County files motion to dismiss Michael Cosentino’s appeal to Second District Court of Appeal
A Nov. 21 court hearing on motions involving a Siesta Key resident’s challenge of the Sarasota County Commission’s 2016 vacation of a segment of North Beach Road was cancelled, The Sarasota News Leader has learned.
No new date had been set as of early this week.
Filings in the 12th Judicial Circuit Court indicated that attorneys representing Michael Cosentino of Siesta Key had not been able to depose a county employee prior to Nov. 21, as they had hoped. Therefore, Judge Frederick Mercurio agreed to the cancellation of the Nov. 21 court event in Sarasota.
A Nov. 17 motion says that Cosentino’s attorneys want to depose Thai Tran. A county employee for more than 19 years, Tran is operations manager with the Public Works Department, county Media Relations Officer Jason Bartolone told the News Leader.
In the meantime, Sarasota County has filed a Motion to Dismiss Cosentino’s appeal to the Second District Court of Appeal regarding a ruling Mercurio issued in the case on Oct. 2. In that order, Mercurio ruled that Cosentino was wrong to argue that the county did not meet the statutory deadline for publishing notice of the County Commission’s road vacation decision, and he agreed that the County Code does not require disclosure of all owners of property involved in a petition for a Coastal Setback Variance.
As part of his order, Mercurio dismissed Count II of Cosentino’s 2016 complaint; it argued county improprieties on those points.
On Nov. 7, the Second District Court of Appeal agreed to hear Cosentino’s appeal of the Oct. 2 ruling. In a Nov. 1 filing with that court, Cosentino’s attorneys — Ralf Brookes of Cape Coral and Elizabeth Gomez-Mayo of Winter Park — pointed out that, under the Florida Rules of Appellate Procedure, any appeal of a partial final judgment in a case must be undertaken within 30 days of the rendition of the judge’s decision.
This is the first appeal Brookes and Gomez-Mayo have filed in the case. In April, Mercurio agreed with Intervenors Dennis and Wendy Madden, who sought partial summary judgment on another count. That involved Cosentino’s argument that the road vacation went hand-in-hand with the Maddens’ seeking County Commission approval of the Coastal Setback Variance for new construction on property they own landward of the vacated road segment. They plan first to tear down 12 dwelling units that do not conform to modern building code standards, as their attorney, Charles D. Bailey III of the Williams Parker firm, pointed out to the County Commission last year.
The Maddens were among three sets of property owners who requested the road vacation. Only then-County Commissioner Christine Robinson voted to deny the petition at the end of a May 11, 2016 public hearing. She cited a county Comprehensive Plan policy — which Cosentino also has made part of his complaint — that called for the board not to vacate roads on waterways. Bailey pointed out during the public hearing that all of the petitioners also owned land seaward of the road segment, so the road technically was not on the water.
Subsequently, the County Commission approved an extensive revision of the Comprehensive Plan, including modification of the language in that policy; it gives the board members more flexibility.
Making his points
In the county’s Nov. 17 Motion to Dismiss the appeal, Assistant County Attorney David M. Pearce wrote that the County Commission “vacated the road because it has been repeatedly damaged by storm events in the Gulf of Mexico.”
The 357-foot-long stretch had been closed to traffic since 1993, based on testimony during the May 11, 2016 public hearing.
In his motion, Pearce pointed out, “An appeal of a partial final judgment relating to a single count of a multicounty complaint may be taken only if that count constitutes a separate and distinct cause of action that is not interdependent with other pleaded claims.”
He cited two judicial precedents to support his argument.
In this case, Pearce continued, Count I of Cosentino’s Second Amended Complaint — which was filed in February —challenged both the road vacation and the granting of the Coastal Setback Variance to the Maddens, saying the actions were intertwined. Then Pearce noted Mercurio’s April ruling against Cosentino’s assertion.
“Cosentino still seeks a declaration that the [Coastal Setback Variance] is inconsistent with the Sarasota County Comprehensive Plan,” Pearce continued. “That matter has not yet been ruled on by the trial court. However, both the County and the Maddens have pending motions for summary judgment as to this remaining consistency issue.”
Pearce further noted that Cosentino challenged both the County Commission resolution approving the vacation of part of Beach Road and the resolution granting the variance — “albeit under different legal theories” — in Count II of his Second Amended Complaint.
“Cosentino’s claims in Counts I and II arise out of the same incidents,” Pearce added. “Cosentino has challenged both resolutions in Counts I and II for the ultimate purpose of being able to use a roadway,” he continued. Cosentino also has sought — through Count III of his Second Amended Complaint — a “declaration of his rights to use Beach Road ‘for thoroughfare purposes’ according to rights allegedly granted by a subdivision plat,” Pearce wrote.
Pearce emphasized that “the claims involve challenges to the same two resolutions,” adding that this case is similar to one he had cited earlier. Based on that earlier case — in which the Second District Court of Appeal issued a ruling in June of this year — he added, “this Court should dismiss the appeal as premature.”
“The County anticipates Cosentino will argue the underlying facts supporting each claim are different,” Pearce wrote. “While it is always possible to parse out facts relevant to each particular claim,” he continued, “the question comes down to whether there is some interdependence between the claims.” In this case, he wrote, “the claims are interdependent.”
Then Pearce noted that through correspondence dated Nov. 8, he had asked Cosentino’s attorneys whether Cosentino opposed the county’s Motion to Dismiss. “Despite numerous attempts to obtain an answer through additional correspondence,” Pearce continued, he “did not receive a definitive response, and therefore must assume Cosentino will oppose this motion.”