Circuit Court judge rules for Siesta Key Association, saying City of Sarasota has to comply with its own environmental regulations before it can remove sand from Big Pass

City will have period to provide legal arguments to counter the decision

Condominium towers on South Lido Key are easily visible across Big Pass on the evening of June 7, 2018. File photo

For the Siesta Key Association (SKA), the third time — as the saying goes — was the charm.

After ruling twice in recent months against the nonprofit, Twelfth Judicial Circuit Court Judge Andrea McHugh issued an order on Feb. 12, ruling that the City of Sarasota must comply with a section of its own environmental regulations before it can dredge Big Sarasota Pass.

McHugh has given the City of Sarasota 20 days to “show cause” why she should not compel the city “to make an official determination that the Project is consistent with the City [Comprehensive] Plan and all other applicable local, regional, state, and federal plans and regulations.” She was referencing language in Action Strategy 1.1 of the city’s Environmental Protection and Coastal Islands Plan.

McHugh added that the city also would have to make the case that it would not need to provide notice of the project “to all affected persons … in a manner sufficient to trigger the right of those persons to challenge the decision under Chapter 163 [of the Florida Statutes].”

During a Dec. 20, 2018 hearing on the amended complaint the SKA filed in its Circuit Court case in October 2018, its attorney, Kent Safriet of Hopping Green & Sams in Tallahassee, argued to McHugh that the city did not want to take steps the SKA has sought because that would start the figurative clock ticking on the 30-day timeline afforded the SKA under Chapter 163 guidelines. “They want to stymie us on that,” Safriet said of city leaders.

Chapter 163.3194(1)(a) says that after a comprehensive plan has been adopted in compliance with the Florida Statutes, all development undertaken by governmental agencies in regard to land covered by the plan “shall be consistent” with the plan.

SKA Vice President Catherine Luckner. File photo

“I am so thankful,” SKA Vice President Catherine Luckner wrote of McHugh’s decision in a statement to The Sarasota News Leader.

During a later telephone interview, Luckner said she was speechless when she received the news about the ruling. “I’m really thankful [the judge] understood [what the SKA has been trying to achieve],” which is the city’s complying with its legal obligation, she added.

In response to a News Leader question, City Attorney Robert Fournier wrote in a Feb. 12 email, “We will likely file a motion to request an additional ten days to have 30 days to respond, which I hope the court would consider favorably.”

The city and the U.S. Army Corps of Engineers (USACE) plan to remove up to 1.3 million cubic yards of sand from Big Pass — which never has been dredged — to renourish a 1.6-mile stretch of South Lido Key Beach. That is the first step in a 50-year USACE plan to stabilize the Lido shoreline, which the Florida Department of Environmental Protection has deemed “critically eroded” in recent years.

An emergency beach renourishment project on Lido has been underway since December 2018. (See the related article in this issue.)

Since the original USACE project manager unveiled the Lido Beach renourishment proposal to county residents in September 2013, Siesta Key leaders have pointed to the protection the pass’ ebb shoal provides Siesta during storms. They also contend that dredging would result in navigational problems in the waterway and disrupt wildlife.

Refining an argument

In October 2018, and again, after the Dec. 20, 2018 hearing in the SKA case, McHugh dismissed the SKA’s complaints, saying she saw no foundation for directing the city to communicate with the county about the planned action in Big Pass. She pointed out that the Florida Department of Environmental Protection had issued a permit to the city and the U.S. Army Corps of Engineers last summer to allow them to proceed with the initiative.

During the December 2018 hearing, McHugh also told SKA attorney Safriet that she had seen no evidence that the SKA ever had asked the city to seek county approval for the Big Pass project. In the mandamus cases with which she had experience, she added, she had found that a request had been made of a local government to comply with a law, and the local government had refused to do so. She noted public records requests as examples.

In an alternative Petition for Writ of Mandamus the SKA and its co-plaintiff, Siesta Key resident David Patton, filed on Jan. 25, they pointed to a meeting between City of Sarasota senior staff and SKA representatives in May 2017. “Petitioners made an express and distinct demand to the City,” including that it “obtain a permit for the Project” from the county’s Water and Navigation Control Authority (WNCA) or the county administrator, the SKA’s second amended complaint said.

