Court of Appeal rules against Cosentino in five-year-old North Beach Road case

Decision also means that Sarasota County Charter amendments he wrote are unconstitutional

Mike Cosentino addresses the county commissioners on June 3, 2020. File image

Almost exactly five years after he filed suit against Sarasota County over its vacation of a 373-foot-long segment of North Beach Road, Siesta Key resident Michael Cosentino lost his case in a unanimous ruling by a three-judge panel of Florida’s Second District Court of Appeal.

In a June 11 opinion, Judge Susan H. Rothstein-Youakim wrote that the Court of Appeal found all of the arguments that Cosentino and his nonprofit organization, Reopen Beach Road, put forth to be meritless, except for one, which she addressed at length. That regarded the formal published notice of the County Commission’s approval of the road vacation petition. Nonetheless, she pointed out, “The record indisputably establishes that Cosentino has been afforded ample opportunity to participate and be heard [in regard to the commission’s road vacation decision],” and he never made an allegation to the contrary.

The three-judge Court of Appeal panel heard oral arguments in the case on April 13.

Along with allowing the road vacation to stand, the ruling means that two Sarasota County Charter amendments that Cosentino wrote are invalid. They won passage during the November 2018 General Election.

In October 2018, 12th Judicial Circuit Court Judge Hunter Carroll issued the opinion in the county’s favor in regard to that portion of the case.

One amendment forbid the county from vacating any segment of road that had so much as a view of the water. The other called for the county to rescind the road vacation or to reacquire the vacated section of North Beach Road.

In his Oct. 28, 2019 ruling, Carroll wrote, “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.”

During the April 13 oral arguments, Cosentino admitted to the Appeal Court judges, “I knew that [the amendments] were unconstitutional when I wrote them.”

He has told The Sarasota News Leader that he saw them as an alternative means of trying to achieve his goal of reopening all of North Beach Road to traffic, along with preventing a similar road vacation in the future.

These are the Cosentino Charter amendments, as noted in materials provided to the County Commission on Aug. 29, 2018. County regulations require that the commission vote to approve the placement of any citizen-initiated amendments on an election ballot. Image courtesy Sarasota County

In a June 11 memo to the County Commission, County Attorney Frederick J. Elbrecht announced the “favorable result in this appeal.” He explained, “The Second District Court of Appeal has affirmed the final judgment of the trial court and, as a result, the charter amendments requiring the County to reacquire Beach Road and prohibiting the County from selling any park or preserve or vacating roads that run along a waterbody or waterfront vista remain invalid and unenforceable.”

Asked to comment on the Second District Court of Appeal ruling, Cosentino told the News Leader in a June 14 email, “Getting even an adversarial written ruling in this appeal was my main priority, and brings us one step closer to victory.

“In short,” he added, “the rulings are just too devastating to Florida’s future and the Community Planning Act for me to stop.”

In his complaint, Cosentino formally alleged that the County Commission violated Chapter 163.3161 of the Florida Statutes, which is called the Community Planning Act. Section 6 of that law says, “It is the intent of this act that adopted comprehensive plans shall have the legal status set out in this act and that no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof, prepared and adopted in conformity with this act.”

Then-County Commissioner Christine Robinson listens to a discussion in March 2016. File photo

When Cosentino filed his original suit against the county in June 2016, he contended that the commission had violated a provision of the county’s Comprehensive Plan. 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.”

In fact, citing that policy, then-Commissioner Christine Robinson cast the solitary “No” vote against the vacation petition.

However, then-Commissioner Charles Hines pointed out that the segment of North Beach Road under consideration actually did not border the Gulf of Mexico. Instead, Hines noted, the road was landward of private parcels owned by the three sets of petitioners.

Cosentino plans to seek Florida Supreme Court decision

“Florida’s Supreme Court has always been the goal,” Cosentino continued in his June 14 statement to the News Leader. “It’s been a long road, but we’re finally there. Now it’s time to play ball.

“Simply put,” he added, “there is no legal basis in law or fact that would allow any court to rule against me and the people of Sarasota. As such, I appreciate the opportunity presented by the Court’s ruling.”

