Nonprofit responds to City of Sarasota March 14 answer in lawsuit over proposed dredging of Big Pass
A copy of a letter the City of Sarasota’s engineer wrote to a consultant for the U.S. Army Corps of Engineers (USACE) in 2015 is not sufficient to show that the city has determined its plans to dredge Big Sarasota Pass comply with a city Comprehensive Plan policy, the Siesta Key Association (SKA) contends.
Furthermore, the nonprofit has provided proof of a meeting between city and SKA leaders, during which the SKA asked for the city to comply with local regulations. The city’s attorney had questioned the validity of the nonprofit’s claim that such a meeting ever took place.
On April 8, the SKA filed a response to the answer the city filed on March 14 in a 12th Judicial Circuit Court case that dates to March 2017. The SKA has alleged from the beginning that the city has not adhered to its own Action Strategy 1.1 in its Comprehensive Plan, as well as to a county policy, before the city and the U.S. Army Corps of Engineers can remove any sand from Big Pass.
In the aftermath of the SKA’s filing a second amended complaint in the case — including a Petition for Writ of Mandamus — Circuit Court Judge Andrea McHugh issued a Show Cause order on Feb. 11. She called upon the city to explain why she should not compel it “to make an official determination that the [Big Pass] Project is consistent with the City [Comprehensive] Plan and all other applicable local, regional, state, and federal plans and regulations.” She was referencing language in Action Strategy 1.1 of the city’s Environmental Protection and Coastal Islands Plan.
In the city response attorney John R. Herin Jr. filed on March 14, he included the copy of the March 2, 2015 letter from City Engineer Alexandrea DavisShaw to Thomas Pierro, vice president of CB&I Coastal Planning & Engineering in Boca Raton, which has been a consultant to the U.S. Army Corps of Engineers (USACE). In that document, DavisShaw wrote that the proposed dredging of the pass “is consistent with the City’s comprehensive plan, the Sarasota City Plan (2030).”
SKA attorney Kent Safriet, of the Tallahassee firm Hopping Green & Sams, pointed out in the SKA’s April 8 response that the SKA originally filed its verified complaint in the Circuit Court on March 9, 2017. “And now, two years later[his emphasis], the City presents a letter from 2015 — signed by the City Engineer (not the City Commission or even a Planning and Zoning Official) — suggesting it to be an official consistency determination of the Project for the City Plan.”
The letter was included with the application the city and the USACE submitted to the Florida Department of Environmental Protection (FDEP) later in March 2015, as they began the process of obtaining a state permit for their planned renourishment project on South Lido Key Beach. They propose to take up to 1.3 million cubic yards of sand from Big Pass to place on 1.56 miles of the shoreline, to stabilize it. (See the related article in this issue.)
However, the SKA and other organizations on Siesta Key contend that removing the sand from the pass and the pass’ ebb shoal will lead to serious property damage on Siesta. They argue that the USACE’s modeling for the project did not make use of the most modern, 3D, technology available. The USACE has stood by its findings that no harm will come to Siesta.
In his March 14 response, Herin, the city’s attorney, argued that the SKA had accessed the FDEP project application file numerous times and had to have been aware of the letter from DavisShaw.
Safriet has argued in briefs in the case and before Judge McHugh that, because the city never issued a formal determination of the consistency of the proposed Lido project with its City Plan, the SKA has not been afforded the opportunity to legally challenge the project under the guidelines of Chapter 163 of the Florida Statutes.
In his April 8 response, Safriet wrote, “[T]he Engineer’s Letter does not have any hallmarks of a consistency determination because it was only provided as support for a permit application and was never intended to be an official determination under Chapter 163, Florida Statutes.”
He added that the rights of the SKA and its co-plaintiff in the case — Siesta resident David Patton — “were never triggered because the City did not ‘render’ the letter (i.e., record it with the City Clerk), as required by Florida Statutes and case law. Second,” Safriet continued, “the City made no attempt whatsoever to publicly notice the letter, as required by statute and case law. As a result, even though [the SKA and Patton] discovered the letter by the happenstance of requesting a copy of the FDEP permit application for the Project, the letter is still today completely unknown to all other [his emphasis] aggrieved or adversely affected parties who did not receive a copy of the FDEP permit application with the Engineer’s Letter attached.”
