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Siesta Sand
JANUARY 2019
941.349.0194
www.siestasand.net
Sarasota County staff leading by example and encouraging and educating the public about ways to mitigate red tide bloom
Emphasizing concerns on Cosentino’s Amendments
By Rachel Brown Hackney
On Dec. 11 Sarasota County Attorney Stephen DeMarsh discussed the following item with the County Commissioners. The item asked for establishment of a time and place for a public hearing on a petition for the county to vacate part of its interest in an 84,171.45-square-foot portion of Hardee Drive in Venice. Commissioner Hines had pulled the item from the Consent Agenda even before attorney Steve Rees of the Icard Merrill firm in Sarasota addressed the commissioners about it during the Open to the Public portion of the Dec. 11 meeting. Hines questioned Rees, who is the agent for the petitioners, about whether the road segment could be considered to have a “waterfront vista.” Hines referenced the Cosentino Charter amendment that won support of 72.7% of the voters who cast ballots on it in the Nov. 6 General Election. That amendment says, “The County shall not sell, and shall retain ownership of, County-owned Parks and Preserves, and shall not vacate or sell County-owned road segments or right of way along or abutting any beach, river, creek, canal, lake, bay, gulf access or waterfront vista. The County shall encourage maximum right of way use for public access and viewing of waterfront vistas. Whenever feasible, the County shall make these areas accessible to mobility impaired persons.” Rees showed the board the applicable section of the 1926 Venice Farms plat, which depicted the area without a body of water visible in current aerial maps. After Interstate 75 was constructed through the area, Rees explained, subsequent aerial views show the water. “It is a completely manmade water body.” If his clients wanted to do so, Rees added, they “could put a hose in there and drain the entire borrow pit.” His position, Rees said, is that the Cosentino Charter amendment “does not apply in this situation of the requested street vacation.” Hines indicated that he believes the argument could be made that it does. “We do want to implement the wishes of the people,” Chair Nancy Detert said of the Cosentino amendment. “I think we understand the spirit of what it is they were trying to accomplish,” she added of the amendment’s supporters. “But I think we need to do everything we can to protect ourselves from potential lawsuits. … It’s just fraught with alligators, frankly.” “I agree with you on that,” DeMarsh told her. The County Charter gives a citizen “the right to judicial relief” to enforce the Charter, he continued, “and so that’s the problem.” “The commission can interpret the Charter language one way,” DeMarsh explained, and a citizen can interpret the language another way. In such cases, he said, the final decision on the correct interpretation comes via a court ruling.
Sarasota County staff members work to lead by example and to educate the public about measures that will reduce the amount of pollutants entering coastal waters, three county representatives told about 50 members of the Siesta Key Association on Dec. 6. Yet, while the county’s Fertilizer and Landscape Management Ordinance is more restrictive than the comparable state law, David Pousso, senior environmental specialist, explained that staff cannot take certain steps, such as telling retailers not to sell fertilizers during the rainy season. The Office of the County Attorney has warned, Pousso said, that such action would be considered an infringement on commerce. Nonetheless, Pousso pointed out, “We respond to thousands of citizen calls every year” regarding people using fertilizer between June 1 and Sept. 30, when the county ordinance does not allow that. “Actually, you guys are an asset to us.” Likewise, he said, employees of professional landscaping companies will report people working for other companies when they violate the ordinance. Staff sends out a Code Enforcement officer to respond to all such calls, Pousso added. In response to a question, Pousso said that staff has tried educating managers of stores about the ordinance, “but they weren’t too keen on us being there.” He also pointed out that because the county’s fertilizer ordinance was adopted before a similar state law went into effect in 2009, the county cannot add more prohibitive measures to the local ordinance. If it tried to do so, he told the audience, it would risk state action to pre-empt the county regulations. Additionally, he continued, the county cannot regulate pest control, because Florida law makes it clear that such action is a state responsibility only. The focus of the Dec. 6 discussion at the Siesta Key Association (SKA) meeting was on measures that can mitigate red tide. Pousso; Lee Hayes Byron, director of the University of Florida Institute of Food and Agricultural Sciences (UF/IFAS) in Sarasota County; and Armando Ubeda, the county’s Sea Grant agent, all emphasized that the algae that causes red tide, Karenia brevis, thrives on chemicals — especially nitrogen — that the public uses and which end up in waterways. In fact, Pousso pointed out, the County Code also prohibits the depositing of grass clippings and other vegetative debris onto roads and into stormwater conveyances, such as ditches. “This is one thing that a lot of people don’t realize,” he said. When such matter has been introduced into the system, the first big rain of the summer — what is called the “first flush,” he noted — sends all that debris into the waterways. Decaying leaves and acorns, for example, he said, raise the level of nutrients for red tide. If a neighbor is blowing leaves onto the road, Pousso told the audience, “Give us a call.” Pousso and Byron also talked about the county’s certification program for commercial fertilizer applicators. Everyone who completes the training gets a decal from the county to place on his or her truck. If someone sees a commercial company employee working in a neighborhood, and that decal is not visible on the person’s truck or other equipment, Pousso asked that the public also call the county.
