Recent history has shown that Mother Nature can quickly cause damage to a home that’s too close to the water. One example took place several years ago, when nature filled a pool completely in with sand and saltwater at a Gulf-front home on Blind Pass Road.
Because a previous structure had been historically located on this South Siesta property, the structure had been “grandfathered,” and thus a newer home was allowed to be built closer to the water than nearby homes.
Across the Key, several homes have even “been washed away” in the past, noted Catherine Luckner, second Vice President of the Siesta Key Association, These examples illustrate why it is important, for Luckner, that the county consistently enforces it’s Gulf Beach Setback Line (GBSL) that was enacted in 1979.
“It is important that the County ordinance is upheld fairly and consistently,” Luckner told Siesta Sand. “We support property owners on Siesta Key, and have concerns that other future buyers may be unaware of the regulations. We hope purchase disclose documents will give guidance to future buyers.”
And that’s why a vote Oct. 14 by the County Commission was such a key decision, Luckner says.
Commissioners voted unanimously to deny the request of Siesta Key property owners Sania and Ron Allen seeking a variance, for the fourth time, to build a home completely seaward of the county’s GBSL.
The coastal setback rules prevent construction on the dune habitat, and help prevent beach erosion and mitigate the effects of floods from significant storm events, such as Tropical Storm Debby in June 2012, which led to significant flooding of Beach Road. In addition to 162 Beach Road, 22 other properties throughout Siesta Key are located past the GBSL. (See Map)
“Not only about that lot”
The Allens submitted plans to build a 2,779-square-foot home at the 7,429-square-foot property at 162 Beach Road. The size of the home’s habitable space was a 10 percent reduction, compared to the owners’ most recent plans that were denied previously by the County Commission.
The amount of pavers would also be reduced by 40 percent.
The location of the parcel is what was at the heart of the issue. The land at 162 Beach Road has been submerged under water intermittently, during past decades, according to county staff.
The Allens were seeking a coastal setback variance and a second, 4-foot street-yard variance so the structure could be built closer to the street.
According to county staff, the entire property at 162 Beach Road is located seaward of the GBSL, and 100 percent of the property consists of dune habitat that is predominantly vegetated with a variety of desirable native dune plant species. The GBSL allows for a “minimally” habitable space, which can be approved by the Florida Department of Environmental Protection (FDEP) on lots that have history of known structures.
Granting the two variances and allowing the property owners to build the home at 162 Beach Road Beach would have been precedent setting. “That lot is not only about that lot,” Luckner said, noting the 22 other properties located seaward of the coastal setback line.
Approval of the coastal setback variance, Luckner says, may have had other potential impacts on the Key. "What could be the message to other property owners whose lots are also seaward of the GBSL? Even if they had been turned down in the past, this would question the consistency in permit practice of the GBSL," Luckner said.
It could even have sent a message to Siesta property owner’s wanting to add a deck or build a pool beyond the GBSL — even if the county had turned down plans in the past. “It would have opened the flood gates,” Luckner said.
If Commissioners were to grant the variance, Wade Matthews, conservation chairman of the Sarasota Audubon Society, told the board, it would appear “there is a longstanding coastal setback line that the County Commission does not really feel serious about.”
Approving the variance could have also ultimately impacted flood insurance rates on the Key, Luckner noted, because the rates are related to how closely Federal Emergency Management Agency (FEMA) coastal standards are upheld.
Each time the Allens (and the previous owners at 162 Beach Road) requested a setback variance, SKA had asked the County Commission carefully review the GBSL and sent FDEP questions regarding such development on each of the five separate requests.
In an Oct. 12 letter sent on behalf of the organization’s board members to county commissioners, SKA wrote: “This parcel exists within a State of Florida defined area of Critical Beach Erosion. While an accreted shoreline currently is noted, there is repeated history of rapid flooding and storm surge. The vegetated dune, described in the Variance Petition, is a defense against storm surge for residential and business properties landward of the GBSL. The Gulf Beach Setback Line (GBSL) and Barrier Island Pass 20 year High Hazard Line (PHL) provide governance for development to enhance property owner safety, protect our natural environment and secure property value.”
