By Rachel Brown Hackney
Saba Sands LLC has filed a Request for Relief through the Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA), arguing that the Sarasota County Commission’s August 2020 denial of its plans for a six-unit condominium complex on Beach Road was “unreasonable and unfairly burdens Owner’s reasonable, investment-backed expectations for use of the Land.”
The principal of Saba Sands LLC is Sarasota attorney William Saba.
Saba Sands sought the Coastal Setback Variance (CSV) so it could demolish a two-story-over-parking, single-family residence with 3,990 square feet of habitable space at 636 Beach Road and replace it with a three-story, pile-supported structure that would contain 17,106 square feet. The new building would contain six condominiums, county staff reported. Seaward of it, two other undeveloped lots Saba Sands owns contain dune habitat, staff showed the board members.
Along with the condominiums, the new construction would include a pool, a deck, a retaining wall and a driveway.
The maximum any of the construction would stand seaward of the county’s Gulf Beach Setback Line (GBSL) would be 191 feet, Howard Berna, manager of the county’s Environmental Permitting Division, told the commissioners during the Aug. 26th hearing.
The GBSL was established in 1979 to protect coastal habitat and dunes, which, in turn, protect landward structures from storm surge and other flooding events. County leaders have referred to it as a figurative “line in the sand.”
On August 26th, Saba Sands’ attorney, Stephen D. Rees Jr. of the Icard Merrill firm in Sarasota, told the commissioners during the public hearing that the CSV the company was seeking “is the minimum variance necessary to permit reasonable use of the property, referring to state and local regulations regarding private property rights.”
Nonetheless, Commissioner Nancy Detert, who made the motion to deny the petition, said that the construction would set “a horrible precedent.”
“To me,” Detert said, “you’ve got what you bought. … It does take a lot of nerve to ask for multiple units on this property.”
She voiced concern that if the board approved the CSV, that would open up the potential for the owners of “all the other houses on [Beach Road]” with property covered by dunes and vegetation seaward of those homes to seek approval for larger structures.
Attorney Stephen D. Rees Sr., also of Sarasota, is representing Saba Sands in the FLUEDRA action, the petition says.
In filing the Request for Relief on November 23rd, Rees stressed that Saba Sands wants to construct the new building only on the two lots that already are developed on the property. “Owner before acquiring Title to the Land carefully studied prior Board approvals for Coastal Setback Variances on SIMILAR properties expressly identified within the Owner’s Variance Application Narrative and discussed both within a … presentation and testimony by Owner’s Agent at the public hearing,” Rees wrote with emphasis in the FLUEDRA petition. The commissioners approved multiple residences and multi-story buildings “as a reasonable use” on those other properties, he added; thus, Saba Sands expected “to be treated similarly, fairly and equally under the criteria of [the County Code].”
The county Environmental Permitting staff’s own analysis of the Saba Sands proposal found that the Mean High Water Line “‘is approximately 782 feet from the proposed construction,’” Rees continued. Staff also concluded, he wrote, that no direct impacts on the protected native dune habitat or dune vegetation were anticipated.
Rees further pointed out that, according to the 2002 Sarasota/Charlotte County Beach Feasibility Study Report, the shoreline at the Saba Sands property “‘has accreted at an annual rate of 6.8 [feet per year] between 1987 and 2001 and 2.4 [feet per year] between 1974 and 2001,’” according to the county staff report.
Moreover, Rees stressed, “County Staff totally ignored [Saba Sands’] Variance Application discussion … of six properties ‘WITHIN THE NEIGHBORHOOD’ having ‘double lots’ on Beach Road developed as multi-family buildings between the public beach and Ocean Blvd,” including those standing at 228 Beach Road, 304 Beach Road and 610 Beach Road.
Rees also alleged that county staff specifically disregarded facts that were favorable to the Saba Sands application and, instead, chose to show the commission a graphic that illustrated that the new condominium complex proposed at 636 Beach Road would shift the line of construction seaward by 25 feet, which, staff said, conflicted with the criteria of the county’s Coastal Setback Code in regard to determining “‘the minimum variance necessary for reasonable use of the property.’”
The county’s response
In the county’s response to the Request for Relief, Assistant County Attorney David Pearce argued that, because the property located at 636 Beach Road “abuts dune habitat and beach access, and because there is a reasonable existing use, a reasonable person would expect that the location and natural conditions associated with the property would limit its potential use.”
Additionally, he pointed out, although the county’s Coastal Setback Code has “been amended several times” since it was adopted in 1979, “the general prohibition against construction or excavation seaward of the GBSL remains unchanged.”
He further noted that the lots “immediately to the southeast [of the 636 Beach Road parcel] have single-family residences built on single lots. Saba Sands owns a double lot. Beyond those single-family residences is the Sarasota County Siesta Key Public Beach.”
Pearce also referenced Saba Sands’ argument about the multi-family buildings on six other properties in the neighborhood, writing that Saba Sands “has essentially alleged a ‘class of one’ equal protection claim.” To prevail on such a claim, he added, “Saba Sands must show that they were intentionally treated differently from others who were ‘similarly situated’ and that there is no rational basis for the difference in treatment.”
However, citing a 2010 opinion of the 11th U.S. Circuit Court of Appeals, he stressed, “[T]he comparators must be ‘prima facie identical in all relevant respects.’”
“Except for the example at 610 Beach Road,” Pearce wrote, “Saba Sands has not provided an analysis comparing these properties with its own property.”