Ronald and Sania Allen could choose to pursue legal action claiming the board decision constitutes a ‘taking,’ attorney says
The attorney for an Osprey couple who failed for the third time this year to win a county variance for the construction of a house at 162 Beach Road on Siesta Key are “weighing their various options” after the Sarasota County Commission voted formally this week to uphold its Oct. 14 denial of their petition.
The board’s action was part of its unanimous approval of the Dec. 8 Consent Agenda during its regular meeting in Venice.
On Dec. 9, in a telephone interview with The Sarasota News Leader, William Merrill III of the Icard Merrill firm in Sarasota said his clients, Ronald and Sania Allen, are considering whether to appeal the decision or to pursue litigation.
By law, they have four years to claim that the denial of the variance petition constitutes a “taking,” Merrill pointed out. However, he said, “I know the Allens don’t want to sit on [the matter]” for that length of time.
Another option is to explore whether the county is interested in purchasing the property, Merrill added.
After the County Commission denied the Allens’ second variance petition for construction at 162 Beach Road — in May 2014 — the couple filed a Request for Relief under Section 70.51 of the Florida State Statutes. That law says, “Any owner who believes that a development order, either separately or in conjunction with other development orders, or an enforcement action of a governmental entity, is unreasonable or unfairly burdens the use of the owner’s real property, may apply within 30 days after receipt of the order or notice of the governmental action for relief under this section.”
County staff — including representatives of the Office of the County Attorney — worked with the Allens, Merrill and a mediator to arrive at “a reduction in the impacts of the proposed construction,” noted a March 24, 2015 memo to the county commissioners from County Attorney Stephen DeMarsh. The mediator, Carolos Alvarez, wrote a letter to the board, dated March 20, “to highly recommend to you that you approve the proposed agreement that your staff and the Allens have worked so hard to procure in the last nine months.”
However, the commissioners voted unanimously on Oct. 14 to deny the latest variance petition, even though the living area in the design of the proposed house had been reduced from 4,774 square feet in the original plan to 2,779 square feet; and the area of a paver driveway had been decreased from 2,000 square feet to 842 square feet.
In all three of the Allens’ petitions, the construction would have been completely seaward of the county’s Gulf Beach Setback Line.
The two previous times prior to Oct. 14 when the Allens sought a variance, then-Commissioners Joe Barbetta and Nora Patterson argued that they had seen the property underwater numerous times over the years and that they felt construction on it should not be allowed. Neighboring residents and members of Sarasota Audubon also have said construction would pose potential harm to the shore-nesting birds — including the endangered snowy plovers — that make that part of the beach their seasonal home.
During comments before the Oct. 14 vote, Commissioner Paul Caragiulo pointed out that he was not on the board when the earlier decisions were made. Nonetheless, he said, he felt allowing the Allens to proceed with building the house on a lot that has been submerged in past decades would set “a precedent I’m really not comfortable with ….”
What he would be comfortable with, he added, would be having county staff look into the prospect of purchasing the parcel.
The resolution the commissioners formally approved on Dec. 8 includes 10 findings to support their Oct. 14 decision. The first says the Gulf of Mexico shoreline seaward of the Gulf Beach Setback Line near the Allens’ property “is unstable and subject to rapid and severe fluctuations resulting from erosion and accretion in this coastal high hazard area.”
No 2 notes that the parcel “is frequently inundated by moderate storm waves and abnormally high tides.” For example, the land was flooded in June 2012 when Tropical Storm Debby churned offshore for several days, that finding adds.
No. 3 points out that the property “is entirely composed of shoreline stabilizing dune native habitat. The construction proposed would disturb or eliminate 3,022 square feet of this habitat.”
During his Oct. 14 presentation before the county board, Merrill said that denying the latest variance petition “would place an unreasonable hardship on the land because, without the variance, there’s no reasonable or economically viable use available for the property.”
He added that denying the petition “would be a categorical taking and thus an unreasonable hardship.”