Circuit Court judge in Siesta Key Association’s Big Pass case seeking to move up date of summer hearing

Nonprofit won judge’s approval for emergency hearing this week on speedier timeline

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

The Siesta Key Association (SKA) this week asked a 12th Judicial Circuit Court judge to accelerate the timeline for a hearing on the complaint the SKA filed in the court in March 2017 to try to prevent the dredging of Big Sarasota Pass.

The request came after leaders of the SKA and another Siesta Key-based nonprofit — Save Our Siesta Sand 2 (SOSS2) — learned that the U.S. Army Corps of Engineers has set a July 2 date for companies to bid on the Lido Beach Renourishment Project

Both the SKA and SOSS2 have been working for years to try to prevent the removal of sand from Big Pass for the Lido initiative.

As a result of a June 18 emergency hearing on motions regarding the SKA complaint timeline, Circuit Judge Andrea McHugh asked all the parties to respond by June 28 about the potential of moving up the date of the planned hearing on the evidence from Aug. 16 to July 22.

SKA attorney Kent Safriet of the Tallahassee firm Hopping Green & Sams communicated with McHugh last week, obtaining her agreement to hold the June 18 emergency hearing, The Sarasota News Leader learned. Most of the attorneys participated in that emergency hearing by telephone, according to the Court Appearance Record filed in the case docket.

Even before learning about the date bids are due for the U.S. Army Corps of Engineers (USACE) Lido solicitation, SKA leaders voiced concern about the potential for the project to get underway before their Circuit Court case was concluded.

Kent Safriet. Image from the Hopping Green & Sams website

During the June 6 SKA meeting, President Catherine Luckner discussed the fact that outside counsel for the City of Sarasota — John R. Herin Jr. of the Fox Rothschild firm in Miami — consistently had asked for time extensions over the past months as McHugh had issued orders for city responses. The most recent incident, Luckner explained to the approximately 30 people at the June meeting, involved the city’s responses to SKA demands for documents as part of the discovery process.

The city was the co-applicant with the USACE for the necessary Florida Department of Environmental Protection (FDEP) permit for the Lido Renourishment Project.

“I think the judge is now quite aware that we’ve been kind of dangled along,” Luckner said on June 6.

If the case took too long to conclude, she continued, FDEP could give the city and the USACE the formal Notice to Proceedto begin the project, and the SKA might not be made aware of that in a timely fashion.

A money issue

If the SKA needed to ask the Circuit Court for an emergency injunction to stop the Lido project until the case was completed, Luckner said on June 6, the nonprofit would have to put up a bond. She indicated that, given the potential amount of money involved, the SKA would prefer not to have to take that route.

In response to News Leader questions, Morgan Bentley of the Bentley & Bruning law firm in Sarasota explained that, in court actions such as the example Luckner had mentioned, a bond is required “to provide some security to the other side in the event the project is delayed, additional costs are incurred, etc., while the [judicial] review is going on.” Bentley added, “Sometimes the parties will ask that [the bond] be waived, but that is pretty rare to be granted.”

Bentley noted that he did not have the expertise to make a guess about the amount of bond that would be necessary if the SKA were to seek an emergency injunction in its case.

The most recent estimates provided by City of Sarasota staff regarding the expense of the Lido Renourishment Project — in February — put the total at approximately $19.5 million. However, given the limited number of companies that handle major dredging projects — as a consultant reported to the Sarasota County Commission earlier this year — the final bid amount could be higher than that. (See the related article in this issue.)

Safriet, the SKA attorney, did not respond to a News Leaderrequest for comment about the potential amount of the bond.

Allegations over the May 2017 meeting

In its Circuit Court case, the SKA has maintained that the City of Sarasota has not adhered to the city’s own policies or to Sarasota County regulations in planning for the removal of sand from Big Pass, which never has been dredged.

The SKA also has filed documentation with the court, Luckner told members on June 6, that its representatives asked senior city staff in person to comply with the city and county policies and regulations. That request took place during a May 2017 meeting, which included City Manager Tom Barwin and City Engineer Alexandrea DavisShaw, SKA filings in the Circuit Court case have pointed out.

Robert Luckner presents information to SKA members in February 2018. File photo

During the June 6 SKA meeting, Luckner also reported that her husband, Robert — a member of the nonprofit’s Environmental Committee — had reviewed City Commission meetings that took place over the past five or six years and had found “no indication that there was ever a hearing held by the city commissioners” on the proposed Big Pass project, to determine whether it is consistent with the city’s applicable Comprehensive Plan policy.

In a December 2018 hearing before Judge McHugh, SKA attorney Safriet argued that the SKA has been asking city leaders for years to conduct a consistency review, and they have refused. The SKA has asked McHugh to issue a Writ of Mandamusto force the city to take such action.

On June 6, Robert Luckner told SKA members that the nonprofit had produced “400 pages of documents and letters we’ve written [to city leaders],” as part of the discovery process for the Circuit Court case, as evidence to prove the SKA’s assertions.

The city’s discovery process, he continued, has focused exclusively on the May 2017 meeting, which city counsel Herin has alleged never occurred.

Along with the Luckners, Catherine Luckner said, SKA Director Dan Lundy was present at that gathering of city and SKA representatives. Furthermore, she noted, former City and County Commissioner Nora Patterson was in attendance, as Patterson had helped facilitate the scheduling of the meeting.

This is the body of the email Robert Luckner sent Nora Patterson on May 23, 2017. Image courtesy Sarasota County Clerk of the Circuit Court and County Comptroller

Robert Luckner said that an email exchange he had conducted with Patterson is among the exhibits the SKA has provided to the city.

“You would think that Nora Patterson’s email might be sufficient proof of that [meeting having taken place],” audience member Dr. Stephen Lexow told the Luckners.

In addition to Patterson’s email, Robert Luckner replied, the SKA had provided documentation of an email exchange Nora Patterson’s husband, John, an attorney, conducted with clients on Lido Key regarding the May 2017 meeting. John Patterson’s email chain was not protected by attorney/client privilege, Robert Luckner explained.

“Emails are pretty valuable in legal proceedings,” Lexow responded.

The next step for the SKA, Robert Luckner said, is to depose everyone who attended that 2017 meeting. Most of those depositions have been planned for end of June, he added.

“This is creating a lot more work than we ever imagined,” Catherine Luckner pointed out.

As a result, she continued, the SKA probably will need “to generate about $15,000 before fall” to cover new legal expenses in the case. “We don’t ask if we don’t really need it,” she said of the funds.