Cosentino indicates plans to appeal the ruling
A 12th Judicial Circuit Court judge has sided with Sarasota County against Siesta Key resident Michael Cosentino, who drafted two Sarasota County Charter amendments that won overwhelming voter approval during the November 2018 General Election.
In an Oct. 28 order, Circuit Judge Hunter Carroll ruled that Amendment 3.9 of the County Charter — which called for the County Commission to rescind its May 2016 vacation of a 373-foot-section of North Beach Road — or reacquire the property — “is contrary to Sarasota’s Charter and is therefore invalid.”
Carroll also ruled that the first sentence of Amendment 3.10 “is invalid because that sentence conflicts with, and cannot coexist with sections 125.35, 125.38, and 336.06” of the Florida Statutes.
Therefore, Carroll ruled that the first sentence of 3.10 should be severed from the second and third sentences of the amendment. Charter section 3.10 prohibits the sale of county-owned parks and preserves, as well as the vacation or sale of any county-owned road segments that have so much as a “waterfront vista.”
However, Carroll noted the second sentence in the amendment is “an encouragement to maximize rights-of-way use for public access and viewing waterfront vistas. The third sentence,” he continued, “requires these areas to be made accessible to mobility-impaired persons whenever feasible.”
Further, Carroll pointed out, “Neither the second nor the third sentence of section 3.10 are wholly or necessarily dependent on the first sentence. Severance is possible.”
In his ruling, Carroll pointed out, “In considering a legal challenge to charter amendments such as these, courts presume the amendments to be valid and reasonably construe them to be valid, if possible. If, however, an amendment is unconstitutional, courts must strike the offending amendment even though it means the will of the majority of the electors who voted on the issue cannot be carried out. That is the situation here. The Court does not take this step lightly.”
Amendment 3.9 won 65% of the votes cast, with 125,364 people supporting it, Carroll noted in his order. Amendment 3.10 passed with 73% of the votes; 141,608 citizens approved it, he added.
Yet, Carroll wrote of the Cosentino amendments, “These Charter sections are hopelessly inconsistent with Florida law; they both cannot survive. Florida’s Constitution directs in this situation that Florida law is supreme and the Charter provision must yield.”
In response to the decision, Cosentino provided the following comments to The Sarasota News Leader: “The people lost, again. Really, it’s immaterial. The county is unbeaten at the circuit court and appellate court in challenging citizen initiatives. However, they’ve never won at the Supreme County. They won’t win this one, either.”
In June 2016, Cosentino filed a complaint against the County Commission, arguing that it had violated the county’s Comprehensive Plan by agreeing — on a 4-1 vote — to the vacation of a portion of North Beach Road.
Three sets of owners of property along that stretch had petitioned for the action, explaining that the road had been closed to vehicular traffic since 1993 because of repeated storm damage, which county staff and a consulting firm both had documented. The property owners agreed to allow permanent public access to the vacated segment for anyone using means other than a motor vehicle, as North Beach Road offers access to Siesta Public Beach.
In January 2017, bollards were installed on both ends of the vacated road portion to prevent vehicles from driving onto it. Signage makes clear that other forms of public access are welcome.
Last year in Circuit Court, Cosentino lost his road vacation case to the county. He has appealed that decision to Florida’s Second District Court of Appeal. Oral arguments have been set for Dec. 19 in Tampa before a panel of three judges.
Additionally in the summer of 2016, Cosentino founded a nonprofit organization called Reopen Beach Road and wrote the two proposed Charter amendments. He saw the latter action as an alternative plan to return North Beach Road to the county, in the event he failed in court.
He and supporters began collecting signatures of registered voters — as allowed under Sarasota County Charter guidelines — in an effort to gain the necessary number for the proposed amendments to be placed on a ballot.
On June 25, 2018, Sarasota County Supervisor of Elections Ron Turner notified the County Commission that Cosentino and Reopen Beach Road had surpassed the signature threshold with both petition drives.
Then, as provided for in county regulations, the County Commission conducted a public hearing in late August 2018 to take the necessary formal vote to place the amendments on the November 2018 ballot.
However, then-County Attorney Stephen DeMarsh cautioned that, if approved, the amendments would contravene state law by preventing the County Commission from exercising authority vested in it by the Florida Statutes.
Judge Carroll pointed out in his Oct. 28 order that, in arguing for the validity of the Charter amendments, Cosentino and Reopen Beach Road submitted materials to the court “that were utilized by the [commission] during [the] August 29  meeting. Those materials questioned the validity of the initiative.”
One of the original sets of petitioners for the road vacation filed suit in Circuit Court in October 2018 in an effort to get the amendments removed from the November 2018 ballot. Circuit Judge Frederick P. Mercurio refused to take that action. Following the passage of the amendments, the members of the Calfisch family filed another complaint, seeking to have the amendments ruled invalid.
The Office of the County Attorney, represented by Assistant County Attorney David Pearce, also filed a motion last year, asking for the same action. Carroll’s Oct. 28 decision came after an Oct. 7 hearing on arguments related to that county motion.
Reporting the results to the commission
On Nov. 5, during a regular County Commission meeting, Deputy County Attorney Karl A. Senkow reported on Carroll’s ruling. The Office of the County Attorney had provided a memo to the board members about the decision in advance of that meeting.
The memo noted that Carroll’s “comprehensive twenty-five page ruling … concluded that the Sarasota County Charter vests ‘all’ legislative authority in the Board of County Commissioners.” The Charter does not give the people of the county “the power to adopt, amend or repeal ordinances,” the memo also pointed out, referring to Carroll’s ruling.
The memo did add that the Office of the County Attorney (OCA) “anticipates that there may be a motion for rehearing filed with the court.”
Further, it said, the OCA will need to file a motion for what is called “final judgment” from the Circuit Court. That document formally would eliminate Sarasota County from Cosentino’s case, the memo continued. However, the OCA memo also contemplated that Cosentino would appeal such an order.
A facet of Cosentino’s original lawsuit is still underway in Circuit Court, involving parties who were among the petitioners for the road vacation. Circuit Judge Andrea McHugh has been presiding over the case this year, following Judge Mercurio’s transfer to Manatee County. However, a McHugh family emergency resulted in Carroll’s presiding over the Oct. 7 hearing.
After Deputy County Attorney Senkow noted the decision, he told the commissioners on Nov. 5 that he would be happy to answer any questions. No board member offered a question or comment.
Then Chair Charles Hines told Senkow, “Good legal work there.”