Siesta Key Association still maintains City of Sarasota has failed to issue adequate determination that dredging of Big Pass will not violate city policies

City and Lido Key Residents Association contend that such determination was made and completed appropriately, even though SKA disagrees with it

A 2018 satellite photo shows Lido Key north of Siesta Key, with Big Pass separating the islands. Sperling Park is at the southern end of Lido. Image from Google Earth

In his summary brief following a July 23 hearing, the attorney for the Siesta Key Association (SKA) maintains that the City of Sarasota repeatedly has refused “to issue an adequate consistency determination” regarding the proposal to dredge Big Sarasota Pass to renourish about 1.6 miles of South Lido Key Beach.

Conversely, the city and an intervenor in the 12th Judicial Circuit Court case — the Lido Key Residents Association (LKRA) — refer to July 23 testimony and case exhibits to assert that the city did make that determination and that the SKA’s dissatisfaction with that determination is no reason for the court to compel the city to repeat the determination process.

At the conclusion of the July 23 hearing, Circuit Judge Andrea McHugh ordered the filing of summary briefs in the case by Aug. 7. She said she would issue her decision after a review of all the materials and testimony.

From the outset of the SKA’s filing of the Circuit Court case, its leaders have contended that the City of Sarasota has not complied with the city’s own Comprehensive Plan or the Sarasota County Comprehensive Plan — as required by city regulations, the SKA says — in proceeding with the removal of up to 1.3 million cubic yards of sand from Big Pass.

The city was a co-applicant with the U.S. Army Corps of Engineers (USACE) for a Florida Department of Environmental Protection (FDEP) permit for what the USACE calls the Lido Key Hurricane and Storm Damage Reduction Project. (See the related article in this issue.)

Kent Safriet. Image from the Hopping Green & Sams website

In his Aug. 7 brief summarizing the July 23 arguments, SKA attorney Kent Safriet of the Tallahassee firm Hopping Green & Sams wrote that “the City has never appropriately made, issued, or published … a [consistency] determination for the current Project; and the City will not do so until ordered to by the Court [emphasis in the brief].”

In an amended complaint filed last year in the Circuit Court, the SKA asked the judge to issue a Writ of Mandamus, compelling the city to make the consistency determination.

However, in their Aug. 7, joint summary brief, the city’s outside counsel, John R. Herin Jr. of the Miami firm Fox Rothschild, and attorney Janice D. Rustin of the St. Petersburg firm Lewis, Longman & Walker — representing the Lido Key Residents Association (LKRA) — pointed to July 23 testimony in asserting that the city already had “fulfilled its duty to make an official consistency determination for the Project. A writ of mandamus should not be issued to compel performance of an act that has already been completed.”

On July 23, Tim Litchet, director of the city’s Development Services Department, told the court that he and City Engineer Alexandrea DavisShaw spent approximately 30 minutes reviewing all the sections of the city’s Comprehensive Plan that they believed to be applicable to the proposed Lido project. Their conclusion, Litchet told the court, was that the initiative would be consistent with the plan. Therefore, DavisShaw signed a letter to that effect, Litchet and DavisShaw testified, and she included it in the application the city and the USACE submitted to FDEP in March 2015, in an effort to win the state project permit.

Herin and Rustin pointed out that not only was the SKA aware of the consistency determination in DavisShaw’s March 2015 letter but that the nonprofit also received a copy of the Notice of Intent that FDEP issued in December 2016, which the city published. That notice was to let the public know that FDEP planned to issue the necessary permit to the city and the USACE. Yet, Rustin and Herin wrote, the SKA “took no action until the filing of [its] lawsuit in 2017.”

The SKA’s argument has focused on city Action Strategy 1.1. However, Litchet told the court that that strategy “is not applicable” to the Lido project, Herin and Rustin wrote in their brief.

“The fact that Plaintiffs believe that the City’s consistency determination was ‘incorrect’ or that other unknown parties may not have been aware of it is not a sufficient basis to petition this Court for a writ of mandamus” that would compel the city to make another consistency determination, Rustin and Herin contended.

Referencing a transcript of the hearing, they quoted Litchet’s testimony. “My reason for that [assertion about Action Strategy 1.1],” Litchet said, “is it deals with development approvals, and development approval is specifically defined in that section. Development approval means approval of rezonings, conditional uses, site plans, and subdivision plans and this project is none of those.”

Janice D. Rustin. Image from the Lewis, Longman & Walker website

Rustin and Herin further pointed to Litchet’s statement “that in his opinion, a review of the City’s Zoning Code is not relevant to a determination that a state permitted project, like this one, is consistent with the Comprehensive Plan. This is because the City’s Zoning Code applies only to permits that are issued by the City …”

In his brief, Safriet cited a 2009 Florida First District Court of Appeal case to underscore the SKA’s contention that the dredging of Big Pass and the expected destruction of seagrasses in the sand borrow areas qualify as “development.” He added that the city’s Comprehensive Plan “expressly states that approval for the activities undertaken as part of the [Lido] Project requires ‘approval’ of the City … and no such approval has been granted nor even requested pursuant to Section 1.1.”

