Siesta resident says judge’s ruling in North Beach Road case clears the way for his petition drive to overturn County Commission action

Nonetheless, property owners who sought partial summary judgment motion feel the order underscores the validity of the board’s May 2011 vote

Mike Cosentino’s website, ReopenBeachRoad.org, features information about his lawsuit and his proposed charter amendments. Image from the homepage

A 12th Judicial Circuit Court judge’s ruling in favor of a couple who own property on North Beach Road actually will help the fight to overturn the Sarasota County Commission’s May 2016 decision to vacate a 357-foot-long segment of the road, Siesta Key resident Michael Cosentino told The Sarasota News Leader this week.

Late on the afternoon of April 12, Judge Frederick Mercurio granted the motion of Dennis and Wendy Madden for partial summary judgment in the case Cosentino filed against Sarasota County in June 2016. Cosentino maintains that the County Commission violated a section of the county’s Comprehensive Plan in its 4-1 vote on May 11, 2016.

The ruling came exactly a week after a 42-minute hearing on the Maddens’ motion. The point around which the order pivots is whether the County Commission action constituted a development order under the guidelines of the Florida Statutes.

Cosentino has argued that the Maddens sought the road vacation so they could combine the 8,265 square feet of property with other parcels they own — landward and seaward of the road. That would enable them to comply with the county Zoning Code in a plan to erect six new dwelling units. Their goal, the Maddens’ attorney — Charles Bailey III of the Williams Parker firm in Sarasota told the County Commission — was to tear down 12 old structures that do not comply with current state and local building code standards.

This house owned by the Maddens on North Beach Road, which has rental units, is slated to be torn down. File photo

The Maddens were among three sets of petitioners seeking the road vacation. They also petitioned for a Coastal Setback Variance, so they could undertake the new construction. The commission approved that variance, as well, on May 11, 2016; again, the vote was 4-1, with then-Commissioner Christine Robinson in the minority.

With the April 12 ruling, Cosentino told the News Leader in an April 17 telephone interview, Mercurio “did us a solid favor.”

One of Cosentino’s attorneys, Elizabeth A. Gomez-Mayo, added in a statement she emailed to the News Leader the same day, “I’d say the order is good news for our petitions, which focus on regaining the public’s right to the roadway as it was dedicated 100 years ago. One of the arguments [the defendants] would try to make against [her emphasis] our petitions is that Resolution 2016-079 (street vacation) was a development order. Now, we have this hurdle behind us. We will, of course, still seek to challenge the development allowed by the resolutions, and we still have multiple avenues for fighting the street vacation, but will take this chance to redouble our efforts to have every voter registered in Sarasota County sign petitions 4.2 and 4.1.”

Cosentino pointed out that state law forbids a county charter amendment from calling for a development order.

Last summer, in conjunction with filing his 12th Judicial Circuit Court complaint against the county, Cosentino began an initiative to put two Sarasota County Charter amendments on the ballot. Amendment 4.1 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 rights 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.”

Amendment 4.2 would rescind the abandonment of, or have the county re-acquire, the section of North Beach Road that the commissioners voted to turn over to the Maddens and the two other sets of petitioners.

Mike Consentino addresses the County Commission on Jan. 25. File photo

On April 17, according to the Sarasota County Supervisor of Elections’ Office, the number of valid signatures on the proposed Amendment 4.1 was 1,563; on 4.2, it was 1,559. Cosentino needs 13,866 on each, Supervisor of Elections Office Administrative Assistant Cathy Fowler told the News Leader in September 2016. That figure reflects 5% of the number of registered voters during the last general election prior to the start of his petition drive, which was held on Nov. 4, 2014, she explained.

“Now they can’t challenge our petitions, which is phenomenal,” Cosentino said during the April 17 interview.

However, the Maddens have argued in a counterclaim against Cosentino that he has violated state law “by indicating that voting for [one of the amendments] is necessary to allow public access [on the vacated segment of North Beach road]” and that he “hides the ball” by indicating that voting for the amendment to reopen Beach Road will enable motorists to use it once again. The road has been closed to motorized vehicles since 1993, when repeated storm damage to it led the county to erect signage prohibiting drivers from using it.

Regardless of Cosentino’s view of the judge’s decision, Dennis Madden called the ruling “very exciting” in a brief telephone interview with the News Leader on April 14. Madden later emailed the News Leader a written statement: “We are happy to hear the news that the Court upheld the Commissioners’ authority and decision as to what is best for the environment, the neighborhood the local community and the County. The Judge obviously spent time researching and understanding the real facts about the case.”

Asked whether he plans to appeal Mercurio’s decision, Cosentino told the News Leader that he and his attorneys are reviewing it, “and we will act accordingly.”

