Judge rules against Siesta Key Association in Circuit Court case filed to prevent the removal of sand from Big Pass for Lido Beach renourishment

City of Sarasota and Lido Key Residents Association seeking tens of thousands of dollars in legal fees

Condominium towers on South Lido Key are easily visible across Big Pass on the evening of June 7, 2018. File photo

A 12th Judicial Circuit Court judge has ruled against the Siesta Key Association in a case the nonprofit filed almost exactly two-and-a-half years ago to try to prevent the dredging of Big Sarasota Pass to renourish South Lido Key Beach.

On Sept. 19, Circuit Judge Andrea McHugh wrote that she found that the City of Sarasota “did not have an indispensable legal duty” to issue a determination that the plans for the Lido Key Renourishment Project are consistent with the city’s Comprehensive Plan.

McHugh did add, “The Court understands [the Siesta Key Association’s] frustration over having no legal vehicle” to challenge the Lido proposal under a provision of the Florida Statutes.

In an amended version of the complaint the Siesta Key Association (SKA) originally filed in March 2017, the nonprofit had asked the court to rule that the city never had complied with its own Comprehensive Plan or the Sarasota Comprehensive Plan, because the city had failed to issue that consistency determination. As a result, the SKA was seeking a Writ of Mandamus, which would compel the city to undertake a formal process leading to such a determination.

After considering evidence and testimony presented during a five-hour hearing on July 23, McHugh agreed that city staff members had taken the time to make the determination the SKA had sought, and that the process took place in early 2015.

Tim Litchet, director of the city’s Development Services Department, testified at length about the specific parts of that Comprehensive Plan he had reviewed with City Engineer Alexandrea DavisShaw. Afterward, DavisShaw wrote a letter affirming that review, which was included in the March 2015 application to the Florida Department of Environmental Protection (FDEP) for the permit to undertake the removal of sand from Big Pass to stabilize a critically eroded segment of Lido Beach.

This is the March 2, 2015 letter from City Engineer Alexandrea DavisShaw, which was part of the application submitted to FDEP. Image courtesy State of Florida

The city has been working with the U.S. Army Corps of Engineers (USACE) on the Lido initiative. The federal agency actually filed the application with FDEP.

McHugh added in her order that the letter from DavisShaw “was never approved by the City [Commission], as no such approval was required for the permit application.”

McHugh further pointed out that the SKA filed a challenge with the Florida Division of Administrative Hearings (DOAH) in January 2017. As a result of that proceeding, she continued, the presiding administrative law judge “found that the compliance with the Comprehensive Plan is only required when a state agency, itself, sought a developmental order from a local government.”

McHugh likened the judge’ decision to the conclusion Litchet had made in his meeting with DavisShaw.

In June 2018, FDEP issued the permit to the USACE and the city for the Lido project, on the basis of the DOAH judge’s recommendations. After that, McHugh wrote, the SKA and the other petitioners in the DOAH challenge “had the opportunity to file an appeal with the Second District Court of Appeal within 30 days”; yet, none of them did so.

In a statement issued on Sept. 25, the Siesta Key Association (SKA) board wrote, “This ruling is an unexpected outcome, a departure from two earlier approved decisions on our Writ for Mandamus. It’s deeply disappointing to all of us who would expect, and properly request, local governance oversight on this project.”

The statement added, “The Siesta Key Association Board of Directors will consider this recent decision and with legal guidance, determine our future actions.”

(From left) Siesta Key Association board members Catherine Luckner, Jean Cannon, Joyce Kouba, Erin Kreis and Roland Clark listen to a speaker during their regular meeting on Sept. 5. Rachel Hackney photo

In a Sept. 19 email, Sarasota City Attorney Robert Fournier notified the city commissioners and senior city staff of McHugh’s order.

In an email the same afternoon, City Manager Tom Barwin wrote, “This is very welcome news. This appears to bring to closure all local legal objections. I think this confirms our staff and legal advisors have been compliant with all local laws and regulations and professional as they have navigated this complex and multi-year project.”

Barwin added, “Although we regret so much time and resources have had to be spent on these unfounded legal challenges, we are now closer to implementation. It remains critical that this project move forward as expeditiously as possible as the south Lido shoreline, property and infrastructure in proximity of it, remains threatened.”

However, the decision in the SKA case does not end the legal challenges to the proposal to remove up to 1.3 million cubic yards of sand from Big Pass for the Lido shoreline.

As the News Leader reported last week, a second Siesta Key-based nonprofit — Save Our Siesta Sand 2 (SOSS2) — continues to be engaged in a lawsuit it filed against the USACE in January in U.S. District Court for the Middle District of Florida. The timeline set by the judge in that case calls for the final document to be submitted on Dec. 6.

Because the lawsuit has been designated a “track two case,” no hearing will be conducted. U.S. District Court Chief Judge Steven D. Merryday will decide the case on the basis of the attorney’s briefs and supporting materials.

A stall in the Lido bid process

An engineering drawing in the bid package for the Lido Key Hurricane and Storm Damage Reduction Project, published in May, shows the northernmost area of Lido Key Beach that is the focus of the project. Image courtesy U.S. Army Corps of Engineers

In the meantime, the U.S. Army Corps of Engineers (USACE) does not expect to issue another solicitation package for what officially is the Lido Key Hurricane and Storm Damage Reduction Project until late this year or early 2020, The Sarasota News Leader has learned.

