Special Magistrate sides with the county after dispute resolution hearing on County Commission’s denial of variance for 6-unit complex at 636 Beach Road

Saba Sands did win agreement that board could consider revised construction plan

An aerial graphic shows the single-family home located at 636 Beach Road on Siesta Key outlined in green. Image courtesy Sarasota County

The Special Magistrate who conducted a Feb. 22 dispute resolution hearing in a case involving the property located at 636 Beach Road on Siesta Key has agreed that the Sarasota County Commission was not unreasonable in denying a petition for new construction on the site.

However, Tampa attorney Kenneth A. Tinkler also agreed that the petitioner, Saba Sands LLC of Sarasota, could file a revised application with Sarasota County Environmental Permitting staff, seeking approval of a Coastal Setback Variance for a four-unit condominium complex, attorney William A. Saba, the principal of Saba Sands LLC, told The Sarasota News Leader in a March 10 email. “That is what the Petitioner intends to do,” Saba added in his email.

“We anticipate prompt approval by the County of [the new petition], granting the needed variance for four (4) units,” Saba continued. “After all, the property is zoned for eight or nine units and the new variance will not need to allow 1) construction further seaward than already exists, nor 2) more ground coverage than presently exists.”

Saba also pointed out in his email, “This is a very high quality project and will be good for Siesta Key and Sarasota County.”

Stephen D. Rees Sr., Saba’s attorney in the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA) process, noted in a separate email to the News Leader, “The County testimony at the Hearing was the Petitioner could file a new application for such a variance at any time. The County also stated that such an application would be classified as a substantial change and would be considered on its merits without delay …”

Saba Sands LLC submitted the revised plans to state and county environmental staff members prior to the Feb. 22 hearing, as shown in a document the News Leaderobtained through a public records.

This graphic shows the new construction design, as of August 2020, overlaid on the existing house. Image courtesy Sarasota County

In August 2020, the County Commission denied Saba Sands LLC’s petition for a six-unit structure, which the company wanted to build in place of a single-family residence on the parcel.

That condominium complex would have had about 17,106 square feet of living space. The proposed new structure would have a total building footprint of 5,226 square feet under roof, while the total lot coverage would be approximately 12% less than that of the two-story-over-parking, single-family residence on the site, according to materials submitted to the county.

In a March 10 report to the commissioners, County Attorney Frederick J. Elbrecht Jr. pointed out that Tinkler found the board’s denial of the original petition “was not unreasonable or unfairly burdened the property,” referencing language in the state’s Bert J. Harris Jr. Private Property Rights Protection Act.

During the Aug. 26, 2020 public hearing on Saba Sands’ original petition for the Coastal Setback Variance, Commissioner Nancy Detert voiced her view that approving the petition would set “a horrible precedent.” She stressed, “I’m not anti-property owner,” but she added, “To me, you’ve got what you bought. … It does take a lot of nerve to ask for multiple units on this property.”

Howard Berna, manager of the county’s Environmental Permitting Division, explained during his presentation that two parcels seaward of the proposed site of the new condominium complex would remain in their natural state, but Detert expressed concern that owners of other houses on Beach Road with such parcels could seek the board’s approval for large new multi-family residences if the commissioners allowed Saba Sands to proceed with its plans.

This is the dimensioned site plan for the August 2020 proposal for 636 Beach Road. Image courtesy Sarasota County

“Late last year,” Elbrecht explained in his report to the board, “Saba Sands LLC invoked the requirements of the Florida Land Use and Environmental Dispute Resolution Act (‘FLUEDRA’).” That related to the commission’s unanimous vote on Aug. 26, 2020 to deny Saba Sands LLC’s petition for a variance so it could demolish the existing house standing at 636 Beach Road “and construct a new three-story pile-supported multi-family residential structure with six dwelling units, pool, deck, fence, retaining wall, privacy walls, and driveway,” Elbrecht continued.

Given the FLUEDRA stipulations, Elbrecht added that the commissioners have three choices in response to the Special Magistrate’s recommendation:

  • Accept it.
  • Modify it.
  • Reject it.

Failure to act, Elbrecht pointed out, “would constitute a rejection of the recommendation. Whatever its decision,” he added, “the Board must issue a written decision that describes as specifically as possible the use or uses available [for the 636 Beach Road parcel].”

The Office of the County Attorney “recommends the Board accept the Special Magistrate’s recommended order,” Elbrecht continued. “Our office will then send a letter to Saba Sands informing it of the Board’s acceptance … and describing the possible use or uses as those which are consistent with the Sarasota County Code.”

Elbrecht added that he would discuss the issue with the commissioners during their regular meeting on March 23.

The Special Magistrate’s findings

Kenneth A. Tinkler is an attorney with the Carlton Fields firm in Tampa. Image from the Carlton Fields website

In his formal recommendation, Special Magistrate Tinkler explained that the Feb. 22 FLUEDRA hearing on the Saba Sands petition was conducted in the County Commission Chambers in downtown Sarasota. He offered two public comment periods, he noted.

“I first attempted to mediate the dispute,” Tinkler wrote. Because “the parties did not come to an amicable resolution,”
he continued, the Florida Statute that governs the FLUEDRA process “[tasked] me with considering the facts and circumstances” in an effort to determine whether the County Commission’s August 2020 decision was “unreasonable or unfairly burdens the Property.”

