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Siesta Key Wednesday, Jan. 23, 2019 2 years ago

Judge dismisses Big Pass suit, again

Although a circuit court judge rejected a Siesta Key group’s challenge of the proposed dredging of Big Pass, she left open the opportunity for the case to be refiled.
by: David Conway Deputy Managing Editor

For the third time, a judge has rejected the Siesta Key Association’s efforts to block plans to dredge Big Pass as part of a Lido Key shoreline renourishment project.

But the ruling does not mean the legal battle is over: Judge Andrea McHugh’s decision gives Siesta Key residents an opportunity to refile one element of the lawsuit.

On Friday, McHugh dismissed both counts of the Siesta Key Association’s lawsuit, filed in October in the 12th Judicial Circuit Court. McHugh had previously dismissed a 2017 complaint from the resident association that alleged the proposed Big Pass dredge failed to comply with city, county and state regulations.

The city of Sarasota, the primary defendant in the lawsuit, is working with the U.S. Army Corps of Engineers on an effort to renourish Lido Key’s shoreline with sand taken from Big Pass. The state has approved a permit for the project, but Siesta Key residents continue to argue the project may have negative effects on the environment.

Although McHugh has twice rejected the Siesta Key Association’s arguments, both of her rulings left open the possibility of a revised complaint from Siesta residents. Although one of the two counts was dismissed with prejudice, which means it is a final judgment, a second was dismissed without prejudice, which allows a plaintiff to file another complaint on the same grounds.

The order issued Friday does not completely dismiss the association’s efforts to force the city to get approval from the county before moving forward with the project.

The Siesta Key Association filed a petition for writ of mandamus, which seeks to compel a governmental body to comply with a legal duty. Siesta Key Association board member Catherine Luckner has previously said the group believes the city has an obligation to get a permit from the county, per the city and county comprehensive plans.

The city has rejected this argument, filing a motion in November to dismiss the lawsuit. That motion cites a previous ruling in which McHugh states a comprehensive plan is not law, using it to argue a writ of mandamus should not be issued in this situation.

McHugh’s ruling on this count does not focus on the merits of either argument. Instead, she determined the Siesta Key Association’s petition was legally insufficient because it did not show evidence the group asked the city to request a permit from the county.

McHugh did not comment on the city’s motion to dismiss, stating analysis of those claims would only happen if the original argument was legally sufficient.

“Because this has not yet happened in this case, it is procedurally premature for the court to consider and rule upon these arguments,” McHugh wrote.

Luckner declined to comment substantively on the ruling, saying she had not yet discussed the matter with the group’s attorney.

“We’re not completely discouraged,” Luckner said.

An administrative court judge previously rejected another Siesta Key Association argument attempting to block the permit. A federal court lawsuit, which Save our Siesta Sand 2 filed against the Army Corps, is still ongoing.

Members of the Lido Key Residents Association, which intervened in the lawsuit as a co-defendant, expressed some optimism about the decision. Although there was some concern about the prospect of another filing, association President Carl Shoffstall was happy that a judge had once again denied an attempt to block the renourishment project.

“It’s getting closer,” Shoffstall said.

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