“Petitioners demanded the same actions by providing to [then] City Mayor Willie Charles Shaw a copy of the [SKA’s] original Verified Complaint [filed in Circuit Court in March 2017],” the second amended complaint added. Under the guidelines of the law, the new complaint added, the SKA also sent a copy of the original complaint to the city through the U.S. Mail on Jan. 19, 2017. (By law, the SKA and Patton had to give the city 30 days of notice before filing their lawsuit.)

A 2018 satellite photo shows Lido Key north of Siesta Key, with Big Pass separating the islands. Image from Google Earth

Addressing SKA members during their regular meeting on Feb. 7, SKA Vice President Luckner said of the May 2017 meeting with senior city staff, “We met live, in action … at our request.”

Former City and County Commissioner Nora Patterson, a Siesta resident, accompanied the SKA representatives, Luckner added, “to help mediate the situation, which was very gracious of her.”

City Manager Tom Barwin was among the city leaders present, Luckner added. “We went over all kinds of details,” she continued on Feb. 7, and the city representatives “seemed very [favorably disposed to the SKA’s request].” Nonetheless, Luckner said, “They never responded, at all.”

The legal details

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

As McHugh explained in her latest order, citing Florida Second District Court of Appeal decisions, “A writ of mandamus may be utilized ‘to coerce an official to perform a clear legal duty.’” She continued, “In order to be entitled to a writ of mandamus ‘the petitioner must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy available.’” Again, she referenced judicial precedents in the Florida court system.

Furthermore, McHugh pointed out, “A petitioner must ‘first make an express and distinct demand for performance before mandamus will be considered,’” citing a Florida Fifth District Court of Appeal decision.

The Siesta Key Association, she continued, “has sufficiently pleaded facts to demonstrate that the members of [the SKA] are all persons who would be affected by [the dredging of Big Pass] and could enforce the City’s legal duty.” Additionally, McHugh wrote, the SKA has asserted that the city “has an indisputable legal obligation under the City’s Comprehensive Plan to ‘ensure that applications [for both public and private development] are consistent with both relevant environmental components of [the City’s] comprehensive plan and the most recently adopted and applicable local, regional, state, and federal plans and regulations.” She was referring to Action Strategy 1.1 of the city’s Environmental Protection and Coastal Islands Plan.

“While the Court previously held that the City’s Comprehensive Plan was not a ‘law’” for the purposes of the SKA’s pursuing a claim of action under the Florida Environmental Protection Act (FEPA), she wrote, “the identification of a ‘legal duty’ for the purpose of mandamus relief does not turn on the codification of that duty.” McHugh pointed to a 2012 Florida Supreme Court decision, which said that “‘[C]learly established law’ can derive from a variety of legal sources [emphasis in the order] …”

Then McHugh referred to two related cases that the SKA and Patton had cited in their arguments for the Writ of Mandamus, Das v. Osceola County I and II.

A USACE map shows the sand borrow areas proposed in Big Pass. Image courtesy FDEP

Das I involved citizens filing a “mandamus petition to compel Osceola County to conduct a formal hearing and issue a public notice that the county’s granting of an underground pipeline easement was consistent with the county’s comprehensive plan, thereby permitting the plaintiffs to challenge that decision under Chapter 163 [of the Florida Statutes],” McHugh wrote. The court ruled in favor of the plaintiffs, she noted, agreeing that Osceola County had conducted a determination that the project was consistent with the county’s comprehensive plan “without giving the affected homeowners notice so as to allow them to make a challenge under Chapter 163,” and that violated a section of Chapter 163, which requires property owners to be given “notice of all official actions which will regulate the use of their property.”

The court in that case ruled that the county, at the very least, had to issue an order, or a permit that was a matter of public record, before the state-mandated time period was up for the public to file a challenge over the project’s consistency with the comprehensive plan.

Then, in Das II, McHugh wrote, “the court acknowledged that it could not dictate the precise procedure that the county had to follow in making its determination [about the proposed project’s consistency with the county’s comprehensive plan]; it could only require that the citizens be given “‘reasonable notice so that they c[ould] utilize the procedure set forth in section 163.3215 to challenge the decision.’”

She added, “The Court found that [the] county’s issuance of a letter to the affected property owners, notifying them of the determination of consistency, was sufficient to satisfy the legal duty.”

“It appears that the Das cases are sufficiently analogous to provide support [for the SKA’s] pleading that the City has a legal duty to make a determination of consistency in regards to the [dredging of Big Pass],” McHugh wrote.