Michael Cosentino has not shown he suffered a greater adverse effect than the general public, the county’s answer says, so his legal complaint is not valid
A Siesta Key resident has failed to identify how he has suffered an adverse effect greater than that of the general public as a result of the Sarasota County Commission’s May 11 vote to vacate about 357 feet of right of way on North Beach Road, Sarasota County argues in its response to a June challenge of the board action.
In an Oct. 17 filing with the 12th Judicial Circuit Court in Sarasota, Assistant County Attorney David Pearce seeks the dismissal of the June 10 complaint Michael Cosentino filed against the county, in which Cosentino alleged that the commission violated the county’s Comprehensive Plan when it approved the road abandonment.
The county’s answer does ask for the dismissal without prejudice, to allow Cosentino the opportunity “to set forth factual allegations” that might give him “sufficient facts necessary to establish standing” relative to one part of his complaint. That involves his argument that the County Commission also violated the Comprehensive Plan in granting a coastal setback variance to one of the couples who had petitioned for the road vacation.
Wendy and Dennis Madden, who own a total of 12 dwelling units at 89 Beach Road and 84 Avenida Veneccia, sought the variance so they could tear down the existing structures — which do not meet current Florida Building Code standards — and replace them with six new units in a three-story structure. The Maddens needed the inclusion of the abandoned Beach Road property to achieve sufficient acreage to meet Zoning Code stipulations for their project, county staff testified on May 11.
In his complaint, Cosentino alleged that their plans would result in additional density on the island, because they could construct only five units instead of six without the inclusion of the road segment.
In the county’s response, Pearce explains that the coastal setback variance is a development order. He writes that “the County could have vacated the road without approving the [variance].”
Cosentino’s complaint cited the same section of the Comprehensive Plan that Commissioner Christine Robinson referenced prior to her May 11 “No” vote on the road vacation: Policy 1.1.13 says, “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.”
Noting Cosentino’s contention that the County Commission’s interpretation of Policy 1.1.13 renders it “a nullity,” Pearce indicates that Cosentino was seeking a way to challenge the board’s road abandonment decision and settled on alleging inconsistency with the Comprehensive Plan. However, Pearce continues, “This argument would fail on its merits. Legislative bodies often enact regulations for which there is no or a limited private cause of action,” citing a 1994 Florida Supreme Court ruling.
Cosentino could have found another means to seek relief from the courts, Pearce contends, but only if Cosentino could have shown that he suffered an adverse impact from the road vacation that exceeded “the general interest in the community good shared in common with all citizens.”
Although Cosentino identifies himself as a Siesta Key resident, Pearce contends Cosentino does not make a valid argument that Cosentino used the section of North Beach Road more than any other person before the county vacated it.
Pearce also argues that because the coastal setback variance is a development order, Cosentino could have challenged it under the guidelines of Florida Statute 163.3215. Nonetheless, Pearce continues, Cosentino again would have had to show that he suffered an adverse effect greater than that he shares with other members of the community.
Because the courts have struggled with similar cases, Pearce argues, they have allowed plaintiffs to demonstrate specific interests that exceed those of the general public. For example, Pearce notes, one such case involved a plaintiff with property adjacent to a development. Cosentino “failed to articulate enough facts to meet the relaxed standard,” Pearce writes.
A further ‘development’ factor
Citing the Florida Statutes’ definitions of development, Pearce writes that the board’s decision to vacate the section of North Beach Road “falls squarely within the exception found in subsection 380.04(3)(h).” Pearce points out, “Under common law, the dedication of roads to the public meant that property owners on either side of the road held title to the centerline, but that their property within the right-of-way was subject to an easement for public use. … When a road easement is abandoned, the owner of abutting land continues to hold title to the centerline.”
He adds, “In any event, the road vacation amounts to the termination of certain rights associated with the right-of-way. Here, the [County Commission] terminated certain rights conditioned upon the provision of other certain rights. Therefore, the Board’s decision to vacate [part of] Beach Road is not a ‘development order’ as defined by general law. Rather it is the termination of rights to land.”
Before the commission voted 4-1 on the road segment abandonment, Charles Bailey III of Sarasota — the attorney representing the property owners — proffered on their behalf that all members of the public would continue to be able to use the road as they have since vehicles were prohibited on it in 1993. Furthermore, the property owners agreed to an extra 5-foot-wide easement from the road section, across property they owned seaward of the road, so people could reach the beach easily.
Pearce further notes that Cosentino’s complaint “failed to attach the documents upon which the action is brought,” as required by the Florida Rules of Judicial Procedure.
Cosentino did not include with his June 10 filing a copy of the resolution granting the coastal setback variance to the Maddens or a copy of the road vacation resolution, Pearce writes.
Yet, the latter was not available until Sept. 26, as county staff has confirmed for The Sarasota News Leader. An email from County Administrator Tom Harmer to the commissioners on Sept. 27 indicated that the new owner of the house at 99 Beach Road finally had signed the necessary papers to grant the public easements proffered by the original parties to the road vacation.