County issues Affidavits of Violation to owners’ over failure to remove fencing on private beach property

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By Rachel Brown Hackney

Sarasota County staff formally has issued Affidavits of Violation to two limited liability companies whose principals have erected fencing on private property on Siesta Beach, The Sarasota News Leader has learned.

Both affidavits point out that on March 24, county staff documented that chain link fences had been installed in violation of Chapter 124, Article 7, Section 124-102, of the Sarasota County Code, which encompasses the Siesta Key Overlay District (SKOD) zoning regulations.

Section 124-102(4)(c) says, “All uses and structures must comply with all other application regulations including, but not limited to, the Coastal Setback Code Chapter 54, Article XXII of the County Code.”

The affidavits note, “Section 124-102(4)o.1.iv states, “Chain link fencing is prohibited in the required minimum street yard.”

Additionally, Section 54-723 of the Coastal Setback Code, which pertains to the county’s Gulf Beach Setback Line (GBSL) and the Barrier Island Pass Twenty-Year Hazard Line (PHL) requirements, prohibits construction or excavation seaward of the GBSL and waterward of the PHL, except under specific circumstances.

Each affidavit includes language from that part of the code, which explains, “Construction means the placing, building, erection, extension, or material alteration of any structure the use of which requires a permanent or temporary location on

the ground or attachment to a structure having a permanent or temporary location on the ground. ‘Construction’ shall include, but is not limited to, the installation of parking lots, driveways, tennis courts, swimming pools, patios, or any similar hard surfaced structures.”

The affidavits proceed to point out that the Siesta Beach Lots LLC chain link fence “had been installed at or near the southern boundary” of that company’s properties. The fence was under construction perpendicular to the shore “and appears to be near the unimproved Columbus [Boulevard] Right-of-Way and an unimproved shore-parallel Right-of-Way seaward of Beach Road. The seaward end of the fence,” that affidavit says, “was in close proximity to the waterline along the shore of the Gulf of Mexico. No authorizations were found in county records for this construction and a Stop Work Order was posted.”

The affidavit adds that, on March 25, a Notice of Violation was prepared, giving Siesta Beach Lots an April 3 deadline for removal of the fencing. However, on April 6, the affidavit says, county staff observed that the fencing remained on the beach.

In regard to the Siesta Gulf View LLC fencing: That affidavit notes that it was constructed near the northern boundary of that company’s property. As with the Siesta Beach Lots fence, the affidavit continues, a Notice of Violation was prepared on March 25, with an April 3 deadline for compliance. Likewise, on April 6, county staff found the fence remained in place.

Each affidavit says that if the Code Enforcement Special Magistrate “finds that one or more violations of the Sarasota County Code exist … staff recommends the following corrective action: Remove the entire chain link fence immediately. All fence posts and materials shall be removed from the beach to a location landward of the Gulf Beach Setback Line.”

The GBSL is the figurative “line in the sand” designed to protect dunes and beach vegetation which, in turn, protect properties landward of the GBSL in times of storm surge and other types

of flooding. For any construction to take place legally seaward of the GBSL, a property owner has to obtain a Coastal Setback Variance from the county.

Both affidavits were signed by Howard J. Berna, the environmental supervisor and Code Enforcement official of the county’s Environmental Protection Division.

Michael Holderness, who both owns and manages property on Siesta Key, is the principal of Siesta Beach Lots. Andy Cooper of Siesta Key is the manager of Siesta Gulf View.

Holderness has told the News Leader that he erected the fencing as a means of keeping people from violating federal and state advisories for social distancing to prevent the spread of the novel coronavirus COVID-19. Although Sarasota County closed its publicly owned and operated beaches and beach accesses as of 6 a.m. on March 21, neither the state nor the county has imposed any restrictions on private beach property, such as the parcels where the fencing stands.

In an April 13 email to the News Leader, Holderness wrote that he would not have needed the fence if the Sarasota County Sheriff’s Office had official means to enforce the social distancing directive, “especially during a pandemic.” The U.S. Centers for Disease Control and Prevention has called for people to gather in groups no greater than 10 and for everyone to remain at least 6 feet from each other.

Further, he continued in the April 13 email, the area where the fencing stands “is a neighborhood, not a county park,” and he said it was “swarmed after [the] county closed [the] main beach …”

Holderness has maintained that he will not take down the fencing.

The Code Enforcement process

After an Affidavit of Violation has been issued in a Code Enforcement case, the next step would be presentation of the

evidence before a Code Enforcement Special Magistrate during a hearing. As of April 13 county staff confirmed for the News Leader that no Special Magistrate hearing had been set. That is a result of state and county actions in response to the COVID-19 crisis.

A fine for a violation may not exceed $250 per day for the first violation or $500 per day for a repeat violation, according to Section 2-349 of the County Code. Further, that section says, “A certified copy of an order imposing a fine … shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the Violator.”

Additionally, it continues, “Any per diem penalty imposed … shall continue to accrue with interest at the statutory rate” until compliance has been achieved, the amount due to satisfy the lien exceeds the assessed value of the property, or the county forecloses on the lien.

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