Siesta Key Association says City of Sarasota has been misleading in its legal arguments to try to stop the nonprofit’s efforts to prevent the dredging of Big Pass

Nonprofit also contends the city is wrong in asserting that the SKA’s recourse should only be an administrative law hearing, not a challenge in Circuit Court

Lido Key is north of Siesta Key, separated by Big Sarasota Pass. Rachel Hackney photo

The City of Sarasota has mischaracterized the Siesta Key Association’s effort to stop the dredging of Big Sarasota Pass through Circuit Court action, the nonprofit says its response to the City of Sarasota’s Motion to Dismiss the case.

With the parties set to meet in the 12th Judicial Circuit Court for the first time on April 24, the Siesta Key Association (SKA) also contends that the city is misleading in its framing of one argument.

In a related matter, the Lido Key Residents Association has filed to intervene in the case, citing the fact that its members “are regular users of Lido Key beach, the beach which is to receive the sand placement in the permit being challenged in this lawsuit.”

The SKA’s March 9 filing of a verified complaint is not an improper adjunct to the administrative challenge it has filed with the state, the nonprofit argues in its April 19 response to the city’s April 5 Motion to Dismiss the complaint.

“This case is a completely separate and distinct case” from the administrative challenge the SKA filed in January, arguing that the Florida Department of Environmental Protection (FDEP) should not issue a permit to the city and the U.S. Army Corps of Engineers (USACE) to remove about 1.2 million cubic yards of sand from Big Pass to renourish a 1.6-mile stretch of South Lido Key.

The city “completely ignores the fact that [FDEP] has expressly stated it does not have jurisdiction … over the very issue in this case,” the complaint adds, and that means the state Division of Administrative Hearings also does not have jurisdiction over the issue.

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 response points out that the SKA filed its complaint in the 12th Judicial Circuit Court under Section 403.412(2)(a) of the Florida Statutes, which allows the nonprofit “‘to maintain an action for injunctive relief’ against ‘[a]ny person, natural or corporate, or governmental agency or authority to enjoin such persons, agencies, or authorities from violating any laws, rules, or regulations for the protection of the air, water, and other natural resources of the state [emphasis added in the response].’”

The heart of the SKA’s argument in the court case is that the city has violated Sarasota County’s Comprehensive Plan by not seeking county approval of the proposal to dredge the pass. SKA leaders repeatedly have cited county Environmental Policy 4.6.1, which calls for county approval before any dredge and fill activities occur in the Gulf of Mexico and within the county’s bays, rivers and streams. Big Pass never has been dredged, SKA Vice President Catherine Luckner and her husband, Robert — a member of the SKA’s Environmental Committee — have pointed out. Yet, no one from the city has made an effort to seek county permission for the Lido Renourishment Project, they have argued. Referencing language in the state statutes, they maintain that sections of the proposed borrow areas in Big Pass are within the county’s territory. They have produced a map — using city software — to illustrate their argument.

FDEP “will not and cannot” answer the question of whether the city has violated the county’s Comprehensive Plan policy, the SKA response says. “In fact,” the response continues, FDEP “specifically stated that “‘it maintains that “comp plan consistency” is not a requirement of the Joint Coastal Permit which is the subject of [pending administrative proceedings] and therefore not within the Department’s final order jurisdiction.’” [Emphasis again is in the filing.]

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

The SKA references an FDEP response in the administrative challenge docket to support this part of its argument.

The SKA does agree with the city’s assertion that comprehensive plan consistency no longer is necessary before a Joint Coastal Permit can be issued. That previous provision called for “Written evidence, provided by the appropriate governmental agency having jurisdiction over the coastal construction, that the proposed coastal construction, as submitted to the Department, is consistent with the state-approved Local Comprehensive Plan,” the SKA response notes. That rule was rescinded by a Jan. 11 amendment, the response adds. That is another reason it is up to the court to determine whether the Lido Renourishment Project complies with the applicable local comprehensive plans, the response points out.

(The SKA also has raised the question that the city is not following its own Comprehensive Plan with the proposal for the dredging, because its plan requires it to comply with the county’s plan, as provided for in the city plan’s Environmental Protection and Coastal Islands Chapter.)

The response cites a 1991 Florida First District Court of Appeal decision in Taylor v. Cedar Key Special Water and Sewerage District to support its argument.

It further cites a 1981 Florida Third District Court of Appeal decision that said FDEP “appropriately noted: The issuance of … a permit by this Department, however, does not relieve the permittee from any duty to comply with applicable local requirements.”

