Reopen Beach Road objects to judge’s proposal to refer the case to a Circuit Court magistrate
Siesta Key property owners who have challenged the legality of two Sarasota County Charter amendments and the Office of the County Attorney have agreed that the nonprofit organization Reopen Beach Road should be allowed to intervene in a 12th Judicial Circuit Court case focused on the amendments.
Siesta Key resident Michael Cosentino — who established the nonprofit Reopen Beach Road in June 2016 — wrote the two Charter amendments, both of which are related to a May 2016 County Commission vacation of part of North Beach Road. The amendments won voter approval on the Nov. 6, 2018 General Election ballot.
Attorney Ryan Reese of Moore, Bowman & Rix in Tampa, acting on behalf of plaintiff William H. Caflisch, and Assistant County Attorney David M. Pearce signed a stipulation that was filed with the Circuit Court on Feb. 6. It said that it was appropriate for Reopen Beach Road “to intervene in this matter …” They were joined in the stipulation by attorney Fred E. Moore of the Bradenton firm Blalock Walters, acting on behalf of Reopen Beach Road.
The stipulation indicated that the attorneys had prepared an order for Circuit Judge Maria Ruhl to review and then execute, allowing Reopen Beach Road to be a party to the case. However, no order from Ruhl had appeared in the docket as of this writing.
On Jan. 16, Reopen Beach Road had filed a motion, seeking to intervene in the case that Siesta property owners William and Sheila Caflisch initiated on Oct. 9, 2018. The Caflisches had sought to have the Sarasota County Charter amendments removed from the November 2018 ballot, but the court did not rule on the matter prior to the election. As a result, on Jan. 3, Caflisch attorney Reese filed a Motion for Judgment on the Pleadings, saying that the documents filed in the case “demonstrate no genuine dispute of material fact exists [between the Caflisches and Sarasota County].” Adding that the amendments “offend existing state law, in violation of [Florida Statute 125.01],” he wrote that the court should declare them “void ab initio,” meaning that the amendments were not valid from the time they were proposed.
Statute 125.01 requires county law to be consistent with state law.
A Jan. 30 hearing on that motion for judgment was cancelled.
In a filing in a related case, Assistant County Attorney Pearce wrote, “The constitutionality of the charter amendments is a real issue and not an academic one.”
In that document, Pearce pointed out that the county had challenged the Charter amendments “because they are inconsistent with general law and vague. … [They] interfere with the express authority granted to the [County Commission] to sell and convey property, vacate roads, and make budgetary decisions, as envisioned by [sections of the Florida Statutes]. The County has also alleged the charter amendments are vague because they outline no standard of conduct,” Pearce added.
That document was filed with the court on Nov. 7, 2018, the day after voters approved the amendments.
Reopen Beach Road arguments
In a supplemental memorandum of law filed with the Circuit Court on Jan. 28, Reopen Beach Road pointed out that it “was the sponsor and driving force” behind Charter Amendments 3.9 and 3.10.
The former says the county must rescind the vacation of the 373-foot-long segment of North Beach Road that was approved on May 11, 2016, and then the county must re-acquire the right of way. The amendment also indicates the county should repair the road and keep it open to vehicular traffic.
Amendment 3.10 prohibits Sarasota County from vacating or selling any segment of road or right away abutting any area that could be considered to have a “waterfront vista.”In June 2016, Cosentino filed suit against the county, arguing that the County Commission had violated the county’s Comprehensive Plan in vacating the portion of North Beach Road. Although Circuit Court Judge Frederick Mercurio dismissed all the counts against Sarasota County, Cosentino has appealed the final dismissal to the Second District Court of Appeal in Lakeland.
Cosentino’s attorney in that case — Lee Robert Rohe of Big Pine Key — asked that the Appeal Court delay until March 22 the filing of his initial brief with the court. On Jan. 28, the Appeal Court ordered that the initial brief “shall be served within 30 days of the date of this order.”
Cosentino lost an earlier appeal of one of Mercurio’s rulings in favor of the county.
The Jan. 28 supplemental memorandum of law says Reopen Beach Road “was organized and incorporated … for the express purpose of promoting a citizen’s initiative petition drive for placement of the Charter Amendments on the Ballot.”
It also points to “the County’s continuing alignment with the Plaintiffs (who are condominium developers) …” Further, it says, “It is not beyond the realm of possibility that the Plaintiffs and the County may enter into a settlement agreement, thus leaving [Reopen Beach Road] out in the cold.”
A Sarasota News Leader check of Sarasota County Property Appraiser Office records shows William H. Caflisch Sr. and Sheila S. Caflisch — the plaintiffs in the Charter amendment case — own several parcels on Siesta Key, including property at 77 Beach Road and 70 Avenida Veneccia, each of which is the site of a single-family house. They do own two vacant lots on Avenida Veneccia that are zoned for multi-family construction, according to the Property Appraiser’s Office.
The Caflisches were among the three sets of property owners who petitioned for the North Beach Road vacation in 2016, arguing that the segment had been closed to motor vehicles since 1993 because of repeated storm damage. Cosentino has contended the County Commission never should have approved the request because of the road segment’s value as public access to Siesta Beach. He cited a section of the county’s Comprehensive Plan in effect at that time to underscore his argument.
Objection to referral of case to a magistrate
Circuit Court Judge Ruhl — who was elected to the bench in November 2018 — has taken over the case from Circuit Court Judge Mercurio. On Feb. 4, she issued an order, referring the matter to 12thJudicial Circuit Court Magistrate Deborah A. Bailey. That order called for Bailey to handle all discovery motions and all motions “directed to the pleadings.”
Bailey was authorized to conduct any hearings, which could include the “taking of evidence,” and then was directed to file a recommended order to Ruhl, “as soon as practicable.”
Nonetheless, the order pointed out, “A referral to a Magistrate requires the consent of all parties.”
On Jan. 31, S. William Moore, another attorney for the Caflisches, had a letter hand-delivered to Ruhl, the court docket shows. Moore wrote that he had conferred “with all counsel” regarding her proposed order of referral to the magistrate. Sarasota County had no objection, he added. However, “Counsel for proposed Intervenor Reopen Beach Road, Inc. … has notified us of its objection to the referral. It is therefore anticipated that a written objection may be filed, pursuant to the Court’s requirements.”
On Feb. 13, Cosentino’s attorney, Rohe, did file a notice of objection of the referral to the magistrate. Among Rohe’s arguments was the fact that part of Cosentino’s suit against the county is on appeal.
The notice added that Reopen Beach Road “believes that, in the interest of justice and to best serve the public, the Court must be directly involved in acquainting itself with the complexities of the case and ruling upon the First Amendment and election law issues arising from this case; instead of relying upon the ‘filter’ of recommended ruling(s).”