City of Sarasota and Lido Key Residents Association say Siesta Key Association still has no grounds in Circuit Court for stopping Big Pass dredging

They seek dismissal of amended complaint with judge’s stipulation that no further action can be pursued in the case

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

In a joint filing on Nov. 13, the City of Sarasota and the Lido Key Residents Association argue that the Siesta Key Association (SKA) still has no grounds for recourse under the Florida Statute it has cited in its latest legal challenge to the planned dredging of Big Sarasota Pass.

The motion says the amended complaint the SKA filed in the 12th Judicial Circuit Court on Oct. 23 “fails to allege any new facts sufficient to demonstrate that the actions complained of are subject to challenge under the FEPA [Florida Environmental Policy Act].”

The attorneys for the city and the Lido Key Residents Association (LKRA) point out that the SKA’s “new attempt at a cause of action under FEPA pertains to the Sarasota County Code of Ordinances Section 54.653.” The SKA references that part of the code, the city and LKRA attorneys continue, to allege that the City of Sarasota needs a Sarasota County permit “in order to dredge in waters within Sarasota County’s jurisdiction.” The city and the LKRA do not concede “that the County has jurisdiction over activities in sovereign submerged state lands [as documents filed with the Florida Department of Environmental Protection have identified the sand borrow areas to be],” the motion says. The city and the LKRA also do not concede that “the [county code section cited] applies to a public project,” they add. Even if the code did, they argue, the SKA has failed to establish “a viable cause of action.”

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

Further, the city and the LKRA argue that the amended complaint’s Petition for Writ of Mandamus must be dismissed because, as Circuit Judge Andrea McHugh made clear in an Oct. 12 order in the case, the city’s Comprehensive Plan does not require a specific city official “to perform a specific ministerial duty.”

SKA attorney Kent Safriet of the Tallahassee firm Hopping Green & Sams explained in the amended complaint, “A Writ of Mandamus is a command from a court directed to another, such as a governmental entity, requiring that party to perform an act that the party has a legal duty to perform because of its official position.”

The SKA’s amended complaint specified the city’s legal duties as the following in the case of the proposed Big Pass project:

  • Complying with the city’s own Action Strategy 1.1 in its Comprehensive Plan, which the SKA interprets as requiring the city to submit the Big Pass project details to the Sarasota County Commission to ensure the plans are consistent with the county’s Comprehensive Plan.
  • Complying with Section 54.653 of the county’s Code of Ordinances by obtaining a county permit for the dredging project.

On Oct. 12, Circuit Judge McHugh dismissed the SKA’s original complaint in the case, filed in March 2017, to try to stop the city from taking sand out of the pass to renourish about 1.6 miles of South Lido Key Beach. The SKA and its co-plaintiff, David N. Patton of Siesta Key, have argued that the barrier island and the waterway both will suffer irreparable harm if the dredging is allowed to proceed.

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

In her order, McHugh wrote that she could find “little precedent” for the SKA’s argument that a county comprehensive plan “qualifies as a law, rule or regulation” that must be followed under the guidelines of the Florida Environmental Policy Act.

However, she dismissed the case “without prejudice,” giving the nonprofit and Patton the opportunity to try a new tack in court.

In their Nov. 13 motion, the city and the LKRA ask McHugh to dismiss this latest complaint “with prejudice,” so the SKA and Patton could not pursue the case any further.

They also ask for attorneys’ fees and costs from the plaintiffs, as provided for under the FEPA statute, they note.

The city and the U.S. Army Corps of Engineers (USACE) received a Joint Coastal Permit from the Florida Department of Environmental Protection (FDEP) on June 18, so they could undertake the first step in a 50-year project to widen and stabilize the Lido Key Beach, which is severely eroded. Along with removing about 1.3 million cubic yards of sand from Big Pass, the USACE plans to construct two groins on South Lido to try to hold the sand in place on the beach between renourishment projects, which are expected to be necessary every five to seven years.

In a recent newsletter, Sarasota City Manager Tom Barwin wrote that the long-term Lido Renourishment Project “is expected to begin in the fall of 2019, pending ongoing legal challenges.”

