County attorney reminds board that staff is awaiting rulings on two lawsuits filed over amendments written by Siesta resident Mike Cosentino
After about 33 minutes of discussion on Jan. 15, the Sarasota County commissioners agreed to postpone voting on a petition for the vacation of a segment of Hardee Drive in Venice. They indicated they were fearful that a County Charter amendment approved on the Nov. 6, 2018 General Election ballot could lead to litigation against the county if they proceeded with the vacation.
The very next day, County Attorney Stephen DeMarsh pointed out, he had scheduled a “shade” meeting with them to discuss ongoing litigation involving two Charter amendments Siesta Key resident Michael Cosentino wrote after the County Commission voted 4-1 on May 11, 2016 to vacate a 373-foot-long segment of North Beach Road.
Charter Amendment 3.10 says, “Preserve County-Owned Parks, Preserves, Beach and Water Access and Waterfront Vistas. 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 orabutting any beach, river, creek, canal, lake, bay, gulf access or waterfront vista. The Countyshall 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.”
That amendment won approval of 72.7% of the voters who addressed the issue on the November 2018 ballot.
The related amendment passed during the November 2018 General Election, 3.9, says, “Siesta Key Beach Road as Public Right of Way. The County shall rescind the vacation of, or re-acquire, Beach Road on Siesta Key as it existed on January 1, 2016, and shall not vacate or sell this County-owned road segment(s) or right of way. The County shall provide maximum right of way use of Beach Road for public access, including vehicular use and viewing of waterfront vistas. The County shall make Beach Road accessible to mobility impaired persons.” That amendment won 65% of voter approval last year.
Two lawsuits in the 12thJudicial Circuit Court, DeMarsh reminded the board on Jan. 15, have argued that the two Charter amendments are illegal. “In both cases,” DeMarsh said, “the county position … based on board input … was that they should be challenged.”
Chair Charles Hines referred to the language in Amendment 3.0 as “vague as it can be,” and said the amendment “needs to be overturned.”
DeMarsh concurred about the “ambiguous terms.”
In response to a question from Commissioner Christian Ziegler, DeMarsh said, “I really don’t know when we’ll have a judicial determination” on the amendments.
Commissioner Nancy Detert also suggested this week that she and her colleagues “decide as a board how to proceed on [street vacation] cases” until the litigation has been settled. “We cannot jam up the pipeline with a million little things while we wait for the courts to make a decision, because that could be years.”
On Aug. 29, 2018, during a public hearing regarding putting the amendments on the Nov. 6, 2018 ballot, Hines questioned Cosentino about the subjectivity of the language in Amendment 3.10. Hines pointed to the difficulty of determining whether some road segments would be seen as abutting water bodies.
Prior to the Aug. 28, 2018 Democratic Primary for the County Commission District 4 seat, Cosentino replied, he had expected to be elected to the board. Then, Cosentino said, he would have been able to make a determination on any street vacation petition filed with the county that raised concerns.
Cosentino was seeking the board seat to which Commissioner Alan Maio was re-elected in November 2018. Cosentino lost to Wesley Anne Beggs of Sarasota in the Democratic Primary.
In the case of the Jan. 15 street vacation petition, attorney Steve Rees of the Icard Merrill firm — representing property owners along Hardee Drive in Venice — pointed out that a water body near the road segment originated as a borrow pit during the construction of Interstate 75. Hardee Drive is not immediately adjacent to the pond, Rees added.
Nonetheless, a memo from the Office of the County Attorney, provided to the commissioners in the Jan. 15 agenda packet, said the portion of Hardee Drive in Venice at the heart of the petition “runs parallel to a water body within the boundaries of the petitioner’s property.”
The memo added that this was the first petition for a street vacation to come before the commission since Amendment 3.10 won voter approval last year.
His clients filed their petition in April 2018, Rees pointed out. “It takes a while,” he said, to move such an application through the county process. By the time it was ready for commission discussion, Rees added, “this Charter amendment was passed.”
“I think your back is up against the wall,” Commissioner Michael Moran told Rees. “In this clouded discussion,” Moran continued, he had to rely on the intent of the Charter amendment. He did not believe it applied to Rees’ clients’ situation.
Although Moran made a motion to approve the petition, it failed for lack of a second.
The commissioners ultimately agreed not to take any vote on the petition for the time being. Detert told Rees, “You’ll be first up” after the board has clarification about Amendment 3.10. “We will fast-track your request.”
Maio also cautioned staff that, regardless of how long it takes before the board again addresses the street vacation, Rees’ clients should not be told to have new surveys completed, for example, or asked to pay additional fees. “Let’s not take a harmful, aggravating situation and make it worse.”
The specific issues
During remarks at the outset of the public hearing, Hayley A. Baldinelli, the new manager of the county’s Property Management Division, explained that the segment of Hardee Drive at the heart of the issue “was created as part of the plat of Venice Farms.” The county never has used the right of way for any purpose, she pointed out.
Rees explained to the commissioners that the segment of Hardee Drive is between North Jackson Road and Inverness Road. The adjoining property owners are David Lee and Nancy Ann Miller, individually and as trustees; and Sylvia Quartier, as a trustee.
He wanted to note, he continued, that because the section of the road is part of a plat, the county “doesn’t actually own the property.”
When Commissioner Hines asked why the petitioners were seeking the vacation, Rees explained that the Millers have several agricultural operations in that area. If the vacation were approved, Rees said, they could unify that property as a single parcel and seek an agricultural tax exemption for it. They also want to run a water pipeline from the former borrow pit/pond to the agricultural operations. “It truly is [a matter of] trying to operate as a single agricultural operation.”
“That’s a money thing; that’s a tax thing,” Hines replied.
Then Detert raised the question of the Cosentino Charter amendment. Addressing County Attorney DeMarsh, she asked, “Is this going to create any problem for us if we approve this?”
He responded by reading Amendment 3.10.
“I think under a plain meaning kind of interpretation,” he added, “it’s quite likely that a court would say that vacating this segment would not be permitted under 3.10 of the Charter as written.”
However, DeMarsh pointed out, the parties with standing in a legal challenge, if the board were to approve the Hardee Drive street vacation, “would be extremely limited.”
“Standing” is a legal term referring to whether a party can demonstrate that he or she has sustained or will sustain direct injury or harm and that the harm is redressable, according to Cornell Law School’s Legal Information Institute.
When DeMarsh suggested that the county could grant the petitioners a right of way use permit, Rees replied that that “doesn’t address the taxing and the ag exemptions” he had discussed earlier. For the Millers, he said, “This is a bona fideagricultural operation.”
“We’re friendly to your proposal,” Detert told Rees, “but we can’t give away county land” until the Charter amendment issues have been settled.