Day-long July 19 hearing set in Siesta Key Association lawsuit over proposal to dredge Big Pass

Court documents provide details of requests for materials as attorneys prepare to argue the case

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

A hearing has been scheduled at 10:30 a.m. on Friday, July 19, to review the evidence in the lawsuit the Siesta Key Association filed against the City of Sarasota two years ago in an effort to prevent the removal of sand from Big Sarasota Pass to renourish 1.56 miles of South Lido Key Beach.

The date was chosen as a result of an April 23 status conference, which followed 12th Judicial Circuit Court Judge Andrea McHugh’s April 18 denial of the City of Sarasota’s motion to dismiss the case the Siesta Key Association (SKA) originally filed in March 2017.

A court document says the July court event is expected to take a full day. The hearing originally was scheduled to begin at 9 a.m.

The court appearance record for the April 23 status conference notes, “Parties to work together to conduct limited discovery on the issues outlined in the [judge’s April 18] order for evidentiary hearing and to stipulate to as many facts and exhibits as possible prior to hearing.”

The SKA has contended from the outset of the case that, as the City of Sarasota has pursued the dredging of up to 1.3 million cubic yards of sand from Big Pass, the city has not adhered to a policy in its own comprehensive plan or — as also required by city regulations — to a policy in the Sarasota County Comprehensive Plan. The city was a co-applicant with the U.S. Army Corps of Engineers (USACE) in seeking — and receiving — a Florida Department of Environmental Protection (FDEP) permit for the Lido Renourishment Project.

SKA leaders have argued that the USACE’s modeling of the planned initiative was inadequate, as the federal agency uses proprietary software that is not the most up-to-date for making determinations about potential effects. A number of Siesta residents contend that the dredging of the pass and its ebb shoal will lead to property damage on Siesta. However, USACE and City of Sarasota representatives have remained steadfast in their assertion that no harm will come to Siesta Key.

City Manager Tom Barwin listens to comments during the Feb. 19 City Commission meeting. News Leader photo

As a result of the direction Judge McHugh provided during the status hearing last week, the SKA sent a letter to City Manager Tom Barwin on April 23 to begin the discovery process.

The letter pointed out, “At present the issue in the lawsuit is whether the City has ever evaluated and issued a written determination that the [Lido Renourishment] Project is consistent with the City’s Comprehensive Plan, the County’s Comprehensive Plan, and all other applicable local, regional, state, and federal plans and regulations regarding the project. In addition,” the letter continued, “the City’s attorneys have argued that SKA has not made an ‘express and distinct demand’ that the City make a determination (in compliance with Chapter 163, Florida Statutes) whether the Project in its current design is consistent with the [city and county comprehensive plans and all other applicable regulations].”

The SKA has argued that because the city never issued any public determination about the proposal’s compliance with local regulations, the city has failed to “trigger” a 30-day period Chapter 163 allows to contest such a finding.

In an amended complaint filed in January, the SKA’s attorney, Kent Safriet of the Tallahassee firm Hopping, Green & Sams, also pointed to a May 2017 meeting between SKA representatives and senior city staff to show that the nonprofit had asked city leaders to make the necessary determinations about the Lido project. After the city’s outside counsel in the case — John R. Herin Jr. of the Fox Rothschild firm in Miami — impugned the validity of that information, the SKA produced an email exchange as evidence supporting its assertion about the May 2017 discussions.

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

In a separate action, the SKA filed a formal request with the Circuit Court on April 23, seeking specific materials from the city. Among those it has requested are “[a]ll documents relating in any way to a meeting with any City official and Bob and Catherine Luckner on May 23, 2017.”

Robert Luckner, who is Catherine Luckner’s husband, is on the SKA’s Environmental Committee. Both Luckners have undertaken extensive research over the past years in an effort to stop the removal of sand from Big Pass.

All the city documents are due by 9 a.m. on May 23 at the Hopping Green & Sams offices in Tallahassee, the court document says, though it provides the city an opportunity to have its counsel work with Safriet on an alternative schedule.

Details of the demands

The April 23 letter to the city points out that city counsel Herin “has indicated a need to call 2-4 witnesses and take numerous depositions before the [July] hearing. This futile exercise will most likely cost the City taxpayers tens of thousands of dollars.”

Therefore, the letter continues, “in an effort to avoid such a needless waste of money and resources,” the SKA demands that the city “make a written determination” that the Lido project “is or is not” consistent with the following, at a minimum:

  • Action Strategy 1.1 of the city’s Environmental Protection and Coastal Islands Plan.
  • Sections VII-1303 and VII-1304 of the city’s Zoning Code.
  • Environmental Policy 4.6.1 in the county’s Comprehensive Plan.
  • County Ordinance 54-653(4)(a).
  • County Ordinance 54-656(7)(d)2.
This is Action Strategy 1.1 of the City Plan. Image courtesy Siesta Key Association

These are the city zoning code sections to which the SKA demand refers. Image courtesy Siesta Key Association
These are the sections of the county’s Comprehensive Plan and its Code of Ordinances to which the SKA refers. Image courtesy Siesta Key Association

The letter concludes by asking that City Manager Barwin advise the SKA immediately as to whether the city will comply with the nonprofit’s demands.

Further, if the city does make such determinations, the SKA asks that written copies be sent to President Catherine Luckner.

From the other side

The Lido Key Residents Association (LKRA) — which the Circuit Court allowed to intervene in the case in 2017 — already has filed notice that it has served its first set of interrogatories on the SKA and the nonprofit’s co-plaintiff in the case, Siesta resident David N. Patton.

Janice D. Rustin, an attorney with Lewis, Longman & Walker of Bradenton and St. Petersburg, filed that notice on April 25.

As the word implies, interrogatories are questions posed of a party in a lawsuit. They must be answered in writing under oath or under penalty of perjury, explains.

Interrogatories are part of the process of discovery, which is used to unearth information that can be used in a trial or hearing.

Former County Commissioner Nora Patterson attends an SKA meeting in January 2016. File photo

Additionally, on April 25, the LKRA filed its own Request for Production, which encompasses 129 pages. It calls for the SKA and co-plaintiff Patton to “[p]roduce all documents” related to meetings during which pertinent topics were discussed, as specified by references to exhibits attached to the filing.

Among the materials the LKRA has demanded are “all documents related to the meeting that occurred on May 23, 2017 between Plaintiffs and Nora Patterson (former Sarasota County Commissioner and former Sarasota City Commissioner)” and “all written demands by Plaintiffs or any representative of Plaintiffs directed to the City of Sarasota demanding the City take the action [the SKA and Patton have asked the court to require of the city].”

It further calls for the SKA and Patton to produce all materials and communications they “directed to the City of Sarasota requesting to meet and discuss the [Lido Renourishment] Project … [and] all documents and communications [they] directed to the City of Sarasota regarding any demands made for a determination that the Project is consistent with the City’s Comprehensive Plan [and] with the most recently adopted and applicable local, regional, state and federal plans and regulations.”

The LKRA asked that all the materials be produced within 30 days of its April 25 filing of the request.