Nonpfort asks court to quash board action
The leaders of Protect Siesta Key, a nonprofit organization based on the barrier island, have filed a petition with the 12th Judicial Circuit Court, seeking to quash the Sarasota County Commission’s Nov. 5 vote to approve a Coastal Setback Variance for Siesta businessman Michael Holderness.
The board action was a major part of the settlement of a federal lawsuit that Holderness had pursued against the county.
As The Sarasota News Leader has reported, on Nov. 19, 2024, the commissioners voted unanimously to approve the settlement. Formally, the complainant was Siesta Beach Lots LLC, of which Holderness is the principal.
The settlement called for 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 of a house on the solitary lot that it would receive. That parcel stands at 162 Beach Road.
However, if the necessary Coastal Setback Variance for building a home seaward of the county’s Gulf Beach Setback Line (GBSL) were denied — as explained in a memo from the Office of the County Attorney — Siesta Beach Lots likely would declare the settlement “null and void.”
On Nov. 5, Commissioner Mark Smith, a longtime Siesta resident, was the only board member to vote against granting the variance to Holderness so he can construct a two-story-over-parking house and accessory structures at 162 Beach Road. The farthest point of that construction seaward of the county’s Gulf Beach Setback Line (GBSL) would be 262.2 feet, a county staff report noted.
The GBSL was established in 1979 to protect coastal habitat, including dunes and vegetation, which, in turn, protect landward properties from storm surge and other flooding events.
During the public hearing, Lourdes Ramirez, president of Protect Siesta Key, stressed that the county bought the 162 Beach Road parcel for $1.4 million, using funds from the county’s Neighborhood Parkland Acquisition Program (NPP).
Under the provisions of the county’s Unified Development Code (UDC), she told the board members, “The county may sell or repurpose only portions of property that do not meet the criteria for the [NPP].” Yet, she continued, “This entire parcel met that criteria …” She added that it had been ranked highly on the county’s purchase priority list.
Ramirez cautioned the commissioners about the potential that Protect Siesta Key would seek legal redress if the board approved the variance.
The action that Protect Siesta Key formally is pursuing is what is called a Petition for Writ of Certiorari.
The petition emphasizes, “There is nothing in Section 90-68 [of the County Code] or anywhere else in the Neighborhood Parklands process that allows or even contemplates the repurposing of Neighborhood Parkland composed of 100% of dune habitat transformed into a private residence as part of a legal settlement.”
The petition includes an aerial image of the site, which was in the county staff report for the Nov. 5 hearing.
“Moreover,” the petition points out, the County Code “provides that if such lands are surplused ‘for purposes other than natural restoration or cultural preservation or buffering, that property will be sold for not less than the original acquisition cost with all proceeds being deposited in the fund used for the original purchase.’ ”
Yet, the petition adds, “Under the Settlement Agreement, the County … instead must pay $500,000” for four other lots on Siesta Beach, which were “valued around $84,000.”
The petition also explains that, before they are acquired, properties under consideration for purchase through the Neighborhood Parkland Acquisition Program “must be evaluated and approved through a rigorous County procedure via Section 90-67 [of the County Code] based on the Neighborhood Parkland Criteria under Section 90-66. Parks and Recreation staff will apply the Neighborhood Parkland criteria to evaluate eligibility and develop the Neighborhood Parkland Acquisition List.”
Yet, the lots Holderness offered for exchange with the county as part of the proposed settlement “have not been evaluated via the required process under [Sections] 90-66 and 90-67,” the petition points out. “The County has inverted the evaluation process and will ask for forgiveness instead of permission,” it adds.
Moreover, the petition contends, “Allowing a protected Neighborhood Parkland property, acquired by public funds, to be completely transformed into a residential property and destroying 100% of the dune for the sake of settling a lawsuit reduces the ‘Neighborhood Parkland’ process to an ad hoc exercise of favoritism at the taxpayer expense.”
Along with the nonprofit organization, Ramirez and John Phair are the plaintiffs, the petition says. Phair is the vice president of the Terrace East Condominium Association, whose building stands “directly across from 162 Beach Road,” the court brief explains.
Protect Siesta Key was established to protect zoning restrictions on Siesta, along with the barrier island’s environment, the petition also explains.
Land O’Lakes attorney Jane Graham, of Sunshine City Law, is representing Protect Siesta Key in the petition.
