Siesta Key Association files complaint in 12th Judicial Circuit Court to prevent dredging of Big Pass

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By Rachel Brown Hackney

The Siesta Key Association (SKA) filed a complaint in the 12th Judicial Circuit Court on March 9 in an effort to stop the dredging of Big Sarasota Pass to renourish South Lido Key Beach.

The action came 50 days after the nonprofit notified the City of Sarasota, the Florida Department of Environmental Protection (FDEP) and the U.S. Army Corps of Engineers (USACE) that it would take that step if the parties could not come to a resolution of the SKA’s allegations that the city is not adhering to the county’s Comprehensive Plan or the city’s Comprehensive Plan in the proposal to remove about 1.2 million cubic yards of sand from the pass without first obtaining county approval.

The goal of the city/USACE project is to replenish about 1.6 miles of the South Lido Beach, adjacent to the county’s Ted Sperling Park. 

David Patton, a Siesta Key resident, also is a plaintiff in the SKA’s suit.

On Jan. 19, the SKA’s attorney — Kent Safriet of Hopping Green & Sams in Tallahassee — notified the FDEP, the city and the USACE that the SKA was prepared to file the complaint in Circuit Court.

The SKA argues that areas of the pass slated for sand removal are within the county’s territory and, therefore, cannot be dredged without the county’s permission. SKA Vice President Catherine Luckner and her husband, Robert — a member of the SKA’s Environmental Committee — showed the County Commission a map on Feb. 7 that they said made it clear that their argument is accurate. Robert Luckner also explained that the county’s Comprehensive Plan prohibits any dredge and fill activities in county waterways that have not already been dredged, citing Environmental Policy 4.6.1. They pointed out that Big Pass is a natural waterway that has not had sand removed from it at any time.

The complaint, filed on the afternoon of March 9, asks the court to do the following:

• Issue an injunction to prevent the Lido Renourishment Project from proceeding until the city complies with the county’s Comprehensive Plan by obtaining the County Commission’s approval of the project.

• Issue a final judgment declaring that the project, as proposed, will violate the county’s Comprehensive Plan.

• Issue a final judgment “declaring that the City is not enforcing and is in violation of its own laws and regulations in the City’s Comprehensive Plan,” as the complaint puts it.

• Issue a final judgment declaring that the activities to be carried out by the city and the USACE would violate a provision of Florida Statutes, 163.3194(1)(a) — Florida’s Community Planning Act — which, the complaint says, “requires that all development undertaken by governmental agencies in regard to land covered by a comprehensive plan be consistent with such comprehensive plan as adopted.”

Catherine Luckner pointed out on March 9 that the city is the only defendant in the case. More details on that would be forthcoming, she said.

What happened to a ‘Plan B’?

“We are concerned for the Lido residents,” Luckner added — a comment she has made many times since the USACE unveiled its proposal for the $19-million renourishment project in September 2013, with Big Pass as the primary sand source.

For example, she said, the city has the right to alternate with the Town of Longboat Key in dredging sand from New Pass.

Almost exactly a year ago, Luckner noted, City of Sarasota representatives seemed willing to consider a “Plan B,” when the County Commission held a discussion of the peer review it paid the internationally known firm Atkins to undertake of the Lido Renourishment Project. The SKA has been suggesting other options over the past three-and-a-half years, she added.

Yet, “it appears no one developed that [Plan B]” for the property owners on Lido,” she said. “We are very sorry that they have not gotten one.”

Still, a March 7 email the City of Sarasota’s outside counsel on the case — John R. Herin Jr. of the GrayRobinson firm in Fort Lauderdale — sent to FDEP’s deputy general counsel emphasized the urgency of the renourishment project for Lido: “As you know, Lido Key Beach is recognized by the state as a critically eroded shoreline in desperate need of immediate nourishment and long-term stabilization. Every day of delay in moving forward with this Project puts peoples’ lives and property at risk.” 

Writing to Francine Ffolkes, Herin also said, “I can tell you without any reservation that the City believes the administrative petitions should be immediately forwarded to the Department of Administrative Hearings independent, and irrespective, of the threatened circuit court litigation. In fact, the City requests that the Department do so without any further delay.”

In January, the SKA and Save Our Siesta Sand 2 filed administrative challenges to FDEP’s Dec. 22, 2016 Notice of Intent to issue the permit to the city and the USACE for the Lido project. Those challenges were on hold, Luckner has explained to SKA members, while the SKA’s attorney negotiated with FDEP staff about the potential court complaint.

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