Almost two years after it was filed, North Beach Road lawsuit remains unresolved

Dispute over materials plaintiff Michael Cosentino has sought and county’s request for a trial to be scheduled among latest developments

Bollards installed in late January 2017 are at the ends of the vacated segment of North Beach Road. Signage makes plain that the public can access the road segment. File photo

On May 7 — almost exactly 23 months after he filed a civil complaint against the Sarasota County Commission — a Siesta Key resident is due back in 12thJudicial Circuit Court on motions regarding a dispute over discovery in the case.

Michael Cosentino filed suit against the county on June 10, 2016, arguing that the commission violated the county’s Comprehensive Plan when it voted 4-1 on May 11, 2016 to vacate a 357-foot-long segment of North Beach Road.

The Office of the County Attorney also has asked the judge in the case to go ahead and set a trial — expected to last one to two days — on the remaining issue in the case that involves the county.

The presiding judge — Frederick P. Mercurio — has tossed out counts in the amended version of the complaint Cosentino filed in February 2017. Cosentino also saw the Florida 2nd District Court of Appeal uphold Mercurio on an appeal Cosentino filed after one of those summary judgments.

Additionally, Cosentino has lost his original attorney — Ralf Brookes of Cape Coral — and hired a substitute — Lee Robert Rohe of Big Pine Key. Mercurio agreed to that switch in a March 29 order.

(In a telephone interview earlier this year, Cosentino told The Sarasota News Leaderthat Brookes had to withdraw because of family reasons that Cosentino could not address on the record.)

Mike Consentino addresses the County Commission on Jan. 25, 2017. File photo

In March, Mercurio did agree to Cosentino’s motion for a continuance of a hearing that had been set for April 3. That date was when the judge originally had planned to hear arguments regarding the motion Sarasota County filed on Oct. 25, 2017, seeking dismissal of the final issue involving the county. He also would have considered a motion for partial summary judgment on a count in the complaint involving Dennis and Wendy Madden. The couple, who own property on North Beach Road, were among the petitioners who sought the May 11, 2016 road segment vacation.

An earlier hearing set on the Maddens’ motion — scheduled for Nov. 21, 2017 — was cancelled. Mercurio agreed to that after Cosentino requested more time, so his attorneys could depose a county employee prior.

Further, during a March 6 hearing, Cosentino argued that the Maddens were refusing to provide the materials he had sought through discovery. Mercurio sided with Cosentino on two points, ordering the Maddens on March 21 “to provide a response within 20 days of the date of [the] Order regarding [their] ownership of any part of Beach Road on Siesta Key in Sarasota, Florida.”
Additionally, the Maddens were ordered to respond — also within 20 days of the March 21 order — “as to any false statements and deceptive advertising,” regarding allegations they have made against Cosentino relating to the road vacation.

Finally, the couple was given 20 days from the date of the order to respond as to “‘every payment, donation, gift, or loan of any kind from you, any member of your family, any entity owned or controlled by you to any known past or present official, employee, representative of Sarasota County, Florida, or potential applicant for employment or candidate for office of Sarasota County’”; but such response is limited to three years prior to the date the initial complaint was filed in this action, dated June 10, 2016,” Mercurio wrote.

On March 29, the Maddens’ primary attorney, M. Lewis Hall III of the Williams Parker firm in Sarasota, filed notice with the court that the couple had produced the documents as Mercurio had ordered.

County response to motion for continuance

After Cosentino asked for a postponement of the April 3 hearing, Assistant County Attorney David Pearce — writing on March 27 — filed an objection.

Pearce pointed out that the original complaint challenged two County Commission decisions. The first was the road segment vacation. The second was what brought the Maddens into the case: The County Commission on May 11, 2016 also granted a Coastal Setback Variance to the Maddens — who own property at 89 Beach Road and 84 Avenida Veneccia — so they could tear down 12 old structures that do not conform to modern building code standards and replace the units with about half as many new dwelling units. Their attorney during the May 2016 hearing — Charles D. Bailey III of the Williams Parker firm — explained to the County Commission that the Maddens needed the unity of property they own seaward of North Beach Road, plus the area of the vacated road segment, plus their property landward of the road to achieve sufficient square footage to undertake the new construction they proposed.

A legal sketch shows the road segment vacated by Sarasota County. Image courtesy Sarasota County

The only facet of Cosentino’s complaint remaining against the county as of that point, Pearce continued in his March 27 objection, is the challenge that the road vacation was inconsistent with the county’s Comprehensive Plan.

