Judge dismisses Siesta Key Association’s Big Pass case in 12th Judicial Circuit Court in Sarasota

Nonprofit plans to file an amended complaint as Sarasota city manager urges end to litigation

Condominiums are easily visible across Big Pass on the evening of July 6, 2017. File photo

A 12th Judicial Circuit Court judge has dismissed a verified complaint the Siesta Key Association (SKA) filed against the City of Sarasota in early 2017, seeking to stop the dredging of Big Sarasota Pass to renourish about 1.6 miles of South Lido Key Beach.

Circuit Court Judge Andrea McHugh wrote in her Oct. 12 order that while Florida’s Environmental Protection Act “permits citizens to seek judicial enforcement of an environmental law, rule, or regulation,” she could find “little precedent” for the SKA’s argument that a county comprehensive plan “qualifies as a law, rule or regulation.”

In its March 2017 complaint, the SKA contended that the City of Sarasota needed the approval of the Sarasota County Commission to dredge Big Pass, based on a policy in the county’s Comprehensive Plan and a section of the city’s own Comprehensive Plan.

The city’s plan says that it must comply with the county’s plan, the SKA pointed out in its complaint.

The SKA last year commissioned research by prominent coastal geology and fisheries experts to raise significant concerns about the potential for the dredging to cause serious harm to the waterway and to property on Siesta Key.

The city was co-applicant with the U.S. Army Corps of Engineers (USACE) for a Joint Coastal Permit from the Florida Department of Environmental Protection (FDEP) for the Lido project, which is planned over a 50-year period. Last month, City Engineer Alexandrea DavisShaw and a representative of the USACE’s Jacksonville District Office signed an agreement for the federal agency’s participation in the project.

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

Circuit Court Judge McHugh explained in her Oct. 12 order that the Joint Coastal Permit would allow the city and the USACE to remove about 1.3 million cubic yards of sand from Big Pass and construct groins on South Lido Key to try to keep sand in place between renourishments, which are expected to be necessary every five to seven years, based on USACE and city staff statements.

The SKA cited county Environmental Policy 4.6.1 of the Comprehensive Plan as the basis for its argument that the city needs county approval to dredge Big Pass. That policy says, “Prohibit dredge and fill activities in the Gulf of Mexico, bays, rivers, and streams of the county except to maintain previously dredged functional navigation channels and existing drainage canals.” Big Pass never has been dredged.

The SKA plans to file an amended complaint, its attorney, Kent Safriet of Hopping Green & Sams in Tallahassee, told The Sarasota News Leader in an Oct. 16 email.

In a telephone interview the same day, SKA Vice President Catherine Luckner pointed to the fact that McHugh had dismissed the complaint without prejudice, thereby opening the door to the filing of a revised version of the nonprofit’s arguments. The SKA has 15 days within which to respond to McHugh’s order, Luckner added.

In a statement released after the Oct. 15 City Commission meeting, City Manager Tom Barwin said, “The litigation has delayed the project by over a year. I only wish the $500,000 collectively spent in litigation could have been invested in collaborating to advance our collective shoreline protective efforts. But with this decision, we should be able to move forward, and the City remains committed to careful monitoring of the project and open to collaboration in the future.”

“I do not believe that to be a true statement,” Luckner said of Barwin’s remark about the delay in the long-range project.

She noted that when Circuit Court Judge Lon Arend heard arguments in the SKA case in April 2017, the city’s outside counsel — John R. Hering of GrayRobinson in Fort Lauderdale — requested Arend put the case in abeyance, if Arend would not dismiss it.

At the time, the SKA, the nonprofit Save Our Siesta Sand 2 (SOSS2) and several individuals had filed challenges with the Florida Division of Administrative Hearings (DOAH) to try to stop the dredging of Big Pass. Therefore, Hering suggested the SKA case in Circuit Court could wait until after a decision was rendered in the DOAH case.

That DOAH ruling came in June. Secretary Noah Valenstein of the Florida Department of Environmental Protection (FDEP) ruled that the SKA, SOSS2 and the individuals had failed to present research supporting most of their arguments that the dredging of Big Pass would cause harm to the pass and Siesta Key.

