The special magistrate who conducted a dispute resolution hearing in a case involving the property located at 636 Beach Rd. 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 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.
“That is what the petitioner intends to do,” William Saba, principal of Saba Sands LLC, said in an email. “We anticipate prompt approval by the county of [the new petition], granting the needed variance for four units. 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.”
Stephen Rees, Saba’s attorney in the Florida Land Use and Environmental Dispute Resolution Act process, noted in a separate email: “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.
In August, 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 report to the commissioners about the special magistrate’s recommendation, County Attorney Frederick Elbrecht 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 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 the hearing 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 Beach Road houses 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.
During their regular meeting on March 23, the Sarasota County commissioners unanimously accepted Tinkler’s recommendation in the case, as County Attorney Elbrecht had advised them, based on the stipulations of the state law.
The magistrate’s findings
In his formal report, Tinkler explained that he first attempted to mediate the dispute. However, he continued, because “the parties did not come to an amicable resolution,” he was tasked 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 and waterward of the Barrier Island Pass Twenty-Year Hazard Line except as otherwise permitted by the code.”
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 [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.”
Among the findings in that resolution are the following:
• “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.”
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.”
Author: Rachel Brown Hackney