County administrative staff had told deputy city manager that agreement would not be considered, as it does not include extra protections county commissioners sought
On a unanimous vote Dec. 2, the Sarasota City Commission approved an agreement drawn up by its attorney regarding the use of Sarasota County’s Ted Sperling Park for staging during the planned Lido Key Renourishment Project.
However, that agreement does not include protections that County Commission Chair Charles Hines and other county commissioners specifically sought.
Because of that, Deputy City Manager Marlon Brown told the city commissioners, he had learned from county administrative staff that the item would not be placed on either agenda for the final County Commission meetings of the year, set for Dec. 10 and Dec. 11.
Yet, in making the Dec. 2 motion to approve the agreement, Vice Mayor Shelli Freeland Eddie included direction that a letter be sent from Mayor Jen Ahearn-Koch to Hines with a copy of the City Commission-approved document. That letter should ask Hines to place the item on the next available County Commission agenda, Freeland Eddie added.
Shortly before 5 p.m. on Dec. 3, City Manager Tom Barwin sent an email to County Administrator Jonathan Lewis, writing, “Attached is a draft letter from Mayor Ahearn-Koch to Chairman Hines regarding the full City Commissions request for the Lido Hurricane protection matter to be placed on the BCC December 10th meeting. A signed hard copy will follow in the morning.
“The timing of this is vitally important as referenced by the Mayor,” Barwin added.
In a Dec. 4 email, Hines told The Sarasota News Leader that the agreement would be brought up under Lewis’ report during the Dec. 10 County Commission meeting, which will take place at the R.L. Anderson Administration Center in Venice.
Even before Dec. 2 — at Brown’s direction — Ahearn-Koch had emailed Hines to provide him copies of both the draft agreement and a memo in which City Attorney Robert Fournier explained his reasons for not incorporating into that document the language the County Commission had sought.
Fournier’s view, he made clear in a Nov. 25 memorandum to the city commissioners, is that the county would have sufficient protection under a state statute to pursue any recourse if two groins proposed on South Lido ended up causing damage. Extra provisions were not necessary in the agreement, Fournier wrote.
On Oct. 8, Freeland Eddie appeared before the county commissioners to ask them to allow staging in the county park on the southern tip of Lido Key. She said the U.S. Army Corps of Engineers (USACE) had estimated it could save $1 million in the expense of what it calls the Lido Key Hurricane and Storm Damage Reduction Project if its contractor could work from the park. The USACE had to cancel the solicitation package it initially published in May, seeking bids on the Lido initiative, because the two it received, it said, were unreasonably high. Since then, USACE project team members have been trying to reduce the overall expense of the project, City Manager Barwin has reported on several occasions.
The USACE has pledged from the outset to pick up about 62% of the overall expense of the undertaking. The remainder is to be covered by county Tourist Development Tax revenue allocated to the city for beach renourishment and from the state in the form of a grant.
Along with placing about 950,000 cubic yards of sand from Big Sarasota Pass on approximately 1.56 miles of South Lido Key Beach, the initiative calls for the construction of the two groins to try to hold sand in place between the initial project and subsequent renourishments, expected every five years.
The City Commission had voted unanimously on Oct. 7 to seek the county’s permission for the staging, Freeland Eddie told the County Commission the following day.
Afterward, the county commissioners asked staff to research a variety of issues related to the request, including whether litigation underway in the state court system and in the U.S. District Court in the Middle District of Florida, in Tampa, should be factored into the county board’s decision.
(Two Siesta Key-based nonprofits have filed lawsuits to try to prevent the removal of sand from Big Pass, which never has been dredged.)
Then, on Nov. 5, all the county board members except Commissioner Alan Maio approved a motion by Commissioner Christian Ziegler in which the county board gave its consent to staging in the park. Nonetheless, Hines had pointed to language in the permit the Florida Department of Environmental Protection (FDEP) issued in June 2018 to the city and the USACE for the Lido project. One sentence said that if the groins did not function as planned, “the city shall seek a modification of the permit to construct adjustments of the groins.” Hines voiced concern that the county would have no recourse if FDEP did not ensure such an adjustment took place.
Referring to that permit language, Deputy County Attorney Karl A. Senkow said on Nov. 5, “I’d rather have a contractual standing than just the fact that we’re suffering the damage.”
“I have the exact same concerns that you have,” Commissioner Nancy Detert told Hines. She wanted to enable the city to undertake the Lido project “as quickly and cheaply as possible, Detert said. However, “I think the Army Corps of Engineers has, frankly, not a great track record in some areas, and I believe that these groins … [could] cause erosion.”
Ziegler also talked on Oct. 8 and again on Nov. 5 about the potential for damage to Siesta Key from the design of the Lido project, calling Siesta Public Beach the county’s “crown jewel for tourism.”
