Hearing set for Feb. 18 in Circuit Court
On Feb. 18, a 12th Judicial Circuit Court judge has scheduled a hearing on a motion seeking the formal dismissal of litigation over two Sarasota County Charter amendments that Siesta Key resident Michael Cosentino wrote, which won passage in the November 2018 General Election.
In an Oct. 28, 2019 ruling, Circuit Court Judge Hunter Carroll struck one Charter amendment — 3.9. He agreed with the Office of the Sarasota County Attorney and property owners on North Beach Road that that amendment contravened the Florida Statutes. It would take away powers the state has invested with local government boards.
Carroll also used his order to direct that the first sentence of the second amendment — 3.10 — be severed from the rest of that amendment.
Section 3.9 of the Sarasota County Charter called for the county either to rescind a May 2016 County Commission decision to vacate a 373-foot-long portion of North Beach Road or to re-acquire the segment.
The first sentence of Section 3.10 prohibited the county from selling its ownership of parks and preserves and forbid the vacation of any county-owned “road segments or rights of way along or abutting any beach, river, creek, canal, lake, bay, gulf access or waterfront vista.”
Carroll characterized the remainder of Section 3.10 as “an encouragement to maximize rights-of-way use for public access and viewing waterfront vistas.” That part of the amendment also says, “Whenever feasible, the County shall make these areas accessible to mobility impaired persons.”
Cosentino has explained in numerous public forums that he wrote the amendments as a secondary means of trying to reverse the North Beach Road vacation. Additionally, he has advocated for greater public access to the county’s shoreline and has admonished the County Commission for not directing staff to make a greater effort to make it much easier for physically challenged people to enjoy the public beaches.
In June 2016, Cosentino filed a Circuit Court complaint against the county over the North Beach Road vacation, but he has lost all but one portion of that case. The only remaining argument involves his claim that he should be able “to drive his vehicle on North Beach Road between Columbus Boulevard and Avenida Messina.” In September 2016, he bought property at 10 Beach Road, which is “465 feet north of the vacated segment of Beach Road,” his then-attorney, Ralf Brookes of Cape Coral, pointed out in the second amended complaint filed in early February 2017 in that case.
Brookes added that because Sarasota County staff “allowed bollards and obstructions to private and public traffic to be placed on both ends of the vacated segment of Beach Road,” Cosentino has been prevented from using that stretch “for thoroughfare purposes.”
Although motor vehicles are not allowed on the vacated portion of the road, it is open to the public, including as a means of access to the beach. Signage adjacent to the bollards makes that clear.
A hearing on that final claim in Cosentino’s amended lawsuit over the road vacation was set for Jan. 28, according to a court document filed on Jan. 14.
Additionally on Jan. 28, Circuit Court Judge Andrea McHugh will consider a motion Cosentino filed last year, seeking a jury trial on issues in the case.
Last year, McHugh formally combined the Charter amendments litigation with the original lawsuit over the road vacation.
McHugh set aside one hour for the Feb. 18 hearing; for the Jan. 28 hearing, she has allowed two hours.
Typically, McHugh has taken a number of weeks — in some cases, several months — to rule on litigation after conducting hearings. Because of an emergency involving her family last fall, Judge Carroll ended up presiding over a hearing that led to his ruling on the Charter amendments part of the Cosentino cases.
Along with Cosentino himself, a nonprofit he established in late June 2016 — Reopen Beach Road — has been a party to the litigation.
More details of the new motion
In the Dec. 6, 2019 motion seeking final judgment on the Charter amendments issue, Assistant County Attorney David Pearce pointed out that through Judge Carroll’s Oct. 28, 2019 order, the county and the two sets of property owners — Wendy and Dennis Madden and the Caflisch family — “believe the Court has provided the remedies each sought …”
Pearce referenced the various complaints and motions the Maddens and Caflisches had filed since the late summer of 2018. All the issues raised in the litigation, he added, are moot. Citing a 1994 Florida Supreme Court decision, Pearce wrote, “An issue is moot when the controversy has been so fully resolved that a judicial determination will have no actual effect.”
He further noted, “A partial final judgment is warranted in this case because it would dispose of Sarasota County as a party to this dispute.”
Moreover, in formally asking for the final judgment in regard to the Charter amendments, Pearce indicated that the Maddens and the Caflisches, as prevailing parties, would be entitled to have Cosentino and Reopen Beach Road pay their court costs.
“Cosentino and Reopen Beach Road, Inc. are the real parties of interest in defending the charter amendments,” Pearce wrote.
Before filing the motion, Pearce wrote, he contacted Cosentino and Reopen Beach Road, and both “have indicated they oppose this motion.”
The opposing view
Cosentino has contended that the Office of the County Attorney conspired with the applicants to figuratively pave the way for the North Beach Road vacation before the County Commission conducted the May 2016 public hearing on it. He alleges that that is the primary reason the County Commission failed to follow through on the October 2013 recommendations of a Jacksonville consulting firm regarding measures that could have been taken to stabilize the road. The county had hired the firm to undertake an analysis.
During the May 11, 2016 public hearing on the road vacation petition, Sarasota attorney Charles D. Bailey III pointed out that the stretch of road had been closed to vehicular traffic since 1993 because it had been damaged repeatedly by storms. The 2013 study also was completed at a time the County Commission was dealing with the ramifications of the Great Recession.
After Judge Carroll’s ruling in October 2019, Cosentino issued the following statement to The Sarasota News Leader: “Frankly, we anticipated losing. … [T]he people [for whom] the county has [broken] and continues to break the law … are well funded and well connected, and in Sarasota that trumps the law and the will of the people.”
He added, “We, and the truth, will prevail, but probably not until the Florida Supreme Court says so. Our goal is and has been to make sure the case record is complete so that we will prevail when we eventually get the chance to present our case to a knowledgeable, impartial panel of judges.”