April 24 Circuit Court hearing set on City of Sarasota motion to dismiss Siesta Key Association’s call for injunction to stop the dredging of Big Pass

City argues that the state administrative hearing process is the appropriate means of resolving legal challenges regarding the Lido Renourishment Project

The Silvertooth Judicial Center is located on Ringling Boulevard in downtown Sarasota. File photo

At 3:30 p.m. on Monday, April 24, 12th Judicial Circuit Court Judge Lon Arend will hear arguments on a motion the City of Sarasota has filed to dismiss a Siesta Key Association (SKA) complaint attempting to block the dredging of Big Sarasota Pass.

If the judge declines to dismiss the case, the motion says, “the City requests that the Court abate this action” until a state administrative hearing judge has concluded a proceeding scheduled for late August on petitions challenging the dredging.

On March 9, the SKA filed a verified complaint seeking an injunction to prevent the removal of about 1.2 million cubic yards of sand from Big Pass for renourishment of approximately 1.6 miles of South Lido Key. The complaint says the project of the City of Sarasota and the U.S. Army Corps of Engineers (USACE) would violate both the Sarasota County Comprehensive Plan — which prohibits dredging of waterways that never have had sand removed from them — and the city’s own Comprehensive Plan. Big Pass is a natural waterway, the SKA points out. Using language from the Florida Statutes and city mapping software, the SKA argues that areas of Big Pass slated for dredging are within Sarasota County’s boundaries; therefore, the city cannot pursue removal of sand from them without the county’s permission.

Siesta Key resident David Patton is a party to the SKA Circuit Court action.

John R. Herin Jr. Image from the GrayRobinson website

In the city motion — filed on April 5 — attorney John R. Herin Jr. of the GrayRobinson firm in Fort Lauderdale argues that the sole authority to issue a Joint Coastal Permit in the state of Florida rests with the Florida Department of Environmental Protection (FDEP). Therefore, he continues, a hearing under the aegis of the State Division of Administrative Hearings “is the forum to hear challenges” to FDEP’s Dec. 22, 2016 Notice of Intent to issue a Joint Coastal Permit to the city and the USACE for the Lido project.

He cites a 2001 Florida Supreme Court decision as the basis for his assertion. In Flo-Sun v. Kirk, he points out, the state Supreme Court explained that the doctrine of primary administrative jurisdiction “‘dictates that when a party seeks to invoke the original jurisdiction of a trial court by asserting an issue which is beyond the experience of judges and juries … but within an administrative agency’s special competence, the court should refrain from exercising its jurisdiction over the issue until such time as the issue has been ruled upon by the agency.’”

If the verified complaint is not dismissed, Herin contends, “the City (and only the City) will be forced to defend FDEP’s putative issuance of the [Joint Coastal Permit] in a [piecemeal] fashion, first in Circuit Court, and then in the hearing on the Consolidated Petitions.”

Along with the SKA, Save Our Siesta Sand 2 (SOSS2) and the Florida Wildlife Federation filed administrative challenges. FDEP sought their consolidation, and none of the parties objected, according to filings in the hearing docket for that proceeding.

The separate court and administrative hearings, Herin continues, would be “clearly inconsistent with the Legislature’s declared intent of promoting ‘uniform procedures for the exercise of specified [state agency] authority’ by requiring that administrative challenges to agency action be initiated and prosecuted pursuant to the provisions of Chapter 120 [of the Florida Statutes].”

Herin further argues that the failure of the SKA to name the USACE as a defendant in its complaint is a basis for the court to dismiss the case, because the USACE is a co-applicant with the city in seeking the FDEP permit.

The Comprehensive Plan arguments

In his 12th Circuit Court motion, Herin also contends that the SKA is wrong in alleging that the city and the USACE must “obtain ‘comprehensive plan’ approval from Sarasota County before FDEP can issue the [Joint Coastal Permit] …” He writes, “[C]omprehensive plans are not regulatory environmental documents [as specified in the Florida Statutes but] are planning goal and guidance documents …”

Herin points out that a Florida Administrative Rule that previously required a Joint Coastal Permit “applicant to submit written evidence that the proposed coastal construction project is consistent with the local comprehensive plan has been repealed.”

Jono Miller, retired director of the Environmental Studies Program at New College, presented this graphic during a January presentation about the proposed Lido Renourishment Project. This aerial image, he says, depicts naturally formed beach ridges on either side of the Lido Casino and extensive remnant cabbage palm hammock on St. Armands Key in 1948. There is evidence of minor dredge and fill activity, but the majority of the land shown predates John Ringling’s modifications, challenging assertions made by the USACE that Ringling is somehow responsible for Lido’s woes. Graphic analysis by Jono Miller; 1948 image from PALMM (Publication of Archival Library and Museum Materials, State University Libraries of Florida)

He also notes that Sarasota County is not a party to the Circuit Court proceeding, “and the Verified Complaint is devoid of any allegations that the County has ever expressed the view that its approval is required to proceed with the [proposed re-nourishment] Project (emphasis added). Nor is there any evidence supporting the inference in the Verified Complaint that Sarasota County must or might refuse such an approval.”