Kent Safriet of Hopping Green & Sams in Tallahassee is the SKA attorney. Image from the Hopping Green & Sams website

Additionally, the response continues, “The City throughout its Motion [to Dismiss] fundamentally misstates SKA’s allegations in its Complaint and more egregiously attempts to mislead the Court regarding the law.” The city argues that the SKA alleges that FDEP cannot issue the Joint Coastal Permit for the dredging project until after the city has obtained the County Commission’s approval for the removal of sand from the pass. That is not true, the SKA says. “To the contrary — and this demonstrates the City’s confusion — the [permit] and the City’s compliance with the County Comprehensive Plan … are completely independent and separate items. The City has to obtain both the [permit] and the County Commission’s approval — before the dredging can happen,” the response points out.

The city’s argument that the SKA has not demonstrated that the county might refuse the city’s request for permission to dredge the pass “is irrelevant,” the response adds. The SKA “needs not plead these assumptions,” it continues. “Rather, what has been pled is that the City refuses to ask the County for approval and the injunction sought in this case would require the City to get such approval. If the City believes it can get the County Commission’s approval to dredge Big Sarasota Pass for the very first time in history, it should go seek that approval and alleviate the need for this lawsuit.”

As for the city’s argument that the USACE “is an indispensable party to the case simply because it is a co-applicant for the [permit],” the response continues, the USACE has cited federal supremacy and sovereign immunity to make clear “that this case would not affect its interests.”

Lido residents’ motion

In its April 13 motion to intervene in the case, the Lido Key Residents Association (LKRA) cites Florida Rule of Civil Procedure 1.230, which states that “anyone claiming an interest in pending litigation may at any time be permitted to assert a right [to intervene] …”

The LKRA, which was incorporated in 1980, “comprises 950 commercial entities, property owners and residents of Lido Key, the motion says. “Seventy-one percent of its members are beachfront property owners,” the motion adds.

Gulf of Mexico waves lap at a Lido Key condominium complex during a January story. Photo courtesy of Bruce Armstrong

Further, the LKRA’s “governing documents provide that its general nature, purpose and objectives include promoting the maintenance and improvement of the residential quality of Lido Key and its parks and beaches, to safeguard property rights and promote the general welfare of Lido Key, and to act in concert with other associations and organizations within the City of Sarasota to improve the general welfare of the entire area,” the motion points out.

FDEP has designated the Lido Key Beach as a critically eroded beach, the motion continues. The proposal of the city and the USACE to renourish part of the beach would directly benefit the LKRA members, the motion adds.

Sand previously placed on the beach “has eroded and accumulated in Big Sarasota Pass and its ebb shoal,” the motion says. “On many stretches of the beachfront, the only existing protection for upland structures are small bulkheads or seawalls. There is virtually no remaining sandy beach to absorb and dissipate wave and storm energy. … LKRA members have already suffered property damage from prior storm surge and even seasonal high tides,” the motion points out.

The dredging of Big Pass will return sand to Lido Key Beach that eroded from the key, the motion argues.

As of The Sarasota News Leader’s deadline for its April 21 issue, the court had not ruled on the motion.

Latest city efforts

Details related to the proposed renourishment project are contained in FDEP’s Dec. 22, 2016 Notice of Intent to issue the permit for it. Image courtesy FDEP

An April 3 update from City Engineer Alexandrea DavisShaw pointed to two measures city staff is pursuing to help the Lido residents.

One plan calls for engineers to design “protective measures for the upcoming hurricane season,” she wrote.

Second, the city has provided information to the Federal Emergency Management Agency (FEMA) about damage then-Tropical Storm Hermine wreaked on Lido Beach in August 2016.

A graphic shows the path projected for Hermine beginning on Sept. 1, 2016. Image from NOAA

“FEMA is taking a very conservative approach this time,” she continued, “and the Sarasota County [representative] is noting the volume loss [of] 11,973 cubic yards [of sand].”
However, she indicates that the city has provided an explanation that the effective loss of sand on the beach is 47,587 cubic yards. “It may be that the FEMA rules for storm damage reimbursement are too restrictive to allow the consideration of the local coastal processes,” which have resulted in the larger figure, she noted. “We will continue to push for this but may not be successful.”

In an article he submitted in late January for an LKRA newsletter, City Manager Tom Barwin wrote, “Our hope is for a permit and cost sharing agreement to recycle up to 50,000 cubic yards of sand from a [borrow] site south of New Pass.”