Testimony of City of Sarasota’s Development Services director contradicts Siesta Key Association assertion in case seeking to prevent dredging of Big Pass

Tim Litchet explains review of city’s Comprehensive Plan with city engineer before filing of application for state permit for Lido Renourishment Project

Tim Litchet answers city commissioners’ questions on Nov. 19, 2018. File photo

The director of the City of Sarasota’s Development Services Department testified in the 12th Judicial Circuit Court on July 23 that he reviewed with the city engineer specific chapters of the city’s Comprehensive Plan to determine whether the proposed Lido Renourishment Project would be consistent with that plan.

The review took place in 2015, Tim Litchet told the court, before City Engineer Alexandrea DavisShaw signed a letter attesting to that determination of consistency. The letter, dated March 2, had to be part of a package the city was preparing to file as co-applicant for a Florida Department of Environmental Protection (FDEP) permit for the Lido project, he and DavisShaw both told the court.

Litchet said he and DavisShaw spent about 30 minutes on their review, opening up a copy of the city plan and going through a number of goals and environmental policies that Litchet said he believed were relevant to the renourishment of Lido Key Beach.

“My conclusion was that the project was consistent, is consistent, with the city’s Comprehensive Plan,” Litchet told John R. Herin Jr., a partner with the Miami firm of Fox Rothschild, who is the city’s outside counsel in the case the Siesta Key Association (SKA) filed against the city in March 2017.

The nonprofit has been working to prevent the removal of sand from Big Sarasota Pass to place on South Lido Beach, contending that the action would lead to significant property damage on the barrier island and serious navigational problems in the waterway.

In its complaint, the SKA has argued that the project is not consistent with either the city’s Comprehensive Plan or Sarasota County’s Comprehensive Plan, with which it says city policies require the city to comply. The SKA petitioned the court for a Writ of Mandamus, seeking a ruling by Circuit Judge Andrea McHugh that although the nonprofit has asked the city to undertake the necessary consistency determination process, the city has failed to do so. Therefore, the SKA wants McHugh to require that the city take that action.

When Herin asked Litchet on July 23 whether it was Litchet’s responsibility to make such consistency determinations for the city, Litchet replied that, at the time of his meeting with DavisShaw, “That was under my purview.”

Litchet added that he did see the March 2, 2015 letter DavisShaw signed, attesting to their consistency determination, before she submitted the letter for filing with the rest of the application materials for FDEP in March 2015.

This is the March 2, 2015 letter from City Engineer Alexandrea DavisShaw, which is part of the application submitted to FDEP. Image courtesy State of Florida

At the conclusion of the five-hour hearing, McHugh gave the attorneys 15 days — until Aug. 7 — to file written briefs summarizing their arguments. Each could provide up to 20 pages, she said.

Along with the city and the SKA, the Lido Key Residents Association is a party to the case as an intervenor. Therefore, its attorney, Kevin S. Hennessy of the Lewis, Longman & Walker firm in St. Petersburg, also participated in the hearing and will be allowed to file a brief.

The city was a co-applicant with the U.S. Army Corps of Engineers (USACE) for the Lido initiative, which proposes removing up to 1.3 million cubic yards of sand from Big Pass to renourish about 1.6 miles of the South Lido Key Beach.

Differing perspectives

During his testimony on July 23, Robert Luckner, a leader of the SKA’s Environmental Committee, told the court that when he first saw DavisShaw’s letter in the FDEP application, his immediate reaction was, “Wow! This is not the truth and she signed it under oath.”

Luckner added that he believed the consistency statement was false, based on his reading of the city’s Comprehensive Plan and zoning regulations and Sarasota County’s Comprehensive Plan and zoning regulations.

Specifically, Luckner told the court, the SKA contends that the consistency determination is not compliant with Action Strategy 1.1 of the city plan, which pertains to requests for development approval.

However, Litchet testified that that strategy deals with issues such as zoning, conditional uses and site plans, for examples, “And this project is none of those.”

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

Yet another section of the city plan that the SKA contends the Lido project violates regards the “disposal of dredge material within the City limits for the renourishment of Lido Beach, subject to approval by the City.”

Litchet told the court that the City Commission had discussed the Lido project on a number of occasions and had approved various facets of it. The commission is supportive of the disposal of dredge material on Lido Beach, Litchet added.

In considering the consistency of the project with the city’s Comprehensive Plan, Herin asked whether Litchet had “read all these provisions as a whole …”

“I try to look at the overall intent,” Litchet replied. “I think they all work together.

Litchet and DavisShaw further testified that the process they undertook in regard to the application for the FDEP permit for the Lido project was comparable to similar efforts in the past involving Lido Beach renourishments.

