12th Circuit Court hearing in Big Pass case delayed from July until Aug. 16

Judge gives outside counsel for City of Sarasota less time than he sought in extension for city’s filing of responses to Siesta Key Association’s formal request for materials

Circuit Court Judge Andrea McHugh. Image from the 12th Judicial Circuit Court website

Twelfth Judicial Circuit Court Judge Andrea McHugh has rescheduled a summer hearing on the Siesta Key Association’s complaint against the City of Sarasota from July 19 to Aug. 16, The Sarasota News Leader learned this week.

The decision followed a May 28 proceeding in Sarasota.

In her order — issued on May 28, as well — McHugh wrote that the August hearing still would begin at 10:30 a.m. and that it would continue “through the remainder of the day.”

The rescheduling, the News Leader learned from the Siesta Key Association, was necessary because of the timing of a jury trial over which McHugh must preside.

That hearing will focus on the arguments the Siesta Key Association (SKA) has put forth since it filed its complaint in March 2017 — that the City of Sarasota has refused to comply with the city’s own comprehensive plan and applicable Sarasota County regulations in plans to remove up to 1.3 million cubic yards of sand from Big Sarasota Pass to renourish about 1.56 miles of South Lido Key Beach.

The city’s outside counsel in the case, John R. Herin Jr. of the Fox Rothschild firm in Miami, has contended that the city has followed all the necessary steps as it has pursued the project in collaboration with the U.S. Army Corps of Engineers (USACE).

During the proceeding this week, McHugh told all the parties to provide their witness lists to the court by May 31. She also gave them one week to schedule depositions in the case — until June 7.

Both Herin and the SKA’s attorney, Kent Safriet of the Tallahassee firm Hopping Green & Sams, participated in the hearing by telephone, the court appearance record shows.

Additionally, Kevin Hennessy of Lewis, Longman & Walker in St. Petersburg, attorney for the Lido Key Residents Association (LKRA), represented his clients by phone. The LKRA was allowed to intervene in the case in 2017.

Along with rescheduling the hearing from July to August, McHugh addressed a motion Herin had filed on May 23, asking for more time for the city to respond to the first set of interrogatories sought by the SKA and its co-plaintiff, Siesta resident David Patton, as well as to their request for a variety of other city materials related to the case.

John R. Herin Jr. Image from the GrayRobinson website

The SKA and Patton filed the interrogatories and First Request for Production on April 23. The materials were due on May 23, the same day Herin asked for a 10-day extension, “through June 3, 2019,” to provide the responses.

He cited “other pressing workload commitments” as his reason for seeking more time. Prior to his filing of the motion, he added, he had not heard from Safriet, the SKA attorney.

Nonetheless, Herin wrote, “This Motion is made in good faith and not for the purposes of delay …”

In her May 28 order, McHugh gave Herin until May 31 to give the SKA and Patton the responses to the interrogatories and to the First Request for Production.

Another letter to the city

The SKA sent its first letter to the City of Sarasota on April 23 following a status conference for the parties with McHugh, which was held the same day. During that April 23 proceeding, McHugh directed the parties “to work together to conduct limited discovery,” according to a notation on the Court Appearance Record for that status conference.

On April 18, McHugh issued an order denying a city motion to dismiss the SKA case.

On May 22, the SKA sent a follow-up letter to the city commissioners and senior city staff via email and registered mail.

That letter included a copy of the April 23 communication.

The May 22 letter pointed out, “In an effort to avoid a needless waste of money and resources, SKA expressly demanded the City make a written determination that the [Lido Key Renourishment] Project is or is not consistent with all applicable local, regional, state, and federal plans and regulations for the Project. SKA requested that the City advise us immediately as to whether the City will be making a written determination that the Project is or is not consistent with all applicable local, regional, state, and federal plans and regulations [emphasis in the letter].”

This is a partial list of the people to whom the May 22 letter was addressed. Image courtesy Siesta Key Association

SKA leaders have stressed that the Joint Coastal Permit the city and the USACE received in June 2018 from the Florida Department of Environmental Protection (FDEP) for the Lido project does not release the city from certain obligations.

For example, the state document says, “This permit does not eliminate the necessity to obtain any other applicable licenses or permits that may be required by federal, state, local or special district laws and regulations. This permit is not a waiver or approval of any other Department permit or authorization that may be required for other aspects of the total project that are not addressed in this permit.”

Further, the permit points out that it does not “authorize any entrance upon or activities on property which is not owned or controlled by the permittee. The issuance of this permit does not convey any vested rights or any exclusive privileges.”

The SKA contends that Big Pass is under Sarasota County jurisdiction. Because the pass never has been dredged, the nonprofit also argues that the city and the USACE must seek county approval before they undertake any work in the pass, based on language in the County Code of Ordinances.

The May 22 SKA letter added, “To date, SKA has received no response from the 11 City officials that were sent our April 23, 2019 letter. Accordingly, SKA respectfully requests that each addressee acknowledge receipt of the April 23, 2019 [letter] and advise whether each will or will not substantively respond to the letter. We look forward to receiving your response in a timely manner.”

SKA President Catherine Luckner and Patton signed the letter.

SKA responses to the Lido Key Residents Association

In the meantime, on May 28, the SKA and Patton formally responded themselves to the request of the Lido Key Residents Association (LKRA) for materials.

However, the nonprofit and Patton prefaced those responses with a General Statement of Objections. Among the latter, the SKA and Patton noted that they had not completed their own discovery in the case, as city counsel Herin had sought the extension of time for those responses.

“Plaintiff has not yet reviewed all records of the other parties in this case or records in the care, custody or control of third parties,” the SKA and Patton’s statement added.