Office of County Attorney tells board that its staff believes county has ‘high likelihood’ of winning court case
With no comments, the Sarasota County commissioners voted unanimously this week to reject a proposed settlement of the litigation that a Siesta Key property owner filed against the county last year over the board’s November 2024 denial of the necessary variance for construction of a three-story, two-unit condominium complex next to Beach Access 10.
The Office of the County Attorney had recommended that action. In fact, a memo its staff provided the board members said, “Our office believes there is a high likelihood the County will prevail in the current [court] proceeding.”
Commissioner Mark Smith made the Feb. 10 motion to reject a settlement with Saba Sands II LLC, as detailed in correspondence from the limited liability company to county staff in late January. Commissioner Teresa Mast seconded the motion.
In January 2025, Saba Sands II LLC first launched a challenge against the county under the provisions of the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA). However, the company halted that process and, instead — on Sept. 17, 2025 — filed a Petition for Writ of Certiorari in the 12th Judicial Circuit Court, seeking “to quash and remand the decision” of the County Commission.
Sarasota attorney William Saba, the principal of Saba Sands, had sought commission approval to construct the condominium complex and accessory structures about 229.3 feet seaward of the county’s Gulf Beach Setback Line (GBSL) on Siesta Key. The GBSL was established in 1979 as the county’s figurative line in the sand beyond which construction should not take place. Its goal is to protect beach habitat and dunes, which, in turn, protect landward properties from storm surge and other flooding events.
The Saba Sands property slated for the new building does not have an address. County property records describe it as Lot 13, Block 22, of the Sarasota Beach Subdivision. The zoning of the site is Residential Multi-Family, which allows for six dwelling units per acre. As the November 2024 county Environmental Permitting Division report explained, the vacant parcel encompasses 1.13 acres adjacent to Tenacity Lane and Calle del Invierno.
The attorneys for Saba Sands — Morgan Bentley of the Bentley Goodrich Kison firm in Sarasota and his associate, Ashley E. Gaillard — contend that the County Commission’s denial of the Coastal Setback Variance was based on opinion, instead of the competent testimony and evidence presented during the public hearing on the proposed construction.
The court petition characterized opposition to the variance as “speculative [and] at times irrelevant …”
Moreover, the petition described 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 court filing came about a month after an apparent impasse occurred during the mediation that was taking place under the FLUEDRA provisions, which are found in Section 70.51 of the Florida Statutes.
In making the November 2024 motion to deny the variance, Commissioner Smith, a long-time Siesta resident, pointed out that the plans for the residential structure were “not in compliance with our [Comprehensive] Plan,” which guides growth in the community. He referenced policies cited in the county staff report to underscore his statement.
Smith also emphasized that “One hundred percent of the building” would be constructed on dune habitat, which one county policy prohibits.
“I live in the area,” Smith continued, “and the dune system does work” to protect landward properties during storms, “although when you have a tidal surge like [Hurricane] Helene,” flooding still occurs.
Smith told his colleagues that granting the variance is “not the thing to do.”
The proposed settlement
In a memo provided to the County Commission for its regular meeting on Feb. 10, the Office of the County Attorney reported that the attorneys for Saba Sands submitted to that office on Jan. 23 an offer to settle the court litigation.
The memo laid out the following terms that Saba Sands had proposed:
- A reduction in the number of dwelling units from two to one.
- A ratification and approval of previously approved building footprint and setbacks applicable to the Saba Sands parcel.
- A reduction in the air-conditioned living levels from three to two, with one level “converted to open-air space, reducing the total air-conditioned area from approximately 6,500 square feet to approximately 4,750 square feet.”
- Reopening the vehicular traffic and safe pedestrian access to the parcel at the minimum widths required by the County Code.
Alternatively, the memo said, Saba Sands offered the county a 30-day option to purchase the property, including the accreted beach associated with it, for $8 million, “net of transactional expenses.”
Then the memo explained, “The Board cannot accept a settlement agreement which grants an applicant a coastal setback variance outright. The Board mustconduct a quasi-judicial hearing,” it emphasized.
“Quasi-judicial” refers to the type of hearing the commissioners would have to conduct on the variance. As it implies, the proceeding would be comparable to a hearing in court, with the board members directed to rely on competent evidence and testimony, instead of opinions and speculation, to arrive at their decisions.
The County Commission in this situation would have to be free to approve or deny the Saba Sands petition for the Coastal Setback Variance, the memo also pointed out. “Any settlement agreement must acknowledge this limitation on the Board’s authority to avoid violation of due process rights of third parties that may want to challenge the Board’s decision,” the memo added.
Moreover, the memo said, in spite of the Saba Sands offer to reduce the number of units and the size of the residential structure, the commission still could conclude that the proposal did not entail the minimum variance necessary for reasonable use of the parcel.
Further, the memo pointed out, “[T]he proposed settlement does not address the Board’s finding [in the formal resolution denying the variance] that the requested variance will adversely impact Coastal Systems, because the [Saba Sands parcel] is located along a shoreline that has experienced severe fluctuations in shoreline conditions, as demonstrated through historical aerial imagery presented at the hearing. Low elevations present on Siesta Key near the subject site make it prone to flooding during storm events.”
The memo also explained that the proposed settlement “does not address the Board’s findings that the proposed construction is inconsistent with [two] Comprehensive Plan Policies … and the Management Guidelines for Dune Systems, which require dune systems and their native vegetation be preserved.”
In regard to Saba Sands’ alternative settlement, the memo then noted that the county obtained two appraisals of the property. One valued the land at $3 million; the other, $4 million. The memo added that Saba Sands provided staff an appraisal report that valued the land at $5.5 million. Thus, the memo said, “All appraisals are significantly less than the current offer to sell the property for [$8 million].”
If the county prevails in the court litigation, the memo pointed out, Saba Sands “can always present a new coastal setback variance which addresses the Board’s concerns [cited in the formal resolution of denial of the variance that the limited liability company sought in November 2024].”