Siesta Key Association argues that county law necessitates that the City of Sarasota ask for a county permit before dredging Big Pass

12th Judicial Circuit Court judge to consider arguments in hearing on amended complaint filed to try to stop removal of sand from Big Pass

A 2018 satellite photo shows Lido Key north of Siesta Key, with Big Pass separating the islands. Image from Google Earth

The leaders of the City of Sarasota have a duty under a provision of the Sarasota County Code to request county permission to dredge Big Sarasota Pass as part of a 50-year-long proposal to stabilize the South Lido Key shoreline.

That was the argument the Tallahassee attorney for the Siesta Key Association (SKA) made during an approximately hour-long hearing on Dec. 20, 2018 before a 12th Judicial Circuit Court judge.

In an amended complaint filed Oct. 23, 2018, the SKA petitioned the court for a Writ of Mandamus, asking Circuit Court Judge Andrea McHugh to order that the city make the request of the city.

On Oct. 12, 2018, McHugh dismissed the SKA’s original complaint against the City of Sarasota. On Oct. 23, the SKA and Siesta Key resident David Patton filed an amended complaint. The first part of that new action asks the court to stop the City of Sarasota from violating state laws and regulations that protect the air, water and other natural resources in the state. The second part is a Petition for Writ of Mandamus, which “requests that the court compel the City to perform its indisputable legal duties …”

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

After the Dec. 20 hearing, McHugh told the parties, “This is somewhat complicated to me.” She added that she would rule later. “I’ll get you something as soon as I can.”

Her October 2018 ruling came almost three months after a July 24 hearing on the original complaint.

On Dec. 20, McHugh told SKA attorney Kent Safriet of Hopping Green & Sams that she has dealt with a number of Mandamuscases in the context of public records requests. “What I typically look for is what was the demand on the agency.” When she asked what the original demand was in the SKA’s case, Safriet explained that the lawsuit was filed in March 2017 in an effort to require the city to apply for a county permit for the Lido project. “We made the request in public in this courtroom. … For a year and a half, [city leaders] have refused.”

(Circuit Court Judge Lon Arend presided over that first hearing, which was held in late April 2017.)

“I didn’t mean to imply that the city doesn’t know what you want,” McHugh responded.

“I can send them a letter tomorrow,” Safriet replied, if that was what the judge desired.

Conversely, the Fort Lauderdale attorney representing the City of Sarasota — John Herin — stressed to McHugh that the city itself does not plan to undertake the dredging. Instead, Herin said, the U.S. Army Corps of Engineers will be handling the project to add sand to about 1.6 miles of South Lido Key Beach. Renourishments are proposed approximately every five years under the U.S. Army Corps of Engineers (USACE) plan.

Herin, of GrayRobinson, explained that the city was only a co-permittee for the project because that status would enable the city to pursue the Lido Key renourishment initiative on its own if no federal funds were made available for the USACE to participate in the initiative.

Yet, Safriet pointed out that, during the first hearing on the original SKA complaint in the case, Herin talked of the potential of the city’s withdrawing from the permit process, which was then still underway with the Florida Department of Environmental Protection (FDEP).

On Dec. 20, Safriet also told the judge that the permit FDEP issued to the city and the USACE on June 18 requires the city to obtain any other necessary permits, including local ones, before beginning the Lido project. The FDEP permit, he added, “cannot possibly authorize” action necessitated by another local government body. “Nobody can dredge [Big Pass] without getting a permit [from the county],” Safriet said, as Big Pass is within the county’s jurisdiction. The county could decide, he continued, that the city is exempt from obtaining such a permit. “Let the county say [the city is] exempt.”

This is Condition No. 3 in the permit FDEP issued in June to the City of Sarasota and the USACE for the Lido Renourishment Project. Image courtesy FDEP

However, Herin referenced an opinion of County Attorney Stephen DeMarsh, which DeMarsh provided during a report to the County Commission on July 10, 2018. In response to a question from Commissioner Alan Maio, DeMarsh said that after working with county staff members “and reviewing [county Comprehensive Plan] Environmental Policy 4.6.1, it is our opinion and [staff’s] opinion that [that policy] only applies to private dredging operations and has never been applied to a public project to dredge.”

DeMarsh added, “It has been my opinion that that environmental policy would not come into play in the event that there were beach nourishment projects requiring a sand source, and therefore dredging, in the Gulf of Mexico. It simply does not apply.”

“Sarasota County has told the plaintiffs and told the city, ‘There’s nothing that we need to issue for this project,’” Herin told McHugh on Dec. 20.

More questions; more assertions

Kent Safriet. Image from the Hopping Green & Sams website

McHugh asked Safriet, “Wouldn’t you have to include the county [in the legal challenge] — that I order the county to do something?”

