Principles for Evaluating Development Proposals in Native Habitats sections of the Environmental Chapter [of the Comprehensive Plan] and any other pertinent provisions of that Plan.”

Further, the attorneys want to substitute “Ensure that” for the word “Acknowledge” in (b)(9), so that section would say, “Ensure that coastal property owners retain their existing private property rights.”

Another tweak they propose involves the definition of “alteration.” Instead of the Code’s saying that that definition “excludes historic alteration that occurred pre-European settlement of Florida,” they want it to say “excludes historic alteration that occurred prior to adoption of this article.”

Yet another change would modify the definition of “Coastal System” to eliminate reference to vegetation seaward of the Gulf Beach Setback Line or the Barrier Island Pass Twenty-Year Hazard Line. Merrill and Brockway want that sentence to include only “upland dune system and Beach Seaward of the Gulf Beach Setback Line …”

They also want the county definition of “Regularly Manicured” or “Landscaped” to mean that “planting and/or maintenance activities of the landscaped area has occurred.”

The existing Code language reads, “Regularly Manicured or Landscaped means that conversion and continued maintenance activities have occurred at such a frequency as to prevent the reversion of the land area back to native Coastal Hammock or Dune System habitat.”

Further, they want to strike the definition of “Substantial Improvement.” The Coastal Setback Code says that term “means any individual or cumulative expansion of the Habitable Area of a structure that exceeds 75 percent of the structure’s existing Habitable Area on the adoption date of Sarasota County Ordinance No. 2004-010. [That number means the ordinance won approval in 2004.] Structures that have 25 percent or less of their Habitable Areas Seaward of the GBSL or Waterward of the [Pass Hazard Line] on the adoption date of Sarasota County Ordinance No. 2004-010 are excluded from this definition.”