Cosentino also has applied to FDEP to rebuild the deteriorated groin that juts into Big Pass
On March 9, Sarasota County staff will ask a Code Enforcement Special Magistrate to order Siesta Key resident Mike Cosentino to remove a portable toilet and sign from property Cosentino owns at 10 Beach Road, adjacent to Beach Access 2 outside Siesta Village.
On Feb. 1, Howard Berna, the county’s manager of environmental permitting, signed an Affidavit of Violation related to the structures on property that is adjacent to Big Sarasota Pass. Cosentino purchased that parcel in early September 2016. The document points out that the installation of a portable toilet on the beach “in a coastal high hazard area” is inconsistent with the county’s Coastal Setback Code.
The county’s Environmental Protection Division issued a Notice of Violation to Cosentino on Jan. 8 for putting the portable toilet on property seaward of the county’s Gulf Beach Setback Line. That notice gave him until Jan. 31 to remove the it “to a location landward of the [Gulf Beach Setback Line] and to a location consistent with other County and State regulations.”
If the Special Magistrate finds Cosentino has violated the county’s Coastal Setback Code, the Notice of Violation says, the magistrate may impose a penalty of $250 per day “for each day the violation exists beyond the date set for compliance by the Special Magistrate.”
The March 9 Special Magistrate hearing will begin at 9 a.m. in the County Commission Chambers at the Administration Center in downtown Sarasota.
In the meantime, the administrator of the Environmental Health Division of the Florida Department of Health in Sarasota County has told The Sarasota News Leader that Cosentino has applied to the Florida Department of Environmental Protection (FDEP) to rebuild the deteriorated groin that juts out into the water from the 10 Beach Road property. As a result, Tom Higginbotham said during a Feb. 27 telephone interview, he has ceased discussions with the Health Department’s legal counsel regarding how best to deal with Cosentino’s failure to apply for the necessary Health Department permit to keep the portable toilet at 10 Beach Road.
At every site where construction is planned or occurring, Health Department rules require that “a means for sanitary disposal be in place,” Higginbotham explained.
Thus, the portable toilet must remain on the property, Higginbotham added, “even though [Cosentino] may never get a permit to do anything.”
The Health Department rules take into account that engineers and surveyors, for example, may need to spend time on a potential construction site, Higginbotham said.
In the latter part of February, residents who live on Avenida Messina near Cosentino’s property contacted the Health Department about the situation, the News Leader learned. They shared with the News Leader the response they received from Virginia C. Bess, the department’s environmental health manager.
Late on the afternoon of Feb. 16, she wrote in an email, “Regarding state rules, The Florida Department of Health in Sarasota County has spoken with the owner and his intention is to revitalize the deteriorated pier on the property and to temporarily keep the portolet during this time. Per Florida Administrative Code 64E-6, portolets are to be kept at construction sites for the duration of the project.”
Bess added, “Department of Health staff has visited the site on several occasions recently. No wastewater spills or leakage from the portolet [have] been detected. Should such a sanitary nuisance be found, you may let us know at our central reporting phone number, 941-861-6133, and we will be glad to investigate.”
Residents have complained to the News Leader that numerous tourists are using the portable toilet. “We have no way to police who uses it,” Higginbotham told the News Leader this week. “Our rules are a little bit open on that.”
He has explained to residents, he continued, that, out of “an abundance of caution,” a staff member of the Health Department will visit the site at least once a week to insure there is “no obvious safety hazard.”
In fact, he noted, Health Department inspectors travel to Siesta Key each week to check on bacterial counts in the Gulf of Mexico, so he has asked them to stop at 10 Beach Road to check on the situation.
If at any time an employee of the Health Department discovered a problem, Higginbotham said, “We’ll make [Cosentino] take corrective action.”
Referring to the fact that hurricane season will begin again on June 1, Higginbotham also pointed out, “The owner is ultimately responsible for what happens to his lot.”
However, Higginbotham noted, if staff learns of the potential for adverse weather conditions that could affect the portable toilet and possibly lead to contamination of the beach, the Health Department could order Cosentino to remove the toilet.
Otherwise, Higginbotham added, Cosentino “is within his rights.”
The FDEP application
As for the FDEP situation: The environmental manager of FDEP’s Beaches, Inlets and Ports Program has sent Cosentino a First Request for Additional Information (RAI) in response to Cosentino’s application for work on the groin.
A Jan. 19 letter from Gregory W. Garis at FDEP notes that Cosentino submitted his application on Dec. 21, 2017. It was transferred to the Beaches, Inlets and Ports Program, Garis wrote, “because the activity proposed extends seaward of the Mean High Water Line, will occur on Sovereign Submerged State Lands and is likely to affect the distribution of sand along the beach.”