Reaching this point

The original verified complaint the SKA and Patton filed in the 12th Judicial Circuit Court was put in abeyance while the SKA and another Siesta-based nonprofit, Save Our Siesta Sand 2 (SOSS2), pursued challenges to the dredging through the Florida Division of Administrative Hearings (DOAH). After the DOAH ruling went against them, the SKA revived its Circuit Court case in July.

In their complaints, SKA and Patton contended that Environmental Policy 4.6.1 in the Sarasota County Comprehensive Plan made it necessary for the city to seek county approval for the dredging of Big Pass.

Kent Safriet. Image from the Hopping Green & Sams website

In supplemental material he filed with the court this summer — after a July 23 hearing — Safriet cited a 2009 Florida First District Court of Appeal case to underscore his assertion that the city had to abide by the county’s environmental policy. He also pointed to a 1980 Florida Supreme Court ruling as the basis for part of his arguments that the SKA and Patton had the legal right to challenge the city.

In the amended complaint, Safriet pointed to Section 54-653(4)(a) of the Sarasota County Code of Ordinances, which states that “‘[n]o work shall be performed having the effect of Altering any Jurisdictional Areas without first obtaining a permit” from the county, unless the applicant specifically is exempt under a provision of the County Code.

Another section of the County Code includes dredging under the definitions of “Altering,” Safriet added.

In their Nov. 13 motion, Attorney Kevin S. Hennessy of Lewis, Longman & Walker in St. Petersburg — writing on behalf of the LKRA — and attorney John R. Herin of GrayRobinson in Fort Lauderdale — writing on behalf of the city — argue that although the SKA and Patton identified a specific county ordinance in their amended complaint, they failed to allege any facts to show that the ordinance, “which clearly is focused on the permitting and design of docks, piers and other marine or freshwater structures,” qualifies as an environmental law, under the FEPA guidelines.

Further, they contend that the FEPA limits actions to those addressing alleged violations of laws that protect the air, water or other natural resources of the state. They write that the SKA and Patton have failed to allege “that any such environmental law has been violated.”

Additional arguments

Kevin S. Hennessy. Photo from the Lewis, Longman & Walker website

In seeking dismissal of the SKA and Patton’s Petition for Writ of Mandamus, Hennessy and Herin contend that Mandamus actions can be pursued only when the law makes it clear that a ministerial act must be performed “‘at a time and in a manner or upon conditions which are specifically designated by the lawitself [their emphasis],’” unless the law authorizes the agency in question to use its discretion. They cite a 1963 Florida Supreme Court case as the basis for their assertion.

Again, they point to McHugh’s Oct. 12 dismissal of the SKA complaint, when she wrote that a comprehensive plan is not a law. “Therefore,” they continued, “mandamus cannot serve as a basis for requiring a determination of the [Lido Renourishment Project’s] consistency” with the Sarasota County Comprehensive Plan.

Furthermore, they write, the SKA and Patton “have alleged no law that places upon any specific City official a duty to submit a City project to Sarasota County for a determination of consistency” with the county Comprehensive Plan.

They add that the county code section that SKA attorney Safriet cited in the amended complaint “does not place a clear, specific, ministerial legal duty upon any City official to perform at a specific time or manner. Rather, it at best places a prohibition on certain activities without a permit.”

Moreover, they write, the “Florida Supreme Court has clearly stated that writs of mandamus should not be issued until the alleged injury has actually occurred,” citing a 1967 case.

On another point in their motion, Hennessy and Herin argue that the SKA and Patton “have failed to meet the minimum pleading requirements under FEPA [their emphasis].” A section of the FEPA statute, they contend, required the SKA and Patton to serve on Sarasota County a copy of the verified complaint, because of their argument that the county has to grant a permit to the city for the dredging of the pass.

If the county had been served with the compliant, they continue, then the county would have had 30 days “to take appropriate action to address the matters in the complaint.”

Only if such appropriate action is taken “may a circuit court action be pursued,” Hennessy and Herin write. “Here there is no allegation that the Amended Verified Complaint, alleging the violation of a County Code provision not previously raised, was ever provided to the County for its consideration,” they add.