Assistant county attorney and lawyer for one group of North Beach Road property owners counter Cosentino’s assertions
During oral arguments before a three-judge panel of Florida’s Second District Court of Appeal, Siesta Key resident Michael Cosentino and Assistant Sarasota County Attorney David Pearce debated sections of the Florida Statutes and judicial precedents on the morning of April 13.
Each sought to make his case in Cosentino’s nearly four-year-old litigation against Sarasota County over the vacation of a 373-foot-long segment of North Beach Road.
After his latest attorney won court approval last year to withdraw from the case because of “irreconcilable differences” with Cosentino, he has been representing himself. He has pointed out in previous hearings that he is a carpenter, not an attorney.
Following almost 53 minutes of debate this week — which also included statements by an attorney representing North Beach Road property owners who were allowed to intervene in the case — the panel, as usual, gave no indication of when it might rule.
However, both Judge Susan H. Rothstein-Youakim and Judge Matthew C. Lucas did ask several questions of Cosentino and Pearce. The third judge, J. Andrew Atkinson, did not speak.
The County Commission voted 4-1 on May 11, 2016 to vacate a portion of North Beach Road that had been closed to vehicular traffic since 1993. In June 2016, Cosentino filed his initial complaint against the county, contending that a policy in the county’s Comprehensive Plan forbid the board from taking the action.
Environmental Policy 1.1.13 said at that time, “The County shall not vacate road segments on waterfronts along any creek, river, lake, bay or Gulf access point and shall encourage right-of-way use of these areas for coastal beach and bay access.”
Then-Commissioner Christine Robinson cited it as her reason for voting against the street vacation petition.
In October 2016, the commissioners approved an update of the Comprehensive Plan that modified the language to give them more flexibility in road vacation matters.
Cosentino told the Appeal Court judges that the board vote in May 2016 was “for the express purpose for increasing the density and intensity of use of [North Beach Road property owners Wendy and Dennis Madden’s] lands landward” of the road.
On the same day the commissioners approved the road vacation petition, they also granted a Coastal Setback Variance to the Maddens so the couple could tear down what Assistant County Attorney Pearce pointed out to the Appeal Court judges were 12 old structures that did not conform with modern building standards. In place of those residences, Pearce noted, the Maddens planned to erect a six-unit condominium complex.
“When you look at this,” Cosentino told the judges this week, “the street vacation is a condition precedent … to the Coastal Setback Variance.” Without the “unity of title” of land the Maddens owned seaward of North Beach Road and their parcels landward of the road, they would have had insufficient square footage to construct the six new units, Cosentino explained.
North Beach Road’s position along the Sarasota County shoreline, with a clear view of the Gulf of Mexico, had been named one of 26 National Historical Landscapes in Florida, Cosentino pointed out.
Yet, only a few pages of the county’s answer to his appeal, Cosentino said, addressed what he referred to as “the development order issue”: the granting of the Coastal Setback Variance.
A development order, Cosentino added, is “merely the government’s approval of a development permit. … [The variance] could not be approved but for the approval of the street vacation.”
Therefore, Cosentino argued, Resolution 2016-79, which granted the street vacation, is a development order, even though the Circuit Court judge who ruled on that point of the case determined that it was not.
If the Maddens “had merely moved the [proposed new building] 4 feet landward,” Cosentino contended, the variance petition would not have been necessary.
Cosentino wrote in his initial Appeal Court brief — filed in August 2020 — that Florida Statute 163.3215(3) “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 [his emphasis].”
The ‘standing’ issue
During his turn in the arguments, Assistant County Attorney Pearce referenced Section 163.3215 of the Florida Statutes, which provides what he described as a “three-pronged test” a plaintiff must meet to demonstrate standing to enforce local comprehensive plans through development orders. Among those criteria, Pearce noted, is the need to prove that the plaintiff’s interests are adversely affected by the development order.
During an interrogatory, Pearce pointed out, a county representative asked Cosentino to explain how he would be adversely affected by the road vacation. The answer, as Pearce wrote in the county’s answer to the appeal, was as follows: “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.”
“[Cosentino’s] view of the water isn’t going to change,” Pearce stressed to the appellate panel. The Maddens’ new building stands landward of the road.
Additionally, Pearce pointed out, Cosentino and other members of the public have the right to walk or ride bicycles down the vacated segment.
Pearce further noted, that in the interrogatory, Cosentino said, “‘I cannot say it means more to me than everyone else’” to drive down Beach Road.
