Siesta Key Association files appeal of Circuit Court ruling in its efforts to try to prevent dredging of Big Pass

Second District Court of Appeal issues notice of acknowledgement and assignment of case number

Several of the Siesta Key Association directors prepare for the start of the Oct. 3 meeting. Rachel Hackney photo

On Oct. 4, the Siesta Key Association (SKA) filed notice with the Second District Court of Appeal that it is appealing not only the latest ruling in its 12th Judicial Circuit Court case but also two other decisions, one of which dates to Oct. 12, 2018.

On Oct. 7, the Court of Appeal issued a formal acknowledgement of the new case and assigned it a number on the docket.

On Sept. 19, Circuit Judge Andrea McHugh ruled that the City of Sarasota “did not have an indispensible legal duty” to issue a determination about whether its plans to remove sand from Big Sarasota Pass to renourish about 1.6 miles of South Lido Key Beach is consistent with its Comprehensive Plan.

The SKA originally filed a complaint against the city in March 2017, arguing that the city was in violation of the city’s own Comprehensive Plan and the Sarasota County Comprehensive Plan in proceeding with the proposal for the Lido Key project. At the time, the city and the U.S. Army Corps of Engineers (USACE) were working through a process within the Florida Department of Environmental Protection (FDEP) to obtain the necessary permit for the renourishment initiative. FDEP finally issued that permit in June 2018.

McHugh also ruled against the SKA in October 2018 and again in January; both those rulings are among the decisions the SKA is appealing. After each decision, the nonprofit modified its arguments in an effort to win a ruling in its favor.

During the Oct. 3 SKA meeting, Robert Luckner — formerly just a member of the nonprofit’s Environmental Committee but now a director — reported to members that the SKA’s board was considering filing an appeal.

He noted SKA leaders’ surprise at McHugh’s Sept. 19 ruling. The previous month, both he and SKA President Catherine Luckner — his wife — had said they felt confident that McHugh would rule in the nonprofit’s favor.

On Oct. 3, after Robert Luckner offered information about McHugh’s latest decision, he said he believed it would cost the SKA $400 for filing the notice of appeal. However, “It’s probably another $10,000,” he added, “if we have to file a 20-page brief. … That [brief] would be due 70 days after we file [notice of the appeal].”

(On Oct. 7, the Court of Appeal formally issued an order, notifying the SKA that the nonprofit owed another $300, in addition to $100 the SKA had paid. The additional funds were due within 20 days of that order, the notice said.)

Big Sarasota Pass separates Lido Key (to the north) and Siesta Key. Image courtesy SKA and SOSS2

During the Oct. 7 City Commission meeting, City Attorney Robert Fournier announced the SKA’s decision to appeal McHugh’s ruling. “I’m sorry to hear that,” he said. Her order “made it very clear,” Fournier added, “that the argument they were making did not have merit.”

Luckner told the SKA members on Oct. 3, “We’d just as soon settle with the city and [the Lido Key Residents Association, which is an intervenor in the case] and drop our appeal in return for some things they could do for us.”

The SKA, he continued, has “already been pretty successful in getting the city to modify their design” of the dredging plans.

He was referring to the solicitation package the USACE published for the Lido project in May. The federal agency had eliminated a portion of what has been designated Borrow Area — or Cut — C because of city utility lines that would make dredging in that area more difficult, a USACE spokesman told The Sarasota News Leader this summer.

An engineering drawing shows the area of Cut C that has been eliminated as a sand source as part of the USACE bid package published in May. Image courtesy U.S. Army Corps of Engineers

Luckner also maintained that the USACE does not need as much sand as it originally planned on to stabilize South Lido Key Beach. Updated erosion rate information Luckner says he has read indicates a smaller amount would be appropriate.

Although the USACE included the figure of 1.3 million cubic yards of sand in project documents it submitted to the state as part of the permit application, it also has noted that only 950,000 cubic yards would be placed on the Lido shoreline. The rest, permit documents indicate, would be lost through the actual dredging process, leading to some turbidity in the water, which the state stipulates that the USACE must control.

The USACE already is at work on revising the solicitation package, after cancelling the first one in early August. The federal agency announced that the two bids it opened on July 30 were “unreasonably high.”

