City Commission takes formal vote to ask for county approval of park use, citing savings of ‘hundreds of thousands of dollars’ as Army Corps of Engineers prepares new bid package
Before deciding whether to grant a Sarasota City Commission request to allow the U.S. Army Corps of Engineers to use Ted Sperling Park on South Lido Key as a staging area for the planned Lido Renourishment Project, Sarasota County commissioners this week agreed that they need a lot more information.
“The county has really stayed neutral” on the plans to remove sand from Big Sarasota Pass to stabilize about 1.6 miles of South Lido Key Beach, Chair Charles Hines pointed out on Oct. 8. The County Commission did vote unanimously in August 2016 to ask that the USACE undertake an in-depth analysis of its proposal, called an Environmental Impact Statement (EIS), Hines added. “We were very clear that we thought that was necessary.” (The USACE refused to take that step, asserting that its modeling showed no harm would come to the pass or property on Siesta Key.)
Hines pointed out on Oct. 8 that he wanted to be cautious about taking any action that would appear the County Commission supported Lido Key residents over Siesta Key residents.
The discussion arose after Sarasota City Commissioner Shelli Freeland Eddie appeared before the county board during the Open to the Public part of its regular meeting on Oct. 8. Freeland Eddie said she and her colleagues voted unanimously during their regular meeting the previous night to make a formal request for use of the park by the contractor hired by the U.S. Army Corps of Engineers (USACE) for what formally is known as the Lido Key Hurricane and Storm Damage Reduction Project.
City Manager Tom Barwin had written a letter to County Administrator Jonathan Lewis, dated Sept. 27, to make the request, Freeland Eddie pointed out.
However, as Barwin explained to Mayor Liz Alpert and the other city board members on Oct. 7, “I heard through [county leaders’] feedback channel that this has to emanate from you, Mayor, and the full City Commission.”
When Alpert asked whether Barwin needed a motion, he replied, “I think that would be helpful to be really clear. I’m befuddled by the whole scenario, but I think we want to be crystal clear.”
Barwin also stressed the need for speed, as the USACE is working on a revised solicitation package for the Lido project and hopes to “put [it] out to bid in a number of weeks.”
Barwin’s Sept. 27 letter to Lewis said, “I must make you aware, as the County Administrator, that a significant portion of the higher than expected initial [bids] can be attributed to the County’s earlier denials to allow any portion of Ted Sperling Park, located within the city, to be utilized for shoreline access.” (The county owns the Sperling Park property.)
“The denial of contractor access to the northern quadrant of Ted Sperling Park may have raised the bids by several hundred thousand dollars or more due to the additional time and difficulty created by the project team’s inability to utilize public property to facilitate the efficient completion of the project,” the letter continued.
The USACE cancelled its original solicitation — published in May — after the only two bids came in at levels the federal agency called “unreasonably high.” The USACE had estimated the cost of the Lido project at $14,149,000. The lower bid was $22,135,100, while the higher offer was $27,195,725.
As a result, a USACE spokeswoman told The Sarasota News Leader in late September that the goal is to advertise the new solicitation package in December or January 2020.
A months-long series of communications
As the News Leader reported this summer, first City Engineer Alexandrea DavisShaw and then Deputy City Manager Marlon Brown sent letters to county staff over a period of months, asking for permission for staging in Sperling Park. In late April, Assistant County Administrator Brad Johnson responded to Brown.
“Our evaluation of the City’s request has produced several concerns including how the construction timeline conflicts with periods of high park utilization, restrictions to primary beach access points, and negative impacts to the park’s infrastructure and natural resources,” Johnson wrote. “In consideration of these potential issues, Sarasota County respectfully declines this request for use of Ted Sperling Park at South Lido Beach.”
As he had written in the Sept. 27 letter, Barwin told the City Commission this week that using Sperling Park as a staging ground would save “hundreds of thousands of dollars,” referring to the revised USACE solicitation package.
When Alpert asked whether the City Commission could vote on Oct. 7, since the item was not advertised as part of the agenda that day, City Attorney Robert Fournier replied, “I think you can because actually it will be the Board of County Commissioners that would be taking the action. What’s being asked for is just an expression of your support for the request that’s already been made [by Barwin in the Sept. 27 letter].”
“I would consider this an urgent/emergency matter,” Barwin interjected.
The News Leader asked Michael Barfield, a state Sunshine Law expert and president of the American Civil Liberties Union (ACLU) of Florida, for an opinion on Fournier’s advice. Barfield wrote in an Oct. 9 email, “It is my understanding that the Sunshine Law is not implicated when a discussion or action is taken without the item being on the agenda. However, it is always best practice to agenda all items so that the public knows what issues are under consideration.
“I know this is Mr. Fournier’s past habit and practice,” Barfield added. “It’s my understanding that the City Attorney did not believe this particular item needed approval by the city commission so, perhaps, that’s why he didn’t insist on his usual practice.
“I’m concerned about this event because it appears to me the City Manager had one-on-one discussions with one or more city commissioners prior to the item coming up at the recent meeting,” Barfield wrote. “That might alter my conclusion but without knowing what occurred during those meetings, I am unable to say whether there was a Sunshine Law violation.”
After Barwin made his comments on Oct. 7, City Commissioner Willie Shaw made the motion to support the request Barwin made in the letter for use of Sperling Park as a staging area. Vice Mayor Jen Ahearn-Koch and Commissioner Hagen offered seconds almost simultaneously.
