County staff has deemed the application ‘incomplete at this time’
In early March, in the aftermath of a Feb. 22 dispute resolution hearing, a Special Magistrate found that the Sarasota County Commission was not unreasonable in denying a petition for new construction on property located at 636 Beach Road on Siesta Key.
Nonetheless, Tampa attorney Kenneth A, Tinkler also agreed that the petitioner, Saba Sands LLC of Sarasota, could submit a revised building plan for the commissioners’ consideration.
On June 1, The Sarasota News Leader learned, the county’s Environmental Permitting Division staff received Saba Sands’ new application for a Coastal Setback Variance (CSV).
Then, on June 22, the manager of Environmental Permitting, Howard Berna, responded to Saba Sands, noting staff members’ requests for additional information to supplement the company’s petition package.
Filed by Sarasota attorney Stephen D. Rees, the revised application materials say that the new proposed residential structure would entail 12% less total lot coverage than the existing single-family residence occupies on the 636 Beach Road parcel. Moreover, the documents note, the new, four-unit condominium complex would be located no farther seaward of the “current established line of the most seaward allowable construction as previously permitted by Sarasota County and the Florida Department of Environmental Protection” for the existing single-family residence.
The new construction also would conform to the county’s Residential Multi-Family 1/Siesta Key Overlay District zoning requirements in regard to daylight plane criteria, allowable density, building setbacks and maximum height, the application points out.
The house standing at 636 Beach Road was built in 2000, the application says. It contains 4,090 square feet in two stories over parking, and its distance seaward of the Gulf Beach Setback Line (GBSL) “varies from approximately 160 [feet] to 166.7 [feet],” the application adds.
The Gulf Beach Setback Line was established in 1978 as the county’s figurative “line in the sand” to foster and protect beach habitat and vegetation which, in turn, protect landward structures during storm events and other incidents involving flooding.
The new structure would extend about 168 feet, 9 inches seaward of the GBSL, the application points out. Its four dwelling units would have a total habitable area of about 13,320 square feet.
The total building footprint, the document notes, would be 5,226 square feet under roof. The planned driveway and walkways would be pervious, the application adds.
A pool and deck area would be located on the roof, the application says.
The new design would have a maximum height of approximately 33 feet, 6 inches “to the top of the upper roof deck slab,” which is below the 35-foot maximum for the zoning district, the application continues. Additional height would be added, as permitted by county regulations, “for decorative architectural appurtenances,” the application points out, noting, “Trellis or shade structures to be determined.”
The structural elevation, as determined by the Florida Department of Environmental Protection, would have to be 18.34 feet NAVD, which is 2 feet above what was required for the existing single-family residence, the application says. (NAVD refers to base flood elevation.)
The previous Coastal Setback Variance application
In August 2020, the County Commission denied Saba Sands’ petition for a six-unit structure that would replace the house at 636 Beach Road. The design at that time called for 17,106 square feet of living space.
Saba Sands’ representative during that hearing, attorney Stephen Rees Jr. of the Icard Merrill firm in Sarasota, pointed out that two parcels Saba Sands owns seaward of the existing single-family house would remain in their natural state.
However, Commissioner Nancy Detert voiced concern that if the board approved the Coastal Setback Variance (CSV) petition, that would set “a horrible precedent.” Saba Sands had cited the “unity of title,” combining those two more seaward lots, which are protected by a conservation easement, with the two lots on which the single-family home stands, in contending that the allowable density for the new construction would be 11 dwelling units.
Referring to other Beach Road property owners, Detert asked Berna, the manager of Environmental Permitting, “Do they own their lots in front that probably used to be underwater and now through accretion have sand? Couldn’t they do the exact same thing [as Saba Sands desired]? Or at least ask permission to do it?”
“I imagine they might be able to ask,” Berna replied, as some Beach Road property owners do have undeveloped lots seaward of the county’s Tenacity Lane right of way that are not protected by conservation easements. Construction is not allowed on those easements, he noted.
“Can you in good conscience say [that the owners of the 636 Beach Road parcel] would absolutely be the only [ones] out of this group to do that, ever?” Detert asked, referring to the application for the CSV.
“I can’t make that definitive statement,” Berna told her.
Following the formal, published denial of the CSV petition, Saba Sands filed a claim under the guidelines of the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA). That process is governed by the state’s Bert J. Harris, Jr., Private Property Rights Protection Act.
Referencing the language in that state law, Sarasota attorney William Saba, principal of Saba Sands, claimed that, in denying his CSV petition last year, the commissioners inordinately restricted his use of the property located at 636 Beach Road.
In his ruling in the FLUEDRA case, Special Magistrate Tinkler pointed to Section 54 of the County Code, which “prohibits construction or excavation activities seaward of the Gulf Beach Setback Line and waterward of the Barrier Island Pass Twenty-Year Hazard Line except as otherwise permitted by the Code. The Code, in part, permits reconstruction of existing homes through a conditional exception permit process.”
Ultimately, Tinkler ruled that the commissioners’ denial of the Saba Sands petition did not appear to be unreasonable or unfair.
In its new application, Saba Sands contends, “Since 1999, there has occurred substantial accretion of the Beach” and that the undeveloped lots seaward of the house at 636 Beach Road have come to comprise “a Habitat Dune System.” Further, it points out, the Mean High Water Line is about 859 feet seaward of the proposed site of the new construction. In 1998, the application adds, the two lots on which the existing house stands were approximately 400 feet landward of the Mean High Water Line.
Staff concerns outlined in response to petition
In his June 22 memo to William Saba and other project team members, Berna, manager of Environmental Permitting, explained that the new CSV application had been reviewed by staff of several county departments and “deemed incomplete at this time.”
Among the comments, staff pointed to another issue that arose during the August 2020 public hearing: The Conservation Easement over the parcels seaward of the single-family home had not been “properly witnessed.” Attorney Rees Jr. told the commissioners that Saba Sands planned to rectify that after approval of the variance.
The June 22 staff document says, with emphasis, “It may be prudent to address this issue and correct the Conservation Easement prior to the hearing to avoid any concerns.”
Then, staff noted comments on two pages of an Existing Vegetation and Associations and Vegetative Enhancement Plan submitted by the Sarasota firm Steinbaum and Associates, in conjunction with the revised plans. Those comments indicate that the recorded Conservation Easement on the seaward parcels “does not extend to the mean high water line.”
The comments added, “The County disagrees with that interpretation.”
Staff noted that the recorded easement “specifically identifies” that the two uninhabited lots at 636 Beach Road “would encompass any accreted lands appurtenant to [those lots].”
Staff asked that the language in the Steinbaum and Associates document clarify that the easement incorporates the accreted lands.
Additionally, Zoning Administrator Donna Thompson pointed out that the elevation drawings included in the new petition indicate the building height as measured to the flat roof. “The building height must be measured to the upper roof deck railing,” she wrote.
Another staff member referenced flood risk compliance, adding that the comments “are informational and may not require specific changes at this time … However, they are included here for completeness and to assist with finalizing the design plans should the [County Commission] approve the variance and a Building Permit is submitted for this construction.”