Along with Gomez-Mayo, Cosentino is represented by Ralf Brookes of Cape Coral, who filed the original complaint against the county last year.

Details of the judge’s order

Judge Frederick P. Mercurio. Image from the 12th Judicial Circuit Court website

In his April 12 ruling, Mercurio explains that Florida Statute 163.3164(15) says, “A ‘development order’ is ‘any order granting, denying, or granting with conditions an application for a development permit.’”

A “development permit,” as defined in the same chapter of the state statutes, includes “‘any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land,’” Mercurio adds.

After providing further explanation about the language in the Florida statutes, Mercurio writes that the County Commission’s decision to vacate Beach Road is “the termination of rights to land. The County could have vacated the road without approving the coastal setback variance. Thus, vacating the road is an independent decision and not dependent upon the coastal setback variance.”

Lewis Hall III of the Williams Parker firm — who is representing the Maddens — made that argument during the April 5 hearing. The County Commission’s decision was predicated upon a financial decision, he told Mercurio. The cost of continuing to maintain the damaged road, Hall said, “outweighed any benefit to the county …”

However, arguing for Cosentino, Brookes said the two agenda items the County Commission considered on May 11, 2016 —first, the road vacation petition; second, the Coastal Setback Variance petition — “were hopelessly intertwined” and that County Attorney Stephen DeMarsh had to remind the commissioners that they could not grant the variance unless they approved the road vacation beforehand.

Mercurio adds in his ruling, Cosentino “incorrectly argues the ‘termination of rights of access’ can be development when combined with other operations or activities.”

Other arguments going forward

Along with his contention about the development order, Cosentino argues in the second amended complaint he filed in the case — on Feb. 3 — that the road vacation violated Environmental Policy 1.1.13, which was in effect in the county’s Comprehensive Plan on May 11, 2016. That policy said, “The County shall not vacate road segments on waterfronts along any creek, river, lake, bay or Gulf access point and shall encourage right-of-way use of these areas for coastal beach and bay access.”

Charles Bailey III. Photo from the Williams Parker website

Representing the Maddens and the other petitioners, attorney Bailey told the commission during the May 11, 2016 public hearings that all three couples own property on the Gulf of Mexico side of the road. In fact, Bailey pointed out, one condition they were proffering in exchange for the road vacation was the commitment — in perpetuity — never to seek construction on those parcels. Since that land was on the water, and not the road itself, Bailey added, the board would not be violating the Comprehensive Plan if it vacated that part of the road.

In his second amended complaint, Cosentino also contends that the approval of the Maddens’ Coastal Setback Variance is inconsistent with the county’s Future Land Use Policy 1.1.2, which says, “The intensity and density of future development on the Barrier Islands of Sarasota shall not exceed that allowed by zoning ordinances and regulations existing as of March 13, 1989,” except with respect to lands zoned residential multi-family as of that date. That policy specifies that any nonconforming duplex or multi-family structure whose density exceeds the county’s Zoning Code restrictions “may be rebuilt within the footprint of the structure …”

The board vote, Cosentino argues, would allow the Maddens to exceed the footprint of the pre-existing, non-conforming multi-family structures they own.

A county staff analysis undertaken prior to May 11, 2016 pointed out that the total habitable area of the Maddens’ new structures would be 18,901 square feet, with an average of 3,150.2 square feet per unit, according to documentation in Cosentino’s second amended complaint. That would mean the living area in the new buildings would be 3.9 times larger than the average habitable area of the existing ones.

Moreover, the second amended complaint says the county’s actions in May 2016 violate Environmental Policy 1.1.1 of the Comprehensive Plan by allowing construction at least 4.4 feet closer to the Gulf of Mexico than the existing residential structures, as pointed out in the staff analysis of the Maddens’ plans.

Further, the second amended complaint contends that because Cosentino owns property at 10 Beach Road, which is 465 feet north of the vacated road segment, the County Commission action “does not extinguish the private right of Cosentino to continue to use Beach Road ‘for thoroughfare purposes’ … to drive his vehicle on Beach Road between Columbus Boulevard and Avenida Messina.”

The complaint points out that the county allowed bollards to be installed at each end of the vacated road segment, to prevent motorists from using it. The public still may access the road by non-motorized means, however, as detailed in the resolution the County Commission approved.

During his April 17 telephone interview with the News Leader, Cosentino stood by his legal arguments. “All I’ve got to do is get into the courtroom; they’ll lose,” he added of the county commissioners.

He characterized the partial summary judgment portion of the case as “Page 10 of a 200-page mystery novel. … So everyone take a deep breath and settle down.”

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