Cosentino loses county Charter amendments case, ending his Circuit Court battle over the vacation of a portion of North Beach Road

Judge issues order on last part of litigation that began in June 2016

Mike Cosentino addresses the County Commission on Aug. 29, 2018. File photo

Just four months shy of the fourth anniversary of the initial case filing, a 12th Circuit Court judge has ended all of Siesta Key resident Michael Cosentino’s efforts to reverse the May 11, 2016 County Commission vacation of part of North Beach Road.

On the morning of Feb. 28, Circuit Judge Andrea McHugh granted a joint motion of Sarasota County and two sets of North Beach Road property owners. They had sought a final order that would end related litigation over two Sarasota County Charter amendments Cosentino wrote, which won voter approval on the November 2018 General Election ballot.

Circuit Judge Hunter Carroll ruled on Oct. 28, 2019 that one of the amendments violated the Florida Constitution. The first sentence of the second amendment, he continued, also was invalid for the same reason. Thus, he ruled against Cosentino. (McHugh was unable to preside over the hearing on those points because of a family emergency.)

In a Feb. 18 order, McHugh dismissed the last count in the lawsuit Cosentino filed in June 2016 related directly to the road vacation.

In her Feb. 28 ruling, McHugh wrote, “The Court finds that all claims have been adjudicated in this lawsuit. … [T]he Court will enter a final order, reserving jurisdiction to determine costs and attorney’s fees.”

McHugh had conducted a Feb. 18 hearing on the motion filed by the Office of the County Attorney, the Caflisch family and Dennis and Wendy Madden. The Caflisches and Maddens comprised two of the three sets of North Beach Road property owners who had petitioned for the vacation of 373 feet of North Beach Road.

In her Feb. 28 ruling, McHugh noted that Cosentino and the nonprofit organization he founded in June 2016 — Reopen Beach Road — maintained that no final order could be issued in the Charter amendments part of the case because Judge Carroll had ruled that the constitutional portions of Amendment 3.10 could be preserved. “The flaw in this argument,” McHugh wrote, “is that neither Cosentino, nor Reopen Beach Road, have ever sought declaratory relief with respect to 3.10. There is no pending claim on which Cosentino or Reopen Beach Road, Inc., can proceed to request further [court] action on 3.10.”

She added, “For Cosentino or Reopen Beach Road, Inc. to bring a declaratory action regarding 3.10, the Court would have to permit them to amend their pleadings, nearly four years into the lawsuit, wherein an extraordinary amount of judicial labor has been exercised to dispose of multiple controversies between multiple parties.”

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

Further, McHugh continued, the county, the Maddens and the Caflisches filed their motion for final judgment in the case on Dec. 6, 2019. “Cosentino and Reopen Beach Road, Inc. had more than ninety days to file a motion to amend their complaint or a motion for clarification of [Carroll’s ruling] on 3.10, but none were filed, or pending before the Court,” when the Feb. 18 hearing was conducted.

“For the reasons above,” McHugh continued, “the Court finds the arguments opposing entry of final judgment unpersuasive.”

Charter Amendment 3.9 called for the county to rescind the road vacation or re-acquire the vacated segment.

Amendment 3.10 forbade the county from selling any county-owned property, including road segments or rights of way, “along or abutting any beach, river, creek, canal, lake, bay, gulf access or waterfront vista.” That was the portion Circuit Judge Carroll ruled to be in contravention of state law.

With the Charter amendments litigation underway, the County Commission in January 2019 indefinitely continued a public hearing on a road vacation petition regarding property in Venice. Commissioner Charles Hines, especially, cited concern that the segment could be said to have a water view.

Carroll characterized the remaining sentences of Amendment 3.10 as encouragement of good county policy. They called for the county to “encourage maximum right of way use for public access and viewing of waterfront vistas” and said that, “Whenever feasible, the County shall make these areas accessible to mobility impaired persons.”

In response to a Sarasota News Leader request, Kim Francel, Sarasota County’s public records coordinator, wrote in a March 5 email, “There is no memo from the OCA [Office of the County Attorney] to the Commission regarding the Charter amendments in the Cosentino case. It is probable a memo will be created in the future,” she added, indicating that the OCA was awaiting the formal, final order that McHugh noted she would issue.

Cosentino repeatedly has told the News Leader that he believes he ultimately will prevail at the appellate level.

