Commissioner Detert sides with county staff interpretation of proposal in voting ‘No’
Following what Sarasota County staff pointed out was the sixth Coastal Setback Variance petition hearing since 1998 regarding the property located at 636 Beach Road on Siesta Key, the county commissioners voted 4-1 to approve the latest request.
Commissioner Nancy Detert cast the “No” vote, as she typically does on applications for new construction seaward of the county’s Gulf Beach Setback Line (GBSL).
Established in 1978, the GBSL was created to protect dune habitat and vegetation, which, in turn, protect landward property from storm surges and other flooding events.
The petition at the heart of the Dec. 7 hearing, submitted by agents for owner Saba Sands LLC of Sarasota, proposed a four-condominium complex in place of a single-family home dating to 2000.
The new construction would be a maximum of 168.75 feet seaward of the GBSL, as noted in the county staff and applicant reports. It also would be “22 feet farther from the beach” than the current home, Martin Black, who made the presentation on behalf of Saba Sands and its principal, attorney William Saba, told the commissioners. Moreover, Black said, it would be 859 feet landward of the Mean High Water Line (MHWL).
Black is the former chair of the West Villages Improvement District outside North Port. He pointed out to the board members that he not only has more than 35 years of planning and development experience, but he also holds a master’s degree in coastal zone management.
Saba Sands owns four platted lots at 636 Beach Road. It is entitled, under state law, to build one residence on each of those lots, Black said.
However, Detert cited testimony by Howard Berna, manager of the county’s Environmental Permitting Division, and speakers during the hearing, as her primary reason for opposing the plans.
Berna had explained that the plats are separated by the Tenacity Lane right of way. Therefore, he continued, the board members could determine that Saba Sands essentially was transferring density from the two lots seaward of Tenacity Lane to the two landward of it.
In making the motion for approval of the variance, Commissioner Michael Moran said, “I doubt that Tenacity Lane has ever had a car on it — ever. This isn’t a road that’s going through [Saba Sands’] property.”
Moreover, Moran continued, he believes this latest construction proposal “is compatible with the surrounding structures.”
Detert countered his comments by saying that she presumes that Tenacity Lane is “a public easement …” Therefore, she added, people could walk in between the two sets of lots.
When Commissioner Ron Cutsinger asked Assistant County Attorney David Pearce about the issue, Pearce noted what he characterized as “competing views” from Black and county staff. It was up to the commissioners, Pearce added, to decide which side to take.
Black also had explained that the Saba Sands project team was working with the Conservation Foundation of the Gulf Coast on a new conservation easement for what have been designated Lots 28 and 29 on the property at 636 Beach Road. Those lots are the ones seaward of Tenacity Lane.
Pearce noted that an earlier easement agreement on Lots 28 and 29, written in 2012, was missing a witness signature and, therefore, was not considered valid.
In his rebuttal, Black maintained that the county’s Unified Development Code, which contains all of the zoning and land-use regulations, includes no indication of a problem with unity of title when property is separated by a road.
In fact, he added, state law does not even recognize an interstate as a dividing line for abutting parcels.
Other facets of the planned construction
Berna did point out to the commissioners that the new construction design encompasses 9,330 square feet more habitable area and 3,756 square feet more non-habitable area than the existing house on the site. Additionally, the footprint of the new condominium complex would be 1,436 square feet larger than the footprint of the home built in 2000, he said.
The most significant change between this proposal, Black stressed, and one for six condominium units — which the commissioners rejected in August 2020 — is the fact that this design “now meets the established line of seaward construction.” He was referring to adjacent residential buildings.
“The county has approved a variety of similar units up and down Beach Road,” Black noted.
Further, the new building would have 1,070 fewer square feet of impervious area than the one the board considered in August 2020, he said.
Additionally, “We meet the new [Florida Department of Environmental Protection] coastal construction standards,” Black continued. The complex will be made of concrete and steel, he noted, and it will be able to withstand 160 mph wind.
Only the first floor of the existing house, he said, is constructed of concrete and steel. The upper floors are made of wood.
Black stressed several times that the variance Saba Sands was requesting represented the minimum necessary to permit reasonable use of the property, alluding to Section 54-724 of the County Code, known as the Coastal Setback Code.
Continuing opposition
Following the County Commission’s August 2020 denial of Saba Sands’ application for the six-unit structure, attorney Saba pursued a Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA) process against the county. A Special Magistrate based in Tampa who conducted the hearing agreed in March that the County Commission was not unreasonable in denying the Saba Sands petition last year. However, the Special Magistrate also agreed that Saba Sands could file a modified application with county Environmental Permitting staff for a four-unit structure.
Attorney Saba told The Sarasota News Leader in March that he intended to do submit that new application. The Dec. 7 hearing was the culmination of that process.
Regardless of the changes in the proposal, however, Siesta Key residents remained opposed to Saba’s plans.
During the public hearing last week, Robert Luckner, a director of the Siesta Key Association, and a Sarasota Audubon volunteer, Dick Miles, reprised concerns they aired in August 2020 about the potential negative effects of the new construction on the nesting shorebirds known as snowy plovers.
Luckner again showed the board members a graphic depicting the locations of snowy plover nests found on the Key over the past decade. A number of them were on the seaward portion of the Saba Sands property.
The plovers, Luckner pointed out, “are imperiled. They are [classified as a] state-threatened, protected species.” The entire state has only about 98 nesting pairs, Luckner added. Approximately 17% of those “nest in our region.”
The birds already have to deal with numerous problems on Siesta, he continued: dogs, people, crows and ghost crabs among them.
The birds nest right on the beach. If they feel threatened, Florida Audubon bird stewards have stressed, the birds will abandon nests, even if eggs are close to hatching.
During his rebuttal, Black, the Saba Sands representative, noted that all of the nest locations that Luckner had shown the commissioners “are outside the development area” being proposed.
Bradenton attorney Patricia Petruff, who was representing adjacent homeowners Lisa and Amir Arbisser — who live at 644 Beach Road — referenced the county’s Coastal Setback Code herself in emphasizing that the single-family home standing at 636 Beach Road “is a reasonable use of the property.”
She also pointed out that when the County Commission heard a petition for a Coastal Setback Variance for the land in 1998, “There were units on four platted lots. Those owners agreed to one unit. … That’s stated in [the variance the commission approved then].”
Moreover, Petruff concurred with Berna of Environmental Permitting about the development rights having been “extinguished on the lots under the conservation easement” at 636 Beach Road.
If the commissioners approved this petition, she said, they should prepare themselves for the owners of other Beach Road property to seek more residential density on their lots.
“There is no hardship here,” Petruff emphasized, again referring to Chapter 54 of the county’s Code of Ordinances. “One house has been deemed for 23 years to be a reasonable use. … Trying to make more money by having four rentable units is not a hardship.”
During his rebuttal, Black emphasized that the conservation easement “did not extinguish the underlying development rights” on the two more seawards lots on the site. Further, he pointed out, “We’ve demonstrated that this is a hardship on the land,” if the commissioners refused to allow Saba Sands to construct the four residential units when it has a unity of title to the four platted lots.
During his remarks after making the motion to approve the petition, Commissioner Moran said he had to consider the intent of the proposal. “I do generally feel the applicant’s acting in good faith to make this work. … The testimony that absolutely resonated with me” was the fact that Saba Sands was entitled to construct four units on the four lots,” Moran added.