Judge puts Siesta Key Association challenge of Lido Renourishment Project on hold until after administrative hearing process has concluded, but city plans to withdraw from FDEP application

| June 1, 2017

By Rachel Brown Hackney
SarasotaNewsLeader.com

A 12th Judicial Circuit Court judge ruled in late April that it was premature for the Siesta Key Association (SKA) to seek a court remedy for what it alleges is a City of Sarasota violation of Sarasota County’s Comprehensive Plan related to the city’s proposal to dredge Big Sarasota Pass to renourish South Lido Key Beach.

A judge with the state’s Division of Administrative Hearings has scheduled a proceeding in late August on challenges the SKA, Save Our Siesta Sand 2 (SOSS2) and the Florida Wildlife Federation have filed in response to the December 2016 Florida Department of Environmental Protection (FDEP) announcement of an intent to issue a permit for the project.

After the matter has been settled in the administrative hearing forum, 12th Judicial Circuit Court Judge Lon Arend ruled on April 24, the SKA may seek a remedy in Circuit Court, if necessary. When the SKA’s attorney, Kent Safriet of the Tallahassee firm Hopping Green & Sams, asked whether Arend would consider an emergency injunction if the conclusion of the administrative hearing process cleared the way for the issuance of the Joint Coastal Permit (JCP), Arend indicated he readily would do so. In fact, if Safriet learned that the permit would be forthcoming, Arend added, Safriet could contact the court about the scheduling of an emergency hearing.

Arend’s ruling formally granted an abeyance to the City of Sarasota, which had sought to have the SKA’s verified complaint against the city dismissed. The city’s outside counsel — John R. Herin Jr. of the GrayRobinson law firm, based in Fort Lauderdale — had sought the abeyance as an alternative if the judge decided not to grant the city’s Motion to Dismiss the case.

As the approximately 40-minute hearing was concluding on April 24, Herin appeared to surprise Safriet and the SKA members who were present when he announced that the city was considering withdrawing as a co-applicant to FDEP for the Joint Coastal Permit.

Herin said he wanted to inquire of Safriet why the city was the only party named as a defendant in the verified complaint filed on March 9 by the SKA and Siesta Key resident David N. Patton.

In March 2015, the city and the U.S. Army Corps of Engineers (USACE) submitted an application together to FDEP, seeking not only to dredge about 1.2 million cubic yards of sand from Big Pass to renourish about 1.6 miles of South Lido but also to construct two groins on Lido Key to try to hold sand in place between subsequent renourishment projects. The USACE has proposed that the latter take place about every five years over a 50-year period. (The FDEP Joint Coastal Permit, however, would be for 15 years.)

The city is a co-applicant for the FDEP permit, Herin pointed out to Arend. “The city has advised me that I have the authority to report to this court and the [Division of Administrative Hearings] judge and to [FDEP] that we’re going to withdraw [the city’s] name as a co-applicant on that permit, and, therefore, in our opinion, moot this matter, because we no longer will be the entity responsible for this project.”

“You are going to do that?” Safriet asked Herin.

“We are considering that,” Herin replied.

The city wants to know, Herin told the judge that if it does withdraw as co-applicant, it then can file for mootness with the court, and the SKA and Patton would agree that the complaint no longer was valid.

Safriet suggested that Herin go ahead and take the action that day, so the legal challenge could be moved to federal court.

“We could have avoided this whole hearing had you withdrawn as the applicant in the first place,” Safriet told Herin.

“We’re still considering that,” Herin replied. The city contends that the USACE needs to be party to the legal challenge the SKA is pursuing, he added.

“Nothing happens until you make the decision,” Arend replied.

On May 12, in response to a SNL question, Herin wrote in an email, “I can say with a reasonable amount of certainty that a decision will be made before FDEP issues the [Joint Coastal Permit] at the conclusion of the consolidated [Department of Administrative Hearings] proceedings. Keep in mind that a federal agency, a state agency, and a local government agency need to consult and come to a joint decision (certainly the [USACE] and City), and each agency has their own internal decision process and timing.”

The SKA reaction to the judge’s ruling

In a press release it issued after the April hearing, the SKA pointed out that its goal has been to safeguard Big Pass. “We asked the Court to enforce [a Florida statute pertaining to environmental matters] in hopes of the City and County working together for a ‘best practices’ plan, one that protects natural resources and meets the needs of critical erosion on Lido.”

The SKA and Patton point out that Big Pass never has been dredged, and sand borrow areas lie within the county’s boundaries — as SKA attorney Safriet has illustrated. The county’s Comprehensive Plan prohibits dredging of waterways within the county unless the action is necessary for maintenance purposes. Therefore, the SKA and Patton contend that the city has to win county approval before any sand can be taken from Big Pass.

In its press release, the SKA also noted that a ruling in its favor would have saved time and “significant money.”

Shortly after Safriet began his argument in court, Arend asked, “Why is it not premature for me to get involved” before a Joint Coastal Permit is issued?

“Conservation of judicial resources,” Safriet replied. The administrative hearing in August, he pointed out, involves about half-a-dozen parties and “a whole lot of experts” who will be offering opinions. “There’s a lot of expense in that.”

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