A claim of forces aligned against him

This is a view of the vacated segment of North Beach Road, looking north, in early August 2018. Rachel Hackney photo

During a Jan. 28 hearing, Cosentino talked of plans to file a third amended complaint in the North Beach Road case. Since the summer of 2019, he has taken a number of opportunities — including an appearance before the County Commission — to accuse the Office of the County Attorney of colluding with the Caflisches and the Maddens to prevent the county from constructing a system that would stabilize the portion of North Beach Road the commission ended up vacating.

Charles D. Bailey III of the Williams Parker firm in Sarasota pointed out to the County Commission on May 11, 2016 that the segment at the heart of the vacation petition had been closed to motor vehicle traffic since 1993 because of repeated storm damage.

However, Cosentino has cited a statement written by former County Administrator Randall Reid, indicating Reid’s intent was to pursue one of the stabilization methods proposed by a Jacksonville engineering firm the county hired to assess the road damage in 2013. Taylor Engineering issued its report that fall. However, the County Commission took no action on any of the recommendations.

At that time, the board still was contending with a continuing decline in property tax revenue as a result of the Great Recession. In 2019, property values finally had climbed back almost to the mark they reached before the economic downturn began, staff of the county’s Office of Financial Management reported.

A rendering Siesta resident Mike Cosentino commissioned shows how he says North Beach Road could look if the county had opted to build a step revetment system to protect it. Image from
A graphic shows development that could have been sought on the seaward side of North Beach Road, if the county had stabilized and improved the road. Contributed image

During a June 25, 2019 hearing before McHugh, Cosentino said, “I want to bring some things to light with respect to fraudulent misrepresentation of the law and facts” by the county and the attorneys for the Maddens and Caflisches. “There has not been a document related to Beach Road submitted anywhere since probably since 2009 that was not the result of fraud,” he added.

During the Jan. 28 hearing before McHugh on the Maddens’ motion to dismiss the final count in the second amended complaint Cosentino filed in February 2017, in the road vacation case, Cosentino said, “Everything that has happened essentially since at least 2011 has been fraud, and there has actually been collusion between the Maddens’ attorneys, the Caflisches’ attorneys and the county attorney to break all of the laws necessary to get us to this point.”

Having hired three different attorneys to represent him at the Circuit Court level since he filed the first complaint in June 2016, Cosentino began representing himself last year. He told the court that that was his best option, because it would take too long to bring his latest attorney up-to-speed on all the issues after McHugh agreed to consolidate the road vacation complaint with the litigation involving the Charter amendments.

Bollards installed in late January 2017 are at the ends of the vacated segment of North Beach Road. Signage makes plain that the public can access the road segment. File photo

During the Jan. 28 hearing, Cosentino told McHugh, “My first attorney got scared away by [the potential he might have to pay part of the fees if Cosentino lost the case].” (The Florida Statute Cosentino referenced was 57.105. His first attorney was Ralf Brookes of Cape Coral.)

Then, Cosentino continued on Jan. 28, “I ended up hiring this guy from the Keys” who once was “the personal attorney to the DuPonts.”

However, Cosentino said, after hiring Lee Robert Rohe of Big Pine Key, “I found it odd that a carpenter without a college degree would be explaining the legal issues to an attorney with [more than 40 years of experience].”

Cosentino has pointed out many times that his is a carpenter by trade.

In June 2019, Cosentino told McHugh that he believed Rohe was exhibiting signs of mental decline. On Jan. 28, he said his reaction after working for a while with Rohe was “This guy’s got Alzheimer’s. Holy crap! I don’t know what the heck to do.”

“I’ve gone from retired to bankrupt over this [case],” Cosentino added, noting that that was part of the reason he was representing himself.

A sea turtle nest in August 2018 is marked just a bit outside the vacated North Beach Road segment. Such nests have been documented in the area in recent years since the road vacation was approved. Contributed photo

(A News Leader search of county documents found that Cosentino still owns a home on Avenida de Mayo on Siesta Key. The house and the 7,036-square-foot lot had a market value of $438,300 in 2019, the Sarasota County Property’s Office records show. In October 2019, according to records of the Sarasota County Clerk of the Circuit Court and County Comptroller, he took out a $172,000 mortgage on the house. The lender is Cardinal Financial Co. in Charlotte, N.C.)

His goal, Cosentino told McHugh on Jan. 28, was “making a record [of the issues in Circuit Court] and saving my money for the appeal.”

At various times during that hearing, McHugh had to explain facets of the Florida Rules of Civil Procedure to Cosentino. Her comments followed objections he made to actions taken by the Maddens’ attorney, M. Lewis Hall III of the Williams Parker in Sarasota.