Tinkler then pointed out that Section 54 of the County Code “prohibits construction or excavation activities seaward of the Gulf Beach Setback Line [GBSL] 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.” When that process is not applicable to a situation, Tinkler added, the commissioners must vote to approve a Coastal Setback Variance, and the Code provides a set of criteria for them to consider.

The Gulf Beach Setback Line is the county’s figurative “line in the sand” to protect dunes and coastal vegetation, which, in turn, protect landward property from storm surge and other flooding events.

During the hearing, Tinker noted, the parties disagreed about “whether a 2010 approval by the County of a multi-family structure at 610-612 Beach Road should serve as a precedent to allow [Saba Sands] to also build a similar structure. It is undisputed, however, that Petitioner [Saba Sands] requested greater encroachments into both the Beach Road street setback and the rear yard setback” than the County Commission allowed for the construction on the other parcel.

Therefore, he added, the commission’s denial of the variance in Saba Sands’ case did not appear to be unreasonable or unfair.

However, Tinkler pointed out, the resolution of denial the board approved “could be read as somehow prohibiting any future proposal that included some level of intensification of use, even if the County’s criteria for variance approval were otherwise met.”

This is one of the tables in the staff report for the Aug. 26 public hearing, offering details about the inconsistency of the construction plans with county environmental policy. Image courtesy Sarasota County

Among the findings in that resolution — which the board members formally approved on Oct. 20, 2020 — are the following statements:

  • “The Gulf shore area seaward of the GBSL near the property is subject to rapid and severe fluctuations resulting from erosion and accretion in this coastal high hazard area.”
  • “It is contrary to the public health, safety, and welfare to permit the construction of structures seaward of the Sarasota County GBSL except to the minimum extent necessary to permit reasonable use of the Petitioners’ property.”
  • “While 100% of the property is seaward of the Gulf Beach Setback Line and a significant portion thereof is protected habitat, the testimony and record evidence regarding the plans presented during the August 26, 2020 public hearing demonstrate that strict enforcement of the Coastal Setback Code, which prohibits construction and excavation seaward of the Gulf Beach Setback Line, would not impose an unreasonable and unjust hardship on the land. The site is currently developed with a single-family residence.”

During the hearing, Tinkler asked whether Saba Sands could “put forward a revised application for a Coastal Setback Variance, in light of the evidence and testimony,” he wrote in his recommendation. “The County testimony at the Hearing was the Petitioner could file a new application for such a variance at any time [and] it would be considered on its own merits without delay. The Petitioner did not challenge the County’s position.”

In his report to the commissioners, County Attorney Elbrecht noted that Assistant County Attorney David Pearce and Deputy County Attorney Josh Moye attended the mediation, along with Assistant County Administrator Brad Johnson and Berna of Environmental Permitting.

1 thought on “Special Magistrate sides with the county after dispute resolution hearing on County Commission’s denial of variance for 6-unit complex at 636 Beach Road”

  1. Thank you for shining a light on this debacle. Were it not for SNL’s diligent efforts, we’d be in the dark most of the time. Please see, from Mr. Lobeck’s filings with the magistrate, there is NOTHING in the code that allows 4 units on Mr. Saba’s upland parcel(s). His property is governed by the RMF-1/SKOD zoning of 6 units per acre. Stated another way, each “dwelling unit” requires 7,260 sf of land. Partial units don’t count, i.e. the combined upland parcels would need to total 14,520 sf to support TWO dwelling units. They do not. There are no density exceptions allowed to this rule, as set forth in FLU Policy 1.1.2 of the Comprehensive Plan. To think that 4 units can lawfully be permitted is to be mistaken.

    Yes, Mr. Saba also owns land seaward of Tenacity Lane. Regarding the calculation of development density under our code, it’s equally immaterial whether those lots are across the road or across the state. Nothing in the code allows the transfer of development rights across an intervening right-of-way on a barrier island. Period.

    Furthermore, it is well-settled in Florida case law that variances CANNOT be approved for a self-created hardship. Clearly, wrongly combining lots across an intervening right-of-way, then claiming hardship because of the intentional, unlawful combination cannot possibly be construed as anything other than absurd. That the County, in its latest “revision” of its Coastal Setback Code, removed the language prohibiting approval of “self-created hardships” is of no lawful effect. Case law still prevails and must be adhered to.

    Another legally infirm change to the Coastal Setback Code was the County’s declaration that the location of the Gulf Beach Setback Line, the GBSL, can be considered as a “hardship” on a piece of property. Hogwash. The intent of the change, in my opinion, was to allow the owners of the lots seaward of Tenacity Lane to sue the County under the Bert Harris Act, as did Saba. The County could then negotiate the claim to inure to the landowner’s benefit to get around the code.

    That’s all good and well, except for one thing: It’s not legal.

    Stay on it, News Leader. And for those who see this post, PLEASE ENCOURAGE YOUR FRIENDS TO SUBSCRIBE TO AND READ THIS PAPER. IT IS, BY FAR, SARASOTA’S MOST ACCURATE SOURCE OF NEWS.

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