Cosentino contends that Circuit Court judge who ruled for the county did not correctly interpret and apply appropriate sections of state law
In his initial brief in his new appeal involving the County Commission’s May 2016 vacation of a 373-foot-long segment of North Beach Road, Siesta Key resident Mike Cosentino has pointed out to the Florida Second District Court of Appeal that the crux of the issue “is not about returning a failed development in to farm land, nor is it about vacating a downtown alley to make room for the inevitable growth of our State. This is about vacating a 100 year old public road, the subject segment of which is Sarasota’s only, and one of just 26 National Historical American Landscapes in the State of Florida.”
The Aug. 5 brief is Cosentino’s opening salvo, so to speak, in his appeal of 12th Judicial Circuit Court Judge Andrea McHugh’s March 24 final order in the case. McHugh ruled in favor of Sarasota County and one set of intervenors in the case, Dennis and Wendy Madden, who were among three sets of property owners on North Beach Road who petitioned for the vacation.
“It is the development rights and the material change of land use of Beach Road resulting from the County’s approval [of the vacation] that are the subject of the underlying case and this appeal,” Cosentino continued in his brief, with emphasis.
If the County Commission had not agreed to the road vacation, Cosentino pointed out, the Maddens would not have had sufficient acreage to support their six-unit condominium complex under construction landward of North Beach Road. Prior to the May 2016 commission action, he explained, the section of North Beach Road at the heart of the case separated parcels the Maddens owned landward of the road from their property on the Gulf side of the road. They used the combined acreage of all the parcels — plus 8,265 square feet of the vacated road segment — to achieve the necessary total for the new building. Cosentino pointed out that if they had been able to use just the acreage landward of the road, they would have been limited to three dwelling units.
“In short,” Cosentino wrote, the road vacation “is the unlawful taking of public land for the express purpose of approving unlawful private development.”
Florida Statute 163.3215(3), he added, again with emphasis, “states that any decision of a local government granting or denying an application for a development order which materially alters the use or density or intensity of use of a particular piece of property, is subject to challenge for consistency with that local government’s own Comprehensive Plan.”
Yet, Cosentino argued, instead of “interpreting and applying” the appropriate sections of the state law “to the Record facts of the case, the Circuit Court merely [copied] and pasted 4 pages of the County’s response to Cosentino’s Complaint as ‘Findings’ in its Order. In doing so,” he continued, “the Circuit Court apparently accepted as true [the county’s] opinions, conclusory allegations, and conclusions of law, none of which are supported by the Record.”
In the county’s answer to Cosentino’s initial brief, Assistant County Attorney David Pearce first argued that Cosentino lacks standing to pursue the case, as “Cosentino [has] failed to demonstrate that he was adversely affected” by the County Commission’s actions.
(Cornell University Law School defines standing as “capacity to bring suit in court.”)
Further, Pearce wrote, “Cosentino failed to demonstrate his interests exceed in degree the general interest of the community good shared by all persons.”
Pearce was referring to a section of Florida Statute 163.3215, which, he contends, “provides a unique standing requirement.”
“The Florida Legislature intended to liberalize standing,” Pearce continued, referring to rulings of the Second and Fifth Florida Courts of Appeal. “However,” he added, ‘liberalizing the standing requirements does not equate to eliminating them.”
“Cosentino claims daily, personal, and recreational use of the area,” Pearce added. Yet, when county counsel asked him during an interrogatory “to explain how he would be adversely affected by the road vacation … [s]pecifically … to articulate what qualitative experience would be lost by not being able to drive down the Beach Road segment when he could walk or bike down Beach Road,” Pearce wrote, Cosentino “offered the following response:
“Because I enjoyed driving my truck down this segment of Beach Road, and I can no longer drive my truck down this segment of Beach Road. My many drives down [B]each Road were my favorite way to see, enjoy, and view the Gulf of Mexico and the only way to see it when driving.”
When asked how he would be adversely affected by the Maddens’ Coastal Setback Variance — which the County Commission also approved on May 11, 2016, to permit the new condominium construction — Pearce continued, Cosentino said, “I am adversely affected, most especially when it is to the harm of my neighborhood on beautiful Siesta Key including additional development beyond and seaward of the Gulf Beach Setback Line which is intended to protect this segment of the beach for other property owners and the public.”
Cosentino lives on Avenida de Mayo, Pearce noted, about half-a-mile from the vacated road segment. And while Cosentino owns property at 10 Beach Road, Pearce added, Cosentino did not purchase that land until September 2016.
