Commissioner Hines convinces colleagues that numerous other public access points in same general area a primary reason to move forward
Two members of the public objected — and one Sarasota County commissioner initially did.
However, by the end of a June 3 public hearing regarding a petition for the vacation of a 9,655.8-square-foot county right of way on Dona Bay, all the commissioners voted for approval.
It was the first such action regarding county right of way on the water since Siesta Key resident Michael Cosentino brought suit against the county in June 2016 because of the commission’s vacation of a 373-foot-long segment of North Beach Road.
The petitioners in this situation were Brian McMurphy and Brians Land Nokomis LLC, which have a Venice address.
Hayley Baldinelli, manager of the county’s Property Management Division, explained that McMurphy is the principal of the limited liability company. He owns the three parcels that surround the portion of Bayview Parkway that he sought to be vacated, Baldinelli said.
In his application, McMurphy noted that the “unimproved right of way significantly impacts [his] ability to redevelop [his] property and meet current County [land development] standards.”
A June 3 staff memo did note that while Cosentino had lost in the litigation he began at the 12th Judicial Circuit Court level, he has appealed Circuit Judge Andrea McHugh’s final order to Florida’s Second District Court of Appeal. The memo added that “the decision whether to proceed with any application to vacate a road which runs along a waterbody or waterfront vista is a policy decision [for] the Board of County Commissioners. … The more conservative and cautious approach would be to wait until the appeal has concluded,” the memo continued. “However, based on the thoroughness of the circuit court’s order, the Office of the County Attorney believes this risk is low.”
In response to questions posed by Commissioner Nancy Detert during the June 3 hearing, County Attorney Frederick “Rick” Elbrecht reasserted the view expressed in the memo: “We feel that the chance of [county] success on appeal, given the nature of the judge’s order, is good.”
Cosentino, who addressed the commission during the hearing, expressed his view that he would prevail at the Appeal Court level. “Record evidence [from the Circuit Court litigation] will clearly demonstrate to the appellate court the legal infirmity of the local [judges’] decision,” he said.
In October 2019, while McHugh was away on emergency family leave, Circuit Court Judge Hunter Carroll ruled that two Sarasota County Charter amendments that Cosentino wrote and was able to get on the November 2018 General Election ballot were invalid because they conflicted with state law. The first called for the County Commission to rescind its vacation of the portion of North Beach Road, or reacquire the right of way. The second, Charter Section 3.10, prohibited the vacation of any county right of way that had so much as a waterfront vista. However, Carroll ruled that the first sentence of Section 3.10 could be severed from the rest of the amendment. He called the second sentence “an encouragement to maximize rights-of-way use for public access and viewing waterfront vistas.” The third sentence,” he continued, “requires these areas to be made accessible to mobility-impaired persons whenever feasible.”
Last year, McHugh combined into one case the North Beach Road lawsuit and legal challenges that had been filed against the amendments.
Addressing the commissioners on June 3, Cosentino also contended, “You may be under the mistaken impression [that Florida Statute 336.09] gives you the right to vacate any roads.” Yet, he argued, the controlling statute actually is Florida Statute 163.3211, which deals with conflicts with other statues related to the regulation of land development.
Moreover, Cosentino told the board members, county Parks Policy 1.1.6 in Chapter 3 of the Comprehensive Plan prevents them from vacating the portion of the Nokomis street. That policy — which he read to them — says, “Sarasota County will continue, whenever and wherever feasible, to expand its beach and waterfront acquisition efforts. Priority shall continue to be given to those parcels which will expand existing public beaches, increase the number of public access points to waterfront parks, and/or protect important native habitats.”
The Florida Statutes, Cosentino added, allow a county commission to vacate public rights of way if the action is in the public interest. “It’s very clear to see that this [petition] supports the private interest of this private owner. … What is the public interest served by giving away public land?”
Cosentino further cited the third “whereas” clause in the draft resolution for the Bayview Parkway vacation, which said, “It is determined that the best interest of the public would be served by granting [the petition].”
“Determined by who?” he asked. “You have zero competent substantial evidence before you,” Cosentino argued, that showed the street vacation would serve the public interest. He was referring to terminology that is relevant to certain types of public hearings. As with a court proceeding, the decisions in those situations must be based on the evidence and testimony.
“I know you can’t sell him the property,” Cosentino added of the Bayview Parkway applicant. “Otherwise, we wouldn’t have any waterfront roads because you would end up selling them all.”