The News Leader asked Morgan Bentley, principal of Bentley Law in Sarasota, about the chances of Cosentino’s getting the Florida Supreme Court to hear his case. (Bentley often provides information on legal issues to the News Leader.)

Morgan Bentley. Contributed photo

In 99% of cases, Bentley explained, a Florida court of appeal is the court of last resort.

The Supreme Court, Bentley added, hears death penalty cases and those involving challenges to municipal bonds. As for the rest of the cases it agrees to take on, he pointed out, “The vast majority are purely discretionary.”

The high court will consider hearing those involving an “issue of great public importance,” Bentley noted, and it will take cases involving a matter on which state courts of appeal have provided differing opinions.

Moreover, he explained, “You literally have to file a jurisdictional brief” in making a request for an appeal to the Florida Supreme Court. That is akin to the type of detailed brief a person files in launching litigation, he added.

Summing up the situation, Bentley said, “It’s a really narrow path” to persuade the high court to take on a case.

In his June 11 memo, County Attorney Elbrecht did note that, because the Court of Appeal issued a written opinion, “Mr. Cosentino may attempt to seek a further review through a motion for rehearing with the Second District [Court] or by filing a certiorari petition with the Florida Supreme Court. However, the Florida Supreme Court’s jurisdiction is limited to a narrow set of circumstances and it is unlikely that the Florida Supreme Court would accept jurisdiction.”

Cornell Law School’s Legal Information Institute explains that “certiorari” is a review of a lower court’s judgment.

Attorneys have told the News Leader that when a court of appeal issues a “per curiam” ruling — a typically short, unsigned opinion that does not address the merits of a case —no basis exists for a further appeal. Therefore, a written opinion — such as Judge Rothstein-Youakim’s — allows for the potential of appeal to a higher court.

A wish to drive the entire road

The News Leader also requested comments from M. Lewis Hall III of the Williams Parker firm in Sarasota, who represented intevenors in the case — Dennis and Wendy Madden. They were among the three sets of North Beach Road property owners who petitioned the County Commission for the road vacation.

In a June 11 email, Hall wrote, “We are pleased with the decision of the Second District Court of Appeal affirming the decisions by our local Judges [Frederick] Mercurio, [Hunter] Carroll and [Andrea] McHugh and the speed with which the Court issued its opinion. Significantly, the Court of Appeal rejected as meritless Mr. Cosentino’s arguments (i) that the vacation of Beach Road was a development order, (ii) that he had standing to challenge the County Commission’s decision to vacate a portion of Beach Road, (iii) that he had a private right to drive on Beach Road and (iv) that the Charter Amendments he solicited were constitutional. Remember, the public has continuing access to the vacated portion of Beach Road through an easement given by the Maddens to the public with access to the Gulf waters. This case was only about Mr. Cosentino’s desire to drive on the vacated portion of Beach Road, nothing more.”

(From lower left) Mike Cosentino, attorney M. Lewis Hall III of the Williams Parker firm and Assistant County Attorney David Pearce participate in the April 13 oral arguments before three judges of the Second District Court of Appeal. File image

During the oral arguments in the case, Court of Appeal Judge Matthew C. Lucas asked about the fact that the affected segment of North Beach Road had been closed to traffic for decades because of repeated storm damage.

Cosentino responded, “I drove down that road consistently despite the fact that there were ‘Road Closed’ signs there.”

Cosentino has contended that the County Commission years ago could have approved a shore-stabilizing feature, such as a step revetment system, which would have enabled staff to reopen the road instead of letting it continue to deteriorate.

In a May 24, 2016 appearance before the County Commission, during the Open to the Public period for comments, Cosentino said that he had lived on Siesta Key for about 27 years, at that point. Then he mentioned how much he used to enjoy driving the length of North Beach Road.

“Every day, when I’d get home from work,” he told the board members, “I would take that little slow roll down that beach … and just feel my heart rate come down and my blood pressure go down. It was an amazing thing.”

This is a view of the vacated segment of North Beach Road, looking north, in early August 2018. File photo

Cosentino also contended in his complaint that the road vacation was necessary because the Maddens needed the “unity of title” of the land area of the vacated segment, in combination with their private property both east and west of the road. The total acreage, Cosentino pointed out, enabled them to comply with county regulations applicable to their plans to build a new six-unit structure on North Beach Road.

