Siesta Key Association pursues variation of its original argument in amended Circuit Court complaint filed to try to stop dredging of Big Pass

City of Sarasota has 20 days to respond to part of complaint, city attorney says

South Lido Key, including Ted Sperlling Park, usually are readily visible across Big Pass from Siesta Key. File photo

With the presiding judge having dismissed its original complaint on Oct. 12, the Siesta Key Association (SKA) has filed an amended complaint against the City of Sarasota in the 12th Judicial Circuit Court in an effort to prevent the dredging of Big Sarasota Pass to renourish part of South Lido Key Beach.

Divided into two parts, Count I of the 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 forWrit of Mandamus, which “requests that the court compel the City to perform its indisputable legal duties …”

As the SKA’s attorney, Kent Safriet of the Tallahassee firm Hopping Green & Sams explains in the amended complaint, “A Writ of Mandamus is a command from a court directed to another, such as a governmental entity, requiring that party to perform an act that the party has a legal duty to perform because of its official position.”

A USACE map shows the borrow areas proposed in Big Pass. Image courtesy FDEP
An exhibit included with the amended complaint shows an aerial view of Big Pass with a boundary indicating territory within the county’s jurisdiction. Image courtesy Siesta Key Association

In this situation, the SKA’s amended complaint specifies the city’s legal duties as the following:

  • Complying with the city’s own Action Strategy 1.1 in its Comprehensive Plan, which the SKA interprets as requiring the city to submit the Big Pass project details to the Sarasota County Commission to ensure the plans are consistent with the county’s Comprehensive Plan.
  • Complying with a section of the county’s Code of Ordinances by obtaining a county permit for the dredging project.

The Florida Department of Environmental Protection (FDEP) has issued a Joint Coastal Permit to the City of Sarasota and the U.S. Army Corps of Engineers (USACE) that would allow the removal of 1.3 million cubic yards of sand from three borrow areas in Big Pass to renourish about 1.6 miles of South Lido Key Beach. “Borrow Area B is a southern extension of the existing Big Sarasota Pass channel located offshore of Siesta Key in an area outside the geographical boundary of the City and wholly within the geographic boundary of Sarasota County,” the amended SKA complaint argues, providing exhibits to support that allegation.

Portions of Borrow Areas C and D also are outside the city’s geographic boundary, the complaint says.

“The City has refused to even submit its Project to the County for review of the Project for consistency with the County’s Comprehensive Plan,” SKA attorney Safriet writes in the amended complaint. Thus, the SKA and its co-plaintiff, David Patton of Siesta Key, have no other legal remedy they can pursue other than a Writ of Mandamus, to force the city to comply with the comprehensive plans.

The SKA is seeking legal expenses and “reasonable attorneys’ fees,” the amended complaint also notes.

City Attorney Robert Fournier. File photo

The city has 20 days to file a response to Count I, City Attorney Robert Fournier told The Sarasota News Leader in an Oct. 26 email. As for the Petition for Writ of Mandamus, Fournier wrote, “[T]he City would wait to respond until the Court issues [an] Order to Show Cause.” In this case, based on information provided by Cornell University’s Legal Information Institute, such an order would be a demand from the court for the city to justify or prove why the court should not grant the SKA’s petition.

A variation on the argument

In a renewed argument this summer of its original verified complaint — which a 12th Judicial Circuit Court judge put on hold in April 2017 — the SKA contended that the city was violating the state’s Environmental Protection Act by not seeking Sarasota County permission to undertake the dredging of Big Pass. The SKA based its assertion on a policy in the county’s Comprehensive Plan, as well as on its reading of the city Comprehensive Plan.

However, Circuit Court Judge Andrea McHugh wrote in her order dismissing the case that she found “little precedent” for the SKA’s argument that a comprehensive plan “qualifies as a law, rule or regulation.”

