Circuit judge rules that Siesta resident has no right to ‘thoroughfare use’ of the road
A 12th Judicial Circuit Court judge has ruled that a Siesta Key resident does not have a right, as a property owner on North Beach Road, to travel the length of that road, including a section the Sarasota County Commission vacated in May 2016.
In a Feb. 18 order, Circuit Judge Andrea McHugh granted partial summary judgment to a couple who were among the original petitioners for the road vacation, Dennis and Wendy Madden. The count at the heart of her order was the final one in the second amended complaint Michael Cosentino filed in February 2017 in a case that he initiated in June 2016 against Sarasota County.
The Circuit Court ruled in favor of Sarasota County on one of the other two counts and for the Maddens on a second one.
Cosentino appealed the ruling for the county, but, in December 2017, the Second District Court of Appeal granted the county’s motion to dismiss his motion.
“It’s been a long time coming,” Dennis Madden said of McHugh’s ruling during a Feb. 24 telephone interview with The Sarasota News Leader. “We thought that the judge evaluated everything really well.”
He emphasized the fact that it was the final summary judgment in the case, meaning the county and he and his wife had prevailed.
In a statement he provided the News Leader, Cosentino wrote, “The Court’s order conflicts with the doctrine of stare decisis and the standard for summary judgement set forth by the 2nd [District Court of Appeal]. … Whether by rehearing or appeal, the ruling will be reversed, as will all of the Court’s prior rulings in this matter. That may take a while, but this won’t end until Beach Road is rightfully reopened to the public.”
Stare decisis refers to what is considered “settled law.” In Latin, the term means “to stand by things decided,” the Cornell Law School’s Legal Information Institute explains. “In short, it is the doctrine of precedent,” the Institute adds.
McHugh’s latest order followed a two-hour hearing conducted on Jan. 28. The Maddens’ attorney, M. Lewis Hall III of the Williams Parker firm in Sarasota, cited case law and Florida Statute 95.361 in contending that ownership of North Beach Road rests with the county and, therefore, language in the 1926 plat that included the road no longer applied.
Cosentino argued that “he has an ‘indistinguishable,’ ‘preserved,’ or ‘irrevocable’ property right by virtue of the public use easement granted in the Mira Mar Beach Subdivision Plat,” McHugh wrote in her Feb. 18 decision. Cosentino has pointed out that Andrew McAnsh, the grantor of the plat in 1926, dedicated the road to the “use of the public in so far as the said streets lie in or are part of our holdings for thoroughfare purposes only …”
In September 2016, Cosentino purchased one partially submerged lot and a second, fully submerged lot on North Beach Road from Thomas A. Hamilton.
However, Hall, the Maddens’ attorney, cited a 2019 Florida Second District Court of Appeal case — Lehmann v. Cocoanut Bayou Association — and provided the court an affidavit and the deposition of county engineer Thai Tran, along with other records, to demonstrate that the county had maintained North Beach “for well over seven years,” McHugh continued. Thus, based on the language in Florida Statute 95.361, she wrote, the county had acquired ownership of the land beneath the roadway; the language in the plat no longer applied.
McHugh also noted that “Cosentino did not file any responsive affidavit or evidence to contest the [Maddens’] … evidence” on that point.
In her ruling, McHugh further explained that the Maddens own lots on both the seaward and landward sides of the 373-foot-long, vacated segment of North Beach Road. Thus, given the Lehmann decision, she continued, they are the owners of the property up to the middle of the road.
Again, citing the Lehmann case, she added that when the County Commission vacated part of the road, the Maddens, as adjoining landowners “[stepped] into the shoes of the government” and took “title to the centerline of the roadway.”
McHugh noted that Cosentino argued that the Lehman case was not applicable to the North Beach Road situation, because Lehmann involved the conveyance of deeds “that impacted the chain of title, wherein the history of Beach Road does not contain any such conveyances.” Nonetheless, McHugh continued, “This distinction does not affect the application of Lehmann to the facts of this case.”
“None of the legal authority or argument presented by Cosentino,” McHugh added, supported a finding in favor of Cosentino.
“The Lehmann court answered the exact question posed in this lawsuit with regard to who owns the land under a road when there has been a statutory dedication,” she wrote, referring to the applicable Florida law.
A late bid to prevail
Late in the afternoon of Feb. 14, Cosentino filed a supplemental response to the Maddens’ motion. In that, he provided a copy of the public access easement the Maddens and the other property owners who had petitioned for the street vacation had provided the county. Cosentino wrote that that easement said, “The vacated ROW [right of way] is no longer in a condition to accommodate motorized vehicle traffic and, as a result [Sarasota County] closed it to through traffic and it has remained closed to through traffic for a period of years.”
That statement showed that the county had not been maintaining the road, he indicated, in contrast to Hall’s statements in court and the Maddens’ motion for partial summary judgment.
Cosentino also focused on the bollards installed at both ends of the vacated North Beach Road segment in early 2017 — designed to keep motor vehicles off that stretch. He has maintained that before they were put in place, he was able to use North Beach Road as a thoroughfare to Columbus Boulevard from his property located near the intersection of Avenida Messina.
Further, in his supplemental answer to the Maddens’ motion, Cosentino cited a 2015 Second District Court of Appeal case, Howell v. Pasco County, which said, “Summary judgment should be granted only when ‘there is not genuine issue of material fact and … the [party making the motion] is entitled to a judgment as a matter of law.’” Cosentino noted that the Court of Appeal was basing its decision on a case it handled in 2013, which quoted a 2000 Florida Supreme Court decision.
In bold, Cosentino wrote, “The Maddens have failed to provide any evidence regarding the contested bollards such as drawings, specifications, building permit applications, building permits, or surveys as required by Sarasota County (for development seaward of the Gulf Beach Setback Line) and the State of Florida (for development seaward of the Coastal Construction Control Line).”
Both lines he referenced are designed to protect property on the coast from damage associated with storm surges and other, weather-related events.
Cosentino added in his supplemental response that the language of the resolution the County Commission adopted on May 11, 2016 in regard to the road vacation allowed “for later permitting of the bollards to be placed ‘at either or both ends of the vacated ROW …’ It’s essential to understand exactly where that is.”
Further, Cosentino delved into documentation and county staff statements regarding the actual length of the vacated road segment. “These conflicting facts prohibit [the Maddens’] motion for summary judgment being granted,” he continued, “because it’s unclear, as a matter of fact, where or whether the bollards were properly placed.”
On Feb. 17, Hall, the Maddens’ attorney, filed a motion, asking the court to strike Cosentino’s supplemental response. He pointed out that the Maddens gave Cosentino notice of the Jan. 28 hearing on Dec. 5, 2019. The Florida Rules of Civil Procedure, he pointed out, require the party facing a summary judgment to identify any evidence on which that party is relying “at least two business days prior to the hearing if delivery is by hand even if the summary judgment evidence has already been filed with the Court.”
Cosentino, he continued, “failed to follow the rule …” Then, 17 days after the Jan. 28 hearing, Hall added, Cosentino identified summary judgment evidence in opposition to the Maddens’ motion. Thus, Hall wrote, Cosentino’s supplemental response “is untimely and must be stricken.”
At various times during the Jan. 28 hearing, McHugh took the opportunity to remind Cosentino of the Florida Rules of Civil Procedure, as he has been representing himself in the case since the latter part of 2019.
Cosentino acknowledged that he has been learning court rules as he has been working alone on the Circuit Court case since last year.