Member of three-judge panel of Second District Court of Appeal peppers Siesta Key Association attorney with questions about nonprofit’s argument in Big Pass case

City of Sarasota counsel and attorney for Lido Key Residents Association argue that Circuit Court judge correctly applied state law in her decision

The members of the Second District Court of Appeal panel hear oral arguments in the Siesta Key Association case on Nov. 18: (from top left) Judge Anthony K. Black, Judge Edward C. LaRose and Judge John K. Stargel. The attorneys (from left, bottom row) are Kent Safriet for the SKA; Kevin Hennessy for the Lido Key Residents Association, and John R. Herin Jr. for the City of Sarasota. News Leader image

A member of the three-judge panel that heard oral arguments this week in the Siesta Key Association’s appeal in its Big Sarasota Pass case asked numerous questions about the nonprofit’s allegation that the City of Sarasota needed a Sarasota County permit before any sand could be removed from the pass to renourish Lido Key Beach.

The city was the co-applicant with the U.S. Army Corps of Engineers (USACE) for the state Joint Coastal Permit to undertake the placement of sand on Lido Key Beach.

Kent Safriet of the Tallahassee firm Hopping Green & Sams, attorney for the Siesta Key Association (SKA) and its co-appellant, David N. Patton of Siesta Key, explained the nonprofit’s contention that 12th Judicial Circuit Court Judge Andrea McHugh erred last year in failing to force the city to seek the county permit.

Safriet referred to Section 54-653 of the County Code of Ordinances, which says, “No work shall be performed having the effect of Altering any Jurisdictional Areas without first obtaining a permit from the Authority or Administrator, unless specifically exempted under the provisions [of a different part of the County Code, which pertains to repairs and maintenance of coastal structures].”

In this case, Safriet explained, the county’s Water and Navigation Control Authority (WNCA) would need to issue the permit. The County Commission serves as that body.

However, Judge Edward LaRose of Florida’s Second District Court of Appeal told Safriet that, in his reading of Section 54-651 of the County Code, which lays out the purpose of that chapter of the County Code, he found it to deal with construction. “Why would I need a permit from Sarasota County when I am not doing any sort of construction?” LaRose asked.

The dredging has been taking place in sovereign submerged waters of the state, LaRose pointed out.

The dredge Rockbridge works in Big Pass, just south of Lido Key Beach and Ted Sperling Park, in late July. Image courtesy of Michael Holderness

Safriet replied that the Florida Department of Environmental Protection (FDEP) permit awarded to the city and the USACE allows for the removal of up to 1.3 million cubic yards of sand and the construction of the two groins on South Lido Key Beach, one of which will be 175 feet long; the other, 345 feet in length.

Safriet asked LaRose to look at the definition of “altering” in the same portion of the County Code. That definition, Safriet said, includes “dredging, filling, placing, building,” among other activities.

Along with the dredging of Big Pass and the groin construction, Safriet continued, the Lido Key Hurricane and Storm Damage Reduction Project includes the destruction of an estimated 1.68 acres of seagrasses in Big Pass. Therefore, the city project meets the definition of “altering” in the County Code, he added.

“The pass has never been dredged before?” LaRose asked.

“That’s correct,” Safriet replied.

Then Safriet explained that the SKA’s cause of action comes under Florida Statute 403.412(2)(a). That says, “The Department of Legal Affairs, any political subdivision or municipality of the state, or a citizen of the state may maintain an action for injunctive relief against:

“1. Any governmental agency or authority charged by law with the duty of enforcing laws, rules, and regulations for the protection of the air, water, and other natural resources of the state to compel such governmental authority to enforce such laws, rules, and regulations;

“2. Any person, natural or corporate, or governmental agency or authority to enjoin such persons, agencies, or authorities from violating any laws, rules, or regulations for the protection of the air, water, and other natural resources of the state.”

The SKA’s cause of action came under No. 2, Safriet noted.

Section 54-653 of the County Code, Safriet continued, “is clearly a law for the protection of the air, water and other natural resources of the state.”

