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Big Pass Dredging

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

By Rachel Brown Hackney
SarasotaNewsLeader.com

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.)

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 said, 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 permit application the city and the USACE submitted to FDEP in March 2015.

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 hearing transcript, 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.”

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 shall ensure that applications are consistent both with the relevant environmental components of [the City Plan]’ and with ‘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 requiring county approval for removal of sand from any waterway that never has been dredged, and Big Pass is such a waterway.