Siesta Key Association files complaint in 12th Judicial Circuit Court to prevent dredging of Big Pass

Just three days earlier, city manager provided City Commission details of emergency efforts for Lido Key’s beach

Lido Key properties are easily visible across Big Pass from Siesta Key’s north end. File photo

The Siesta Key Association (SKA) filed a complaint in the 12th Judicial Circuit Court on March 9 in an effort to stop the dredging of Big Sarasota Pass to renourish South Lido Key Beach.

The action came 50 days after the nonprofit notified the City of Sarasota, the Florida Department of Environmental Protection (FDEP) and the U.S. Army Corps of Engineers (USACE) that it would take that step if the parties could not come to a resolution of the SKA’s allegations that the city is not adhering to the county’s Comprehensive Plan or the city’s Comprehensive Plan in the proposal to remove about 1.2 million cubic yards of sand from the pass without first obtaining county approval.

The goal of the city/USACE project is to replenish about 1.6 miles of the South Lido Beach, adjacent to the county’s Ted Sperling Park.

David Patton, a Siesta Key resident, also is a plaintiff in the SKA’s suit.

On Jan. 19, the SKA’s attorney — Kent Safriet of Hopping Green & Sams in Tallahassee — notified the FDEP, the city and the USACE that the SKA was prepared to file the complaint in Circuit Court.


The SKA’s attorney, Kent Safriet of Hopping Green & Sams in Tallahassee, provided this description of the county’s boundaries from the Florida Statutes:
Section 7.56 of the Florida Statutes: Sarasota County — The boundary lines of Sarasota County are as follows: Beginning in the Gulf of Mexico at a point on a prolongation of the township line between townships thirty-five and thirty-six south; thence east on said prolongation and said line to the southeast corner of township thirty-five south, range twenty east; thence south on the range line between ranges twenty and twenty-one east, to the southwest corner of township thirty-seven south, range twenty-one east; thence east on the township line between townships thirty-seven and thirty-eight south to the southeast corner of township thirty-seven south, range twenty-two east; thence south on the range line between ranges twenty-two and twenty-three east, to the southeast corner of township thirty-nine south, range twenty-two east; thence west on the township line between townships thirty-nine and forty south to the southwest corner of township thirty-nine south, range twenty-one east; thence south on the range line between ranges twenty and twenty-one east to the southeast corner of township forty south, range twenty east; thence west on the township line between townships forty and forty-one south to the Gulf of Mexico; thence northerly along the coast of the Gulf of Mexico, including the waters of said gulf within the jurisdiction of the State of Florida, to the place of beginning.

The SKA argues that areas of the pass slated for sand removal are within the county’s territory and, therefore, cannot be dredged without the county’s permission. SKA Vice President Catherine Luckner and her husband, Robert — a member of the SKA’s Environmental Committee — showed the County Commission a map on Feb. 7 that they said made it clear that their argument is accurate. Robert Luckner also explained that the county’s Comprehensive Plan prohibits any dredge and fill activities in county waterways that have not already been dredged, citing Environmental Policy 4.6.1. They pointed out that Big Pass is a natural waterway that has not had sand removed from it at any time.

Kent Safriet. Image from the Hopping Green & Sams website

The complaint, filed on the afternoon of March 9, asks the court to do the following:

  • Issue an injunction to prevent the Lido Renourishment Project from proceeding until the city complies with the county’s Comprehensive Plan by obtaining the County Commission’s approval of the project.
  • Issue a final judgment declaring that the project, as proposed, will violate the county’s Comprehensive Plan.
  • Issue a final judgment “declaring that the City is not enforcing and is in violation of its own laws and regulations in the City’s Comprehensive Plan,” as the complaint puts it.
  • Issue a final judgment declaring that the activities to be carried out by the city and the USACE would violate a provision of Florida Statutes, 163.3194(1)(a) — Florida’s Community Planning Act — which, the complaint says, “requires that all development undertaken by governmental agencies in regard to land covered by a comprehensive plan be consistent with such comprehensive plan as adopted.”

Catherine Luckner pointed out to The Sarasota News Leader on March 9 that the city is the only defendant in the case. More details on that would be forthcoming, she said.

What happened to a ‘Plan B’?

“We are concerned for the Lido residents,” Luckner added — a comment she has made many times since the USACE unveiled its proposal for the $19-million renourishment project in September 2013, with Big Pass as the primary sand source.

For example, she said, the city has the right to alternate with the Town of Longboat Key in dredging sand from New Pass.

Almost exactly a year ago, Luckner noted, City of Sarasota representatives seemed willing to consider a “Plan B,” when the County Commission held a discussion of the peer review it paid the internationally known firm Atkins to undertake of the Lido Renourishment Project. The SKA has been suggesting other options over the past three-and-a-half years, she added.

John R. Herin Jr. Image from the GrayRobinson website

Yet, “it appears no one developed that [Plan B]” for the property owners on Lido,” she said. “We are very sorry that they have not gotten one.”

Still, a March 7 email the City of Sarasota’s outside counsel on the case — John R. Herin Jr. of the GrayRobinson firm in Fort Lauderdale — sent to FDEP’s deputy general counsel emphasized the urgency of the renourishment project for Lido: “As you know, Lido Key Beach is recognized by the state as a critically eroded shoreline in desperate need of immediate nourishment and long-term stabilization. Every day of delay in moving forward with this Project puts peoples’ lives and property at risk.”