The Maddens’ attorney, Charles D. Bailey III of the Williams Parker firm in Sarasota, explained during the May 2016 hearing that they planned to tear down 12 dwelling units that were decades old to build the new condominiums, which would comply with all the Florida Building Code and flood management guidelines.

During the April 13 oral arguments, Cosentino — who was serving as his own counsel in the case — stressed that the road vacation was “for the express purpose for increasing the density and intensity of use of [the Maddens’] lands landward” of the road.

This is a diagram illustrating a rock revetment installation. It was prepared by Taylor Engineering of Jacksonville in 2013 as the County Commission considered ways to stabilize North Beach Road on Siesta Key. Mike Cosentino has maintained that the county could have installed this type of system on North Beach Road to prevent further damage and once again permit vehicular access. Image courtesy Sarasota County

Therefore, Cosentino argued, Resolution 2016-79, which granted the street vacation, is a development order, which is “merely the government’s approval of a development permit.” The Coastal Setback Variance the Maddens sought from the commission for their project “could not be approved but for the approval of the street vacation,” he told the Court of Appeal judges

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].”

Judge Rothstein-Youakim’s concerns about the notice

During the April 13 oral arguments, Judge Rothstein-Youakim questioned Assistant Sarasota County Attorney David Pearce about an issue that Cosentino had raised regarding the publication of the County Commission resolution approving the road vacation.

In the June 11 opinion, she explained that in Count II of his second amended complaint, Cosentino argued that the county failed “to publish the requisite notice of adoption of the resolution vacating Beach Road … ‘within 30 days following its adoption.’” He alleged that the adoption occurred at the conclusion of the May 11, 2016 public hearing.

Michael Cosentino asserts that this document shows the North Beach Road segment vacation was adopted on May 11, 2016. Image courtesy 12th Judicial Circuit Court

However, Pearce told the appeal court judges on April 13 that, according to Section 336.10 of the Florida Statutes, “rendition,” as defined under the Florida Rules of Appellate Procedure, meant adoption. Therefore, Pearce contended, the road vacation resolution was not rendered until the document, signed by the commission chair, had been filed with the Sarasota County Clerk of the Circuit Court and County Comptroller.

Pearce added that the resolution was not filed with the clerk — and therefore was not “adopted” — until June 27, 2016, Rothstein-Youakim noted in the June 11 opinion.

Pearce also contended that the notice was published in a timely fashion, as required by state law, she added.

The delay, Pearce has pointed out during court proceedings, was related to the necessity of including in the resolution language related to a last-minute proffer during the May 2016 hearing. At the request of commissioners, the property owners agreed to a 5-foot-wide public easement from the section of the road to be vacated, down to the public part of Siesta Key Beach.

In the June 11 opinion, Rothstein-Youakim explained the case law cited in the Cosentino litigation in regard to the notice.

She further pointed out that Pearce had contended that even if the notice had not been published in a timely fashion, that made no difference, because “Cosentino had wholly failed” to allege that the delay had caused any problems in his filing his suit against the county in the necessary time frame.

An engineering drawing shows the area of the North Beach Road vacation, included in a county motion in the Cosentino case in June 2017. Image courtesy Sarasota County

The 12th Judicial Circuit Court agreed with Pearce, Rothstein-Youakim wrote. However, in his appeal, she continued, Cosentino argued that “‘[t]he trial Court legislated provisions into [Florida Statute 336.10] that do not exist’ and that ‘the Legislature knows the difference between rendered and adopted.’”

After reviewing two rulings of the Second District Court of Appeal — earlier this year and in 2004 — that had bearing on that argument, Rothstein-Youakim wrote, “[W]e agree with Cosentino.”

She added that the Second District Court of Appeal found that the Circuit Court erred in siding with the county on that issue.

Yet, the judge continued, “This error does not warrant reversal …”

“So long as due process has been afforded,” Rothstein-Youakim pointed out, “strict compliance [with the state law] is unnecessary.”

In his June 11 memo to the County Commission, County Attorney Elbrecht did explain that portion of the ruling. “In the future,” Elbrecht wrote, “the County will need to exercise caution in meeting the statutory deadline for publication.”

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