Cosentino’s response during the interrogatory, Pearce pointed out, “doesn’t detail how Cosentino’s aesthetic and/or recreational interests will be adversely affected by the coastal setback variance, which allows for the demolition of [12 dwellings that dated back decades and which did not conform to county’s current land construction and building code regulations].”
The approval of the variance did not alter the beach, Pearce stressed, and Cosentino’s “view of the beach and Gulf of Mexico from Beach Road will not change. If Cosentino stands on Beach Road and gazes toward the Gulf of Mexico, the Maddens’ development would be behind him.”
Moreover, Pearce wrote, “The definition of ‘development order’ does not include a road vacation,” and the “road vacation did not grant the right to develop land.”
Elaborating on Cosentino’s arguments
“Vacating Beach Road,” Cosentino contended, “was the catalyst that set forth an instantaneous chain reaction of inextricably intertwined legally significant events that form the basis of this appeal. The [Circuit] Court’s Order focused exclusively on just one of them, a ‘termination of rights to land …’”
The County Commission’s road vacation permitted ‘material alterations to the use or density or intensity of use’” of the property belonging to each of the three sets of petitioners, Cosentino wrote.
In filing the application for the street vacation, he pointed out, a legal representative of the petitioners noted that the Maddens intended to redevelop their lots. “This vacation petition is an essential component of that effort,” the application added, with Cosentino’s emphasis, once again. The narrative also said, “If the [commission] does not grant the Street Vacation Petition, then the project proposed by [the Maddens] cannot be developed,” Cosentino pointed out, with emphasis.
Cosentino also quoted the petitioners’ attorney during the May 2016 public hearing, Charles D. Bailey III. In concluding his presentation that day, Cosentino noted, Baily said, “under oath; ‘And we would ask that you approve this vacation petition for all the reasons stated; conditioned upon, of course, your approval of the Gulf Beach Setback Line Variance that’s item 6 on your agenda.’” Once more, Cosentino added the emphasis.
The commission ended up combining the Maddens’ application for a Coastal Setback Variance for their proposed new condo complex with the hearing on North Beach Road. With public testimony included, the hearing lasted just shy of four hours.
Cosentino further quoted then-County Attorney Stephen DeMarsh, who advised the commissioners during the hearing that if they denied the street vacation, then the Coastal Setback Variance petition could not be approved.
Cosentino also pointed out in his brief that the Maddens’ construction was permitted in “a Coastal High Hazard Area in Conflict with State and National Interests [his emphasis].”
Further county contentions
In his answer, Assistant County Attorney David Pearce explained that portions of Beach Road “washed out in 1982 and 1986. In 1993, the County closed a segment of Beach Road due to additional coastal erosion. The County posted road closure signs restricting vehicular traffic.”
Then, Pearce continued, in 2008, Tropical Storm Fay caused further damage to the road. “In June and August 2012,” he added, “Tropical Storm Debby and Hurricane Isaac, respectively, caused erosion along Beach Road.”
In November 2012, Pearce wrote, the commission approved temporary road repairs that cost $233,421 “to re-establish vehicular access,” and the board “requested that staff obtain an independent engineering analysis of options for Beach Road.”
The resulting study included the estimated costs for various measures that could be used to stabilize the road, along with an estimate for maintenance expenses “if no shoreline hardening occurred,” Pearce explained. “The study did not calculate the costs for a special survey, design, land easement acquisitions, environmental permitting, monitoring, or continued maintenance for these shore protection options,” he added. “County staff recommended against the construction of a shore protection structure, in part based on concerns about environmental permitting and consistency with the Sarasota County Comprehensive Plan,” Pearce continued.
If the County vacated the road, the County could reduce its reconstruction and maintenance costs,” he pointed out.
In May 2015, Pearce noted, three families — the Maddens, the Caflisches and the Ramseys — filed the petition for the vacation of part of Beach Road. That application called for the creation of a public easement over the vacated area “for pedestrian and bicycle access, drainage, and utilities.”
He further pointed out that, as platted in the Mira Mar Beach Subdivision, “Beach Road has never fronted the Gulf of Mexico.”
Cosentino did not appear at the May 11, 2016 public hearing when the County Commission approved the road vacation, nor did Cosentino speak during the concurrent hearing on the Maddens’ application for the Coastal Setback Variance for their proposed new construction, Pearce wrote.