Short- and long-range plans for Lido

City Manager Tom Barwin pauses to talk with a lifeguard as he inspects conditions on Lido Key on Oct. 10, with Hurricane Michael having created big waves in the Gulf that pounded the shoreline. Photo courtesy City of Sarasota

In his Oct. 12 newsletter, City Manager Barwin pointed out that Hurricane Michael’s passage through the Gulf of Mexico last week created “some of the biggest waves seen at Lido Beach in the past six years, ranging from 4 to 6 feet high.”

A row of “trap bags” — oversized sand bags — that was 4 feet high, 550 feet long and 530 tons in weight, was placed in front of the dunes on the beach. Although “many of them were wiped out by tidal action” early on the morning of Oct. 10, he continued, only 1 to 2 feet of the dunes was lost. Without the trap bags, city staff estimated as much as 15 feet of the dunes could have been eroded.

Carl Shoffstall, president of the Lido Key Residents Association told the News Leaderearlier this year that a number of condominium complexes had reported cancellations for the coming tourist season because of the increasingly significant erosion of the beach.

However, the city plans an emergency renourishment project on Lido, starting around Nov. 15, with sand from New Pass.

The exact timetable for the long-range Lido Renourishment Project has not been announced.

In early June, the City Commission reaffirmed its funding commitment to the long-range project, as required under FDEP regulations. Documentation provided to the board showed the estimated expense as $21 million, with the federal government to cover $13,020,000 and the city and FDEP each paying $3,990,000. The city’s funds will come out of Sarasota County Tourist Development Tax revenue set aside for municipalities for beach renourishment projects.

Col. Andrew D. Kelly of the U.S. Army Corps of Engineers’ Jacksonville District Office and City Engineer Alexandrea DavisShaw sign the long-range Lido Renourishment Project agreement on Sept. 20. Photo courtesy City of Sarasota

A week after the City Commission action, the USACE announced that it had allocated $13,462,000 to the Lido project as part of its Fiscal Year 2018 Work Plan, which it delivered to Congress on June 7. Then, on June 18, FDEP issued the Joint Coastal Permit for the project.

Subsequently, on Aug. 20, the City Commission voted unanimously to approve the formal agreement with the USACE. A memo from City Engineer DavisShaw to the City Commission in advance of that meeting pointed out that the agreement calls for an estimated construction cost of $19,205,073 for the initial renourishment. The federal government’s share of that amount would be $12,275,626, the memo added, with the city contributing $4,981,0004, “(which includes creditable interests, relocations, improvements and in-kind contributions totaling $1,948,443.00).”

Additionally, the memo said the USACE “will be finalizing the construction drawings this fall and they expect to start the bidding process in the Spring of 2019 with construction in the Summer of 2019.”

The SKA complaint
In its verified complaint in the 12th Judicial Circuit Court, the SKA contended that language in the introduction to the county Comprehensive Plan “requires all development orders entered by any state commission, board, agency, department or official, concerning development within the geographic area subject to the [Comprehensive] Plan, to be evaluated for consistency with the [Comprehensive] Plan,” McHugh wrote.

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

The SKA failed to state a legal cause of action, she added. It attempted to use the Florida Environmental Protection Act (FEPA) of 1971, she continued, “to compel the City to comply” with the City of Sarasota Comprehensive Plan, the county’s plan and Florida’s Community Planning Act.

Following a July 23 hearing on a motion to dismiss the SKA complaint, filed by the city and the Lido Key Residents Association — which was allowed to intervene in the case —McHugh allowed all the parties to file additional materials.

On Aug. 17, Kevin Hennessy of Lewis, Longman & Walker of St. Petersburg — counsel for the Lido Key Residents Association (LKRA) — filed a reply for the city and the LKRA to supplemental material SKA attorney Safriet had filed. “Comprehensive plans are not laws, zoning ordinances, rules, regulations, or any sort of binding authority upon any entity other than the local government that adopted it,” he pointed out, citing a 1992 Florida Second District Court of Appeal case. Hennessey added, “Local governments are mandated by the state legislature to adopt comprehensive plans in order to ‘encourage a stronger commitment to comprehensive and capital facilities planning, ensure the provision of adequate public facilities for development, encourage the efficient use of resources, and reduce the economic cost of development.”