In voting against allowing the staging in Sperling Park, Commissioner Maio cited his continuing dismay that the USACE refused to undertake an in-depth analysis of the potential environmental ramifications on Big Pass, Sperling Park and Siesta Key.
(The Save Our Siesta Sand 2 lawsuit in federal court in Tampa argues that the USACE’s refusal to undertake what is known as an Environmental Impact Statement is a violation of a number of federal laws, including the Clean Water Act.)
A different take
After undertaking his own research following the County Commission’s Nov. 5 discussion, City Attorney Fournier explained to the City Commission on Nov. 18, he saw no reason to include the language in the staging agreement that the county commissioners wanted.
He reiterated that point during the Dec. 2 City Commission meeting. “There’s a perfectly legal, reasonable explanation” for leaving it out, he said.
In his Nov. 25 memorandum to the City Commission, Fournier noted the County Commission’s concern about whether it would have legal recourse “to enforce the [FDEP] permit against the City unless a provision to this effect could be inserted into the Staging Agreement. The concern seemed to be about what would happen if the beach at Ted Sperling Park started to erode and the City was not fulfilling its monitoring requirements under the FDEP permit or if FDEP was not enforcing the requirements.” (City Engineer Alexandrea DavisShaw emphasized to the county commissioners on Nov. 5 that the permit necessitates extensive monitoring of the effects of the Lido project.)
Then Fournier pointed in his memo to a section of the Florida Statutes “which is intended to provide a means for enforcement of the permit against the City and FDEP and which also provides for an award of costs and attorney fees to the prevailing party. [Section 403.412 Florida Statutes].”
As a result of that remedy, he continued in the memo, he advised the City Commission on Nov. 18 “that the inclusion of the provision stipulated by the Board of County Commissioners in the proposed Staging Agreement would not be in the best interest of the City.”
For example, he noted that “the possible monetary exposure to the City for repayment of special damages in a breach of contract under the Staging Agreement would be far greater than what it would cost the City to use an alternative staging area.”
After the Nov. 18 meeting, he wrote, he sent an email to County Attorney Frederick “Rick” Elbrecht “regarding the matters discussed above.” Assistant County Attorney David Pearce responded, Fournier continued: Pearce would be the contact person for the county. Therefore, Fournier added in the memo, he had spoken with Pearce, “[who] refused to consider the possibility of a Staging Agreement without a provision giving the County enforcement rights in addition to those enforcement rights the County already has under the statute. He stated ‘this is what the Board wants,’” Fournier pointed out in the memo.
Then, on Nov. 22, Fournier continued, he received a call from City Engineer DavisShaw, who advised him that she had discussed the proposed staging agreement with Nicole Rissler, director of the county’s Parks, Recreation and Natural Resources Department. DavisShaw told him, Fournier wrote, that because the draft agreement “did not contain the permit enforcement condition … the County staff recommendation would most likely be denial.”
Back at the City Commission dais
When the staging agreement came up during the Dec. 2 City Commission meeting, Fournier said, “Obviously, it is in the city’s best interest if this is approved.”
After summarizing his Nov. 18 comments, Fournier also referenced his Nov. 25 memorandum. He reiterated his view that, if such action proved necessary, the county should pursue recourse available through the Florida Statutes.
Then Deputy City Manager Brown spoke about the phone call he had received “from county administration last week,” saying the agreement had not been included on either County Commission agenda for December.
“In my 26 years of public administration,” Brown added, “I’ve never heard staff make a decision not to place an item from a sister government on another government’s agenda. I was just totally floored by that decision.”
“I still felt that it’s up to the [county] board to make a decision, to vote it up or down,” Brown told the city commissioners.
He made his stance “very clear,” he said, to county administrative staff.
City Manager Barwin added, “We were asked to ask our city attorney to draft the agreement, and he did a fine job of drafting it. And I think his explanation’s spot on.”
“We have 40 pages of agreements with FDEP,” Barwin continued, “so it’s basically ironclad. Nothing really can go wrong here.”
Therefore, he recommended the City Commission approve the agreement.
Barwin added that he hoped the County Commission “in its wisdom will act professionally and like a sister government … We certainly have no intention to see any harm whatsoever to anything, including Ted Sperling Park.”
One speaker addressed the board on the agenda item: Carl Shoffstall, president of the Lido Key Residents Association.
He told the commissioners that, after distributing Fournier’s Nov. 25 memo, he had “gotten many, many calls and emails that this is sufficient. … I highly recommend — I would like to see you approve this tonight and send it over to ’em.”
Shoffstall added, “It seems like the county doesn’t want to work with the city at all. … It’s very disturbing.”