Nonprofit again asks court to compel city to submit project to county leaders for review as required, it argues, by county ordinance
During a Dec. 20, 2018 hearing, a 12th Judicial Circuit Court judge asked the attorney for the Siesta Key Association (SKA) when the nonprofit had asked the City of Sarasota to seek permission from Sarasota County to dredge Big Sarasota Pass.
Kent Safriet of the Tallahassee firm Hopping Green & Sams told Judge Andrea McHugh that the SKA had been asking the city to take that action for a year and a half, and the city had refused. He was referring to the original complaint in the case, which the SKA filed in March 2017.
The SKA and its co-plaintiff, David Patton of Siesta Key, had filed a Petition for Writ of Mandamus in October 2018, asking for a court order to ensure that the city did what they felt it was obligated to do: obtain county permission for the removal of sand from Big Pass or a county declaration that the city was exempt from needing a permit. They contend that the waterway is within the county’s jurisdiction.
McHugh explained to Safriet that she was accustomed to petitions for writ of mandamus in public records cases, in circumstances alleging that an entity had not performed its legal duty to produce materials that had been requested.
“I can send them a letter tomorrow,” Safriet responded, referring to city leaders, if that was what McHugh desired.
On Jan. 15, McHugh dismissed the SKA’s petition and another count in the amended complaint the SKA had filed on Oct. 23, 2018. In early October 2018, she had dismissed the nonprofit’s original complaint.
Now, the SKA and Patton have filed a second amended complaint, and this time they make it clear that SKA representatives did formally ask city leaders to submit the proposal for the Big Pass project to the county. In their latest Petition for Writ of Mandamus, filed on Jan. 25, the SKA and Patton reference a meeting SKA representatives held on May 23, 2017 with City Manager Tom Barwin, City Engineer Alexandrea DavisShaw, City Sustainability Manager Stevie Freeman-Montes and former Sarasota County Commissioner Nora Patterson, who also served as a city commissioner for a number of years. The second amended complaint again points to the SKA’s argument that the City of Sarasota’s version of a comprehensive plan and a regulation in the County Code of Ordinances necessitate the city’s communication with Sarasota County about the proposed dredging of the pass.
During that May 2017 meeting, the new complaint says, “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.
“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],” the second amended complaint continues. Under the guidelines of the law, the new complaint adds, 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.)
“However,” the new complaint says, “the City has refused to even submit its Project to the County for review … for consistency with the County’s Comprehensive Plan.”
A public records request
The SKA learned through a recent public records request with Sarasota County that neither the city nor the U.S. Army Corps of Engineers (USACE) had filed for a permit or sought county approval or an exemption regarding the proposed dredging of Big Pass, SKA Vice President Catherine Luckner told The Sarasota News Leader last week.
The USACE is the co-permittee with the city for a $21-million, long-term renourishment project on South Lido Key Beach. City Manager Barwin wrote in his Jan. 25 newsletter that the USACE plans to start that initiative in September. The project includes the removal of up to 1.3 million cubic yards of sand from Big Pass during the first step in a 50-year effort to stabilize Lido Key’s beach. (See the related story in this issue.)
After learning the results of the public records search, the SKA on Jan. 25 filed its second amended complaint in the Circuit Court. The nonprofit and Patton argue that because of the city’s inaction, they have not been able to file for legal recourse under Chapter 163 of the Florida Statutes. Safriet pointed out during the Dec. 20, 2018 hearing before McHugh that that state law would be the expected means for the SKA and Patton to seek a remedy. Yet, until the city formally sought a county response to the project, the SKA and Patton were stymied, he added.
The new complaint says, “Petitioners have no other adequate remedy at law other than to seek issuance of a Writ of Mandamus for enforcement of the City’s indisputable legal duty to comply with the Sarasota City Plan by submitting its Project to the County Commission for consistency approval with the County’s Comprehensive Plan. Additionally, because the City has taken no action in reference to the Project to comply with Section 54-653(4)(a) of the [County] Code [of Ordinances], Petitioners have no other adequate remedy at law to seek enforcement of the City’s indisputable legal duty other than to seek issuance of a Writ of Mandamus.”
As Safriet, the SKA and Patton’s attorney pointed out in the complaint filed last October — and in the new one — Section 54-653(4)(a) of the County Code of Ordinances “states that ‘[n]o work shall be performed having the effect of Altering any Jurisdictional Areas without first obtaining a permit from the [Sarasota County Water and Navigation Control Authority] or [County] Administrator, unless specifically exemptedunder the provisions of section 54-653(4)(g).’Section 54-652 of the Code defines ‘Altering’ to ‘include, but not be limited to, Dredging,Filling … or making any other material change to lands or structures located within the jurisdictional area of [Chapter 54 of the Code], the use of which requires a permanent or temporary location on or above the ground, bottomland, water area or water surface, or attachment to a structure having a permanent or temporary location on or above the ground, bottomland, water area or water surface.’”