Herin continues, “Historically, the County has never required the City or [USACE] (or anyone else for that matter — including its own beach re-nourishment projects) to obtain an approval or consistency determination for prior Lido Key beach (or other) re-nourishment projects.”

Moreover, Herin contends that the SKA has mischaracterized the Lido initiative as a “‘new beach nourishment project’ as a way to ‘shoe horn’ the language of the Sarasota County Comprehensive Plan cited into a putative claim …” The project, he continues, “is clearly a re-nourishment of Lido Key, which no one disputes has occurred numerous times before [his emphasis].”

In its complaint, the SKA writes, “Environmental Policy 4.6.1 of the Sarasota County Comprehensive Plan prohibits dredge and fill activities in the Gulf of Mexico, bays, rivers, and streams of the county except to maintain previously dredged functional navigation channels and existing drainage canals. Any new beach nourishment project ‘require[s] approval by the Board of County Commissioners and must be determined to be in the public interest.’”

An engineering sketch shows details of the borrow areas. Image courtesy FDEP

Although South Lido Key Beach has been renourished a number of times in years past, the current city/USACE proposal is the first regarding Lido to specify that Big Pass be the sand source.

A 1994 court challenge by Siesta residents forced the City of Venice to give up on a plan to remove sand from Big Pass for a renourishment project.

The SKA and SOSS2 repeatedly have pointed out that they understand Lido Key residents’ worries about beach erosion and that they support a renourishment project on the southern part of the island. Their objection to the latest plan has been focused solely on the USACE’s determination that the sand source should be Big Pass.

Both SKA Vice President Catherine Luckner and SOSS2 Chair Peter van Roekens have urged the City of Sarasota to seek a different source, citing scientific research showing that Big Pass’s ebb shoal serves as significant storm protection for Siesta Key. The SKA complaint also says, “The proposed Project is a direct and substantial threat to the beaches on Siesta Key and [to] Big Sarasota Pass, potentially making the Pass difficult to navigate and disrupting the downdrift of sand that is deposited on Siesta Key.”
The USACE plan also calls for constructing two groins on South Lido in an effort to keep sand in place between renourishments that the USACE anticipates every five years over a 50-year period. (See the related story in this issue.)

Timing issues

City Attorney Robert Fournier. File photo

After the SKA filed the verified complaint on March 9, City Attorney Robert Fournier waived service of the suit and indicated the city would file its written response within 20 days. However, on March 31, the city sought an extension of time for its answer; with no objection from the SKA, the court granted the request, giving Herin until April 5 to respond.

Herin pointed out in his motion for the time extension that the three separate, pending administrative challenges “required responses to a number of pleadings and Orders.”

During the April 3 SKA meeting, Vice President Luckner pointed out that, after providing the required legal notice of its intent to file the verified complaint, the SKA waited an extra 20 days before proceeding with the case. That was to give the city additional time to respond to the SKA’s concerns, she added. Then the city ended up seeking the extra week to file its response, she continued. “They do it to delay,” she said of city leaders. In spite of city staff’s repeated assertions that South Lido Key Beach is in a critical situation, Luckner pointed out, the city has seemed to be in no hurry with regard to the Circuit Court case.

City Manager Tom Barwin has talked several times with the city commissioners in recent months about staff’s fears of the potential for devastating damage to Lido Key, with the June 1 start of the next hurricane looming.

Additionally, in an April 5 email to Barwin, City Attorney Fournier took umbrage with criticism from a Lido Key Residents Association (LKRA) member, who had written in an April 4 email to Barwin that the “lawyers you have hired seem to be 3 to 4 steps behind” in responding to SKA legal action.

Fournier responded to Barwin, “I realize that as a result of the condition of the beach on Lido Key and the time required to litigate the propriety of the issuance of a permit for the dredge project that there is a high level of anxiety and frustration. But I would prefer that if someone has a question about why the city has or has not undertaken any particular action, that they simply ask the question. Inasmuch as the City and the LKRA are supposed to be on the same side in these proceedings and that the City’s counsel have a high regard for the LKRA counsel, this type of carping [in an email] below is not especially helpful. There is really no need for anyone to think about “how to generate movement on the City side.”

In related matters …

12th Judicial Circuit Court Judge Lon Arend. Image from the Circuit Court website

In a related matter, on April 7, the SKA, Siesta plaintiff David Patton and the city filed objections to the 12th Circuit Judicial Court’s indication that it intended to refer the SKA case to a magistrate for hearing.

It has become common in the Circuit Court for magistrates to preside over hearings and issue rulings, with the presiding judges then reviewing those decisions and affirming them or issuing different opinions.

As for the judge in this case: During the April 6 SKA meeting, Catherine Luckner told the approximately 60 people present that Arend is a relatively new appointee to the bench. His listing on the 12th Judicial Circuit Court’s website notes that he began his service in December 2016. He is a 1994 University of Florida College of Law graduate.