“The Circuit Court did not determine if a WNCA permit … is required, nor did it assess whether the city possessed one,” Safriet told the judges. Instead, he pointed out, Judge McHugh focused on Florida Statute (F.S.) 403.412(2)(e), which says, “No action pursuant to this section may be maintained if the person (natural or corporate) or governmental agency or authority charged with pollution, impairment, or destruction of the air, water, or other natural resources of the state is acting or conducting operations pursuant to currently valid permit or certificate covering such operations, issued by the appropriate governmental authorities or agencies, and is complying with the requirements of said permits or certificates.”

“That language seems to suggest that there is in place an already issued permit or certificate,” LaRose said.

Therefore, LaRose continued, because the city had obtained the FDEP permit, it appeared the SKA had no cause of action.

A Nov. 7 aerial view shows the progress on Lido Key Beach prior to Tropical Storm Eta’s passage through the Gulf of Mexico, near the county coastline, on Nov. 11. Image courtesy of Michael Holderness

Safriet reiterated his argument that the city still needed the WNCA permit from the county. “These projects require multiple permits,” he added.

“Why is the county not here?” LaRose asked.

“That’s a good question,” Safriet told him. “We didn’t sue the county. The county commissioners make all sorts of political decisions, he added.

Point, counterpoint

During his allotted time, John R. Herin Jr. of the Fox Rothschild firm in Miami, counsel for the city, stressed that the county never has objected to the Lido project “or indicated that a permit is required or otherwise said, ‘There’s a problem here.’”

Kevin Hennessy of the St. Petersburg firm Lewis, Longman & Walker, who was representing the Lido Key Residents Association, pointed to a legal precedent that he contended made it necessary for the SKA to have filed suit against the county. Then, if the county had failed to take the action the nonprofit sought, he added, the SKA could have filed its complaint based on F.S. 403.412(2)(a). The SKA’s service of the suit on the county, Hennessy said, “has the ability to correct the deficiency.”

Hennessy added that the SKA did not want to take a chance on what the county’s response would have been if it had served its complaint on the county.

(The Lido Key Residents Association was allowed to intervene in the case in Circuit Court because of its interest in the renourishment initiative as a means of protecting private property threatened by erosion.)

This is an engineering drawing in U.S. Army Corps of Engineers materials provided to FDEP, to show facets of the groin construction on Lido Key, which will include ‘marine mattresses.’ Image courtesy USACE

Safriet also cited a 2003 Florida Fourth Circuit Court of Appeal case, GLA & Associates v. City of Boca Raton, noting that it was very similar to the SKA’s suit. The City of Boca Raton, Safriet explained, had an ordinance that required a city permit for construction seaward of the established coastal construction control line. GLA & Associates had obtained an FDEP permit to “rehabilitate” a beach dune by lowering its height and then to construct a dune walkover, Safriet noted in the SKA’s appeal brief, which was filed in February.

However, Safriet stressed during the Nov. 18 oral arguments, FDEP made it clear in the permit that GLA would have to obtain a city permit.

FDEP always has recognized that, even if it awards a Joint Coastal Permit for a project, Safriet said, “that that doesn’t give you all the authority and approval you need.” Thus, the WNCA permit is necessary for the city to dredge Big Pass, Safriet added.

Judge John K. Stargel asked whether that case dealt only with sovereign submerged lands.

Not to his knowledge, Safriet replied. It just involved the Joint Coastal Permit.

Herin, the city’s counsel, contended that the GLA case dealt with a different part of state law, so it was not applicable to the SKA argument.

Herin and Hennessy also pointed out that F.S. 403.412’s reference to other laws and regulations makes no mention of ordinances. Section 54 of the County Code, Hennessy said, “is not a law, rule or regulation enforceable by 403.412(2)(a),” as Safriet argues. “Frankly,” Hennessy continued, that part of the state law “does not use the term ‘ordinance.’”

It was clear to him, Hennessy added, that if the Legislature had intended the state statute to apply to county ordinances, it would have included the appropriate language in that statute.

In his rebuttal, Safriet disputed that argument, referencing, with emphasis, a portion of the statute that says “or any other provision of law.”

Safriet also reiterated his earlier point: Circuit Judge McHugh ignored the provisions of Chapter 54 of the County Code in regard to the WNCA.

Safriet asked the Appeal Court to remand the case to the Circuit Court, so the latter could correct its ruling.

Herin and Hennessy asked for the Appeal Court to uphold McHugh’s ruling for the city and to allow her to consider appropriate attorneys’ fees for their clients.