Constitutionality of the measures at the heart of the arguments
Siesta Key resident Mike Cosentino has talked many times over the past two years about how soothing he always found the drive along the length of Beach Road on the northern part of the barrier island.
Even though the county closed part of the road to motor vehicle traffic in 1993 because of repeated storm damage, Cosentino said in a recent 12th Judicial Circuit case document that he continued to drive the stretch, with its unbroken views of the Gulf of Mexico. He finally was forced to stop, he added, when Sarasota County staff and a set of North Beach Road property owners collaborated on placing bollards on both ends of the battered segment.
After the County Commission voted 4-1 on May 11, 2016 to formally vacate the 373-foot-long section that was most problematic, Cosentino began waging a campaign to overturn the decision. He has lauded then-Commissioner Christine Robinson for being the only board member to adhere to Environmental Policy 1.1.13 in the county’s Comprehensive Plan. That policy was amended later to give the board more flexibility in such situations. However, on May 11, 2016, the policy read, “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.”
Cosentino not only filed suit against the commission in June 2016, focusing on what he alleged was the board majority’s violation of that policy, but he also began working on two amendments to the Sarasota County Charter to right what he has contended was a grievous wrong.
He established a nonprofit organization, Reopen Beach Road, and gathered supporters to seek the signatures of voters on the petitions for those Charter amendments. Reopen Beach Road proponents became a regular fixture outside the Terrace Building in downtown Sarasota, working to catch customers headed to and from the Tax Collector’s and the Supervisor of Elections offices, as they worked to meet the signature threshold established for the measures to make it on a ballot.
Proposed Charter Amendment 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.”
Proposed 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.”
Finally, in late June, Supervisor of Elections Ron Turner sent a letter to the County Commission, providing formal notification that Cosentino had surpassed the necessary number of voter signatures to get both of the proposed amendments on the ballot.
On Nov. 6, the amendment calling for the County Commission to preserve county-owned property on the water won 72.7% of voter approval. Cosentino’s second amendment garnered support from 65.06% of the 192,444 voters who considered that ballot question.
Of the six amendments on the General Election ballot this week relating to the county Charter, Cosentino’s measures were among the top three in terms of support. The third one was the bond referendum needed to complete The Legacy Trail to downtown Sarasota. (See the related story in this issue.)
Addressing the County Commission during the morning Open to the Public part its Nov. 7 meeting, Cosentino pointed to the passage of the amendment requiring the board to buy back the vacated road segment. Noting that it “passed overwhelmingly yesterday,” he added that it “compels you guys to do the right thing with respect to our elderly and mobility-impaired, with respect to beach access, with respect to our Comprehensive Plan.”
Yet, the fate of Cosentino’s amendments remains uncertain, thanks to the litigation underway in the 12thJudicial Circuit Court.
Money and state law
On Aug. 29, as the County Commission conducted a public hearing on putting the measures on the Nov. 6 ballot, County Attorney Stephen DeMarsh explained a number of potential legal concerns they presented.
Among them would be the board’s future inability to sell any of its land if the argument could be made that the land had a waterfront vista.
For that very reason, the commissioners pressed County Administrator Jonathan Lewis and staff to hasten completion of a “term sheet” laying out how Mote Marine Laboratory could purchase 11.45 acres of Benderson Park for construction of a new aquarium. The site is right on the water. The board approved that term sheet during its regular meeting on Oct. 24.
Another major concern, DeMarsh pointed out on Aug. 29, would be the expense of reacquiring the 373 feet of North Beach Road that the board vacated in May 2016.
On behalf of the commission, county staff spent months negotiating with owners of property at 162 Beach Road over a price to acquire that land. The effort followed threats of legal action after the board repeatedly denied the owners’ petitions to construct a house on the site. The commission finally agreed to pay $1.4 million for the property.
One other concern with the North Beach road situation is that the three sets of landowners who petitioned for the road vacation also own property seaward of the segment. As part of the vacation agreement with the county, they gave up all rights to seek construction on those parcels, even though the beach has continued to accrete in that area. During the May 11, 2016 public hearing, Commissioner Charles Hines referenced the fight over 162 Beach Road, saying the offer from the North Beach Road property owners could save the commission a lot of trouble in the future.
The potential exists that if the county had to reacquire the North Beach Road segment, it also would have to buy the seaward parcels that were part of the deal.
One further concern for the the county, under the terms of Cosentino’s first Charter provision, is that the county would have to repair North Beach Road so motor vehicles could use it. Since the vacation was approved, an easement granted by the petitioners has given the public the right to use the segment by any means except motor vehicle. Even Dr. Stephen Leatherman of Florida International University in Miami — known worldwide as “Dr. Beach” — offered his formal opinion to the County Commission last year that it was wonderful for the county to provide public access to one of the nation’s top beaches without people having to be cautious about cars and trucks.
Two sets of the property owners who won the road vacation argued in court papers filed before the election that Cosentino and his supporters never alerted any of the signers of their Charter amendment petitions about the potential expense of repairing the road. Dennis and Wendy Madden and the Caflisch family asked 12th Judicial Circuit Court Judge Frederick Mercurio to remove the proposed amendments from the Nov. 6 ballot, largely because of what they cited as insufficient notice to voters — as required by the Florida Constitution — about just what the ballot questions entailed.
Mercurio shot down the Maddens’ attempt, but he did not rule on the Caflisches’ motion before the election.
The Maddens’ attorney, Lewis Hall III of the Williams Parker firm in Sarasota, told Mercurio during an Oct. 12 hearing that a long-time county transportation employee had estimated in a deposition that the cost of making the necessary repairs to North Beach Road would be at least $7 million.
Nonetheless, during the Nov. 7 County Commission meeting, Cosentino once again referenced a 2013 report prepared by a Jacksonville firm, Taylor Engineering, that the county hired to assess the situation on Beach Road.
Based on the findings in that report, Cosentino argued, the county could have spent about $2 million in 2013 to stabilize the road by means of a step revetment system that has proven successful on Casey Key. Taylor Engineering estimated that the “No Action” option would end up costing the county about $6 million.
“Save the taxpayers $4 million,” he told the commissioners on Nov. 7. “Keep Beach Road in public ownership and control, like it has been for 100 years, and follow the law.”
County’s continued legal arguments
The county has argued in court papers, too, that the amendments should not have been on the Nov. 6 ballot.
In its most recent filing in the case Cosentino initiated in June 2016, Assistant County Attorney David Pearce pointed out in a Nov. 7 motion that the Charter amendments “create an immediate injury by requiring the County to re-acquire Beach Road and by contravening the express authority granted to the Board by general law to sell or convey land, vacate roads, and to create an annual budget.”
Pearce was referring to the Maddens’ earlier argument calling for the amendments to be removed from the ballot. Cosentino had filed a response, seeking dismissal of the couple’s claims on that issue.
Pearce added, “The constitutionality of the charter amendments is a real issue and not an academic one.”