The provisions of state law that Pearce cited have “not been addressed by the county in any way, shape or form” in court, Cosentino countered. If the county wants to go back to the Circuit Court to address that, he would be willing to do so, he added.
“That was an argument that the county made in its motion for summary judgment [in the Circuit Court case], wasn’t it?” Judge Rothstein-Youakim asked Cosentino.
He acknowledged that it was.
The road maintenance issue
Regardless of whether the street vacation was a development order, Judge Lucas pointed out that Cosentino claimed that he had standing to challenge the commission’s decision, even though the Circuit Court found that Cosentino did not. Further, Lucas noted that the affected portion of North Beach Road had been closed “for a couple of decades to vehicular traffic.”
Even though the road section was vacated, Lucas added, “the physical layout of the topography there isn’t changing …”
To be able to prevail in the case — to demonstrate “standing,” — Lucas continued, Cosentino had to prove his interest in the matter exceeded that of the general interest of all other persons.
“What unique degree” did Cosentino claim to have that entitled him to standing, Lucas asked.
According to state law, Cosentino replied, the county had the “commensurate duty to maintain [its] roads in good working order.” In the litigation, he added, the county “is trying to justify two decades of unlawful actions regarding their failure to properly maintain the road … I drove down that road consistently despite the fact that there were ‘Road Closed’ signs there.”
The county commissioners, Cosentino continued, “could have chosen to fulfill their statutory duty and properly maintain and rebuild the road.” With the vacation having been approved, he said, “That chance is forever gone.”
“But don’t they have the discretion to … engage in a cost/benefit analysis [regarding] whether it makes sense to maintain the road?” Judge Rothstein-Youakim asked.
“No, ma’am,” Cosentino responded.
Cosentino also claims that because he owns property at 10 Beach Road, he has a private right, based on the 1926 Mira Mar Beach plat of the area, to continue using the vacated section of North Beach Road for thoroughfare purposes.
However, Sarasota attorney M. Lewis Hall III, who was representing the Maddens in the case, pointed out that Cosentino did not purchase that property until months after the May 2016 road vacation.
Further, Hall noted that Section 95.361 of the Florida Statutes provides that if a county maintains a road for seven years, then the county is considered to have acquired the roadway.
In her final order in the case, Assistant County Attorney Pearce noted, Circuit Judge Andrea McHugh found that the “county has maintained that vacated section not only for the immediate seven years but for substantially in excess of that.”
Further, Hall told the judges, McHugh found that Cosentino “had not offered any evidence to dispute that fact.”
The issue of ‘notice’
Rothstein-Youakim zeroed in on another issue: Cosentino’s argument that the county did not comply with state law in its publication of the notice of the County Commission’s adoption of the resolution approving the road vacation.
Pearce explained that the board members agreed during the May 2016 public hearing to a last-minute proffer by the Maddens and the two other sets of North Beach Road property owners seeking the road vacation. That proffer was for a 5-foot-wide easement from the road, perpendicular to the shoreline, across private property to the public beach.
A survey had to be completed, Pearce said, and then a sketch of the easement and the necessary legal description had to be made part of the board resolution. That work was completed on June 10, 2016, Pearce added.
Then, on June 27, the county filed the resolution with the Board of Records Division of the Office of the Clerk of Court, as required, Pearce said. The formal notice of the adoption of the road vacation was published on July 2, 2016, within the 30-day timeline specified in state law for such action.
“The notice requirements were satisfied,” Pearce told the judges.
“I disagree with you wholeheartedly on that,” Rothstein-Youakim replied.
She proceeded to debate with Pearce the applicable language in state law, maintaining that Florida Statute 336.10 provides that public notice is necessary within 30 days of adoption of a resolution, not the rendition of the resolution.
She also questioned Pearce about the fact that an individual has only 30 days after notice of a road vacation has been published to challenge it in court. “You could thwart the public’s opportunity to file a notice of appeal,” she added, by publishing the formal notice on the 30th day.
“There’s no right to appeal until the rendition of the order,” Pearce told her.
Rothstein-Youakim asked whether a citizen could ask for reconsideration of a commission decision after the notice of rendition has been published, “or is their only remedy to seek judicial review?”
Robert’s Rules of Order, which are the guidelines under which the County Commission conducts its business, Pearce replied, does not allow for the rehearing of a board decision.
Yet, Cosentino told Rothstein-Youakim, “You nailed it right on the head. … The Legislature knows the difference between the words ‘adopted’ and ‘rendered.’”