Additionally in her order, McHugh said the FEPA “was enacted as a means of carrying out Florida’s constitutional mandate to abate air and water pollution” in the state. However, to compel action under the FEPA, she continued, “there must be ‘a law, rule or regulation for the protection of air, water and other natural resources of the state’ to either compel the authority to enforce or prevent the authority from violating …”

Kent Safriet. Image from the Hopping Green & Sams website

Safriet had pointed out in his Aug. 6 supplemental filing in the case that the FEPA says, “The court may grant injunctive relief and impose conditions on the defendant which are consistent with and in accordance with law and any rules or regulations adopted by anystate or local government agency [his emphasis] which is charged to protect the air, water, and other natural resources of the state from pollution, impairment, or destruction.”

Safriet further argued that the Florida Supreme Court, in the 1980 case Fla. Wildlife Fed’n v. State Dep’t of Envtl. Reg., “has stated ‘by enacting [the FEPA], the legislature created a new cause of action, giving the citizens of Florida new substantive rights not previously possessed. This statute sets out an entirely new cause of action.’”

“It is beyond dispute,” Safriet added, “that Environmental Policy 4.6.1 of the Sarasota County Comprehensive Plan protects the water and natural resources of Big Sarasota Pass.” He argued that “the facts demonstrate … that the City has improperly refused to seek a development order from the County and the Court can order it to do so.”

SKA cites appeal court case as precedent

Then Safriet cited a 2009 case heard by the Florida First District Court of Appeal, Johnson v. Gulf County.”

“In that case,” he wrote, “Gulf County and the developer attempted the same ‘Comprehensive Plan does not apply’ shenanigans that the City and the County are pulling here regarding the dredging of Big Pass.”

That case involved a landowner’s efforts to fill wetlands protected by Gulf County’s Comprehensive Plan, he explained, “and Gulf County ‘agreed’ that the filling of said wetlands was not ‘development’ under Gulf County’s Comprehensive Plan or land development regulations,” Safriet continued. However, a policy in Gulf County’s Comprehensive Plan prohibited development “within 50 feet of coastal waters and wetlands …”

A neighbor named Johnson protested the filling of the wetlands to Gulf County, arguing inconsistency with the county’s Comprehensive Plan, Safriet pointed out. The trial court ruled against Johnson, Safriet continued. But the First District Court of Appeal reversed the decision. The court further found that the landowner’s clearing and filing of the wetlands was “development,” Safriet wrote, and that Gulf County was required to issue a “development order” to the landowner before he could proceed with the work. Thus, the court ruled, Johnson and any other affected party would be able to challenge the consistency of the development order and project with the Gulf County Comprehensive Plan.

As with the Gulf County provision, Safriet added, the “unambiguous provision [of Sarasota County Environmental Policy 4.6.1] requires the City’s proposed project dredging Big Pass be approved by the County Commission.”

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

Writing on Aug. 17 for the LKRA and the city, Hennessy disputed Safriet’s assertions in regard to Johnson v. Gulf County. The Johnson case, Hennessy wrote, merely illustrated that the SKA had failed to include Sarasota County in the case; thus, the nonprofit’s verified complaint was invalid.

He further argued that the Johnson case underscored the fact that comprehensive plans “are not in themselves laws, rules or regulations.”

In her Oct. 12 order, McHugh wrote that “there is not a single appellate case where [the FEPA] has been used to enforce or restrict action pursuant to a city or county comprehensive plan.”

McHugh pointed to language in the Sarasota County Comprehensive Plan that “states it is intended as ‘a blueprint … to guide development of land, economic growth, resource protection, and the provision of public services and facilities in Sarasota County.’” Thus, she added, since the plan “is most like a ‘conceptual framework’ in its form and purpose, it cannot also qualify as an enforceable ‘law,’ ‘rule,’ or ‘regulation,’ as defined under the terms of FEPA.”

Moreover, McHugh wrote that in the SKA order, “[T]here is no pending decision regarding a regulatory law or order from the County considering whether the [Lido] Project is or is not in conformance with the [Comprehensive] Plan. Should the County resolve in the future that it is not, [the SKA has] an available remedy to challenge that decision under Chapter 163 (the [state’s] Land Development Act).”