Sarasota attorney had launched ‘FLUEDRA’ process earlier this year
After beginning a process authorized in state law to challenge a Sarasota County Commission decision in November 2024, Sarasota attorney William Saba has decided to pursue action instead in the 12th Judicial Circuit Court, The Sarasota News Leader has learned.
On Sept. 17, Sarasota attorney Ashley E. Gaillard, who is with the firm Bentley Goodrich Kison, filed a Petition for Writ of Certiorari on behalf of Saba’s limited liability company, Saba Sands II LLC. The goal, the filing says, is “to quash and remand the decision” of the County Commission to deny Saba’s application for construction of a three-story, two-unit condominium complex and accessory structures about 229.3 feet seaward of the county’s Gulf Beach Setback Line (GBSL) on Siesta Key. Established in 1979, the GBSL is the county’s figurative line in the sand that was implemented to protect beach habitat and dunes, which, in turn, protect landward properties.
As the News Leader has noted, the Saba Sands II lot does not have an address; it is described in property records as Lot 13, Block 22 of the Sarasota Beach Subdivision, with zoning of Residential Multi-Family-1, which allows for six units per acre. The vacant parcel encompasses 1.13 acres adjacent to Tenacity Lane and Calle del Invierno.
The Saba Sands court petition contends that the County Commission’s unanimous denial of the necessary Coastal Setback Variance (CSV) for the construction, which also would affect Beach Access 10, “departed from the essential requirements of the law,” and that the board’s findings “are not supported by competent substantial evidence.”
The latter phrase refers to the requirement that the commissioners must rely on evidence and testimony during a Coastal Setback Variance petition hearing, instead of people’s opinions, for example. The petition characterizes opposition to the variance as “speculative [and] at times irrelevant …”
Moreover, it describes the board action as “a total taking as there are no other reasonable and permissible uses of the Property that the County will allow.”
“Taking” is a legal term referencing government action that prevents a property owner from making any use of a parcel.
The filing came about a month after an apparent impasse occurred during mediation that that was taking place under the provisions of the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA), which are found in Section 70.51 of the Florida Statutes.
‘Reasonable use of the property’
The Saba Sands II Circuit Court petition contends, “To make reasonable use of its Property,” on Feb. 13, 2023, Saba Sands submitted to county staff an application for the county Coastal Setback Variance. “The proposed construction was over 733 feet from the MHWL [Mean High Water Line], which would be one of the furthest setbacks in any of the variances the County has previously approved. In part,” the petition adds, “this is because the section of the beach where the Property is located is accreting and not eroding, as has been the case for over 75 years.”
Additionally, Gaillard wrote in the petition, “The Property is surrounded by both single and multi-family residential properties along Beach Road and Tenacity Lane. Other properties to the north have improved Tenacity Lane and areas west of Tenacity Lane.”
Moreover, she pointed out, “The Property is almost three times larger than nearby sites at 1.13 acres; the average nearby parcel size is only 0.37 acres.”
Gaillard also noted that the Residential Multi-Family-1 zoning of the property allows up to six units per acre, while Saba Sands’ proposal was for just two units. “Thus,” she wrote, “the Variance sought to utilize only one third of the permitted density.”
Additionally, Gaillard pointed out, “The propose use of the Property in the Variance was entirely landward of the existing line of construction to the north.” She noted, as well, that Saba Sands had “proposed a mitigation plan to remove exotics in a total impact area of 3,043 square feet, including a total preserved dune area of 2,625 square feet. The mitigation provides in perpetuity for the removal of exotics and replanting of native plants to stabilize beach areas through the creation of a conservation easement” entailing 0.9 acres.
Next, to back up her assertion that the County Commission “denied the Variance without a valid legal basis for doing so,” Gaillard noted the five criteria that the board members had to consider in relation to that variance petition:
She pointed out that the county zoned the property for multi-family development in 1989, “well after the County adopted its initial coastal setback regulations.” Gaillard added, “The multi-family zoning decision, especially given the pre-existing GBSL, clearly established an expectation” that the property owner would have the rights to construct a multi-family development. Thus, she wrote, “Saba Sands purchased the Property in 2012 with the full and reasonable expectation that the County would honor the zoning rights confirmed by the RMF-1 district, as it has for surrounding properties.”
She further contended that the County Commission denial of the variance was “based on an improper interpretation and application of the Comprehensive Plan to the Property that would preclude all economic use of the Property and result in a taking.”
The county’s Comprehensive Plan guides growth in the community.
Gaillard maintained that the board’s interpretation “is inconsistent with the Comprehensive Plan’s Property Rights Element and is inherently arbitrary.”
