Decision on motion for partial summary judgment in North Beach Road case hinges on interpretation of whether road vacation constituted a ‘development order’

Siesta resident’s attorney argues that Siesta property owners needed the road vacation to construct new dwelling units, while their attorney says the May 11, 2016 vote on the road was designed to save the county money

A graphic shows the segment of North Beach Road that the County Commission voted to vacate in May 2016. Image courtesy Sarasota County

It all comes down to a 12th Judicial Circuit Court judge’s interpretation of the Florida Statutes and case law in regard to what a development order is.

Lewis Hall III of the Williams Parker firm in Sarasota, the attorney for Dennis and Wendy Madden of Siesta Key, told 12th Judicial Circuit Court Judge Frederick Mercurio this week that the Sarasota County Commission’s decision to vacate a 357-foot-long segment of North Beach Road did not constitute a development order. The resolution the board approved on May 11, 2016 was a completely separate action, Hall said, from the board’s granting of a Coastal Setback Variance to the Maddens that would allow them to replace 12 existing dwelling units with six new ones.

Hall did not dispute the fact that the combined square footage of the vacated road segment and property the Maddens own both east and west of the road gave them enough land under the county’s Zoning Code to undertake that new construction.

However, he argued, “The county made a reasonable decision [that the road vacation] was in the best financial interest of the county.” The costs of continuing to maintain the road, Hall pointed out, “outweighed any benefit to the county …”

That portion of North Beach Road was closed to vehicles in 1993 because of repeated storm damage, county commissioners and staff members have said. A study of the road’s structural problems — provided to the county in October 2013 by Taylor Engineering of Jacksonville — suggested five options for stabilizing the road. The least expensive — a concrete seawall — was estimated at $1,838,500. The most expensive was taking no action, which the firm projected would cost $5,835,525 in maintenance over 50 years.

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

Ralf Brookes of Cape Coral, the attorney for Siesta resident Michael Cosentino, focused on the necessity of the road for the Maddens to pursue the construction of the new dwelling units on Beach Road. On May 11, 2016, the county commissioners “went back and forth” between discussing the road vacation and considering the facts of the application for the variance, Brookes told Mercurio on April 5. When the commissioners prepared to vote on the agenda items, he added, County Attorney Stephen DeMarsh had to remind them that they could not approve the variance unless they approved the road vacation first.

The two agenda items — and resulting resolutions — “were hopelessly intertwined at the public hearing,” Brookes said.

“So I have to look at them that way?” Mercurio asked.
“This [board action] allows one property owner to expand his lot size” by 8,265 square feet for the new buildings, Brookes replied.

The 42-minute hearing in downtown Sarasota considered only the Maddens’ motion for partial summary judgment in the case. Cosentino filed a complaint against Sarasota County in June 2016, arguing the road vacation violated the county’s Comprehensive Plan. The court issued an order on July 26, 2016 granting the Maddens permission to intervene in the case.

The Maddens contend that Cosentino is wrong in asserting that the road vacation is a development order necessitating compliance with the county’s Comprehensive Plan. If Mercurio agrees with them, Cosentino will have no cause of action on that point.

The May 2016 public hearing

The Maddens own the property at 89 Beach Road (outlined in red) as well as the parcel immediately seaward of it. Image from the Sarasota County Property Appraiser’s Office

The Maddens, along with J. Edward Ramsey and Christy S. Ramsey of Bristol, Ind.; and William Caflisch and Sheila S. Caflisch of Sarasota, petitioned the county in the spring of 2015 to abandon the segment of Beach Road in front of their property. The couples’ application said that section is “impassable by vehicles due to the deterioration of the roadway conditions over the last several years and the lack of road maintenance and repair by the County.”

The application also pointed out that the petitioners owned lots on the east side of Beach Road that fronted “directly on and have driveway connections to Beach Road. However, there presently is no practical access to these parcels” because of the road’s “continued state of disrepair.”

The narrative further noted, “Fortunately, each of the Petitioners also own adjacent lots which abut either Avenida Veneccia or Columbus Boulevard, providing legal access to their respective Beach Road lots.”