Writing to Francine Ffolkes, Herin also said, “I can tell you without any reservation that the City believes the administrative petitions should be immediately forwarded to the Department of Administrative Hearings independent, and irrespective, of the threatened circuit court litigation. In fact, the City requests that the Department do so without any further delay.”

In January, the SKA and Save Our Siesta Sand 2 filed administrative challenges to FDEP’s Dec. 22, 2016 Notice of Intent to issue the permit to the city and the USACE for the Lido project. Those challenges were on hold, Luckner has explained to SKA members, while the SKA’s attorney negotiated with FDEP staff about the potential court complaint.

Herin added in his email, “The City is ready to contemporaneously address the administrative petitions and any circuit court action that may be initiated challenging the proposed JCP [Joint Coastal Permit]. Any delay in either proceeding is inimical to the City’s interest, which is the soonest practicable nourishment of Lido Key Beach in accordance with the proposed JCP.”

Luckner told the News Leader late on the afternoon of March 9 that the city’s answer to the complaint is expected within 20 days, based on a response City Attorney Robert Fournier provided Safriet, the SKA attorney.

The latest city initiatives

As for the latest city efforts: During their regular meeting this week, City Manager Tom Barwin did report to the city commissioners that staff is exploring what he characterized as “stopgap measures in anticipation of storms” and other initiatives to deal with the situation on South Lido.

Sarasota City Manager Tom Barwin. Image courtesy City of Sarasota

On March 6, Barwin explained, “[City Engineer] Alex [DavisShaw] and her staff in the city are pursuing four strategies at this time.”

First, he said, they are looking at “ways to plug potential vulnerable areas” where water from the Gulf of Mexico could run into the streets during major storm events. Essentially, he continued, the focus has been put on city walking paths from the beach to parking lots or streets. Dealing with those areas would necessitate the city’s obtaining state permits, he added; DavisShaw and a city consultant are working on that process.

Private property owners with similarly vulnerable situations could take such measures, as well, Barwin pointed out.

Second, DavisShaw has been talking with representatives of the Federal Emergency Management Agency (FEMA) to determine whether the city qualifies for the fast-tracking of a beach renourishment project — using federal funding — as a response to damage from then-Tropical Storm Hermine when it passed by the area in late August.

Two years ago, the city used FEMA funds and money allocated by the Sarasota County Commission to address severe erosion on Lido that resulted from Tropical Storm Debby’s assault on the shoreline in June 2012. In January 2015, the city added about 363,000 cubic yards of sand to the beach. However, by late April 2015, most of that was gone, Paul Caragiulo, chair of the County Commission, pointed out during the March 2016 discussion of the peer review of the city/USAE proposal for Lido.

Sarasota County staff reported a few weeks ago that it, too, is working with FEMA on funding a project to replenish sand lost to Hermine on south Siesta Key, just a few months after a renourishment project was completed in that area.

Third, Barwin said on March 6, staff is working with the USACE “and dealing with the objections as best we can.”

A graphic shows the borrow areas in Big Pass and the proposed groin field. Image courtesy Florida Department of Environmental Protection

Save Our Siesta Sand 2 (SOSS2) also has been fighting the proposal to dredge Big Pass. Its chair, Peter van Roekens, has met with Barwin on more than one occasion, he has told the News Leader, and also has urged city staff to pursue an alternative source of sand for the Lido project. Van Roekens long has pointed to independent scientific research that has shown the pass’ ebb shoal protects Siesta Key from storm damage.

Finally, Barwin reported to the City Commission on March 6, he and other staff members continue to offer those opposed to the Lido Renourishment Project “ideas for compromise or other solutions that could get the beach restored in an adequate fashion and in a timely fashion.”

During the March 9 telephone interview with the News Leader, Luckner pointed out that she had had no contact from Barwin since he suggested a meeting in late December 2016. The only time he ultimately proposed proved to be on a day she already had told him she was unavailable.

Barwin’s final comment on the issue to the city commissioners on March 6 was that he would keep them posted on any results of the four strategies.

An earlier SKA update

Catherine Luckner addresses SKA members on March 4. Rachel Hackney photo

Just days before the filing of the suit — on March 4, during the SKA’s annual breakfast meeting — Luckner had voiced optimism that a retired Sarasota County commissioner’s willingness to meet with Barwin on behalf of the organization would prove fruitful.

Providing a review of the nonprofit’s activities over the previous year to about 145 SKA members, she referred to the draft of the SKA’s verified complaint that was prepared for the Circuit Court. “Until one of the people we are asking to respond to us responds,” she said, the proposal to dredge Big Pass will remain on hold.

The legal action, she continued, “has brought more thought to what [the city and the USACE] need to do, including following the provisions of the county’s Comprehensive Plan. … We hope [city leaders] and the [USACE] will talk with people who live here [on Siesta Key] about what we want.”

Then she told the SKA members, “We’re getting a lot of help from very interesting places that you may not always hear about.”

She said retired County Commissioner Nora Patterson — a Siesta resident — “may have a nice meeting set up next week with the city manager … on her own time.”

Patterson, who lives within the city limits, also is a past city commissioner. She stepped down from the county board in 2014 because of term limits. In recent months, she has attended a number of SKA meetings.

If the SKA did not end up getting the type of answer it was seeking in response to its notice of the potential Circuit Court challenge, Luckner said, the nonprofit would go forward with the case.