The amended complaint, filed on Oct. 23, contends that the Environmental Protection Act, as codified in Section 403.412(2)(a) of the Florida Statutes, does indeed provide a cause of action for the nonprofit. That act, the amended complaint points out, gives “a citizen of the state” the right to take legal action against “[a]ny governmental agency or authority charged by law” with enforcing laws and regulations for the protection of the air, water and other natural resources of the state, to compel that agency or authority to enforce those laws and rules.

“The Plaintiffs are citizens of the State,” the amended complaint adds.

David Patton. File photo

Moreover, the amended complaint says, the act’s definition of “governmental agency” includes any local government; thus, the City of Sarasota, as a political subdivision of the state, “is a governmental agency within the meaning of the Act.”

Then the amended complaint cites Section 54-653(4)(a) of the Sarasota County Code of Ordinances, which 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 the applicant specifically is exempt under a provision of the County Code.

Another section of the County Code includes dredging under the definitions of “Altering,” attorney Safriet points out in the amended complaint.

Additionally, the code defines “‘Jurisdictional Area’ as ‘all water bodies, watercourses or waterways in the coastal areas of Sarasota County,’” the amended complaint says.

Because the dredging of Big Pass would not be a maintenance project related to a structure — which would exempt the city from seeking a county permit for the undertaking — the city must obtain a county permit, the amended complaint contends.

Therefore, the SKA and its co-plaintiff, David Patton of Siesta Key, are asking the court to declare that the city must comply with the County Code by applying for a permit for the dredging. If the city will not do so, the amended complaint continues, then the SKA and Patton request that the court issue an injunction to prevent any dredging until the city has obtained a permit from the county.

The Petition for a Writ of Mandamus

In the second part of the amended complaint, SKA attorney Safriet points out that to obtain a Writ of Mandamus, the Florida Supreme Court ruled in 2009 that a petitioner “‘must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy available.’”

The petitioner also has to establish standing, “which requires the petitioner ‘to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly,’” based on a Florida Fourth Circuit Court of Appeal decision in 2014, attorney Safriet argues in the amended complaint

U.S. Army Corps of Engineers graphics show depths in New Pass and Big Pass in 2004 and in 2010. Image from FDEP

Co-petitioner Patton owns property on Siesta Key, where he lives, the amended complaint points out. The SKA has about 1,700 members who, like Patton, use and enjoy the beaches on the island and use Big Pass, the pass’ ebb shoal and the Gulf of Mexico “for recreational and aesthetic purposes,” the amended complaint continues. The pass and the ebb shoal at the pass’ entrance, the amended complaint points out, “are part of a complex system that allows the transfer and sharing of sand from Lido Key onto the beaches of Siesta Key. The large-scale dredging of sand from this complex system … will negatively impact the natural drift of sand onto the Siesta Key beaches, impact the navigation of Big Sarasota Pass, diminish storm protection for those living on Siesta Key and along Big Pass, and impact anyone who uses the shoals of Big Pass for swimming, boating, and fishing,” Safriet adds in the amended complaint.

The USACE is proposing to dredge the pass not once but approximately every five years over the 15-year life of the FDEP permit, Safriet stresses.

If the city does apply to the county for a “development order” to dredge the pass, Safriet continues in the amended complaint, the SKA and Patton will have 30 days to challenge that, as provided for in the county’s Comprehensive Plan.

Kent Safriet. Image from the Hopping Green & Sams website

Additionally, Safriet argues, “The City has an indisputable legal duty to comply with its own Comprehensive Plan (“Sarasota City Plan”). The amended complaint notes that the Florida Statutes say, “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.”

The amended complaint points out, “The Sarasota City Plan contains a provision requiring that the City comply with the Sarasota County Comprehensive Plan,” and Environmental Policy 4.6.1 of the county Comprehensive Plan “prohibits 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.”

Big Pass never has been dredged, the amended complaint notes.

“Petitioners have no other adequate remedy at law other than a Writ of Mandamus” to enforce the city to comply with its City Plan and with the Sarasota County Code, attorney Safriet writes in the amended complaint.

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