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Circuit Court judge once again rules against Siesta Key Association in Big Pass case

By Rachel Brown Hackney
SarasotaNewsLeader.com

Once again, a 12th Judicial Circuit Court judge has struck down legal challenges made by the Siesta Key Association (SKA) as the nonprofit seeks to prevent the dredging of Big Sarasota Pass.

Yet, just as she did in October 2018, Judge Andrea McHugh has figuratively left the door open for the SKA to try another approach in the case.

In an order released late on the afternoon of Jan. 18, McHugh first referenced her dismissal last fall of the SKA complaint originally filed in March 2017. In that, the nonprofit and co-plaintiff David Patton of Siesta Key argued that, because of language in the comprehensive plans of both the City and County of Sarasota, the city needed to obtain approval from Sarasota County before sand could be removed from Big Pass to renourish about 1.6 miles of South Lido Key Beach. In her Jan. 18 ruling, McHugh referenced the explanation she included in her Oct. 15, 2018 order, noting that the city “obtained a valid permit from the appropriate issuing agency.”

The Florida Department of Environmental Protection (FDEP) issued a Joint Coastal Permit for the Lido project to the city and its co-applicant, the U.S. Army Corps of Engineers (USACE), on June 18, 2018. The USACE is the entity that proposed the use of up to 1.3 million cubic yards of sand from Big Pass to stabilize the critically eroded Lido Beach in the first renourishment under a 50-year plan.

The SKA and Patton have contended that the Florida Environmental Protection Act (FEPA) necessitates a county permit as well, McHugh continued in her Jan. 11 order. In the amended complaint, filed in late October 2018, they argued that Section 54-653(4)(a) of the Sarasota County Code requires the county’s approval of the city/USACE project.

Section 54-653(4) states, “No work shall be performed having the effect of Altering any Jurisdictional Areas without first obtaining a permit from the Authority or Administrator, unless specifically exempted under the provisions of section 54-653(4)(g).”

Big Pass is within the county’s jurisdiction, SKA attorney Kent Safriet of the Tallahassee firm Hopping Green & Sams has pointed out, and it never has been dredged. Section 54-653(4)(g) of the County Code exempts only maintenance work from the permitting requirements provided in the code, Safriet contended in the amended complaint.

Nonetheless, McHugh wrote in the new order that she found nothing in FEPA that would allow her to rule for the SKA on the basis of the county ordinance.

Turning to the second part of the amended complaint, McHugh expanded on a line of reasoning that she brought up during a Dec. 20, 2018 hearing.

In their Petition for Writ of Mandamus, she wrote in her order, the SKA and Patton “request that the Court compel the City to submit the Project to the County Commission for approval, and obtain a county permit; yet nowhere do they allege they demanded the City to take such actions.”

During the December 2018 hearing, McHugh told Safriet that she has dealt with a number of Mandamus cases in the context of public records requests. “What I typically look for is what was the demand on the agency.”

When she asked about the demand in the SKA’s case, Safriet responded, “We made the request in public in this courtroom. … For a year and a half, [city leaders] have refused,” he said, to even send a letter to the county, seeking permission for the dredging of Big Pass.

(Circuit Court Judge Lon Arend presided over the SKA’s first hearing on its complaint, which was held in late April 2017.)

At this stage,” McHugh wrote in her Jan. 18 order, “the Court is limited to analyzing the legal sufficiency of the petition for mandamus, and only the language included within the petition itself, which does not allege that [the SKA and Patton] demanded action from the City via filing a lawsuit or via any other communication.”

McHugh further pointed out that the original SKA complaint “did not demand that the City take any action; rather, the Complaint demanded that the Court declare that the Project violates the City’s [Comprehensive Plan]. For this reason,” she added, “the Court finds the petition to be legally insufficient.”

However, she dismissed the petition without prejudice, indicating that the SKA and Patton could re-file it if, after asking the city to seek a county permit, they find the city unwilling to do so.

Asked for a comment on the judge’s latest ruling, the SKA directors told SNL they were unable to offer one in time for Siesta Sand’s February deadline.

City Manager Tom Barwin did give SNL a statement: “We’re pleased the judge dismissed this case once again indicating there appears to be no cause of action for lawsuits that keep repeating issues already heard. The renourishment is a vital shoreline protection buffer between the Gulf of Mexico that protects the public infrastructure, property and our local economy. We again renew our commitment to working with all interested parties to monitor our shorelines, the environment and boating channels and to monitor the project to unprecedented levels and adjust to even better practices in the future as we all adapt to the threat of rising sea levels.”

Response to City of Sarasota arguments

In response to the SKA’s Petition for Writ of Mandamus, McHugh also noted in her Jan. 18 order that the City of Sarasota and the Lido Key Residents Association (LKRA) — which she allowed to intervene in the case — “made a number of arguments regarding the merits [of that writ] in their joint motion to dismiss the SKA’s amended complaint. Those “are only appropriate for the Court’s consideration,” she continued, after an alternative writ has been filed and determined to be legally sufficient.