Circuit Court judge gives SKA, City of Sarasota and Lido Key Residents Association time to file supplemental materials in Big Pass case

Last documents due just after middle of August

Sandbags line the Lido Key shoreline in June. Photo courtesy City of Sarasota

It likely will be late this month at the earliest before a 12th Judicial Circuit Court judge rules on a motion by the City of Sarasota to dismiss a complaint the Siesta Key Association filed last year in an effort to prevent the dredging of Big Sarasota Pass to renourish South Lido Key Beach.

Following a July 23 hearing on the motion, Judge Andrea McHugh gave the Siesta Key Association (SKA) two weeks to provide additional materials or supplemental case law to support its position. Then the City of Sarasota and the Lido Key Residents Association (LKRA) have 10 days to file a reply.

In June 2017, McHugh ruled that the LKRA could be an intervenor in the case. She noted in her June 1, 2017 order that the LKRA “is an association of commercial entities, property owners, and residents of Lido Key who use Lido Key beaches for various commercial and recreational purposes” and that the organization “is concerned about the critical condition of Lido Key beaches as a result of severe erosion, which has exposed upland structures to loss and damage from flooding, storm surge, and high waves.”

In their complaint, the SKA and David N. Patton, a Siesta resident, argue that the City of Sarasota has violated the Sarasota County Comprehensive Plan by not seeking county approval for the proposed removal of 1.3 million cubic yards of sand from Big Pass for renourishment of about 1.6 miles of South Lido Key. In April 2017, Circuit Judge Lon Arend ordered the abeyance of the matter until after a decision was reached in a Florida Division of Administrative Hearings (DOAH) case. In that proceeding, the SKA and Save Our Siesta Sand 2 (SOSS2) challenged the decision of the Florida Department of Environmental Protection (FDEP) to issue a permit to the City of Sarasota and the U.S. Army Corps of Engineers (USACE) to dredge Big Pass.

FDEP Secretary Noah Valenstein. Photo from FDEP

On June 18, FDEP Secretary Noah Valenstein issued the Final Order in that case, agreeing largely with the Recommended Order the administrative law judge had filed on May 8. Valenstein limited the sand removal to 1.3 million cubic yards — instead of the 1.7 million cubic yards originally approved — and agreed that dredging could not take place in one sand borrow area and part of another borrow area from April to September. That period is when the spotted sea trout has been shown to spawn in those sections of Big Pass; an SKA/SOSS2 expert witness testified about that during the DOAH proceeding in December 2017.

On July 19, John R. Herin of the GrayRobinson law firm in Fort Lauderdale — the City of Sarasota’s counsel in the 12th Judicial Circuit case — filed an amended Motion to Dismiss the SKA’s verified complaint with prejudice — meaning it would be dismissed permanently. In that filing, has asked for attorneys’ fees and costs to be awarded to the city, as provided for under state law.

In his motion, he argued, “The doctrine of administrative finality precludes the re-adjudication of a matter previously adjudicated in an administrative hearing as a matter of fairness to those who prevailed in the prior litigation.” He cited case law to support that stance.

Kent Safriet. Image from the Hopping Green & Sams website

The DOAH proceeding entailed the full litigation of the issues regarding the application of the City of Sarasota and the USACE for a Joint Coastal Permit for the dredging of Big Pass, Herin continued. Since the City of Sarasota prevailed in that hearing, Herin added, “the City should not be forced to re-litigate its entitlement to the JCP and its ability to move forward with the Project.”

The SKA and Patton dispute that assertion. On July 23, their attorney, Kent Safriet of the Tallahassee firm Hopping Green & Sams, re-filed his April 19, 2017 response to the city’s original Motion to Dismiss. That response said, “The City has mischaracterized the SKA’s Verified Complaint … This case is a completely separate and distinct case from [an] … administrative challenge to a permit. This case is founded on an independent cause of action created by [Florida Statute 403.412].”

Safriet added, “The City further completely ignores the fact that [FDEP] has expressly stated it does not have jurisdiction … over the very issue in this case.”

Other points of contention

In his motion, Herin also wrote that, according to Section 403.412(2)(c) of the Florida Statutes, the SKA should have filed a verified complaint with the Southwest Florida Regional Planning Council or Sarasota County, as state law requires “the complaining party shall first file with the governmental agencies or authorities charged by law with the duty of regulating or prohibiting the act or conduct” on which the complaint is founded.

The SKA’s failure to take the appropriate action, Herin argued, warrants dismissal of its complaint.

Further, he contended that, “Contrary to Plaintiffs’ allegation, a comprehensive plan is not a regulatory rule or environmental law that warrants the invocation [of Florida Statute 403.412].”

“Thus,” Herin continued, “Plaintiffs’ reliance and use of [Florida Statute 403.412] to ‘bootstrap’ [Florida Statute 163.3194(1)(a)] and assert an inconsistency of the Project with the Sarasota County Comprehensive Plan is misplaced and in error.”

John R. Herin Jr. of Gray Robinson has represented the city in the case. Image from the GrayRobinson website

Chapter 163 of the state statutes, he pointed out, is known as the Community Planning Act, “and its purpose is to establish and implement comprehensive planning programs to guide and manage future development by local governments — not state agencies. It does not authorize the FDEP or any other state agency to issue a JCP [Joint Coastal Permit] for beach and shore preservation, as does Chapter 161 [of the state statutes], nor does it require an applicant for a JCP to obtain any specific local government development approval as a condition precedent to FDEP’s issuance of a JCP.”

In a July 20 Notice ofJoinder to Herin’s motion, the LKRA’s attorney, Kevin S. Hennessy of the Lewis, Longman and Walker firm in St. Petersburg, concurred with that and other points Herin had made. Hennessy referenced a 2013 Florida 2ndDistrict Court of Appeal ruling in Seminole Tribe of Florida v. Hendry County. In its order, he pointed out, the appeals court said, “The circuit court properly found that Section 163.3215 [of the Florida Statutes] … states that it provides the exclusive methods [his emphasis] for a party to challenge the consistency of a development order with a comprehensive plan …”

However, in his response for the SKA and Patton, Safriet argued that the complaint “is not based on Chapters 120, 161, or 163 [of the Florida Statutes], as the City erroneously suggests.”

Safriet also pointed out that the SKA’s complaint “is not [his emphasis] a challenge to an agency’s permit but rather an attempt to compel the City to comply with all of the laws designed to protect natural resources as section 403.412 [of the Florida Statutes] requires …”

In another point of argument, Herin wrote that the SKA and Patton were wrong in failing to include the USACE, FDEP, the Southwest Florida Regional Planning Council and Sarasota County as parties in the verified complaint. He wrote, “FDEP is an indispensable party because it issued the JCP approving the Project that Plaintiffs allege is inconsistent with Sarasota County’s Comprehensive Plan.”

As for the USACE: He noted that it was a co-applicant with the City of Sarasota for the Joint Coastal Permit.