In its appeal in Big Pass litigation, Siesta Key Association contends Circuit Court judge erred in interpretation of Florida Statute

Nonprofit seeks reversal of decision on one count and remanding of case to Circuit Court

The preservation of Big Pass from dredging has been the goal of the Siesta Key Association in its litigation against the City of Sarasota. Rachel Hackney photo

In its initial brief to the Second District Court of Appeal, the Siesta Key Association (SKA) contends that a 12th Judicial Circuit Court judge erred in her interpretation of a Florida Statute when she ruled against the nonprofit last year.

Because of Circuit Court Judge Andrea McHugh’s alleged error, the SKA has asked the Court of Appeal to reverse her decision on the count related to that state law and remand the case to the Circuit Court, with direction that the litigation proceed on that count.

The SKA has been fighting in court for almost exactly three years in an effort to prevent the removal of sand from Big Sarasota Pass to renourish about 1.56 miles of Lido Key Beach.

Representing the SKA, Kent Safriet of the Tallahassee firm Hopping Green & Sams argued in the Appeal Court brief that McHugh was wrong in her assertion that, because the Florida Department of Environmental Protection (FDEP) issued a Joint Coastal Permit to the City of Sarasota for the Lido initiative, the SKA had no cause of action under Florida Statute 403.412. That law is known as the Environmental Protection Act of 1971.

That state law “comes as a directive from Article II, Section 7 of the Florida Constitution,” Safriet added: “It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise for the conservation and protection of natural resources.”

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

McHugh “erroneously found” that if a party has a permit, “regardless of who issued the permit, how many other permits the project may require, and what ‘law, rule, or regulation’ the lawsuit is premised upon,” then Florida Statute 403.412(2)(e) prevented her from ruling that another permit was needed, Safriet wrote.

Because Big Pass never has been dredged, the SKA has argued that the City of Sarasota has to comply with a county environmental regulation necessitating county approval of any proposal to remove sand from the waterway or its ebb shoal. The pass is in the county’s jurisdiction, the SKA has maintained.

In March 2015, the City of Sarasota and the U.S. Army Corps of Engineers (USACE) were co-applicants to FDEP for a Joint Coastal Permit for what the USACE calls the Lido Key Hurricane and Storm Damage Reduction Project. (See the related story in this issue.) FDEP granted that permit in June 2018, exactly a week after the USACE announced that it had the necessary federal funding for the Lido initiative.

In the SKA appeal, Safriet pointed out, “Many complex projects, such as the one at issue in this case, require numerous permits from various federal, state, and local authorities. The circuit court’s conclusion that the issuance of a single permit at the state level [was sufficient] is contrary to the plain language” of state law, Safriet added.

As of Feb. 6, when he filed the brief, he continued, neither the city nor the USACE had “sought approval for the [Lido] Project from any local authorities, including the Sarasota County Water and Navigation Control Authority (‘WNCA’).”

The applicable county law the SKA has cited is 54-653(4)(a), which says, “No work shall be performed having the effect of Altering any Jurisdictional Areas without first obtaining a permit from the [WNCA] or Administrator, unless specifically exempted under the provisions of Section 54-653(4)(g).”

None of the exemptions cited in the latter section apply to the Big Pass situation, the SKA has pointed out.

These are the exemptions cited in Chapter 54-653(4)(g) of the Sarasota County Code of Ordinances. Image courtesy Sarasota County

Additionally, in its original complaint, Safriet continued in the Appeal Court brief, the SKA alleged that the city had violated Sarasota County Environmental Policy 4.6.1, which “‘require[s] approval by the Board of County Commissioners’ before any new dredge and fill activities occur within the Gulf of Mexico, and within the County’s bays, rivers and streams.”

Because the city failed to seek local approval for the Lido initiative, Safriet pointed out, the SKA and Siesta resident David N. Patton — an SKA member — filed their original complaint against the city in March 2017. They cited Florida Statute 403.412(2)(a) as providing a cause of action, he added. That law gives a citizen of the state the right to seek injunctive relief against “[a]ny person, natural, or corporate, or governmental agency or authority to enjoin such persons, agencies, or authorities from violating any laws, rules or regulations for protection of the air, water, and other natural resources of the state,” Safriet wrote.

12th Judicial Circuit Court Judge Lon Arend originally presided over the SKA case. Image from the Circuit Court website

After an April 2017 hearing in the 12th Judicial Circuit Court, the judge presiding over the case at that time ordered that the case be held in abeyance until after an administrative challenge to FDEP’s issuance of the permit was concluded, Safriet explained.

At the recommendation of the administrative law judge in that state proceeding, FDEP made only two modifications to its conditions for the Lido project and then issued the permit. Nonetheless, Safriet emphasized in the brief, the Joint Coastal Permit states, “Authorization from the Department does not relieve you from the responsibility of obtaining other permits (Federal, State or local) that may be required for the project.”

Further, he noted, the permit warned that the city and the USACE still had to “obtain any other applicable licenses or permits that may be required by federal, state, local or special district laws and regulations.”

Three years on

Safriet went on to explain the history of the action in Circuit Court, including the SKA’s filing of a second amended complaint in January 2019. The latter contended that the SKA had asked city leaders to seek formal county permission for the Lido initiative and that the city had refused to do so. Thus, the nonprofit was asking the judge for a Writ of Mandamus, which would require the city to take the action the SKA sought.

After a five-hour hearing in July 2019, Circuit Judge McHugh issued a ruling in October 2019, saying she concurred with city evidence and testimony that city staff members had followed all the appropriate procedures — including a review of the city’s own applicable environmental policies — in planning the Lido project and applying for the FDEP permit.

Kent Safriet. Image from the Hopping Green & Sams website

However, Safriet contended in the appeal, in dismissing the SKA’s second amended complaint, McHugh did not address the SKA’s argument that the city also needed to comply with Section 54-653(4)(a) of the Sarasota County Code before up to 1.3 million cubic yards of sand could be removed from Big Pass. “A County Ordinance is ‘a law, rule, or regulation,’” Safriet pointed out, referencing the Florida Statute he had noted earlier.

Citing a 2005 Second District Court of Appeal decision, Safriet wrote, “‘[A]n ordinance is a form of statutory law enacted by a local government body, such as a county commission or city council.’ … And there can be no doubt that the WNCA Ordinances are designed to protect the water and natural resources.”

Altogether, Safriet cited seven judicial precedents in making his arguments in the appeal. Three of those were decisions of the Florida Supreme Court.

Along with the City of Sarasota, the Lido Key Residents Association is a party to the appeal. That nonprofit was allowed to intervene in the Circuit Court case because of its residents’ concern over their critically eroded shoreline and the need for the USACE project, as detailed in their brief seeking that intervenor status.

Altogether, the Sarasota County Clerk of the Circuit Court and County Comptroller’s Office submitted 2,206 pages of documents in the case to the Second District Court of Appeal, the latter’s online docket shows.

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