Final document filed in Cosentino’s appeal in North Beach Road and Charter amendments case

No oral arguments scheduled, so Second District Court of Appeal left to make decision on basis of briefs and Circuit Court records

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

In the reply brief in his appeal in his North Beach Road lawsuit against Sarasota County, Siesta Key resident Michael Cosentino cites a number of court rulings to bolster his argument that the County Commission violated its Comprehensive Plan when it approved the vacation of a segment of North Beach Road in May 2016.

He also continues to contend that two Sarasota County Charter amendments he wrote, which voters approved on the November 2018 General Election ballot, are valid.

The Charter amendments, he has told The Sarasota News Leader, were a backup measure to try to return the section of North Beach Road to county ownership and to prevent any future vacation of a road on a body of water. North Beach Road is just landward of Siesta Beach.

Cosentino launched his legal efforts in June 2016. Almost four-and-a-half years later, it will be up to Florida’s Second District Court of Appeal to determine the outcome. If the court upholds the final order of 12th Judicial Circuit Court Judge Andrea McHugh — who ruled for the county last year — Cosentino may be unable to seek any further redress. In a number of cases, the Second District Court of Appeal has issued per curiam rulings in upholding lower court decisions. Those decisions offer no basis upon which a person can pursue further action.

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

An explanation of the appellate process, written by appellate lawyer members of the Palm Beach County Appellate Practice Committee, notes that after the appealing party files the reply brief in a case, the Appeal Court will review all the briefs that have been submitted, conduct its own research and hear oral arguments — when granted. Then, a panel of judges will discuss the case and arrive at a decision.

As of Dec. 1, none of the parties in the Cosentino case has sought oral arguments.

Cosentino began his reply brief with the following statement: “Thurgood Marshall once declared that one’s right to swing his fist freely stops where another’s nose begins. Similarly, county commissioners’ normally broad discretion ends where [their] comprehensive plan begins. It is well settled,” Cosentino continued, with emphasis, “that counties ‘[m]ust comply with their own Comprehensive Plans,’ and ‘[w]hen the Legislature wants to give an agency discretion and then for the courts to defer to that discretion, it knows how to say that. Here it has not.’”

Cosentino was quoting a 2001 opinion by the Florida Fourth District Court of Appeal in Pinecrest Lakes, Inc. v. Shidel.

In June 2016, on a 4-1 vote, the County Commission agreed to the vacation of a 373-foot-long segment of North Beach Road. In filing his Circuit Court complaint in June 2016, Cosentino referenced Section 1.1.13 of the Comprehensive Plan at that time. The policy said, “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.”

Then-Commissioner Christine Robinson cited that as the basis for her “No” vote.

(Later that year, the commissioners approved a number of revisions to the Comprehensive Plan. Among those, they voted for a change in the wording of that policy. The current version says, “The County should not vacate road segments or access points on waterfronts along any beach, bay, creek, river, or lake, and should encourage public right-of way use of these areas for public shoreline and water access.”)

In his reply brief, Cosentino contended that the North Beach road vacation and an accompanying Coastal Setback Variance the board approved the same day — which affected one of the three sets of property owners applying for the road vacation — “evolved for several years before being adopted.”

County photos included in a 2013 report issued by Taylor Engineering of Jacksonville show the condition of North Beach Road in October 2005. Image courtesy Sarasota County

He has maintained that county staff colluded with at least some the petitioners for the road vacation, which ultimately led to a County Commission decision not to construct a permanent means of protecting North Beach Road from further storm effects. The affected section of the road had been closed to vehicular traffic since 1993.

Further, Cosentino wrote in his reply brief that his two county Charter amendments “result from, rectify, and prevent future unlawful actions such as those approved by the resolutions [for the North Beach Road vacation and the Coastal Setback Variance].”

Among his arguments, Cosentino contended, “The County wrongly clings to the fallacy” that the street vacation could have been approved without authorization of the Coastal Setback Variance (CSV) for construction of a new condominium complex with six dwelling units. That three-story building was designed to replace 12 dwelling units in several structures — mostly decades old — that did not conform to modern building standards, including those in the County Code, the attorney for the CSV petitioners explained during a presentation to the County Commission on May 11, 2016.

“Without evidentiary support, and in direct conflict with the record facts of the case,” Cosentino continued in his reply brief, “that notion migrated, verbatim,” from a county filing in the litigation to the 12th Judicial Circuit Court’s ruling in favor of the county, which came in the fall of 2019.

In October 2013, Taylor Engineering of Jacksonville provided these options for addressing the repeated storm damage to North Beach Road. Image courtesy Sarasota County

Cosentino argued that the road vacation was possible only if the redeveloped property had access just from Avenida Veneccia, not from North Beach Road. He cited the CSV application the commissioners considered on May 11, 2016.