For example, she wrote, the Property Rights Element provides the following:
Further, Gaillard contended, “Every aspect of Saba Sands’ proposal compares overwhelmingly favorably to the other variances that have been approved in this same area.” She again noted the distance of the construction area from the Mean High Water Line and the permitted residential density factor, along with the fact that the construction would take up “only 7% of the total land area of the lot,” even though the Siesta Key Overlay District zoning allows up to 35%; and the plan is to provide “almost an acre of new conservation area [Gaillard’s emphasis],” as well as the mitigation plan for the exotic vegetation.
She also noted that the County Commission had given “no indication of what type of structure, if anything, it would be willing to approve [on the property].” Again, the emphasis is Gaillard’s.
“The only evidence submitted by the County and relied upon by the [commissioners] spoke to the impact of any construction versus no construction at all and thus did not leave room for any reasonable investment-backed expectations consistent with the County’s own longstanding rules and policies,” she pointed out. “The County and the [commission] relied extensively on the nature of the Property being beach or dune system in denying the Variance. Again, this rationale would apply to any development or economic use of the Property and is therefore inconsistent with the Comprehensive Plan as it precludes all economic use of the Property.”
The FLUEDRA timeline
On Jan. 22, as the News Leader has reported, attorney Morgan Bentley notified County Commission Chair Joe Neunder that Saba Sands II was taking the steps outlined in the FLUEDRA statute.
In his letter, Bentley acknowledged that the Saba Sands II property is seaward not only of the GBSL but also of the state’s Coastal Construction Control Line (CCCL). However, he pointed out, “[T]he County often grants variances allowing construction seaward of the GBSL, as the surrounding properties illustrate.”
Moreover, Bentley added, the state already had provided a preliminary concurrence to the proposed placement of the building “as consistent with the state CCCL.”
Through a public records request, the News Leader learned that in early July, following a June 17 mediation hearing with Special Magistrate Ken Tinkler of Tampa, county staff sought appraisals of the Saba Sands II property. A June 24 letter from James M. Talley Jr., vice president of Lee Pallardy Inc., a real estate appraisal, brokerage and consulting firm, to Justin Sago, manager of the county’s Property Management Division, referenced the fact that Sago had conveyed to the firm that county staff “wants to know a reasonable purchase price with the stipulation that a house of up to only 2,520 square feet of living area could be built.”
The public records that the News Leader received showed that Sago had sent the same request to James T. Hatin of Sarasota, a commercial real estate appraiser and consultant.
During the Nov. 19 2024 County Commission hearing on Saba’s Coastal Setback Variance application, Howard Berna, manager of the county’s Environmental Permitting Division, told the County Commission that Saba Sands II wanted to construct a building with 6,350 square feet of habitable space; the building footprint would be 3,400 square feet. The plans also called for a swimming pool, a pool deck, a paver driveway and breakaway privacy walls.
Further, as the county staff report in the Nov. 19, 2024 meeting packet explained, “The variance request also includes … the addition of approximately 4,000 square feet of driveway within Beach Access 10 and the Tenacity Lane Right-of-Way to access the property.”
On July 17, Hatin sent county staff a report that explained his estimate of $4 million for the Saba Sands II property.
Nearly two weeks later — on July 31 — Talley of Lee Pallardy Inc. provided his firm’s appraisal report. His figure was $3 million.
Another document in the public records turned over to the News Leader was a July 30 letter from Deputy County Attorney David Pearce — who was representing the county in the mediation — to parties involved in the proceedings. That pointed out that the continuation of the June 17 mediation had been scheduled for Aug. 18 at the County Administration Center in downtown Sarasota.
Among those on the distribution list were a number of Beach Road property owners who are opposed to construction on the Saba Sands II property, along with Robert Luckner, a director of the Siesta Key Association (SKA), and Lourdes Ramirez, who is president of a nonprofit organization called Protect Siesta Key.
On Aug. 15, attorney Bentley sent Pearce a copy of an appraisal report prepared by Bass Fletcher & Associates Inc. for Saba. The firm’s letter explained that the process utilized what was called an “Extraordinary Assumption” that a three-story, 6,350-square-foot, single-family home could be constructed on it. That appraisal value was $4.8 million.
However, two days later — on Aug. 17 — Bentley sent Pearce an amended appraisal. Also undertaken by Bass Fletcher & Associates, it put the market value of the property, with the previously indicated size of residential structure, at $5.5 million.
Finally, the most recent document the News Leader found in the public records was an Aug. 19 email from Pearce to County Commission Chair Neunder, reporting that no settlement could be reached during the mediation session the previous day. “The property owner, Saba Sands, has abandoned the FLUEDRA process,” Pearce added.