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Dredging of Big Pass

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

By Rachel Brown Hackney
SarasotaNewsLeader.com

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’s 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. That letter 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 project.

He and DavisShaw spent about 30 minutes on their review, Litchet continued, 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 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.”

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.

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.

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.”

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.

The May 2017 meeting

Another focus of the hearing was a May 23, 2017 meeting between SKA representatives and senior city staff members.

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

“We did,” Luckner replied.

“The specific demand that we made,” Luckner added, was that the city request to negotiate with Sarasota County for the county’s approval of the sand borrow areas shown on maps to be within the county. One of them is Borrow Area B, which runs from the tip of Siesta Key south, he noted. “It’s an existing boat channel. … I thought that the city should clearly go talk to the county because [those areas are] in the county’s [jurisdiction as] defined by the Florida Constitution.”

Then Luckner referenced Section 4.6.1 of the county’s Comprehensive Plan, which 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 [county approval],” Luckner added of city leaders.

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.”