Public notice is required by Section 163.3181(1) of the state statutes, he noted, as well as case law.
Furthermore, Safriet wrote, “Based on the City’s own allegation that the Engineer’s Letter was an official consistency determination, any affected party that did not receive a copy of the FDEP permit application still has a right to challenge that determination under Chapter 163, Florida Statutes.”
Project changes subsequent to writing of letter also cited
Moreover, Safriet pointed out in his April 8 response, DavisShaw wrote the letter “prior to major design changes that occurred as a result of the FDEP permit process. Additionally, the letter makes no determination (or even mention) of Action Strategy 1.1 of the City Plan.” Those facts, he continued, combined with “no indication of any coordination or consultation with the Planning and Zoning Division or the City Commission — requires a yet to be performed genuine consistency review of the Project.”
Regarding the changes in the project design subsequent to the submission of the application for the Joint Coastal Permit, Safriet pointed out that FDEP issued two Requests for Additional Information (RAIs). “During each RAI iteration,” he continued, “the Project design experienced significant changes, yet no updated determination was made regarding the Engineer’s Letter.”
For example, he wrote, in response to RAI 1, the city “revised the project description to include impacts to the dune system, noting that ‘dune vegetation exists in the vicinity of Groin 2, which will have to be removed.’”
The USACE has planned two groins on South Lido to try to hold the new sand in place between subsequent renourishments, which it anticipates will be needed every five years.
Further, as part of RAI 2, Safriet noted, FDEP “‘determined that seagrass resources [would] be impacted’ by the Project and requested a mitigation plan to address those impacts.”
Going back to the information City Engineer DavisShaw provided in her March 2, 2015 letter, Safriet wrote that if the court were to find the letter “is a legitimate consistency determination, the letter still does not make any finding as to Action Strategy 1.1 of the City Plan. That strategy, he continued, which is within the Environmental Protection and Coastal Islands section of the plan, “states that during the review of requests for both public and private development approval, ‘the City shall [his emphasis] ensure that applications are consistent with both [his emphasis] … the relevant environmental components of [the City Plan’ and [his emphasis] with ‘the most recently adopted and applicable local, regional, state, and federal plans and regulations.’”
The letter identifies only two areas of the City Plan, Safriet added, and neither “is even remotely related to Action Strategy 1.1.”
Safriet also pointed out that even if the court found that the city had complied with its own Comprehensive Plan, the city still has not met its legal duty in regard to Section 54-653(4)(a) of the Sarasota County Code. That section states that “[N]o work shall be performed having the effect of Altering any Jurisdictional Areas without first obtaining a permit from the County, unless specifically exempted under the provisions of [the County Code].”
The SKA long has argued that Big Pass is within the county’s jurisdiction, and it has pointed out that the pass never has been dredged.
“The Project falls well within the definitions provided in the County Code to trigger the permit requirement,” Safriet added. “The City, as co-permittee, has not obtained (or even applied for) the required permit [from the county],” he wrote.
The meeting between the SKA and city leaders
In her Feb. 11 Show Cause order, McHugh did not focus on the contention of the SKA and Patton that a May 2017 meeting served as proof of their having asked city leaders to comply with the City Plan and the county’s regulations.
However, in the April 8 response, Safriet provided documentation of the meeting, attaching a May 23, 2017 email exchange between an SKA member and Nora Patterson, a former member of both the Sarasota City and County commissions.
The email exchange involved Robert Luckner, a member of the SKA’s Environmental Committee and husband of Catherine Luckner, now the president of the SKA.
Robert Luckner thanked Patterson “for sponsoring the meeting today.” He added, “I have hope that [City Manager Tom] Barwin now understands our concerns and I think he views them as rational.”
Luckner also asked Patterson to keep confidential “the sheet of statements” he gave her at the end of the meeting.
The night of May 23, 2017, Patterson responded that she would keep the material confidential until after Luckner had had an opportunity to meet with representatives of the USACE.
She added, “It is, however, an accurate representation of what we discussed in my opinion and frankly I will be continuing to try and bring some consensus together on the issue.”
She concluded her email, “Frankly, you have bent to the compromise more than I expected and I think we have a shot.”