A departure ‘from the essential requirements of law’
On Nov. 5, the petition contends, “The Commission departed from the essential requirements of law [and] failed to support its decision with competent substantial evidence …”
The phrase “competent substantial evidence” is a reference to the fact that a local government board acting in a quasi-judicial capacity — as the County Commission was during the Nov. 5 hearing — cannot agree to action on the basis of opinions; the board must use evidence and testimony — as in a court hearing — in making its decision.
Along with the details about the county’s purchase of the parcel, the petition points out, “The Property is located on a state-designated ‘critically eroded beach.’ ”
Former state Senate President Bill Galvano, a Bradenton attorney who represented Siesta businessman Holderness during the Nov. 5 hearing, did emphasize the accretion of the beach over recent years. The house construction, he told the commissioners, would be 479 feet landward of the Mean High Water Line. Given the growth of the beach in the area, Galvano noted, “There is significant barrier, in our opinion, to the coastal system.”
Nonetheless, Protect Siesta Key’s petition says that while the beach on that part of the Key “has experienced a general trend of accretion since 2009 … it also continues to experience periods of erosion and overwash from storm events … A significant erosional change is evident when comparing 2024 and 2025 [aerial views of the site], which reflects the influences of the 2024 hurricane season.”
Moreover, the petition notes, the parcel is in what the Federal Emergency Management Agency (FEMA) has designated a “velocity flood zone.” The FEMA website explains that such zones are “[c]oastal areas with a 1% or greater chance of flooding and an additional hazard associated with storm waves. These areas have a 26% chance of flooding over the life of a 30‐year mortgage.”
Further, the petition says, “The site is predominantly less than 4.5 feet above the MHWL [Mean High Water Line] and is subject to coastal flooding during storm events.”
The petition adds that prior County Commissions had voted four times to deny variance petitions for the property.
Facets of Holderness’ federal lawsuit and variance criteria
Turning to the issue of the county settlement over Holderness’ federal lawsuit, the petition explains that Siesta Beach Lots had alleged the “inverse condemnation” of three lots it owned in Block 7 of the Mira Mar Beach subdivision. Holderness contended that, even though those parcels were private beach property, county signage encouraged members of the public to use them for recreation.
He had offered to settle the lawsuit by trading to the county those lots in Block 7, plus Lot 26 in Block 8 of the Mira Mar Beach subdivision, if the County Commission agreed to the variance for residential development on the 162 Beach Road parcel, which then would be conveyed to Holderness.
The plans called for the single-family residence on that site to comprise 5,163 square feet of habitable space, with a total building footprint of 3,469 square feet, Protect Siesta Key’s petition says.
“Section 54-724(a) [of the County Code] provides that the [County Commission] may grant a Coastal Setback Variance after a public hearing if the Commission determines the following,” the petition adds:
- “(1) Strict enforcement of the provisions of the Article would impose an unreasonable or unjust Hardship On The Land [a reference to state law regarding property rights];
- “(2) The requested variance does not adversely affect Coastal Systems;
- “(3) The requested variance is the minimum variance necessary to permit reasonable use of the property;
- “(4) The requested variance is not in substantial conflict with the attainment of the purposes in Sections 54-721(b)(1) through 54-721(b)(8), (b)(9); and is consistent with the attainment of the purpose in Section 54-721(b)(9) [of the County Code];
- “(5)The requested variance is consistent with the Sarasota County Comprehensive Plan.”
The county staff report, prepared by the county’s Environmental Permitting Division, “provided a detailed analysis of the criteria and found numerous facts demonstrating the Application’s inconsistency with the Coastal Setback Variance criteria,” the petition points out.
Further, as evidenced by statements that they made before their Nov. 5 vote, commissioners misunderstood “that public access on the Settlement Exchange Lots and consequences of complying or reneging on a Settlement Agreement were irrelevant to the Coastal Setback Variance criteria for the Property,” the petition contends. It adds that County Attorney Joshua Moye “did not step in” during the deliberations to correct those misunderstandings.
The petition also cites numerous judicial precedents to contend that the County Commission departed “from the essential requirements of law” in voting in favor of the Coastal Setback Variance.
For example, the petition points to a 2003 Florida Third District Court of Appeal decision in Miami-Dade County v. Omnipotent Holdings, Inc., which held that “[q]uasi-judicial boards do not have the power to ignore, invalidate, or declare unenforceable the legislated criteria they utilize in making their quasi-judicial determinations.”
Further, the petition contends, “As a general rule, the applicant has the burden to establish the requirements for a variance,” citing a 1989 ruling of the Florida Second District Court of Appeal in Gomez v. City of St. Petersburg.