Safriet also referenced a portion of Action Strategy 1.1 that “states that during the review of requests for both public and private development approval, ‘the City shallensure that applications are consistent bothwith the relevant environmental components of [the City Plan]’ andwith ‘the most recently adopted and applicable local, regional, state, and federal plans and regulations [emphasis in the document].’”

The latter point goes to the SKA argument that the city has failed to comply with a Sarasota County environmental policy that requires county approval for removal of sand from any waterway that never has been dredged, and Big Pass is such a waterway.

‘Express and distinct demand’

In their brief, Rustin and Herin further noted that Circuit Judge McHugh specifically called for the parties in the case to address four points during the July 23 hearing:

  • When the SKA made a demand on city officials for compliance with Action Strategy 1.1.
  • Which city officials, if any, made an official determination that the Lido project complied with Action Strategy 1.1
  • When city officials made that determination.
  • How city officials “gave public notice to aggrieved or adversely affected parties of the Project that the Project complied with Action Strategy 1.1.”

In his brief, Safriet argued that the SKA made four separate demands on city officials for the consistency determination. The first was on Jan. 19, 2017, when the SKA provided a draft to city leaders of the original complaint it planned to file in Circuit Court to try to stop the dredging of Big Pass. The second, he continued, was when the nonprofit formally filed suit against the city on March 9, 2017.

The third time, Safriet wrote, was on May 23, 2017, when SKA representatives met with city senior staff members. The fourth occasion, he continued, was on April 23 of this year, when SKA President Catherine Luckner transmitted an email with an attached letter to City Manager Tom Barwin and 10 other city officials, “‘expressly demand[ing] the City make a written determination that the Project is or is not consistent with all applicable local, regional, state and federal plans and regulations for the Project.’”

In their brief, Rustin and Herin argued that the evidence in the case showed that the SKA’s requests to the city “amounted to nothing more than generalized objections to the Project and the consistency determination that the City made in 2015 that was included with the permit application submitted to [FDEP].”

City Engineer Alex DavisShaw addresses the city commissioners on Aug. 20, 2018. File photo

Again, referencing the transcript of the July 23 proceeding, Herin and Rustin pointed to testimony of Robert Luckner, who was a member of the SKA Environmental Committee, but not its board, until just recently. (Luckner was introduced as a new board member when the SKA conducted its regular meeting on Aug. 1.)

When asked if Luckner was aware, prior to the preparation of the SKA’s Circuit Court complaint, “that the city had made a consistency determination as part of the permit application,” Rustin and Herin wrote, Luckner replied on July 23, “I thought they made an incorrect one, yes.”

That’s why we didn’t ask them to make yet another attempt at it [emphasis in the brief],” Luckner testified, as Herin and Rustin noted, quoting from the July 23 transcript. “We asked them instead,” Luckner told the court, “to comply with their law in comprehensive planning.”

Luckner testified that he found DavisShaw’s consistency determination letter while poring through 1,958 pages of documents in the joint city/USACE application to FDEP. He indicated that it was not easy to locate among all those materials.

As for the May 23 meeting, Rustin and Herin wrote that Luckner’s own notes from that session — submitted as an SKA exhibit in the case — “refute his testimony” that the SKA leaders on that date requested a consistency determination. “On its face, this document states that it provides a complete summary of what was discussed at the meeting, yet it makes no mention of anything relating to a demand that the City perform a consistency determination for the Project,” Herin and Rustin contended.

This is the May 23, 2017 email exchange between Robert Luckner and Nora Patterson, as shown in an SKA exhibit for the July 23 hearing. Image courtesy 12th Judicial Circuit Court
These are the talking points for the May 23, 2017 meeting that Robert Luckner referenced during the July 23 hearing. The document is another SKA exhibit in the case file. Image courtesy 12th Judicial Circuit Court

City Manager Tom Barwin and City Engineer DavisShaw also testified that the SKA leaders made no such demand in May 2017, Rustin and Herin added.

“It is also noteworthy,” they continued, “that the [SKA] did not choose to call as a witness [on July 23] Nora Patterson, the facilitator at that [May 23, 2017] meeting, and purportedly a person who the Plaintiffs trust, to testify as to scope of the discussions at that meeting.”

A former city and county commissioner, Patterson arranged for the May 2017 meeting, Luckner testified.

In his summary brief, Safriet argued that the SKA did make “a clear enough demand during the May 2017 meeting” and that it made two additional demands on the city — “in writing,” he emphasized — “and the City’s counsel directed its personnel to not respond.”

Luckner was the only witness SKA attorney Safriet called to the stand on July 23. Safriet asked Judge McHugh at the outset of the hearing if she would agree to allow him to question the city/LKRA witnesses when they were called by Herin and another LKRA attorney, Kevin Hennessy of the Lewis, Longman & Walker firm, in an effort to expedite the proceeding. She told him she would allow that, along with his cross-examination of those witnesses.

Luckner remained on the stand from shortly after 1 p.m., when the hearing began, to approximately 3:55 p.m., with one 10-minute break called during that time.