Couple file in 12th Circuit Court to overturn county’s denial of their proposal to build a dock on Siesta Key Circle

| April 1, 2016

County decision focused on inadequate room for two parking spaces, as required by zoning regulations, but Erika and Achim Ginsberg-Klemmt cite violation of state law and record-keeping standards as the basis for their action

By Rachel Brown Hackney – SarasotaNewsLeader.com (SNL)

A Sarasota couple who lost an appeal late last year in an effort to build a dock on vacant property they own on Siesta Key have petitioned the 12th Judicial Circuit to review the decision and reject the denial.

Erika Ginsberg-Klemmt. News Leader photo

Erika Ginsberg-Klemmt. News Leader photo

Erika and Achim Ginsberg-Klemmt filed the Writ of Certiorari on Feb. 24. County Attorney Stephen DeMarsh notified the county commissioners of the action on March 8, reminding them that in that action, they affirmed the decision of the county’s Water and Navigation Control Authority (WNCA) administrator.

On Dec. 9, 2015, Howard Berna, the county’s environmental permitting manager, who also serves as the WNCA administrator, explained to the board — sitting as the WNCA — that while the Ginsberg-Klemmts made technical adjustments in the dock plans to comply with county regulations, the site still did not have adequate room for the parking of two vehicles outside the public right of way, as required of a dock plan. He also cited errors in the survey the couple commissioned of their property, saying that the county’s own surveyor found the area of land that could be used for parking contained less than 400 square feet. The Ginsberg-Klemmts’ survey showed approximately 1,500 square feet is available; it was completed by Brigham Allen Land Surveying of Venice.

County zoning regulations require an area of 9 feet by 18 feet for one parking space, Berna pointed out. However, because of the limited area outside the right of way on Siesta Key Circle, where the Ginsberg-Klemmts own the property, only 7 feet of width is available, he said.

A county graphic shows an overlay of the county's survey of the property on the owners' survey. County photo  In his formal denial, dated Oct. 8, 2015, Berna wrote that the “site is significantly constrained” not only as a result of its proximity to the Siesta Key Circle right of way but also because of the limited amount of uplands present on Lots 29 through 32, which is the property the Ginsberg-Klemmts own. He further pointed out that in 1970, in association with a WNCA Major Work Permit for the Siesta Key Circle roadway, the owners of the property at that time “recorded a document into the Official Records of Sarasota County that prohibited the filling of Lots 19 through 32 … Therefore, alteration or filling of any part [of those lots] is not allowed.”

Moreover, Berna wrote, “Creation of two parking spaces in the proposed locations will result in significant impacts to well-established native coastal vegetation and coastal wetlands.”

He further noted that the Ginsberg-Klemmts do not live on Siesta Key Circle, and the “upland property owners residing on the southern side of the road have expressed concerns” that the existence of a dock on the proposed site could encourage trespassing on the structure as well as on their properties.

A county staff photo shows the area of the proposed western parking space on Siesta Key Circle. County photo

A county staff photo shows the area of the proposed western parking space on Siesta Key Circle. County photo

During the public comments portion of the quasi-judicial hearing on Dec. 9, Scott Carter of the Sarasota law firm Dunlap & Moran told the board he was representing the Siesta Key Baypoint Association, which comprises about 40 households primarily along Siesta Key Circle. “And we’re here today to strongly support the county staff’s denial of the Minor Work Permit for this dock,” he added. The standalone dock would be in the middle of the residential neighborhood, Carter continued. “If a dock were to be allowed in this location, that’s all that would exist at that spot. Any person could access the dock from the water or the land, and there wouldn’t be anybody there to maintain, police the activities going on there. … It would be effectively an attractive nuisance that would likely draw the attention [of] unwelcome users and partiers — and vandals, at worse.”

Tom Teffenhart, who said he lives at 951 Siesta Key Circle, told the board he explored the possibility at one time of constructing a dock in his backyard or across the street from his house, but when he talked with county staff members about his plan, they told him he would not be able to win a permit “I didn’t argue about it,” he added. “I didn’t pursue buying the underwater properties.” He also supported Berna’s denial of the Ginsberg-Klemmts’ permit application.

 Altogether, eight people spoke in favor of Berna’s action.

