Loading

wait a moment

Judge dismisses Siesta Key Association’s Big Pass case in 12th Judicial Circuit Court

By Rachel Brown Hackney

A 12th Judicial Circuit Court judge dismissed a verified complaint the Siesta Key Association (SKA) filed against the City of Sarasota in early 2017, seeking to stop the dredging of Big Sarasota Pass to renourish about 1.6 miles of South Lido Key Beach.

Circuit Court Judge Andrea McHugh wrote in her Oct. 12 order that while Florida’s Environmental Protection Act “permits citizens to seek judicial enforcement of an environmental law, rule, or regulation,” she could find “little precedent” for the SKA’s argument that a county comprehensive plan “qualifies as a law, rule or regulation.”

In its March 2017 complaint, the SKA contended that the City of Sarasota needed the approval of the Sarasota County Commission to dredge Big Pass, based on a policy in the county’s Comprehensive Plan and a section of the city’s own Comprehensive Plan.

The city’s plan says that it must comply with the county’s plan, the SKA pointed out in its complaint.

The SKA last year commissioned research by prominent coastal geology and fisheries experts to raise significant concerns about the potential for the dredging to cause serious harm to the waterway and to property on Siesta Key.

The city was co-applicant with the U.S. Army Corps of Engineers (USACE) for a Joint Coastal Permit from the Florida Department of Environmental Protection (FDEP) for the Lido project, which is planned over a 50-year period. Last month, City Engineer Alexandrea DavisShaw and a representative of the USACE’s Jacksonville District Office signed an agreement for the federal agency’s participation in the project.

Circuit Court Judge McHugh explained in her Oct. 12 order that the Joint Coastal Permit would allow the city and the USACE to remove about 1.3 million cubic yards of sand from Big Pass and construct groins on South Lido Key to try to keep sand in place between renourishments, which are expected to be necessary every five to seven years, based on USACE and city staff statements.

The SKA cited county Environmental Policy 4.6.1 of the Comprehensive Plan as the basis for its argument that the city needs county approval to dredge Big Pass. That policy says, “Prohibit 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.

The SKA planned to file an amended complaint, by its attorney, Kent Safriet of Hopping Green & Sams in Tallahassee.

In a telephone interview the same day, SKA Vice President Catherine Luckner pointed to the fact that McHugh had dismissed the complaint without prejudice, thereby opening the door to the filing of a revised version of the nonprofit’s arguments. The SKA had 15 days within which to respond to McHugh’s order, Luckner added.

In a statement released after the Oct. 15 City Commission meeting, City Manager Tom Barwin said, “The litigation has delayed the project by over a year. I only wish the $500,000 collectively spent in litigation could have been invested in collaborating to advance our collective shoreline protective efforts.”

The SKA complaint

In its verified complaint in the 12th Judicial Circuit Court, the SKA contended that language in the introduction to the county Comprehensive Plan “requires all development orders entered by any state commission, board, agency, department or official, concerning development within the geographic area subject to the [Comprehensive] Plan, to be evaluated for consistency with the [Comprehensive] Plan,” McHugh wrote.

The SKA failed to state a legal cause of action, she added. It attempted to use the Florida Environmental Protection Act (FEPA) of 1971, she continued, “to compel the City to comply” with the City of Sarasota Comprehensive Plan, the county’s plan and Florida’s Community Planning Act.

Following a July 23 hearing on a motion to dismiss the SKA complaint, filed by the city and the Lido Key Residents Association — which was allowed to intervene in the case —McHugh allowed all the parties to file additional materials.

On Aug. 17, Kevin Hennessy of Lewis, Longman & Walker of St. Petersburg — counsel for the Lido Key Residents Association (LKRA) — filed a reply for the city and the LKRA to supplemental material SKA attorney Safriet had filed. “Comprehensive plans are not laws, zoning ordinances, rules, regulations, or any sort of binding authority upon any entity other than the local government that adopted it,” he pointed out, citing a 1992 Florida Second District Court of Appeal case. Additionally in her order, McHugh said the FEPA “was enacted as a means of carrying out Florida’s constitutional mandate to abate air and water pollution” in the state. However, to compel action under the FEPA, she continued, “there must be ‘a law, rule or regulation for the protection of air, water and other natural resources of the state’ to either compel the authority to enforce or prevent the authority from violating …”

Safriet had pointed out in his Aug. 6 supplemental filing in the case that the FEPA says, “The court may grant injunctive relief and impose conditions on the defendant which are consistent with and in accordance with law and any rules or regulations adopted by any state or local government agency which is charged to protect the air, water, and other natural resources of the state from pollution, impairment, or destruction.”

Safriet further argued that the Florida Supreme Court, in the 1980 case Fla. Wildlife Fed’n v. State Dep’t of Envtl. Reg., “has stated ‘by enacting [the FEPA], the legislature created a new cause of action, giving the citizens of Florida new substantive rights not previously possessed. This statute sets out an entirely new cause of action.’”

“It is beyond dispute,” Safriet added, “that Environmental Policy 4.6.1 of the Sarasota County Comprehensive Plan protects the water and natural resources of Big Sarasota Pass.” He argued that “the facts demonstrate … that the City has improperly refused to seek a development order from the County and the Court can order it to do so.”