The USACE and city staff had expected to get the project underway this fall. However, after bids for the solicitation the USACE published in May came in far higher than expected, the federal agency cancelled that solicitation.

In response to a News Leader request for an update, Amanda D. Parker, public affairs specialist with the USACE at its district office in Jacksonville, wrote in a Sept. 20 email, “According to the program manager, the Corps has not re-advertised the Lido Key Hurricane and Storm Damage Reduction Project yet. We expect to re-advertise the contract in December 2019-January 2020 time frame.”

City and Lido Key Residents Association seeking attorneys’ fees in SKA case

Kevin S. Hennessy is the primary attorney for the Lido Key Residents Association in the SKA case. Photo from the Lewis, Longman & Walker website

Two remaining motions on which Judge McHugh has yet to rule in the SKA case cover attorneys’ fees and costs sought by the City of Sarasota and the Lido Key Residents Association (LKRA).

On Sept. 23, the city provided an affidavit showing that the expenses for its representation in the SKA case added up to $26,495.50 through May 31.

The LKRA filed its motion in early August. The association was allowed to intervene in the SKA lawsuit after its attorneys made clear that the stability of the Lido shoreline is vital to property owners and businesses on the barrier island.

The LKRA’s Aug. 13 motion points out that on Oct. 12, 2018, McHugh dismissed the original version of the SKA complaint against the City of Sarasota, with prejudice, meaning that the SKA’s argument could not be used in a new filing in the case.

McHugh had ruled that she had found “little precedent” for the SKA’s contention that a county comprehensive plan “qualifies as a law, rule or regulation.”

The SKA had cited Environmental Policy 4.6.1 in Sarasota County’s Comprehensive Plan as the basis for its argument that the city had to seek formal approval from the county before any sand could be removed from Big Pass, which never has been dredged. That policy calls for the county to “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.”

In its Aug. 13 motion, the LKRA pointed out, “Despite the dismissal, [the SKA] filed an Amended Complaint on October 23, 2018 which again asserted a cause of action” under the same section of the Florida Statutes as the lawsuit McHugh  had dismissed.

Subsequently, the LKRA motion continued, McHugh also dismissed that cause of action.

The same statute the SKA had cited in both versions of its complaint states that “‘the prevailing party or parties shall be entitled to costs and attorney’s fees.’ (emphasis added),” the LKRA motion pointed out.

As the LKRA was the prevailing party, the motion added, it is seeking “reasonable attorneys’ fees and costs incurred” in fighting the SKA’s earlier versions of its complaint.

Kevin S. Hennessy of the St. Petersburg firm Lewis, Longman & Walker has been representing the LKRA in the SKA cases.

The city motion’s argument mirrors that of the LKRA motion. “There can be no reasonable dispute that Defendant is the prevailing party,” the city motion said.

A years-long process

After the SKA filed its initial complaint against the City of Sarasota, in March 2017, Circuit Judge Lon Arend — who originally presided over it — put the matter in abeyance until after the DOAH proceeding was concluded.

FDEP Secretary Noah Valenstein. Photo from FDEP

Following the DOAH proceeding in December 2017, Administrative Law Judge Bram D.E. Canter recommended that FDEP proceed with awarding the permit for the Lido project. However, the judge did call for two amendments to the permit: Based on evidence presented during the DOAH proceeding on behalf of SOSS2 and the SKA, the judge first recommended that no dredging take place in two segments of Big Pass from April through September because of the spawning of spotted seatrout during that period each year. R. Grant Gilmore Jr., president of the Vero Beach consulting firm Estuarine, Coastal and Ocean Science Inc., had testified that that spawning is “important to the conservation of the species.”

Second, Canter called for a dredging limit of 1.3 million cubic yards of sand. Another expert witness for the two nonprofits had testified during the DOAH proceeding that the USACE’s proposal, as outlined to FDEP in the application materials, could entail the removal of 1.7 million cubic yards of sand.

Incorporating those recommendations, FDEP Secretary Noah Valenstein issued the amended permit to the city and the USACE on June 18, 2018.

Then, as the Lido Key Residents Association (LKRA) pointed out in its motion for attorney’s fees and costs, the SKA filed its amended complaint in late October 2018.

Following two dismissals of the SKA case, McHugh gave the nonprofit a final opportunity this year to file a revised Petition for Writ of Mandamus.

In that alternative petition, the SKA provided evidence of a May 2017 meeting between its representatives and senior city staff members. SKA leaders argued that, during that discussion, they directly asked the city staff to undertake a formal process to show the Lido project would be consistent with the city’s Comprehensive Plan and the county’s Comprehensive Plan.

In her Sept. 19 order, McHugh noted, “There is conflicting testimony regarding whether [SKA Environmental Committee member Robert] Luckner demanded that the City conduct a consistency determination” during that May 23, 2017 gathering. “Luckner remembers making such a demand verbally at the meeting,” McHugh wrote, “but did not include any reference to it in his post-meeting summary email sent to Ms. [Nora] Patterson.”

This is the May 23, 2017 email exchange between Robert Luckner and Nora Patterson, as shown in an SKA exhibit for the July 23 hearing. Image courtesy 12th Judicial Circuit Court

A former city and county commissioner, Patterson facilitated the May 2017 gathering on behalf of the SKA, Luckner testified in July.

Both [City Manager Tom] Barwin and [City Engineer Alexandrea] DavisShaw deny that Luckner made the verbal demand,” McHugh added.