Byron also stressed that homeowners should not be shy about asking the lawn maintenance workers they employ if those workers are using fertilizers during the rainy season, in contravention of the county ordinance. “Challenge them.” Since 2006, Byron said, 2,445 landscape professionals in the community have become certified through the county program. At the same time, she noted, directors of homeowners associations and condominium associations should verify that lawn maintenance companies they employ are abiding by Florida-friendly practices outlined in county ordinances. Ubeda pointed out that Karenia brevis has been proven to be “very opportunistic” in its feeding. For example, he continued, when its cells clog the gills of fish, and the fish die, the algae then thrives off the decaying matter. The tail of the organism allows it to move vertically in the water column, he explained, which also makes it easier for the dinoflagellate to find food. He likened that action to the movements of sunflowers to follow the sun.
Policy and practice
SKA Vice President Catherine Luckner introduced the three county speakers, pointing out that the SKA has been trying to provide its members as much information as possible over the past few months, so they will be knowledgeable about red tide and able to pursue action to mitigate the current bloom. Ubeda of Sea Grant explained that currents in the Gulf of Mexico and the wind have bearing on the movement of the bloom, which typically originates from 10 to 40 miles offshore. Karenia brevis is a photosynthetic organism, he added, meaning it needs sunlight to thrive. While the perception is that the current bloom is one of the most enduring in recent history, Ubeda said, that is not the case. The longest one documented in the past 65 years, he continued, occurred over 30 months, from 1994 to 1997. Another one lasted 21 months, from 2002 to 2004. During Pousso’s part of the presentation, he talked about policies in the county’s Comprehensive Plan related to sustainable landscaping for the public and private sectors. For example, Environmental Policy 5.1.3 says the county shall recommend Florida-Friendly Landscaping in new developments and provide educational materials to developers and homeowners. As for septic tanks: Pousso explained that inspections are not mandatory. Byron, the UF/IFAS director, said that although the state briefly had a law in place several years ago that called for septic tank inspections, the law was overturned. She reported in a follow-up email, “While septic tank inspections are not mandatory in the state regulations, local governments can adopt rules more stringent than the current state requirements.” Byron also told the SKA audience that the county has replaced about 10,000 septic systems in the Phillippi Creek watershed over the past 15 years, representing about 68% of the total number targeted. About 3,000 systems are left to be converted in that watershed, she added.
By Rachel Brown Hackney
A process already underway During the discussion, DeMarsh referenced the fact that the county has been contesting the legality of both Cosentino’s Charter amendments. The second amendment calls for the county to reacquire the section of North Beach Road that the commission vacated in May 2016 at the request of three sets of property owners. It also calls for the county to repair and reopen the road, which has been closed to motor vehicle traffic since 1993 because of repeated storm damage. Cosentino filed suit against the county in June 2016, seeking to overturn the road vacation. Although he has lost his case in the 12th Judicial Circuit Court, he has appealed Circuit Judge Frederick Mercurio’s dismissal of the last part of the complaint to the Second District Court of Appeal. If the board wanted the Office of the County Attorney (OCA) to continue to pursue its action on the Charter amendments in the 12th Judicial Circuit Court, DeMarsh said, then the OCA would do so. A Nov. 15 memo from the OCA to the commission explains the ongoing litigation. In Cosentino v. Sarasota County, the memo says, the Office of the County Attorney “filed a post-election challenge to the two charter amendments. … In Caflisch v. Sarasota County, the Plaintiffs sued Sarasota County alleging the two charter amendments are illegal. The County filed its answer which agreed the amendments violate state law and are unconstitutionally vague,” the memo continues. “In each lawsuit,” the memo says, “the County alleges the two charter amendments are inconsistent with executive/administrative authority granted to the Board by statute to convey property, vacate roads, and make budgetary decisions. The County also alleged that the amendments are vague.”
A question about a timeline As the county commissioners discussed Mike Cosentino’s county Charter amendments on Dec. 11, Commissioner Christian Ziegler asked when the measures became law. “Upon passing,” County Attorney Stephen DeMarsh replied, though he clarified that the amendments would have been considered law after the election results were certified. Then Ziegler asked whether the passage of the amendment regarding reacquisition of the vacated North Beach Road segment implied that a certain timeline must be followed. It did not, DeMarsh told him. When Ziegler asked whether, for example, the commission could wait five years to reacquire the road segment, DeMarsh responded, “If there were a lengthy period of time with no action, I presume that the citizen might be able to file an action, seeking a judicial relief requiring the board to take some action.” “There’s that vagueness that’s in place about the timeline, right?” Ziegler asked. “I think that’s correct, yes,” DeMarsh replied.