“Not yet,” Safriet said, adding that that might be the next step. If she requires the city to apply for county permission for the Lido project, he continued, “then the county has something to act upon.” Depending on the county response, he continued, the SKA might pursue legal action against the county.

He also emphasized that the SKA filed its original complaint more than a year before FDEP issued the permit to the city and the USACE. “It seems to me that the city wants to rush and start the project,” without resolving the issues the SKA has raised, he added. “If you would like for us to join the county [to the complaint], I’m more than happy [to do so], but it’s premature.”

Herin argued the opposite point: “The thing that is missing,” he told McHugh, “is Sarasota County. It is an indispensable party in this action … and we have been saying that for a year-and-a-half to the plaintiffs …” Yet, he said, the SKA and co-plaintiff Patton refused to add the county to their complaint.

That day, Herin added, was the first time the prospect of their doing so had arisen.

Herin further pointed out that the USACE should be a party in the complaint, noting that he had provided McHugh a copy of the agreement between the USACE and the City of Sarasota for the Lido Shoreline Protection Project.

If an entity needs to obtain a permit from the county for the dredging of Big Pass, Herin continued, then that entity is the USACE. “The City of Sarasota is not going into Sarasota County at any point in this project.”

McHugh summarized Herin’s remarks, noting that the SKA and Patton were asking for the city to send a formal request to the county, and the county already has said it does not need to issue a permit. “You’re saying [a letter from the city] really doesn’t matter,” she told Herin. “I don’t understand why your client doesn’t send a letter.”

John R. Herin of Gray Robinson has represented the city in the case. Image from the GrayRobinson website

Herin reiterated that the county has taken the position that no such permit request is necessary.

Safriet told McHugh that city leaders did not want to take such action, because that would start the figurative clock ticking on the 30-day timeline afforded to the SKA under state law to challenge that, as provided for in the county’s Comprehensive Plan. “They want to stymie us on that.”

Safriet was referring to Section 163 of the Florida Statutes. In the SKA’s amended complaint, he cited part of that law, which says, ““After a comprehensive plan . . . has been adopted in conformity [with Florida Statutes], all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted.”

Focus on the County Code of Ordinances

The SKA also contends that a county law is applicable to the proposed dredging of Big Pass, Section 54-653(4) of the Code of Ordinances, states, “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 section 54-653(4)(g).”

Big Pass is within the county’s jurisdiction, the SKA and Patton have argued, and it never has been dredged. Section 54-653(4)(g) of the County Code exempts only maintenance work from the permitting requirements provided in the code, Safriet contended in the amended complaint.

Herin argued, conversely, that the SKA and Patton could file an action against the county, seeking a determination about the application of state law to the county’s decision.

“There’s not one shred of factual allegations in the complaint that require the city to apply to Sarasota County for anything,” Herin added.

“Do you believe that if the Army Corps … and the county were named as parties [in the SKA complaint], then there would be a valid duty alleged [in the SKA’s Petition for Writ of Mandamus]?” McHugh asked Herin.

“No,” he responded, adding that decisions relating to consistency of projects with a Comprehensive Plan “are discretionary in nature. They don’t arise out of a legal duty.”

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

Mandamus applies when you have no other remedy under the law,” he said.

Kevin S. Hennessy of Lewis, Longman & Walker, the St. Petersburg law firm representing the Lido Key Residents Association, told McHugh, “If [the city] violated a county ordinance, then it would be up to the county to enforce its own code,” just as the county would in any other situations in which its code had been violated.

“They should be suing the county,” Hennessy added of the SKA and Patton, if they believe the proposed project would violate county law.

Hennessy also referenced the order McHugh issued on Oct. 12, ruling against the SKA’s original complaint. In that, he pointed out, she characterized a comprehensive plan as a guideline, not established law. “You can give ’em points for creativity, I guess,” he continued. “I can only assume it’s political, which is why they don’t want to sue the county.”

Yet, McHugh told him that her earlier order “doesn’t preclude a finding that there is still a specific duty [for the city to undertake].”

Safriet pointed out to McHugh that the SKA was not asking for an order from the court to tell the county or the city what their comprehensive plans say. All the SKA and Patton were seeking, he stressed, was a letter from the city to the county, seeking a county determination that the city is exempt from needing a permit for the dredging of Big Pass.

He again referred to Section 54 of the County Code, which, he pointed out, is a regulation, not a guideline in the county’s Comprehensive Plan.

If the county says the city is exempt, Safriet continued, then the SKA and Patton could pursue a challenge under Section 163 of the Florida Statutes.

“You’re saying that a county ordinance can impose a legal duty on a city official?” McHugh asked Safriet.

Section 54 of the County Code, Safriet replied, “imposes a duty on anybody that dredges in Sarasota County waters.”