When Cosentino filed his March 22 motion seeking a continuance of the April 3 hearing on that last issue, Pearce wrote, Cosentino alleged two reasons for the delay: the substitution of attorneys on March 14 and the need for extra time for discovery purposes. Pearce cited judicial precedents to make his argument that Mercurio should deny the request for the delay of the hearing.

“The County’s motion for summary judgment has been pending since October 25, 2017,” Pearce continued, “more than five months prior to the April 3, 2018 hearing. For the first time in his motion for continuance,” Pearce wrote, “Cosentino says he needs to depose more than three dozen individuals, including former County commissioners and administrators who left the County long before the Board approved the coastal setback variance [for the Maddens]. What purpose would there be in deposing these witnesses other than harassment, delay, or to conduct a fishing expedition?”

Nonetheless, on March 29, when Mercurio granted Cosentino’s motion for the continuance, he noted that he had not, at that point, entered an order granting the substitution of Rohe for Brookes. Mercurio also agreed that Cosentino had had “inadequate time to obtain and review discovery.”

Dispute between Maddens and Cosentino

The most recent exchanges in the case involve the discovery Cosentino has sought from the Maddens.

Sarasota County issued this fact sheet about the North Beach Road vacation in August 2016. Image courtesy Sarasota County

In an April 19 Motion for Protective Order, one of their attorneys — Bailey S. Lowther of the Williams Parker firm — wrote that Cosentino and his nonprofit organization, Reopen Beach Road — which is involved in the complaint as well — served Lowther with notices of depositions of current and former county employees to be taken on May 14, May 15, May 17 and May 24.

Additionally, Lowther pointed out, Cosentino and Reopen Beach Road had failed to respond to a request from the Maddens on April 9 regarding the scheduling of a status conference on the lawsuit. As a result, Lowther continued, the Maddens had filed a motion seeking such a conference.

Then, on April 11, he wrote, Cosentino and Reopen Beach Road emailed the Maddens and the county a list of 15 current and former county employees whom they seek to depose.

The same day, Lowther continued, counsel for the county inquired of Cosentino’s purpose for the depositions, “explaining most of those named would not have knowledge regarding the remaining issues of the litigation.” Lowther added, “The same day, Plaintiffs vaguely replied to the County’s counsel stating, ‘The depositions are being sought for discovery purposes.’”

On April 11, Lowther wrote, the Maddens contacted Cosentino and Reopen Beach Road, voicing their objection to the scheduling of the depositions until a status conference had been held. They also asked again for the plaintiffs to agree to a hearing date, he added. “The Plaintiffs never responded to the Maddens’ repeated requests and instead set the depositions [for 10 of the 15 county employees],” he noted.

This house owned by the Maddens on North Beach Road, which has rental units, is slated to be torn down and replaced by structures that will be compliant with current building standards. File photo

The Maddens object to the depositions, Lowther wrote, “on the grounds that they are unnecessary and irrelevant to any issue remaining before the court.”

On April 13, Cosentino’s attorneys — Rohe and Elizabeth A. Gomez-Mayo of Winter Park — filed a response, saying that the Maddens’ attorneys did not confer with them about a case management conference before filing the motion to compel one. They added that the Maddens “failed to raise any case management concerns” at the March 6 hearing. Cosentino “awaits the rescheduling of the Case Management Conference during which time all parties will have the opportunity to be heard,” they wrote.

Additionally, on April 27, Rohe, and Gomez-Mayo filed a response to the Maddens’ Motion for Protective Orderregarding discovery. They argued, “Those who have been identified for depositions were involved in the development approval process leading up to the May 11, 2016 County Commission meeting. Others who are on the list appear to have been involved in the [decision making] for how to repair Beach Road to lessen future storm damage.”

They added that the Maddens’ “conclusory statement about depositions being ‘unnecessary and irrelevant’ is supported by nothing more than opposing counsel’s opinion. The party seeking the … order has the burden to show good cause,” they wrote, referencing two cases as judicial precedent for the latter statement.

Moreover, Rohe and Gomez-Mayo continued, the Maddens “have not shown serious injury resulting from the discovery sought.”

The hearing on the Maddens’ motion for the protective order is set for 3 p.m. on Monday, May 7, in Courtroom No. 1 on the sixth floor of the Criminal Justice Center Building. That is located at 2071 Ringling Blvd. in downtown Sarasota.

Magistrate Deborah A. Bailey is scheduled to hear the arguments.