Cosentino files appeal of judge’s final order in consolidated cases involving vacation of part of North Beach Road and Sarasota County Charter amendments

Second District Court of Appeal accepts case but says Cosentino, who has been representing himself, must hire counsel for his nonprofit Reopen Beach Road as second plaintiff

Circuit Court Judge Andrea McHugh. Image from the 12th Judicial Circuit Court website

On March 24, 12th Judicial Circuit Court Judge Andrea McHugh issued what is known as a “Final Order” in the combined cases involving the Sarasota County Commission’s 2016 vacation of part of North Beach Road and the 2018 Sarasota County Charter amendments related to that road vacation.

The order affirmed that all the Circuit Court rulings in the case went against plaintiff Michael Cosentino of Siesta Key and a nonprofit organization he founded in June 2016, Reopen Beach Road.

Among those decisions was a ruling that one of the Charter amendments Cosentino wrote in 2018 was invalid because it “is contrary to Sarasota’s Charter and is therefore invalid.” A second Circuit Court judge who ruled on the amendments also ordered that the first sentence of the second Charter amendment be stricken, as it, too, was in conflict with state law. The rest of that amendment, Circuit Judge Hunter Carroll wrote in his October 2019 ruling, was aspirational, so it could stay in effect.

Both amendments won voter approval during the November 2018 General Election.

In response to a request for comment, Siesta Key resident Michael Cosentino told The Sarasota News Leader on April 11 that he was planning to file for a rehearing of McHugh’s final order, “based upon new evidence and fraud pursuant to [Florida Rules of Civil Procedure] 1.540(b).”

This is the section of the Florida Rules of Civil Procedure Mike Cosentino referenced in his statement to the News Leader. Image courtesy State of Florida

Nonetheless, he added, “Since the local judges have ruled in error every step of the way, we don’t have much confidence in these motions being fairly ruled upon, either. We are unsure as to whether the local judges don’t understand the law or simply don’t care, but the good news is that the appeal is based upon the record, which clearly demonstrates we are and have been legally correct on everything.”

As it turned out, Cosentino did not seek a rehearing. Instead, he proceeded with an appeal, which he filed on April 23 with Florida’s Second District Court of Appeal.

In his statement to the News Leader, Cosentino also wrote, “Thankfully, the trial court’s rulings mean nothing on appeal. I look forward to presenting our evidence to a panel of judges that will actually look at it and rule based upon the applicable law and statutes.”

A document in the case file shows that Cosentino’s total local expense for the transmission of documents to the Court of Appeal was $7,431.50.

Mike Cosentino addresses the county commissioners on March 24. File image

However, while the Appeal Court on April 24 formally did acknowledge the filing of the case, it also pointed out that Cosentino owed another $300, according to a state statute governing such proceedings — 35.22(2)(a). As of the News Leader’s deadline for this issue, Cosentino had not paid that amount, the case docket showed.

Moreover, a second document from the Appeal Court dated on April 24 explained that Reopen Beach Road “will require representation by a licensed attorney.” The document added, “Within 20 days from the date of this order, counsel for the corporate entity must file a notice of appearance on its behalf, or the appeal will be dismissed as to Reopen Beach Road, Inc.”

Cosentino began representing himself and Reopen Beach Road in the latter part of 2019, after working with three separate attorneys at the Circuit Court level.

During the April 8 County Commission meeting, Commissioner Charles Hines noted McHugh’s Final Judgment and commended county staff. “Great work by our County Attorney’s Office,” Hines said. “We’ve prevailed with that case.”

Hines and Commissioner Alan Maio are the only two members of the board still serving who participated in the 2016 public hearing on the road vacation. Three sets of property owners on North Beach Road sought the vacation of a 373-foot-long segment, which had been closed to vehicular traffic since 1993 because of repeated storm damage.

Only then-Commissioner Christine Robinson voted against the petition, arguing that, as of that time, the county’s Comprehensive Plan prohibited a road vacation in circumstances where the segment was on a shoreline. Cosentino used that section of the Comprehensive Plan as the basis for his initial complaint against the commissioners, which he filed in June 2016.

An engineering drawing shows the area of the North Beach Road vacation, included in a county motion in the Cosentino case in June 2017. Image courtesy Sarasota County

Hines pointed out on April 8 that he voted for the road vacation in part because North Beach Road is bordered on the seaward side by private parcels, including property owned by the petitioners. Therefore, Hines argued during the May 11, 2016 public hearing, the segment at the heart of the hearing did not actually border Siesta Public Beach.

Cosentino drafted the two Charter amendments, he told the News Leader, as another means of trying to overturn the road vacation, in the event he failed to win his court case. One of the amendments called for the County Commission to rescind the road vacation or reacquire the 373-foot-long segment. The second amendment prohibited the board members from vacating any stretch of county-owned road that had so much as a waterfront vista.

This is the text of Charter Section 3.10, approved by voters on Nov. 6, 2018. Image courtesy of the Office of the Sarasota County Clerk of Court and County Comptroller
This is Sarasota County Charter Section 3.9, which also was approved on Nov. 6, 2018. Image courtesy of the Office of the Sarasota County Clerk of Court and County Comptroller

As the cases made their way through the Circuit Court, Cosentino lost one appeal of a decision that went in Sarasota County’s favor. He filed another appeal in 2018, but he ultimately asked the Court of Appeal in 2019 to dismiss that.

At the time, he told the News Leader, “Now we have the opportunity to supplement the record with the county produced documents that prove the validity of our allegations.” He added that he believes that step moved him closer to ultimate victory over the county.

Last year, Circuit Judge McHugh consolidated the remaining count in the road vacation case with the companion case filed in 2018 arguing that the Charter amendments were invalid.

During the more recent hearings McHugh conducted, Cosentino alleged on several occasions that the Office of the County Attorney had colluded with the private property owners for years to make the road vacation possible.

Motions seeking attorneys’ fees

As Cosentino works on this latest appeal, both Sarasota County and one set of the private property owners who intervened in the Circuit Court case have filed for payment of costs.

In its April 7 motion, the county asks that Cosentino and Reopen Beach Road pay $245, which is what the county says it spent on court reporters during three hearings.

Noting that Judge McHugh had ruled for the county in the combined cases, Assistant County Attorney David Pearce wrote, “Under the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, court reporter appearance fees for court proceedings are litigation costs which should be taxed in favor of the prevailing party.”

M. Lewis Hall III. Image from the Williams Parker website

The other motion, filed by attorney M. Lewis Hall III of the Williams Parker law firm in Sarasota, includes a detailed accounting of expenses for Hall’s clients, Dennis and Wendy Madden. Dating from August. 2016, those add up to $8,072.85.

Hall noted that he had broken down the costs into three categories, as indicated in guidelines the Florida Supreme Court has adopted: those that should be taxed; those that may be taxed; and those that should not be taxed. He added, “The trial court has broad discretion to award costs beyond those identified in the Uniform Guidelines upon a showing the costs were reasonably necessary to prosecute or defend the case.”

Further, he wrote, “The Maddens reserve the right to amend this motion in the event of receipt of additional taxable costs.”

The largest single itemized expense — $1,937.91 — was incurred on March 3, 2017, the accompanying chart showed. It was for copies of documents the Maddens had to produce during the early phase of Cosentino’s lawsuit.