Siesta homeowners on Tenacity Lane win After-the-Fact Coastal Setback Variance for paver patio constructed without county authorization

Attorney for couple tells commission that consultant the couple hired for project indicated incorrectly an awareness of all necessary requirements

An aerial view shows the property at 220 Tenacity Lane, outlined in blue. Image courtesy Sarasota County

Having learned that a consultant they hired never applied for the necessary Sarasota County authorization before they constructed a paver patio last year, the owners of the 220 Tenacity Lane parcel on Siesta Key had to seek an After-the-Fact Coastal Setback Variance from the County Commission.

Only one neighbor objected to their petition during an April 10 public hearing. (Six others supported it by submitting letters to the county, according to testimony.) And, based on statements by the attorney for the owners of 220 Tenacity Lane, a flooding problem the opposing neighbor has attributed to the design of their new patio actually is a result of the neighbor’s having no gutters on the affected side of his house.

No commissioner offered a comment before Commissioner Alan Maio made the motion to approve the variance. After Commissioner Christian Ziegler seconded Maio’s motion, it passed unanimously.

The motion also formally approved a 1,970-square-foot porous paver driveway on the front of the house.

William Merrill III of the Icard Merrill firm in Sarasota, the attorney for Mark and Tracey Hennessy — the owners of 220 Tenacity Lane — explained to the commissioners that research indicated county staff approved the driveway before the previous owners of the property constructed it in 1999. However, because no documentation could be found to support that, Merrill continued, the Hennessys wanted to ensure they had formal approval of that construction, as well.

This photo shows the porous driveway on the Beach Road side of the house. Image courtesy Sarasota County

Howard Berna, manager of the county’s Environmental Permitting Division, noted that when the County Commission approved the Coastal Setback Variance for that paver driveway, the board stipulated that either crushed shell or porous material be used.

In explaining what he characterized as the “unusual circumstances” behind the need for the April 10 hearing, Merrill said that the Hennessys “hired a professional consultant and relied upon him to properly obtain all the necessary permits and approvals, to their detriment.”

The consultant had indicated his familiarity “with the requirements” for coastal construction, Merrill, added.

The consultant did apply for a permit from the Florida Department of Environmental Protection (FDEP) for the work, Merrill noted; it was granted on April 23, 2018.

The staff memo provided to the commissioners in advance of the hearing said that on June 8, 2018, county staff learned of the paver patio on the Gulf side of the house. All of the work had been completed seaward of the Gulf Beach Setback Line (GBSL), which county staff calls the figurative “line in the sand” to protect coastal vegetation. The establishment of the GBSL was designed to prevent storm surge damage to structures landward of it.

This is a photo of the paver patio. Image courtesy of Icard Merrill

Berna told the board on April 10 that the entire parcel at 220 Tenacity Lane is located seaward of the GBSL. He added that the county’s Coastal Setback Code was not enacted until 1979.

In showing the board a series of slides, Berna noted “a number of homes constructed seaward of the GBSL” in the same area of Siesta Key. Several had “variance history,” he added, while some of them predated the establishment of the Coastal Setback Code.

When county staff informed the Hennessys that their patio project required a permit, Merrill said, “They immediately ceased construction” and began the process to try to obtain the After-the-Fact Coastal Setback Variance.

The staff memo noted that dune habitat was removed during the construction, and a portion of the land designated as a Conservation Easement seaward of 220 Tenacity Lane had been cleared. Both areas were restored, testimony indicated.

The new patio is a maximum of 190.5 feet seaward of the GBSL, Berna told the board, and it is approximately 728 feet landward of the Mean High Water Line, “given the accreting nature of the beach.”

At the outset of his presentation, Berna showed the board a series of historical, aerial photos illustrating changes in the width of Siesta Beach since 1948, specifically in the area seaward of Tenacity Lane.

