By Rachel Brown Hackney
For the Siesta Key Association (SKA), the third time — as the saying goes — was the charm.
After ruling twice in recent months against the nonprofit, Twelfth Judicial Circuit Court Judge Andrea McHugh issued an order on Feb. 12, ruling that the City of Sarasota must comply with a section of its own environmental regulations before it can dredge Big Sarasota Pass.
McHugh gave the City of Sarasota 20 days to “show cause” why she should not compel the city “to make an official determination that the Project is consistent with the City [Comprehensive] Plan and all other applicable local, regional, state, and federal plans and regulations.” She was referencing language in Action Strategy 1.1 of the city’s Environmental Protection and Coastal Islands Plan.
McHugh added that the city also would have to make the case that it would not need to provide notice of the project “to all affected persons … in a manner sufficient to trigger the right of those persons to challenge the decision under Chapter 163 [of the Florida Statutes].”
During a Dec. 20, 2018 hearing on the amended complaint the SKA filed in its Circuit Court case in October 2018, its attorney, Kent Safriet of Hopping Green & Sams in Tallahassee, argued to McHugh that the city did not want to take steps the SKA has sought because that would start the figurative clock ticking on the 30-day timeline afforded the SKA under Chapter 163 guidelines. “They want to stymie us on that,” Safriet said of city leaders.
Chapter 163.3194(1)(a) says that after a comprehensive plan has been adopted in compliance with the Florida Statutes, all development undertaken by governmental agencies in regard to land covered by the plan “shall be consistent” with the plan.
During a telephone interview, SKA Vice President Catherine Luckner said she was speechless when she received the news about the ruling. “I’m really thankful [the judge] understood [what the SKA has been trying to achieve],” which is the city’s complying with its legal obligation, she added.
In response to a question, City Attorney Robert Fournier wrote in a Feb. 12 email, “We will likely file a motion to request an additional ten days to have 30 days to respond, which I hope the court would consider favorably.”
The city and the U.S. Army Corps of Engineers (USACE) plan to remove up to 1.3 million cubic yards of sand from Big Pass — which never has been dredged — to renourish a 1.6-mile stretch of South Lido Key Beach. That is the first step in a 50-year USACE plan to stabilize the Lido shoreline, which the Florida Department of Environmental Protection has deemed “critically eroded” in recent years.
An emergency beach renourishment project on Lido has been underway since December 2018.
Since the original USACE project manager unveiled the Lido Beach renourishment proposal to county residents in September 2013, Siesta Key leaders have pointed to the protection the pass’ ebb shoal provides Siesta during storms. They also contend that dredging would result in navigational problems in the waterway and disrupt wildlife.
Refining an argument
In October 2018, and again, after the Dec. 20, 2018 hearing in the SKA case, McHugh dismissed the SKA’s complaints, saying she saw no foundation for directing the city to communicate with the county about the planned action in Big Pass. She pointed out that the Florida Department of Environmental Protection issued a permit to the city and the U.S. Army Corps of Engineers last summer to allow them to proceed with the initiative.
During the December 2018 hearing, McHugh also told SKA attorney Safriet that she had seen no evidence that the SKA ever had asked the city to seek county approval for the Big Pass project. In the mandamus cases with which she had experience, she added, she had found that a request had been made of a local government to comply with a law, and the local government had refused to do so. She noted public records requests as examples.
In an alternative Petition for Writ of Mandamus the SKA and its co-plaintiff, Siesta Key resident David Patton, filed on Jan. 25, they pointed to a meeting between City of Sarasota senior staff and SKA representatives in May 2017. “Petitioners made an express and distinct demand to the City,” including that it “obtain a permit for the Project” from the county’s Water and Navigation Control Authority (WNCA) or the county administrator, the SKA’s second amended complaint said.
“Petitioners demanded the same actions by providing to
City Mayor Willie Charles Shaw a copy of the [SKA’s] original Verified Complaint [filed in Circuit Court in March 2017],” the second amended complaint added. Under the guidelines of the law, the new complaint added, the SKA also sent a copy of the original complaint to the city through the U.S. Mail on Jan. 19, 2017. (By law, the SKA and Patton had to give the city 30 days of notice before filing their lawsuit.)
Addressing SKA members during their regular meeting on Feb. 7, SKA Vice President Luckner said of the May 2017 meeting with senior city staff, “We met live, in action … at our request.”
Former City and County Commissioner Nora Patterson, a Siesta resident, accompanied the SKA representatives, Luckner added, “to help mediate the situation, which was very gracious of her.”
City Manager Tom Barwin and City Engineer Alexandrea DavisShaw were among the city leaders present, Luckner added. “We went over all kinds of details,” she continued on Feb. 7, and the city representatives “seemed very [favorably disposed to the SKA’s request].” Nonetheless, Luckner said, “They never responded, at all.”