Finally, addressing Chair Michael Moran — whom, Cosentino noted, is seeking re-election — Cosentino asked, “What do you see [in regard to] this serving the public interest?”
“We don’t take questions from public comment,” Moran replied.
“I think that’s inappropriate,” Cosentino responded.
A second speaker, who addressed the board remotely because of the COVID-19 pandemic, also decried the petition for the street vacation.
Todd Logan of Osprey voiced his disappointment that county staff recommended the vacation of what he noted was a quarter-acre of waterfront property. Referencing Cosentino’s Charter Amendment 3.10, Logan said he understood Circuit Judge Carroll had struck the first sentence. Still, Logan continued, the staff recommendation on the Bayview Parkway petition failed to recognize that Carroll let the rest of the amendment stand. The street vacation would violate that remaining portion of the County Charter, he added.
Further, Logan pointed out that the June 3 county staff memo said the Parks, Recreation and Natural Resources (PRNR) staff had conducted a visit to the Nokomis site. As a result, the memo said, staff “indicated that if the Bayview Parkway right-of-way was clearly delineated, the walking or bicycling public from surrounding neighborhoods may choose to use it for access to Dona Bay for shoreline fishing or other passive recreational activity.”
The reason the public does not use that access to the bay, Logan told the board members, is because “[the right of way] looks like a driveway.”
Approving the petition, he added, “would be very poor stewardship of a valuable public asset.”
Diving into the discussion
Applicant McMurphy and his agent in handling the petition — Robert “Bo” Medred of Genesis Planning and Development in Bradenton — waived the right to make a presentation or rebuttal. Commissioner Charles Hines ended up making their case for them.
“I really don’t like to vacate property,” Commissioner Detert told her colleagues. Sometimes the board takes such action, she continued, when the right of way is “so small. But this is 9,600 square feet. It’s noticeable.”
She also pointed out that McMurphy was cited by county Environmental Protection staff for removing trees and shell without having obtained a permit to do so.
Baldinelli of Property Management replied that she understood McMurphy was working with staff to resolve that situation and that no fines or outstanding payments were due.
“If someone would like to give me a great reason why we’re doing this,” Detert said of the proposed street vacation, “I’d like to hear it.”
Commissioner Hines asked Baldinelli to put up a map of the right of way and the surrounding area.
In response to one question, Baldinelli concurred with Hines’ assumption that the public would have to cross private property to reach the right of way and then the shore of Dona Bay.
Hines also asked whether county staff had been consulted about a future need for a road over the county right of way.
Staff indicated that that was not in the plans, Baldinelli told him.
“We do not want to take lightly the idea of giving up right of way for access to our waterways,” Hines said.
Then he asked his colleagues to look at the map that he had asked Baldinelli to show them. Nokomis Park, Nokomis Beach and Pocono Trail Preserve, which has a kayak launch, all are in the immediate area, Hines pointed out. “Do you, as Sarasota County, want to invest money and create a kayak launch [that would have to be reached by traversing private property] and encourage people to pull off U.S. 41?” he asked, referring to the Bayview Parkway right of way.
Moreover, he noted, two commercial buildings are close to the right of way. “It’s just not the appropriate place for this type of public use [of Dona Bay].”
Commissioner Alan Maio also pointed out that McMurphy would have the right to erect a fence that could stop people from reaching the water, if the county refused to approve the vacation petition.
Detert still was not convinced, she said.
The county has many waterfront neighborhoods with quiet areas on the water that the public can use for fishing and to enjoy sunsets, for examples, she pointed out.
Detert also reminded her colleagues about the issue of the tree and shell removal, adding that McMurphy already was treating the right of way “like it’s his property.”
Then Hines once more referenced the map and the abutting commercial property on U.S. 41, including Anita’s Restaurant. His understanding, he added, is that the only single-family home in the area of the county right of way is the one McMurphy owns. “So this isn’t a neighborhood situation. It is commercial. It’s on U.S. 41. … If it was in a neighborhood,” he told Detert, “I would 100% agree with you.”
“With that correction,” Detert replied to Hines, “I’m going to agree with you.” She was familiar with Anita’s Restaurant, she added, “and, yes, that’s all commercial, and that makes a world of difference to me.”
Hines made the motion to approve the petition, and Maio seconded it. The motion passed unanimously.