In her presentation to the County Commission on Dec. 9, Erika Ginsberg-Klemmt said, “Our home is on the Phillippi Creek, about a six-minute drive from this location [on Siesta Key Circle].” She and her husband are avid sailors, she added, and their oldest daughter rows with Sarasota Crew.

A county staff photo shows the area of the eastern parking space, which is marked off with red tape. County photo

A county staff photo shows the area of the eastern parking space, which is marked off with red tape. County photo

According to records in the Sarasota County Clerk of Court’s Office, the Ginsberg-Klemmts were the highest bidders in June 2012 for Lots 22 through 32 of Block 4 in the Siesta Beach Subdivision, “less that portion comprising submerged lands in Roberts Bay.” The county sold them the property for $3,157.29, a tax deed says. The Sarasota County Property Appraiser’s Office says the value of the land in 2015 was $13,600.

The writ

Among the arguments in the couple’s appeal is the statement that Sarasota and Pinellas counties were the only Florida counties ever to establish a WNCA, and Pinellas County abolished its WNCA in 2011. Therefore, the writ says, Sarasota County remains the only county in the state “which relies on this archaic institution.”

The writ goes on to reiterate comments Erika Ginsberg-Klemmt made to the Sarasota County WNCA on Dec. 9, including the assertion that Berna violated state law by not responding to the couple’s application for the dock permit within the established 30-day period for such action. On Feb. 25, 2015, the writ continues — 10 days after that period ended — Berna “inspected the site conditions for the first time and marked the initially proposed parking areas in the field with red marker tape.” Then, on March 6, about 19 days after the 30-day period had ended, Berna sought additional information from the couple and suggested they relocate the proposed parking areas to a different section of the parcel.

In the reprise of another point Erika Ginsberg-Klemmt made on Dec. 9, the writ says that on Sept. 4, 2015, Berna summarized in a written memorandum issues he had raised during an Aug. 16, 2015 meeting with the couple, “demanding that [they] must modify their boundary survey to reflect a [50-foot] radius at the end of the [Siesta Key Circle] cul-de-sac demanded by the County Surveyor, instead of the [30-foot] cul-de-sac radius depicted on the recorded subdivision plat.” However, the writ argues, the recorded plat map “clearly and unambiguously shows a [30-foot] radius at the terminus of the cul-de-sac.”

On Dec. 9, 2015, Teri Owen, the senior county surveyor, characterized the 1925 plat to which Ginsberg-Klemmt referred as “more like a sales plat that got recorded,” with insufficient information to make a survey possible.

She spoke with Michael Allen of Brigham Allen, she added, as soon as she saw his survey did not correctly reflect the cul-de-sac at the end of Siesta Key Circle. He was unaware of decades-old procedures in the county regarding the filing of “calculation sheets” provided by surveyors of record to correct earlier errors made on plats, Owen pointed out.

"To change a lot line now, you will be changing all the lot lines,” Owen told the board. “You can potentially have houses built on the wrong lots if you were to use the Brigham Allen survey.”

However, in the writ, the Ginsberg-Klemmts say the calculation sheet in this case is not part of the county’s public records, and, therefore, does not meet the requirements of state law. “An inquiry to verify the authorship, creation date and intent of this document remained without response by County officials,” the writ adds.

The Ginsberg-Klemmts filed the writ themselves. They seek “the costs and expenses that they have incurred in connection with this action,” as well as a reversal of the WNCA denial and confirmation of the validity of the 30-foot cul-de-sac radius “specified on the original subdivision plat map,” the writ says.

The County Commission decision

Then-Vice Chair Maio made the motion on Dec. 9, 2015 to deny the Ginsberg-Klemmts’ appeal. “Basically, I’ve heard enough competent legal expert testimony by our staff about this and support their position,” he said.

Commissioner Christine Robinson, who seconded the motion, added that she listened carefully to the testimony and reviewed all the documents submitted by the Ginsberg-Klemmts. “Using the words ‘unique’ and ‘constrained’ to describe this parcel is — those are gentle words,” she continued. The property is “pretty much submerged,” she pointed out. “I believe, based upon petitioner’s testimony, they understood what kind of … property they were getting when they stepped into this,” she added, “and, therefore, they would have understood the rules that are in place for the WNCA.”

Then-Chair Carolyn Mason called for the vote, which was unanimous in denying the appeal. 

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