Taking a stand
At one point in the County Commission meeting Oct. 14, Peter van Roekens, secretary of the Terrace East condominium, which is located next to 162 Beach Road, asked audience members who were opposed to the coastal variance request to stand to make their position on the issue known.
More than 30 people in the Commission Chambers stood.
“No [county] commission has ever approved new construction on a lot that is seaward of Gulf Beach Setback Line,” van Roekens told commissioners. “You know water has coursed through this property on many occasions, and it will do it again.”
Speakers pointed out during the meeting that 162 Beach Road has never had a structure on it.
“This is not the place you want to have a permanent home, and the only things to do is back up and have another use there,” said Matthews, the Audubon conservation chair.
Matthews also noted that he had been surprised to see piping plovers between the property at 162 Beach Road and the shore. Piping Plovers are a Federally protected migrant which increasingly are appearing on the barrier island. “Those birds are equally as rare as the snowy plovers, and I’ve never personally seen one on Siesta Key before,” Matthews said.
Matthews added: “This current owner [the Allens] purchased the property knowing existing regulations were in place on it, and that should be taken into consideration.”
Siesta Key resident Tim Haake echoed this sediment: “This lot was purchased with full knowledge of these regulations in place.”
Hoping to secure approval for the variance, the Allens had offered to remove exotic vegetation, provide a plan for native, dune vegetation, and reduced the size of the home to 2,779 square-feet—a 10 percent reduction in the size of habitable space.
The previous request was for a 3,088-square-foot home built 175.65 feet seaward of the GBSL. The current request detailed 2,779 square feet of habitable area and 170 feet seaward of the GBSL.
“The petitioners have reduced and minimized the footprint of their single family home,” said William Merrill III, a land use attorney and partner with the Icard Merrill firm.
“You heard me say this ten times,” Merrill said at the meeting, “this is a vacant lot that was platted in 1926. Without the variance, my client cannot use this property.”
Merrill noted the home is of a similar size to the home to the north, and would be constructed on pilings.
“This is an expected use,” Merrill said. “This is a minimum use that is permitted in the RMF 1 zoning district.”
Merrill cautioned that, based on previous court cases, denying the petition “would be a categorical taking and thus an unreasonable hardship.”
“We do think this is our last stance before we go to litigation, and we don’t want to do this,” Merrill said. “The other option would be for the county to buy it [the lot].”
“One way or the other, my clients either need to have this house approved, or they need to unfortunately litigate it or the county has to say ‘yes we will buy it,’” Merrill said.
But Merrill told commissioners the “easiest and best route” is to approve this variance(s).
But commissioners ended up voting down the coastal setback variance.
The motion to deny the setback variance was made by Commissioner Paul Caragiulo, and seconded by Commissioner Alan Maio, who represents Siesta Key.
Commissioner Paul Caragiulo said although he is the “pro-property rights guy and pro-business guy,” he believed allowing the Allens to construct the 2,779-square-foot home on a lot that has been submerged in past decades would set “a precedent I’m really not comfortable with.”
“And ultimately, maybe we do need a judge to tell us what to do in a very specific situation like this,” Caragiulo added. The commissioner said he was comfortable having county staff look into the prospect of purchasing the parcel at 162 Beach Road.
Commissioner Maio added: “I can’t come up with a reason that I should vote differently than three prior county commissions voted.”
“It does matter to me that it was purchased after it was denied once, and the GBSL predates this,” Maio said. “Maybe that’s not legal grounds. Maybe a judge does have to decide this.”
Both Caragiulo and Maio noted how tough coastal setback variance decisions can be.
“Every one of these, we manage to upset someone,” Maio said.
Commissioner Christine Robinson said she believed it had not been shown that a “No” vote to the variance would equate to a property taking at 162 Beach Road. “Is this the minimum variance necessary? I don’t think it was shown in this case,” Robinson said.
Robinson referenced photos shown by county staff illustrating that the property had been flooded throughout the years.
Robinson said, “I’ve been particularly hard on coastal variances in the past. It has tremendous impact on the surrounding residences, especially when you start talking about some of the pictures that we have seen.”