Garis referenced the fact that the application from Cosentino and John Benson of Benson Engineering in Bradenton indicated Cosentino’s view that the project should be allowed under a De Minimis Exemption. “A preliminary evaluation of your application and supporting documentation leads staff to the conclusion that the proposed project likely cannot be recommended for approval for a De Minimis Exemption,” Garis wrote Cosentino. “While this is by no means final agency action or notice of intent thereof, it does represent the staff review of your application. We are sending you this letter at this stage of the processing to allow you to access fully the further commitment of financial resources dependent on permit issuance.”
Garis explained that Cosentino’s proposal “to restore, refurbish and reconstruct” the variable permeable groin — which is 108 feet long and 10 feet wide — would necessitate the issuance of a Joint Coastal Permit, which FDEP would have to provide Cosentino.
The groin “is adjacent to Big Sarasota Pass and fronting on the Gulf of Mexico,” Garis continued. Therefore, any “substantive work to the groin will reduce its permeability” to the active transport of sand, “and, thereby, affect patterns of erosion and accretion in this area.”
Finally, Garis explained that if Cosentino wanted the department to continue to process his application, Cosentino would need to respond to the Request for Additional Information by April 19, which would be 90 days from the date of that letter.
The News Leader also asked county staff about the FDEP application. In a Feb. 28 email, Media Relations Officer Drew Winchester wrote, “Environmental Protection staff received the FDEP letter in January and informed Mr. Benson [of Benson Engineering] that a Sarasota County [Water and Navigation Control Authority] Permit and building permit would be required.” Additionally, Winchester noted, “depending on the final design,” a Coastal Setback Variance might be required. “An application for groin repairs has not been submitted and staff has received no follow-up questions,” Winchester wrote.
The Affidavit of Violation
The Feb. 1 Affidavit of Violation that Sarasota County issued to Cosentino says that on Dec. 28 and Dec. 29, 2017, the county’s Environmental Protection Division “received complaints regarding installation of several small signs and a large sign mounted on posts adjacent to the pier located on [the 10 Beach Road parcel]. In addition, complaints were received that a portable toilet had been installed on the beach property seaward of the Sarasota County [Gulf Beach Setback Line] GBSL.”
On Dec. 29, 2017, the affidavit continues, staff issued a courtesy letter to Cosentino, requesting removal of those items by Jan. 5.
Then, on Jan. 5 and Jan. 8, the affidavit says, “Code Enforcement staff confirmed that the portable toilet and large sign remained at the site and issued a Notice of Violation.”
The sign touts Cosentino’s fight — which began in May 2016 — to overturn a County Commission decision to vacate a 357-foot-long segment of North Beach Road. Cosentino also has filed suit against the county in 12th Judicial Circuit Court, arguing that the commission violated the county’s Comprehensive Plan in its May 11, 2016 vote approving that action. The case is pending, with further hearings on motions set for March 6 and April 3.
On Jan. 19, the affidavit continues, Code Enforcement staff posted the Notice of Violation at 10 Beach Road, “as the return card on the registered mail had not yet been received. A compliance deadline of January 31, 2018 was anticipated for the removal of the sign and portable toilet.”
However, on Feb. 1, the affidavit says, Code Enforcement staff “confirmed that the framework of the sign and the portable toilet remained on site.”
“Should the Special Magistrate find that one or more violations of Sarasota County Code exist,” the affidavit points out, “staff recommends the following corrective action:
- Removal of “the unauthorized sign and supporting elements at the end of the pier” to a location outside of the county’s Water and Navigation Control Authority jurisdiction and landward of the Gulf Beach Setback Line. “Any re-installation of the sign on this property or any other property within the unincorporated County must be consistent with the sign requirements found within the Zoning Regulations,” the affidavit notes.
- Removal of the toilet to a location landward of the Gulf Beach Setback Line.
In a Jan. 5 statement to the News Leader and in a telephone interview, Cosentino vowed not to remove the portable toilet and sign until the vacated segment of North Beach Road was reopened. He wrote, “I figure I’ve kept about 300 gallons of human waste out of the adjacent neighbors’ bushes in the short time the potty has been there.” He continued, “I think the county, not me, should be responsible for keeping such facilities at ALL public beach accesses.”
Additionally, Cosentino wrote, “The sign [on the groin] will remain in place until Beach Road is once again in public control. … I will continue fighting to protect the public’s rights, our property values, local business revenue, and tourist tax revenue that is directly proportional to our ability to access and use our beaches.”