Litchet also reviewed for the court a history of those initiatives, going back to January 1991.

When attorney Herin asked for clarification that the Lido project at the center of the SKA complaint is one of many that have taken place in the city, Litchet replied, “Well, yes.”

The May 2017 meeting

Robert Luckner addresses the SKA audience on July 6, 2017, discussing the potential for increased wave energy on the north end of Siesta as a result of the dredging of Big Pass. File photo

Another focus of the July 23 testimony was a meeting between SKA representatives and senior city staff members, conducted on May 23, 2017 — a little more than two months after the SKA filed its original complaint in Circuit Court.

During that meeting, “Did the SKA make a demand of any of the city officials [for a consistency determination]?” Kent Safriet of the Tallahassee firm Hopping Green & Sams, the SKA’s attorney, asked Robert Luckner.

“We did,” Luckner replied.

“Prior to that meeting,” Luckner continued, “I prepared six talking points to organize my thoughts.”

An exhibit the SKA submitted to the court showed an email that Luckner said he had written “immediately afterthe meeting,” which he sent to former City and County Commissioner Nora Patterson. Luckner said she had “graciously offered to see if she could bring the [SKA and city leaders] together and talk …”

Patterson emailed him back, Luckner continued, agreeing that those talking points and an attached map “accurately described what happened … and that we went further than she thought we were going to … for Lido to get its sand without disturbing the heart of Big Pass.”

“The specific demand that we made,” Luckner added, was that the SKA wanted the city to request to negotiate with Sarasota County for the county’s approval of the sand borrow areas shown to be in the county’s jurisdiction. One of them is Borrow Area B, which runs from the tip of Siesta Key south, he noted. “It’s an existing boat channel.”

The other, he said, was designated Borrow Area D, though the USACE “modified it.”

A USACE map shows the sand borrow areas proposed in Big Pass as of January 2017 Image courtesy FDEP
An engineering drawing shows revised borrow areas for the Lido project, including a portion of Cut C that has been eliminated as a sand source. The USACE published this drawing in its May bid package. Image courtesy U.S. Army Corps of Engineers

“I thought that the city should clearly go talk to the county because [those areas are] clearly not inside the city limits. … [They are] in the county’s area [as] defined by the Florida Constitution.”

Then Luckner referenced a portion of the county’s Comprehensive Plan with which the SKA contends the city must comply. Section 4.6.1 says that the county 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.

“They still haven’t … sought that [approval],” Luckner added of city leaders.

Luckner also explained that the SKA believes plenty of sand is available in the borrow areas within the city limits, including a portion of Borrow Area C. Taking sand from just those areas, Luckner continued, would have resulted in the design of a smaller project than the one proposed. “Yet, it accomplished, in my mind, the goals of the project without as much disturbance to Big Pass, and it cost less.”

When Safriet asked whether the SKA objected to the dredging of all the designated borrow areas, Luckner replied, “Our specific objection was the dredging of C and part of D, as well as B.”

This is a detailed engineering drawing of Borrow Area D in Big Pass included in the May USACE bid package. Image courtesy U.S. Army Corps of Engineers

In response to a follow-up question from Safriet, Luckner said that he voiced those objections to the city staff members during the May 23, 2017 meeting while informing them that the city was violating its Comprehensive Plan.

When Safriet then asked whether the SKA heard anything further from city staff after that meeting, in regard to making a consistency determination, Luckner replied, “Never.”

City Engineer DavisShaw and City Manager Tom Barwin contradicted Luckner’s testimony about the discussions on May 23, 2017.

When city counsel Herin asked Barwin whether Luckner directed to city staff “a clear and … unequivocal request” about the city’s making a consistency determination, Barwin replied, “I do not recall one conversation on that subject, or one syllable.”

Kent Safriet. Image from the Hopping Green & Sams website

Safriet objected, referring to Barwin’s deposition taken prior to the hearing. Safriet said that during the deposition, Barwin talked of “just general discussion” on May 23, 2017.

“I recall the subjects which were discussed at the meeting,” Barwin told the court on July 23.

After another exchange between Safriet and Barwin, Judge McHugh asked Safriet whether he was trying to impeach Barwin’s testimony. Safriet told her he would be unable to do so if Barwin would not respond to his question.

Finally, Safriet said he had no further questions, adding, as he went back to his seat, “Doesn’t matter.”

During her time on the stand, Herin also asked DavisShaw if she remembered Luckner on May 23, 2017 making a “clear and unequivocal demand” about a consistency determination.

“No,” she replied. “I do not recall that taking place at the meeting or at any time.”