Circuit Court judge once again rules against Siesta Key Association in Big Pass case

Judge McHugh offers opportunity for re-filing of part of nonprofit’s amended complaint

Circuit Court Judge Andrea McHugh. Image from the 12th Judicial Circuit Court website

Once again, a 12th Judicial Circuit Court judge has struck down legal challenges made by the Siesta Key Association (SKA) as the nonprofit seeks to prevent the dredging of Big Sarasota Pass.

Yet, just as she did in October 2018, Judge Andrea McHugh has figuratively left the door open for the SKA to try another approach in the case.

In an order released late on the afternoon of Jan. 18, McHugh first referenced her dismissal last fall of the SKA complaint originally filed in March 2017. In that, the nonprofit and co-plaintiff David Patton of Siesta Key argued that, because of language in the comprehensive plans of both the City and County of Sarasota, the city needed to obtain approval from Sarasota County before sand could be removed from Big Pass to renourish about 1.6 miles of South Lido Key Beach. In her Jan. 18 ruling, McHugh referenced the explanation she included in her Oct. 15, 2018 order, noting that the city “obtained a valid permit from the appropriate issuing agency.”

The Florida Department of Environmental Protection (FDEP) issued a Joint Coastal Permit for the Lido project to the city and its co-applicant, the U.S. Army Corps of Engineers (USACE), on June 18, 2018. The USACE is the entity that proposed the use of up to 1.3 million cubic yards of sand from Big Pass to stabilize the critically eroded Lido Beach in the first renourishment under a 50-year plan.

The SKA and Patton have contended that the Florida Environmental Protection Act (FEPA) necessitates a county permit as well, McHugh continued in her Jan. 11 order. In the amended complaint, filed in late October 2018, they argued that Section 54-653(4)(a) of the Sarasota County Code requires the county’s approval of the city/USACE project.

Section 54-653(4) states, “No work shall be performed having the effect of Altering any Jurisdictional Areas without first obtaining a permit from the Authority or Administrator, unless specifically exempted under the provisions of section 54-653(4)(g).”

Big Pass is within the county’s jurisdiction, SKA attorney Kent Safriet of the Tallahassee firm Hopping Green & Sams has pointed out, and it never has been dredged. Section 54-653(4)(g) of the County Code exempts only maintenance work from the permitting requirements provided in the code, Safriet contended in the amended complaint.

Nonetheless, McHugh wrote in the new order that she found nothing in FEPA that would allow her to rule for the SKA on the basis of the county ordinance. She dismissed that count of the lawsuit with prejudice, meaning the SKA could not file an amended complaint involving that issue.

Turning to the second part of the amended complaint, McHugh expanded on a line of reasoning that she brought up during a Dec. 20, 2018 hearing.

Big Sarasota Pass separates Lido Key, to the north, from Siesta Key. Image from Google Earth in August 2017

In their Petition for Writ of Mandamus, she wrote in her order, the SKA and Patton “request that the Court compel the City to submit the Project to the County Commission for approval, and obtain a county permit; yet nowhere do they allege they demanded the City to take such actions.”

During the December 2018 hearing, McHugh told Safriet that she has dealt with a number of Mandamus cases in the context of public records requests. “What I typically look for is what was the demand on the agency.”

When she asked about the demand in the SKA’s case, Safriet responded, “We made the request in public in this courtroom. … For a year and a half, [city leaders] have refused,” he said, to even send a letter to the county, seeking permission for the dredging of Big Pass.

(Circuit Court Judge Lon Arend presided over the SKA’s first hearing on its complaint, which was held in late April 2017.)

At this stage,” McHugh wrote in her Jan. 18 order, “the Court is limited to analyzing the legal sufficiency of the petition for mandamus, and only the language included within the petition itself, which does not allege that [the SKA and Patton] demanded action from the City via filing a lawsuit or via any other communication.”

Kent Safriet. Image from the Hopping Green & Sams website

McHugh further pointed out that the original SKA complaint “did not demand that the City take any action; rather, the Complaint demanded that the Court declare that the Project violates the City’s [Comprehensive Plan]. For this reason,” she added, “the Court finds the petition to be legally insufficient.”

However, she dismissed the petition without prejudice, indicating that the SKA and Patton could re-file it if, after asking the city to seek a county permit, they find the city unwilling to do so.

Asked for a comment on the judge’s latest ruling, the SKA directors told The Sarasota News Leader they were unable to offer one in time for Siesta Sand’s February deadline.

City Manager Tom Barwin did give the News Leader a statement: “We’re pleased the judge dismissed this case once again indicating there appears to be no cause of action for lawsuits that keep repeating issues already heard. The renourishment is a vital shoreline protection buffer between the Gulf of Mexico that protects the public infrastructure, property and our local economy. We again renew our commitment to working with all interested parties to monitor our shorelines, the environment and boating channels and to monitor the project to unprecedented levels and adjust to even better practices in the future as we all adapt to the threat of rising sea levels.”

Response to City of Sarasota arguments

In response to the SKA’s Petition for Writ of Mandamus, McHugh also noted in her Jan. 18 order that the City of Sarasota and the Lido Key Residents Association (LKRA) — which she allowed to intervene in the case — “made a number of arguments regarding the merits [of that writ] in their joint motion to dismiss the SKA’s amended complaint. Those “are only appropriate for the Court’s consideration,” she continued, after an alternative writ has been filed and determined to be legally sufficient. Therefore, she wrote, “[I]t is procedurally premature for the Court to consider and rule upon these arguments.”

During the Dec. 20, 2018 hearing before McHugh in downtown Sarasota, John R. Herin of GrayRobinson in Fort Lauderdale, the attorney for the City of Sarasota, argued that the city did not need to seek a permit from Sarasota County to dredge Big Pass because County Attorney Stephen DeMarsh told the county commissioners in July 2018 that it was the opinion of the Office of the County Attorney that no such permission was necessary.

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

On July 10, 2018, DeMarsh said that after a review of the county Comprehensive Plan Environmental Policy 4.6.1, it was the opinion of the Office of the County Attorney and other staff “that [that policy] only applies to private dredging operations and has never been applied to a public project to dredge.”

That environmental policy is one the SKA cited in its original complaint in the 12thJudicial Circuit Court.

“Sarasota County has told the plaintiffs and told the city, ‘There’s nothing that we need to issue for this project,’” Herin pointed out to McHugh on Dec. 20, 2018.

Furthermore, Herin argued, the USACE is the entity that would be pursuing the removal of sand from the pass. In the joint motion he and Kevin Hennessy of the St. Petersburg firm Lewis, Longman & Walker filed in November 2018, seeking to have the SKA’s amended complaint dismissed, they wrote that if the city “takes no action to dredge areas in Sarasota County’s jurisdiction, then the City cannot ever be in violation of [Section 53-653 of the County Code].”

Hennessy is the attorney for the Lido Key Residents Association.