A 2013 county staff report on the condition of North Beach Road “acknowledged the county’s legal obligation ‘to provide public access to the … private land within rights-of-way or easements,’” he wrote. Again, the emphasis was Cosentino’s. He was referring to property owned by Dennis and Wendy Madden, who were seeking the CSV from the county.

Cosentino also stressed that the commissioners considered both the road vacation and the CSV petition during the same public hearing, which lasted four-and-a-half hours. (The Sarasota News Leader timed the hearing at three hours and 45 minutes.)

“Perhaps the reason the County didn’t give a better explanation of the ‘independence’ of [the road vacation resolution] is because none exists,” he wrote in his reply brief.

A May 2016 graphic shows the segment of North Beach Road that the County Commission voted to vacate. Initially, staff estimated the length at 360 feet. Later, that was revised to 372 feet. Image courtesy Sarasota County

During the May 2016 hearing, county staff testified that the square footage of the vacated road segment would have to be added to the square footage of parcels the Maddens owned both landward and seaward of North Beach Road to given them enough land to build the six dwelling units. Otherwise, they would have had insufficient square footage to support that residential density.

The Charter amendments

While one of Cosentino’s Charter amendments focused on the county’s reacquisition of the vacated North Beach Road segment, the second one prohibited the county from vacating any section of road with so much as a water view.

Cosentino contends that both amendments are constitutional. He further pointed out in his reply brief that the county admitted that legislative authority granted to the County Commission in the Florida Statutes “may be limited by the charter [his emphasis again].”

Moreover, he wrote, “Nothing in the county’s charter limits the criteria of citizen-based charter amendments.”

This is Sarasota County Charter Section 3.9, which was approved on Nov. 6, 2018. Image courtesy of the Office of the Sarasota County Clerk of Court and County Comptroller

This is the text of Charter Section 3.10, as approved by voters on Nov. 6, 2018. Image courtesy of the Office of the Sarasota County Clerk of Court and County Comptroller

Cosentino also cited Section 163.3211 of the Florida Statutes, which, he argued, “provides that when conflict between statutes arises, ‘the provisions of this act shall govern unless the provisions of this act are met or exceeded by such other provision or provisions of law relating to local government [his emphasis].’”

Neither of his Charter amendments presented a conflict with sections of Florida Statute 336, he added, which “‘sets minimum, not exclusive, requirements. Although the County cannot permit less public protection,’” he continued, with emphasis, “‘it is free to set such additional safeguards as it deems appropriate.’” He was citing a 1996 ruling of Florida’s Fifth District Court of Appeal in Hernando County v. Franklin.

He added that the county “had NO AUTHORITY [his emphasis]” under state law to vacate the segment of North Beach Road.

Further, “The County had no duty, ministerial or otherwise, to place Cosentino’s charter amendments on the ballot if it determined they were unconstitutional. The only powers limited by the amendments were the [commission’s] powers,” Cosentino pointed out. “The Constitution prohibits the Board from enacting unconstitutional ordinances. Thus, by approving [the ordinance that placed Cosentino’s amendments on the ballot], the County blessed the limitations therein, and waived its right to challenge what became, in essence, its own work product.”

During the Aug. 29, 2018 public hearing regarding the placement of Cosentino’s proposed amendments on the November 2018 ballot, then-County Attorney Stephen DeMarsh explained that Cosentino and his supporters gained the necessary number of signatures of registered county voters to satisfy the county Charter language at that time for putting citizen-initiated amendments on a ballot. However, DeMarsh pointed out, he had concerns about the legality of the amendments.

This May 2016 county staff graphic shows a cross section of the new residential construction plans the Maddens sought on property they own on North Beach Road. The GBSL is the Gulf Beach Setback Line, a figurative line that was established to protect dunes and beach vegetation, which, in turn, protect landward structures from storm surge and other flooding events. Image courtesy Sarasota County

For example, DeMarsh said, the county Charter can limit the board’s authority, but the commission also has legally permissible ways to work around those prohibitions.

The example he cited was the limit on the county’s ability to issue bonds. If the board wanted to exceed the limit, DeMarsh added, the board could pursue a referendum.

However, he continued, the commission would have no way to work around prohibitions in Cosentino’s amendments, if they were approved.

After DeMarsh concluded his comments, then-Commissioner Charles Hines told him, “You’ve pointed out a lot of potential issues that may need to be considered should [voters approve the amendments].” Nonetheless, Hines added, the board’s role that day was “to vote to put [the amendments] on the ballot,” because Cosentino had satisfied all the requirements in the Charter for the citizen-initiated amendments to go on the ballot in November.

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