County administrator to execute agreement; county board declines to approve document city attorney drafted
Four of the five Sarasota County commissioners agreed this week to allow the U.S. Army Corps of Engineers (USACE) to plan on contractor staging in the county’s Ted Sperling Park on South Lido Key.
USACE and City of Sarasota representatives have reported that that would save about $1 million during the planned renourishment of approximately 1.6 miles of the South Lido Key Beach.
However, instead of endorsing an agreement the Sarasota City Commission approved on Dec. 2, the county commissioners authorized County Administrator Jonathan Lewis to executive an agreement with City of Sarasota staff after consultation with the Office of the County Attorney. Lewis said it would cover 13 months, not three, as county staff initially had proposed.
Commissioner Michael Moran voted “No,” indicating concerns that the county ultimately might be limited in the amount of damages it could recover if it had to file suit over any negative consequences of the renourishment initiative.
Moran also asked during his board’s Dec. 10 meeting whether consideration had been given to a performance bond — a measure typically used with construction projects — to ensure funds would be available for any necessary repairs to Sperling Park.
“Not to my knowledge,” County Attorney Frederick “Rick” Elbrecht told him.
Sarasota Mayor Jen Ahearn-Koch appeared before the county commissioners on Dec. 10 in Venice to request that they approve the city agreement.
Six people representing homeowners and businesses on Lido Key — including Carl Shoffstall, president of the Lido Key Residents Association (LKRA) — also implored the county board to vote for the agreement.
Conversely, Mark Smith, leader of a Siesta Key-based nonprofit called Save Our Siesta Sand 2 (SOSS2), urged the county commissioners not to allow the staging. “There is no assurance that this project won’t go awry.”
Commissioners Alan Maio, Nancy Detert, Christian Ziegler and Chair Charles Hines all expressed the desire to cooperate with the city. Still, they debated how best to deal with the potential of negative repercussions from the construction of two groins proposed on South Lido, designed to try to hold sand in place between subsequent renourishment initiatives.
Ziegler referred again to one-on-one discussions he and his colleagues had had with Rob Patten of Sarasota, a former county marine biologist and later manager of what once was called the county’s Environmental Services Department. Patten had used illustrations to make points about the strong potential for damage to Sperling Park as a result of the groin construction, Ziegler noted on Nov. 5.
On Dec. 10, Ziegler said Patten’s comments “really spooked me.” What would happen, Ziegler asked, if the groins were placed on the beach “and that park starts getting wiped away? … It’s one of our top beach accesses in the entire county.”
After further debate, Ziegler espoused the view that he and his colleagues were looking at two separate issues. The first, he said, focused on the staging request for the initiative the USACE calls the Lido Key Hurricane and Storm Damage Reduction Project.
The second issue, Ziegler emphasized, is the potential for damage to Ted Sperling Park. If the city and the USACE are going to move forward with the project — as they plan to do — “Why stand in their way?” he asked.
County Administrator Lewis pointed out that the county board simply could grant access to the park, which Lewis could authorize after working with County Attorney Elbrecht on an agreement for the city. “We want to make sure everything’s been vetted properly …”
Lewis also noted the timing issue, as the USACE has said it hopes to publish a revised solicitation for the Lido project before the end of this month. (It cancelled its first solicitation in early August, reporting that the only two bids it had received were “unreasonably high.”)
The County Commission will not hold another regular meeting until mid-January 2020, Lewis noted.
After making the motion to allow Lewis to execute an agreement with the city, Commissioner Detert told him, “You’ve heard our concerns.”
Ziegler seconded the motion.
Maio said he would support it. Nonetheless — as he did during his board’s two previous discussions of the city request — he reminded his colleagues that the county sent formal requests in 2016 to the Florida Department of Environmental Protection (FDEP) and the USACE, asking that an in-depth analysis of the Lido project be undertaken before FDEP issued the project permit. Both agencies refused to see that step was taken, Maio pointed out.
Maio also referred to a peer review of the Lido initiative that the county board commissioned several years ago. That analysis by consulting firm Atkins — presented to the County Commission in March 2016 — made it clear that the USACE modeling of the potential effects of the project was not undertaken with the most up-to-date technology.
