County asks Circuit Court to throw out another count in lawsuit over the May 2016 North Beach Road vacation

If the court agrees, only one count in Siesta resident Mike Cosentino’s lawsuit would remain, as one partial summary judgment order already has been issued

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

With one partial summary judgment ruling already having gone against the plaintiff in the case, Sarasota County is seeking a second one relating to the County Commission’s May 11, 2016 vacation of a 357-foot-long segment of North Beach Road.

In a June 2 filing in 12th Judicial Circuit Court, Assistant County Attorney David Pearce argues that Siesta resident Michael Cosentino “wrongly claims the County Charter requires a coastal setback variance applicant to disclose percentages of ownership of their property.” Additionally, Pearce writes, Cosentino is wrong in contending that the county failed to meet the legal deadline for posting the official notice of the road vacation in the aftermath of the County Commission decision.

Cosentino’s allegations of county violations on those points are contained in the second count of his Second Amended Complaint in the lawsuit. Although he filed the original complaint in June 2016, he amended it on Feb. 3 of this year.

On April 12, 12th Judicial Circuit Court Judge Frederick Mercurio granted the motion for partial summary judgment sought by intervenors in the lawsuit — Wendy and Dennis Madden. The Maddens, who were among the three sets of North Beach Road property owners who petitioned the County Commission last year for the road vacation, argued that Cosentino was wrong in contending that the board action constituted a development order.

A legal sketch shows the road segment vacated by Sarasota County. Image courtesy Sarasota County

The Maddens also won the commission’s approval on May 11, 2016 for a Coastal Setback Variance so they could tear down 12 nonconforming dwelling units and build six new ones. They needed the 8,265 square feet of the vacated road segment — in combination with parcels they own both seaward and landward of North Beach Road — to give them enough land to comply with county zoning regulations for their construction plans, Zoning Administrator Donna Thompson pointed out during the May 2016 public hearing.

As Cosentino’s attorney —Ralf Brookes of Cape Coral — put it during an April 5 hearing on the Maddens’ motion for partial summary judgment, the Maddens’ building plans and the road vacation “were hopelessly intertwined.”

Mercurio, however, wrote in his order that the road vacation was “an independent decision and not dependent upon the coastal setback variance.”

The ruling was a victory for the County Commission as well as for the Maddens, as County Attorney Stephen DeMarsh pointed out to the County Commission during an update that was part of a regular meeting.

Cosentino argues in his complaint that the board violated its Comprehensive Plan in approving the road vacation. Then-Commissioner Christine Robinson was the only board member to vote “No” on May 11, 2016, citing that Comprehensive Plan policy.

Disputing the Count II contentions

In his June 2 motion for partial summary judgment, Assistant County Attorney Pearce quotes from the Sarasota County Charter to refute Cosentino’s argument that the Maddens failed to comply with county law necessitating they disclose percentages of ownership of their property when they petitioned for the Coastal Setback Variance.

The Charter does say, “All persons or entities applying for rezoning, special exceptions, or variances, shall disclose the true ownership interests in any property sought to be rezoned and shall further disclose the true parties in interest in any corporation, trust, partnership, limited partnership or any legal entity of any type in their zoning application,” Pearce points out.

The Charter also calls for all applications related to zoning “or any other form of land use change” be presented on official county forms.

A rendering Siesta resident Mike Cosentino commissioned showed how North Beach Road could look if the county had opted to build a seawall to protect it. Image from

However, Pearce contends, “This lawsuit does not involve an approval of a zoning variance under the Sarasota County Zoning regulations … Rather, it involves a coastal setback variance under Chapter 54, Article XXII of the Sarasota County Code.”

He adds that “use of the term ‘variance’ as a relief mechanism in an environmental code does not transform it into an approval under the Zoning Regulations.”

Moreover, Pearce continues, because this case does not involve a zoning variance, “the disclosure requirements from the County Charter do not apply.”

Even if the Charter provision did apply, Pearce continues, “there is no claim by Plaintiff the ownership disclosure would have changed the outcome of the [May 11, 2016] public hearing.”

He further explains, “Ownership disclosure alerts the public as to any potential conflicts of interest associated with a zoning approval. Here, there is no question that the real parties in interest are Dennis and Wendy Madden. The property is jointly owned by Wendy Madden, personally, and by Wendy Madden, as trustee of the Walder Family Trust, as tenants in common.”

Regarding Cosentino’s argument that the county violated the notice requirement following the road vacation, Pearce writes that notice of the board’s adoption of such a resolution “shall be published one time, within 30 days [following the board action], in one issue of a newspaper of general circulation published in the county.”

An October 2013 report to Sarasota County, prepared by Taylor Engineering of Jacksonville, shows changes in the Siesta Key coastline over the years. Image courtesy Sarasota County

“As indicated by date stamps on its surface,” Pearce adds, the resolution vacating the North Beach Road segment “was rendered on June 27, 2016,” and it was published on July 2, 2016. Additionally, he notes, it was recorded in the County’s Official Records on October 24, 2016.”

Pearce explains, “The Board’s decision is rendered when it has been filed with the [Office of the Clerk of the Circuit Court and County Comptroller], and “the deadline to complete post-hearing publication only begins to run when the resolution is rendered, and not when the Board votes orally at the public hearing.”

In this case, the county published notice of the board action within one week after the resolution was rendered, Pearce points out. Therefore, the county “met its statutory obligation of publication [under state law].”

In explaining the delay for the rendering of the resolution, Pearce writes that the original draft resolution regarding the road vacation — presented to the board on May 11, 2016 — “had to be amended to reflect the Board’s direction.” That change involved Commissioner Charles Hines’ request — to which the property owners agreed — for a 5-foot-wide easement perpendicular to the shoreline, extending from North Beach Road toward the Gulf of Mexico. “The County needed a legal description drafted for this new … easement,” Pearce adds. “The Maddens’ surveyor finished the sketch for this easement on June 9, 2016, with the legal description thereof completed on June 10, 2016.” Pearce adds, “These facts demonstrate good faith efforts by the County to comply with the statutory deadlines.”

The remaining count

A dilapidated groin extends into the Gulf of Mexico on the parcel at 10 Beach Road. File photo

The only count not addressed yet in motions for partial summary judgment in the case involves Cosentino’s allegation that because he owns the property at 10 Beach Road, he has the “private right … to continue to use Beach Road ‘for thoroughfare purposes.’” The latter phrase refers to language in the Mira Mar Subdivision Plat Book, “which provides that Beach Road was dedicated to public use ‘for thoroughfare purposes only, reserving all other rights,’” as Cosentino points it in his Second Amended Complaint.

The parcel at 10 Beach Road, he argues, is only 465 feet north of the vacated segment of North Beach Road. He should be able to “drive his vehicle on Beach Road between Columbus Boulevard and Avenida Messina,” he contends in his Second Amended Complaint.

Yet, he argues, the county allowed the Maddens to install “bollards and obstructions to private and public traffic” on both ends of the vacated road segment.

Cosentino bought the property at 10 Beach Road in September 2016, about three months after he filed the lawsuit against the county.

Although the bollards were erected in late January, the vacated road segment is open to the public for all types of access, except by motor vehicle, as stipulated in the resolution the County Commission approved in May 2016. The road had been closed to motor vehicles since 1993 because of repeated storm damage.