Siesta Key Association awaiting Appeal Court’s Big Pass ruling

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By Rachel Brown Hackney

The removal of sand may be underway in Big Sarasota Pass, but leaders of the Siesta Key Association (SKA) continue to argue in their Second District Court of Appeal case that a 12th Judicial Circuit Court judge last year ignored the fact that the City of Sarasota and the U.S. Army Corps of Engineers needed multiple permits — state and local — before that dredging could begin.

The nonprofit’s attorney emphasized in the opening of his reply brief in the appeal that the city and the Lido Key Residents Association (LKRA) — an intervenor in the lawsuit — misconstrued the SKA’s allegations in the second amended complaint the SKA filed in the 12th Judicial Circuit Court in Sarasota. That “only confirms that the circuit court’s order … should be reversed and the case remanded for judgment on the merits,” Kent Safriet of Hopping Green and Sams in Tallahassee wrote in his July 21 filing.

The SKA’s cause of action, Safriet pointed out, “is premised [on] the City’s failure to obtain a WNCA [Water and Navigation Control Authority] Permit from Sarasota County. Thus, the critical issue is whether a WNCA Permit is required for the Project. If it is,” Safriet added, then the Florida Statute that Circuit Judge Andrea McHugh cited in ruling against the SKA last year does not prevent the nonprofit from claiming that the city still needs that permit.

Even before filing their suit in Circuit Court in March 2017, SKA leaders contended that because Big Pass never had been dredged, and the waterway is within the county’s jurisdiction, the city needed to apply to the county for the WNCA permit.

In March 2015, the City of Sarasota was the co-applicant with the U.S. Army Corps of Engineers (USACE) for the state Joint Coastal Permit that would allow the USACE to remove up to 1.3 million cubic yards of sand from the pass to renourish Lido Key Beach.

The city and the LKRA contend that no WNCA permit was required for the Lido Key Hurricane and Storm Damage Reduction Project. However, Safriet continued in his reply brief to point to Section 54 of the Sarasota County Code, which says, “No work shall be performed having the effect of Altering any Jurisdictional Areas without first obtaining a [WNCA] permit from the Authority or Administrator, unless specifically exempted under the provisions of Section 54-653(4)(g).”

That portion of the code, he explained, defines “Altering” so that it includes dredging. Further, he noted, “‘Dredging’ is defined to include ‘excavating,’ by any means, in Jurisdictional Areas.’ … And, ‘Jurisdictional Areas’ are ‘all water bodies, watercourses, and waterways in the coastal areas of Sarasota County,’” according to the County Code.

Conversely, the attorneys for the city and the LKRA argue that the Lido Key undertaking “is a federal construction project, which, based on the federal supremacy doctrine, is not subject to local regulation.”

John R. Herin Jr. of the Miami firm Fox Rothschild is the outside counsel for the City of Sarasota, while Kevin S. Hennessy, a partner with the St. Petersburg firm of Lewis, Longman & Walker, is the LKRA attorney.

While they acknowledged that “some environmental projects require more than one permit from more than one government entity,” Herin and Hennessy wrote, “this Project simply does not require a Sarasota County permit … [The SKA leaders] incorrectly allege that the County has the authority to supersede the State’s proprietary powers of the use of sovereign submerged lands.” They added, “[T]he Florida Attorney General has opined on several occasions regarding the limits on county and municipal governments to regulate property under [their] powers as it pertains to sovereign lands.”

Along with exchanging briefs, all parties have filed motions for attorneys’ fees, court records show. Additionally, the City of Sarasota and the LKRA have asked for oral arguments. As of Siesta Sand’s deadline for this issue, the court had not responded to that.

Point and counterpoint

In their joint reply to Safriet’s initial brief in the appeal, the attorneys for the city and the LKRA pointed out that the areas where the sand will be removed from Big Pass are the channel and the ebb shoal. Those “are entirely on sovereign submerged lands held in trust by [the state],” they added. However, they conceded, “A portion of the borrow areas falls within the boundaries of Sarasota County.”

Herin and Hennessy further explained in their reply brief that after the Florida Department of Environmental Protection (FDEP) issued a Notice of Intent to Issue the permit for the Lido project — in December 2016 — the SKA challenged the decision, which resulted in a Florida Division of Administrative Hearings (DOAH) proceeding in December 2017. The administrative law judge who heard the case, Hennessy and Herin continued, found that the city and the USACE “met all applicable rules and regulations for FDEP to issue the Lido Key [project permit], including the proprietary authorization to use state owned sovereign submerged lands as a borrow area …”

SKA attorney Safriet countered that that argument is erroneous, noting that it “has been expressly rejected in GLA & Associates v. City of Boca Raton,” a 2003 Florida Fourth District Court of Appeal case.

Citing a 2005 Florida Second District Court of Appeal case, Safriet added, “There is no indication in the statutes or rules that the Legislature intended to preempt the authority of local governments to regulate lands within their jurisdiction.”

He further noted that the FDEP permit awarded the City of Sarasota and the USACE “expressly recognizes local permits may be required,” as stated in General Condition 3 of the permit.

Yet, Herin and Hennessy pointed out, “The GLA case has little similarity to the facts in the [SKA] case other than both cases concern coastal activities.”

Moreover, they added, “Sarasota County has not taken any action to stop the [Lido] Project or subject it to any County permitting despite having full knowledge of the details of the Project.”

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