Judge agrees with City of Sarasota and Lido Key Residents Association in dispute over order of presentations and burden of proof in administrative law hearing

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By Rachel Brown Hackney

  About six weeks before the hearing was set to begin in the case, a Florida administrative law judge ruled that it would be up to the Siesta Key Association (SKA), Save Our Siesta Sand 2 (SOSS2) and the Florida Wildlife Federation (FWF) to prove their contention that the U.S. Army Corps of Engineers did not properly design the proposed Lido Key Renourishment Project.

  On Oct. 23, the respondents in the case — the City of Sarasota, the U.S. Army Corps of Engineers (USACE), the Florida Department of Environmental Protection (FDEP) and an intervenor, the Lido Key Residents Association (LKRA) — filed a joint motion, arguing, “The issue of order of presentation [during the proceeding] and burden of persuasion is … a disagreement between the parties.” The respondents sought an order from Judge Bram D.E. Canter that would make it necessary for the SKA, SOSS2 and the FWF to comply with the guidelines of Section 120.569(2)(p) of the Florida Statutes.

On Oct. 25, Canter agreed with the respondents.

  During the November SKA meeting, Vice President Catherine Luckner explained that the judge essentially said of the USACE project team members, “‘I am accepting what they have produced as good enough.’”

“We hope we have a fair shot,” Luckner said. “Our goal is for [the city and the USACE] to do a really good project [to help Lido Key]. It needs to be the best.”

  The hearing was scheduled for Dec. 12-19 in Sarasota. City Attorney Robert Fournier has pointed out that no ruling is expected at the conclusion of the proceeding. “It’ll be months after [that]” before Judge Canter issues his decision, Fournier told the City Commission in November.

The hearing and the law

  In March 2015, the City of Sarasota and the USACE filed for an FDEP permit to dredge about 1.2 million cubic yards of sand from Big Pass to bolster the critically eroded shoreline of Lido Key. FDEP’s Dec. 22, 2016 notice of its Intent to Issue that permit prompted the challenges from SOSS2, the SKA and the FWF.

  The nonprofits have maintained that the USACE’s modeling of the project — which includes two groins on South Lido Key — has been inadequate in demonstrating the USACE’s assertion that no harm will come to Big Pass or Siesta Key if the dredging takes place.

The City of Sarasota and the Lido Key Residents Association have decried the efforts to stop the project, saying that the USACE’s expertise in such undertakings has been well demonstrated and that no other economically viable sand source has been located.

  In July, the Sarasota City Commission formally reaffirmed its support of the proposed project in a submittal to FDEP; that documentation said the expense had risen from $19 million to $21 million, with the federal government expected to pay $13,020,000. The city expects a state grant to cover $3,990,000 of the expense, with the rest of the cost — another $3,990,000 — coming from Tourist Development Tax revenue Sarasota County allocates to the city for beach renourishment initiatives.

  The state statute at the heart of the parties’ disagreement regarding the hearing this month says that “if a nonapplicant petitions as a third party to challenge an agency’s issuance of a license, permit, or conceptual approval, the order of the presentation … is for the permit applicant to present a prima facie case demonstrating entitlement to the license, permit, or conceptual approval, followed by the agency.”

After the presentation of the applicant’s case and “any direct evidence submitted by the agency, the petitioner initiating the action challenging the issuance of the license, permit, or conceptual approval has the burden of ultimate persuasion …”

In his Oct. 25 ruling, Canter wrote, “Section 120.569(2)(p) focuses on the proceeding and where it arises. The Legislature is presumed to have intended the plain meaning of the words it used and the effects that are caused by their plain meaning.”

  He added that the issue recently was addressed in a different Division of Administrative Hearings (DOAH) case, “where it was concluded that [the section] is applicable to a Joint Coastal Permit because the proceeding to determine the validity of the permit arises under section 373.427.”

Luckner of the SKA pointed out that Canter himself rendered the opinion in the case he cited, and it involved an existing permit, not the application for a permit.

  In an Oct. 24 filing with DOAH, Kent Safriet of the Tallahassee firm Hopping Green & Sams, the attorney for the SKA, argued that the statute does not apply to this proceeding.

  The statute “is very explicit that it applies to permits and licenses that arise under three chapters of Florida Law,” Safriet emphasized: Chapters 373, 378 and 403. However, he continued, a coastal construction permit falls under a different chapter of Florida law — 161 — and a sovereign submerged lands authorization under yet another one — 253. “[P]ermits and licenses under those Chapters do not quality for the burden shifting provision” of the statute the respondents cited, he contended.

(The FDEP permit would allow the USACE to dredge sovereign submerged lands, which are underwater properties that Florida took ownership of when it became a state in 1845.)

“Respondents’ attempt to sidestep the plain language of the statute and bootstrap Chapters 161 and 253 into section 120.569(2)(p) [of the Florida Statutes] [relies] on [a] completely procedural rule that allows multiple different permits to be processed and reviewed by [FDEP] at a single time,” Safriet wrote.

“Not surprisingly,” he continued, “the Respondents cite no law for trying to add Chapters 161 and 253 to the statutory text of section 120.569(2)(p) [of the Florida Statutes].”

Additionally, Safriet pointed out, FDEP itself has acknowledged in earlier legal cases that “[t]he consent to use sovereignty submerged lands is an authorization issued under chapter 253. Such authorizations are not subject to section 120.569(2)(p).”

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