During the May 11, 2016 public hearing, Charles Bailey III of the Williams Parker law firm, acting as the agent for the couples, also pointed out that each of them owned parcels seaward of North Beach Road. On April 5, Hall used a map in court to show Mercurio the locations of those lots. (The Ramseys later sold their property to Siesta resident Michael Holderness.)

The parcels are in the Mira Mar Beach subdivision, which was platted in 1925, Hall explained during the April 5 hearing.

“I’ve lived on Siesta Key probably … for more than 20 years,” Mercurio responded, “so I am intimately familiar with the area you are talking about.”

Pursuing the case

A second amended complaint Cosentino filed in February makes the same point that Brookes argued during the April 5 hearing: that the county “repeatedly demonstrates that the street vacation is essential to permit development as proposed with six (6) units.”

The county staff report on May 11, 2016 showed the new site plan for the Maddens’ property. Image courtesy Sarasota County

Nonetheless, in his argument to Mercurio, Hall pointed to Cosentino’s April 3 amended responses to the Maddens’ interrogatories. No. 8 said, “Please explain in detail the impact of [Sarasota County] Resolution 2016-079 [vacating the segment of North Beach Road] and [county] Resolution 2016-080 [granting the Coastal Setback Variance to the Maddens] on you personally.”

Hall read Cosentino’s answer: “My ability now and in the future to drive down Beach Road will be impacted. I enjoy viewing the Gulf of Mexico from my vehicle on the way to work, and on the way home from work …”

The answer does not mention the Maddens’ planned construction, Hall stressed.

Cosentino also responded in the interrogatories, “My right to drive from my property at 10 Beach Road down the thoroughfare of Beach Road to Beach Access 3 from my property at 10 Beach Road will be stripped from me, forever unless the vacation is reversed by the court or the segment of Beach Road is reacquired.”

“Again,” Hall told the judge, “there is no reference to development.”

Hall added, “His objection is to the fact that Beach Road got closed …”

During his presentation, Brookes first made the argument that has been the centerpiece of Cosentino’s complaint: that the County Commission violated its own Comprehensive Plan in voting 4-1 to vacate the portion of North Beach Road. (Then-Commissioner Christine Robinson was the only board member to oppose that action and the variance petition.)

This is the view looking south from the segment of North Beach Road that was vacated, prior to the 2016 action. File photo

Brookes read Environmental Policy 1.1.13, which said at the 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.”

Brookes then cited Florida Statute 163.3194. Section (3)(a) says, “A development order or land development regulation shall be consistent with the comprehensive plan if the land uses, densities or intensities, and other aspects of development permitted by such order or regulation are compatible with and further the objectives, policies, land uses, and densities or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.”

“We’re not saying that in every case, a vacation of a road is a development order,” Brookes told Mercurio, but in this one, it is.

Brookes and Hall disagreed about the interpretation of other sections of the statute, and they disagreed further in their reading of the Florida Fourth District Court of Appeal’s November 2011 opinion in Graves v. City of Pompano Beach.

“Unfortunately, there’s just no other law … that we can give you” other than that case, Hall told Mercurio, as assistance in making a finding on the motion for partial summary judgment.

Later, the judge asked Hall about Cosentino’s argument that the Maddens needed the road vacation to increase density and “give [them] more ability to develop their property.” That appeared to make the County Commission decision a development order, Mercurio said.

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

Hall characterized that as a “but for” argument, saying it was wrong to apply that in this situation. “There’s no pre-condition existing in the [2016-079] resolution that talks about the development under [the 2016-080 resolution].”

Brookes countered that: “But for the one [resolution], you couldn’t have the other.”

In addressing Hall at one point, Mercurio referenced the earlier comment about County Attorney DeMarsh telling the board members they could not consider the variance petition unless they agreed to the road vacation.

“The County Commission could have passed the vacation and denied the [variance] application,” Hall responded. “You have to look at only [the road vacation resolution] to determine whether it is a development order.” If it is not, he added, the judge would have to grant the Maddens’ motion for partial summary judgment.

Brookes argued that the issue “should be reserved for trial.”

The request for the road vacation and the variance “were done in tandem from Day 1. They were always part and parcel of the other,” he maintained.