This is a 1948 aerial showing the parcel at 220 Tenacity Lane on Siesta Key and neighboring properties. Image courtesy of Sarasota County, via Environmental Permitting Division
This is a 1986 aerial showing 220 Tenacity Lane (outlined in blue) and neighboring parcels. Image courtesy of Sarasota County, via Environmental Permitting Division
This is a 1995 aerial photo of Siesta Beach, including the 220 Tenacity Lane property. Image courtesy Sarasota County
This is a 2018 aerial showing 220 Tenacity Lane and neighboring parcels. Image courtesy of Sarasota County, via Environmental Permitting Division

The staff memo noted that the Sarasota County Property Appraiser’s Office records show the land area of the 220 Tenacity Lane parcel “as 11,079 [square feet]; however, due to accretion, the submitted survey indicates that the property encompasses approximately 51,787 sq. ft.”

During his presentation, Merrill reported that the patio actually is approximately 857 feet landward of the Mean High Water Line, though it is 728 feet landward of the open beach. Referring to the photos Berna had shown the board, Merrill told the commissioners, “You can see how large the beach is in front of the property.”

Merrill also pointed out that the patio is 20 feet further landward than the construction line that corresponds to the location of the house immediately to the north.

The patio includes a fire pit and spa, Berna and Merrill both noted. It comprises 566 square feet.

Merrill further pointed out that “packed river rock” covered an even larger area seaward of the 220 Tenacity Lane house before the Hennessys began building the new patio.

This is the view toward the Gulf of Mexico from 220 Tenacity Lane. Image courtesy Sarasota County

Merrill stressed to the commissioners, “The improvements have no impacts [on the coastal system], as the staff report indicated.” Furthermore, he said, “There’s no new habitable spaces … No enclosures; no enclosed non-habitable spaces.”

Additionally, he noted, “My clients have made a significant investment in plantings along the northern boundary [of the property].”

Beyond the deck, he showed the board, native grass is abundant.

Finally, after presenting the commissioners “before” and “after” photos illustrating the patio area, Merrill said, “We think it’s a big difference … and a big improvement, aesthetically as well as size-wise.”

Countering the complaint

During the public hearing, Brian D. Keisacker, an attorney with Ulrich, Scarlett, Wickman & Dean in Sarasota, told the commissioners he was representing the owner of the house at 218 Tenacity Lane, to the north of the Hennessys’ property.

That owner, Brett Moore, has had to contend with runoff from the patio affecting his yard, Keisacker said. All the other homes on Tenacity Lane are built on grade, Keisacker pointed out, but the house at 220 Tenacity Lane was elevated 2 to 3 feet, and water runs downhill, of course.

These photos show the pre-construction conditions at 220 Tenacity Lane, with the river rock spread across the current area of the patio. Image courtesy Sarasota County

In a letter he sent county staff in advance of the public hearing, Keisacker wrote that the house at 220 Tenacity Lane is “much higher than the properties surrounding it. … This creates an issue with water runoff for the neighbors and specifically Mr. Moore. This is especially problematic as Mr. Moore’s home is constructed atop wooden pilings. Since purchasing the home in 1994, Mr. Moore has had to make expensive repairs costing over $70,000 to replace pilings underneath of his home,” the letter continued. “The only pilings which have required replacement are those on the side of the home adjacent to [220 Tenacity Lane].”

Keisacker also contended that the Hennessys’ contractor violated the terms of the FDEP permit that their consultant obtained for the project.

Half of the backyard was to be covered by a deck, while the other half was to be grass, he continued, showing a copy of the permit to the board. “That’s not what they built.”

During rebuttal, Merrill provided photos to illustrate that the paver patio is tilted away from Moore’s property, to prevent runoff from flowing into Moore’s yard.

In this photo, which attorney William Merrill showed the County Commission on April 10, water is seen pouring from the scupper on the north side of the house at 218 Tenacity Lane. Image courtesy Icard Merrill

Additionally, Merrill showed water pouring down the north side of Moore’s house from a scupper mounted near the roofline. Merrill believes the other side of the 218 Tenacity Lane house has gutters, he added. “This side doesn’t.”

Merrill also read from the summary of a signed and certified letter written by the engineer who was a consultant to the Hennessys for the hearing: “The runoff to the northern property likely has been reduced through the construction of the paver deck, which directs runoff away from the northern lot line swale.”

Before closing the public hearing, Chair Charles Hines asked whether any commissioners had questions. No one did. When he asked for a motion, Commissioner Maio promptly made it, and it passed unanimously after Commissioner Ziegler’s seconding of it.