On Oct. 8, addressing the County Commission, Freeland Eddie said, “We hope that you will take action as soon as possible and direct your staff to work with our staff …”
She pointed out that she had asked Barwin to send the letter to County Administrator Lewis. She added that, in the past, such requests had been handled administratively, she understood, without the boards’ having to vote.
A fuller explanation and some worries
During his report to the County Commission on Oct. 8, County Administrator Lewis explained that he and Barwin had been discussing the issue of Sperling Park for “the past six months or so.”
“About a month ago,” Lewis added, he suggested to Barwin that a letter from the City Commission to the County Commission, making the request formal, would be the appropriate action. Lewis said he reiterated that to Barwin last week.
At the same time, Lewis continued, he had sought an update from the Office of the County Attorney about litigation involving the Lido project. Assistant County Attorney David Pearce told him that 12th Judicial Circuit Court Judge Andrea McHugh had dismissed a case brought originally by the Siesta Key Association (SKA) against the city, seeking to prevent the removal of sand from Big Sarasota Pass for Lido Beach. However, Lewis said, the SKA filed notice on Oct. 4 that it would appeal the decision. (See the related article in this issue.)
Additionally, Lewis reported, Pearce had apprised him about the ongoing lawsuit in federal court filed by a second Siesta nonprofit, Save Our Siesta Sand 2 (SOSS2), against the USACE. (That complaint alleges that the USACE has violated a number of federal laws, including the Clean Water Act, by refusing to undertake the full Environmental Impact Statement — EIS — on how both Big Pass and Siesta Key would be affected by the dredging of the waterway.)
“I know the board has debated previously … and taken policy positions on this,” Lewis added. Therefore, he was seeking direction from the County Commission.
“I was the guy that asked for the letters on the EIS,” Commissioner Alan Maio responded, referring to the commission’s unanimous decision in August 2016 to send a letter to the Florida Department of Environmental Protection (FDEP) on that point.
“I’m still bristling at the fact that the [EIS] wasn’t done,” Maio said. “I’m not prepared to vote ‘Yes’ on giving permission to use the park.”
Then Commissioner Christian Ziegler talked about the difficulty of the situation, with two groups of people in the county in contention over the proposed removal of sand from Big Pass. He added that he is aware that continuing erosion on Lido Beach has created a need for more sand, but Siesta Key Beach is “like our crown jewel in Sarasota County.”
“I would like a full briefing from our staff,” Ziegler said, before making a decision about allowing staging in the park. That report should include details about the “true timeline,” he added, referring to Barwin’s expression of urgency.
“We know the lawsuit’s not over,” Chair Hines said of the SKA legal action.
Turning to County Attorney Frederick “Rick” Elbrecht, Hines said, “Sometimes while an appeal is pending, you can do certain things. … If we give [the city] the easement or the right to use the park, can they proceed with this action even with the appeal?”
“I would need an opportunity to look at that closely,” Elbrecht replied. “Certainly, there are risks that an appeal could reverse the decision by Judge McHugh.”
“I think we would look foolish,” Hines said, “if [the judge’s decision] gets overturned.”
Hines also referred to comments made during Open to the Public that morning by SKA President Catherine Luckner.
She reprised remarks she has made a number of times since the city and the USACE applied to FDEP, in March 2015, for the necessary state permit for the Lido shoreline project.
Luckner pointed out that Sarasota County was one of the first counties in the state to win a Forever Florida Land and Recreation Grant, which enabled the county to purchase the Sperling Park property, along with other waterfront land, a number of years ago. A covenant with that grant, she said, makes it clear that the properties have to remain in their natural state and available for public use and recreation at all times.
Moreover, she emphasized, if damage were to occur in the park as a result of its use as staging area, no state funds would be available for repairs or restoration.
Commissioner Michael Moran and Hines both asked that staff research the covenants, too.
If the city prevails in the Court of Appeal case, Hines added, “I would be in favor of allowing [it] to use [the park],” with the proviso that the city provides county staff a site plan detailing how the staging would occur.
County Administrator Lewis responded that he expected staff could complete its research and report “very, very quickly.”
The County Commission’s next regular meeting is set for Nov. 5 at the R.L. Anderson Administration Center in Venice.
During the Open to the Public session of the Oct. 8 County Commission meeting, three Lido residents also implored the board members to grant the City Commission’s request.
Scott Ashby, who said he has lived on Lido Key for 21 years, represented the Lido Key Residents Association (LKRA) in his comments.
Referring to the need for the renourishment project, Ashby said, “We’re just very concerned and hope that we can get this ongoing project started through the Corps of Engineers.” (The USACE plans to use either more sand from Big Pass or sand from New Pass to shore up the Lido Beach approximately every five years after the initial undertaking.)
“I know there’s … somewhat of a ticklish situation,” he acknowledged. Still, Ashby continued, “The situation was pretty dire a few months ago,” referring to the rate of erosion before the city completed an emergency renourishment initiative in April. (That project used sand from New Pass.)
David Rayner of Lido Key, who was appearing on behalf of the Orchid Beach Club condominium complex adjacent to Sperling Park, voiced anger at the SKA, telling the county commissioners, “If you followed [SKA leaders’] advice, I’m sure we would not have any sand left on Lido the next year. In fact, the emergency sand has about one-half to two-thirds disappeared.”
Luckner, the SKA president, had stressed in her remarks, however, that her nonprofit is fully supportive of renourishment on Lido Beach, but from a source other than Big Pass.
A third Lido resident, Paul Robbins, told the county commissioners that he serves on the LKRA Beach Committee. “A decision should be based on … economics and safety,” he said, “not politics.”
Denying the contractor the use of Sperling Park, Robbins added, would be “fiscally irresponsible.”