Nonetheless, the USACE has remained steadfast in asserting that no harm will result from the Lido project, as demonstrated by its research.
A difference in viewpoints
During their Nov. 5 discussion of the city’s staging request, county commissioners talked of their desire to see an agreement incorporate contractual protections that would ensure they could pursue remedies if Sperling Park began to suffer from the Lido project.
Sarasota City Engineer Alexandrea DavisShaw told them that day that the permit FDEP issued in June 2018 to the city and the USACE necessitates far more monitoring than the state normally requires. She further explained that if a problem arose because of the groins on South Lido, the groins would have to be modified.
In drafting the agreement for the City Commission to consider during its regular meeting on Dec. 2, City Attorney Robert Fournier argued that he felt contractual protection was unnecessary. Both the state permit and Florida Statute 403.412 would enable the county to seek remedies, Fournier said, if the Lido initiative were shown to damage county property. Providing contractual protections could end up exposing the city to financial consequences that could be “far greater than what it would cost the City to use an alternative staging area,” Fournier wrote in a Nov. 25 memo to the City Commission.
However, on Dec. 10, County Attorney Elbrecht told the county commissioners he did not agree that the Florida Statutes would give the county board sufficient protection to seek a remedy.
In a Dec. 9 memo, Elbrecht wrote, “While section 403.412 … does provide a possible avenue for relief in the event of a violation of law, rule, or regulation, this statutory cause of action does not afford the County the same protections as could be agreed to through specific performance provisions within a contract.”
Additionally, Elbrecht pointed out in the memo, the Siesta Key Association (SKA) used Florida Statute 403.412 as the basis for the complaint it filed against the City of Sarasota in March 2017, to try to prevent the dredging of Big Sarasota Pass for the Lido initiative. The 12thJudicial Circuit Court ended up dismissing the nonprofit’s lawsuit, Elbrecht continued, “because the City had obtained a valid permit from [FDEP].”
“If the park were adversely affected by the groins, Commissioner Ziegler asked on Dec. 10, “Can we go rip those out? … How long’s that take?”
The county could ask the court to make the city comply with the FDEP permit, Elbrecht responded. “We would also be entitled to attorneys’ fees,” he added, if the county won the case.
Chair Hines voiced worry that the groins would lead to erosion in Sperling Park, noting similar situations he has seen involving such structures on beaches.
Yet, if the county complained about problems in the park, Hines said, the city could argue that it was complying with the Lido permit, “and we’re stuck with really no remedy in regards to that erosion.”
Both City Engineer DavisShaw and Matt Osterhoudt, director of the county’s Planning and Development Services Department, took turns at the podium, citing applicable sections of the FDEP permit.
DavisShaw emphasized that the city would have to undertake a baseline survey of South Lido, to which it would compare surveys taken after the project was completed. FDEP is requiring more frequent surveys, too, following construction, she stressed.
Nonetheless, she noted a caveat in the permit: FDEP recognizes that the Lido shoreline has a history of natural fluctuations; the department would take that into account in reviewing the surveys required in the permit.
Osterhoudt read aloud that portion of the permit: “Performance expectations are generally described as beach nourishment every five years using the permitted Big Sarasota Pass ebb shoal borrow areas, and the sediment budget is balanced between Big Sarasota Pass and the adjacent beaches of Lido Key and north Siesta Key, such that fluctuations in the pattern of erosion and accretion of the beaches of north Siesta Key will not exceed the landward recession of historical fluctuations of the shoreline. Specifically, a modification shall be obtained if the updated sediment budget based upon approximately five-years of post-construction monitoring indicates the volume of sand retained in the channels and shoals of Big Sarasota Pass increases while the volume of sand reaching Siesta Key decreases such that erosion occurs on the north gulf beaches of Siesta Key that exceeds the historical fluctuations of the beaches.”
Coastal engineers have explained that the natural flow of sediment — or sand — on the west coast of Florida is north to south. That is another reason Siesta organizations and residents have argued against the design of the Lido project. They fear damage not only to the navigational channel of Big Pass but also to the north Siesta shoreline.
Osterhoudt told the county commissioners he had seen no language in the permit that specifically said what would happen if problems arose at Ted Sperling Park.