In September, USACE spokeswoman Amanda Parker told the News Leader that the project manager was hopeful that a new solicitation would be advertised in December or January 2020. (See the related article in this issue.)

Luckner added on Oct. 3, “I feel good we’ve at least delayed ’em a few months,” referring to the city and the USACE.

Whittling down the arguments

This engineering drawing in the May USACE bid package provides a closer view of the eliminated area of Borrow Area C. Image courtesy U.S. Army Corps of Engineers

In January, after her second ruling against the SKA, McHugh did give the nonprofit a narrow window within which to make one more attempt in court. In her Jan. 18 order, she allowed the nonprofit to try to prove that the city had refused the SKA’s request for the City Commission to ask the County Commission for approval to remove sand from Big Pass.

A county environmental policy, SKA leaders have contended, forbids such action in a waterway that never has been dredged. Big Pass is one of those rare waterways from which no sand ever has been removed, SKA President Catherine Luckner has pointed out.

During a December 2018 hearing in the case, SKA attorney Kent Safriet of the Tallahassee firm Hopping Green & Sams told McHugh that, for the past year-and-a-half, the SKA had called on city leaders to make a formal request of the county to allow the USACE to dredge Big Pass, and city leaders had refused to do so. Thus, the SKA was seeking a Writ of Mandamus — a formal court order directing the city to act.

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

After McHugh issued her Jan. 18 decision, the SKA filed an amended Petition for Writ of Mandamus on Jan. 25.

This time, the SKA contended that, during a meeting of SKA leaders and senior city staff members in May 2017, the SKA leaders specifically asked the city staff to seek County Commission approval for the dredging of Big Pass. SKA attorney Safriet provided, as an exhibit, a copy of an email exchange between Robert Luckner and former City and County Commissioner Nora Patterson, who had facilitated the meeting. The SKA leaders said that the email was proof that it had made the request of the city, and the city had failed to act.

Yet, during a five-hour hearing on July 23, city Chief Engineer Alexandrea DavisShaw and City Manager Tom Barwin denied that the Luckners, who were present at the May 2017 meeting, asked them to seek county approval of the Big Pass plans.

Further, Tim Litchet, director of the city’s Development Services Department, testified about the approximately 30-minute review he and DavisShaw had undertaken before she submitted a letter, as part of the permit application to FDEP, asserting that the Lido Renourishment Project would be consistent with policies in the city’s Comprehensive Plan.

Continuing a contrary view

In his Oct. 3 remarks to SKA members, Robert Luckner criticized McHugh’s Sept. 19 ruling and facets of the earlier ones the board is appealing.

In her October 2018 ruling, McHugh wrote 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.”

This is a section of the City of Sarasota Comprehensive Plan with which SKA leaders contend the city has not complied in pursuing the Lido Beach Renourishment Project. Image courtesy City of Sarasota

She was referencing the SKA assertion that the City of Sarasota needs to comply with county Environmental Policy 4.6.1, which 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.”

“It doesn’t seem right,” Luckner told the SKA members, “to think that a comprehensive plan is not a law that’s enforceable.”

The SKA also argued in its original Circuit Court case that the city’s Comprehensive Plan calls for the city to abide by the county Comprehensive Plan.

“That the city doesn’t have to comply with their own laws is ridiculous,” Luckner added during the SKA meeting.

Paying for the appeal

During his Oct. 3 remarks, Robert Luckner also discussed the SKA’s expenses for its legal challenges to try to stop the dredging of Big Pass.

In September, he reported to the nonprofit’s members that the July hearing cost the SKA more than $20,000.

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

The SKA did achieve success in an August fundraising initiative, he said last week. The directors emailed everyone who had donated to the nonprofit’s legal fund in the past, he noted. “We sent 331 personalized emails to those who gave more than $100,” Luckner added.

So far, the SKA had raised $7,000 from that effort, he noted. The average gift was $150, he said. The contributions enabled the organization to accept a matching offer of $5,000, Luckner added.

Still, he pointed out, “We don’t have enough money to go very far with this [latest legal endeavor].”

If every one of the 331 personalized notes had netted at least $100, he pointed out, that would have given the SKA more than $30,000 with which to work.