Court records show parties expect proceeding to last 1.5 days
As of July 7, 12th Judicial Circuit Court records show that a trial is scheduled to begin at 9 a.m. on Monday, July 11, in the 2019 lawsuit filed by Siesta Beach Lots LLC against Sarasota County over ownership of Beach Access 3 on Siesta Key.
Signed by the presiding Circuit Court judge, Stephen Walker, the formal order says that one-and-a-half days have been reserved for the non-jury trial in Courtroom 7C in the Silvertooth Judicial Center located at 2002 Ringling Blvd. in downtown Sarasota.
Siesta property owner and businessman Michael Holderness, who is the principal of Siesta Beach Lots, had offered to settle this case and a second one for $4.8 million, plus other considerations from the county. Among those, he demanded that the county staff a lifeguard station on one of three undeveloped lots he owns in the Mira Mar Beach subdivision of Siesta Key; all of them are seaward of North Beach Road. He also wanted the county to allow him to construct a tiki hut on two lots on the shoreline that he owns south of that area.
As The Sarasota News Leader reported in June, Assistant County Attorney David Pearce had explained to Holderness’ attorney, Daniel C. Guarnieri of the Sarasota firm Berlin Patten Ebling PLLC, that the county would have to have two independent appraisals of any property valued at more than $500,000 before staff could consider discussing a settlement with the County Commission. That fact is based on provisions of state law, Pearce noted.
In an April 4 email to Guarnieri, which the News Leader received through a public records request, Pearce wrote that it would take six to eight weeks to get those appraisals, which would put the timing close to the July 11 trial date. Therefore, Pearce added, Holderness might want to seek a continuance of the proceeding.
The case docket shows no evidence that Guarnieri filed any document on Holderness’ behalf to indicate a desire for a delay of the trial.
In another document filed with the Circuit Court, on July 5, Pearce provided a Statement of the Case.
“The dispute between the parties involves a determination of rights to the northern forty feet of the right-of-way for Columbus Boulevard seaward of its intersection with Beach Road on Siesta Key,” Pearce wrote. “The County has delineated that portion of Columbus Boulevard seaward of Beach Road as Beach Access #3,” Pearce continued. That access, he explained, provides a pedestrian path to the Gulf of Mexico.
In an April 15 memo to the County Commission, County Attorney Frederick “Rick” Elbrecht wrote that the Mira Mar Beach plat shows that Beach Access 3 is the extension of Columbus Boulevard to the Gulf of Mexico.
“Siesta Beach Lots claimed that the County had not timely accepted dedication of the roads in the subdivision,” Elbrecht continued. “It also has claimed that the County abandoned Beach Access #3. The County has argued that there was a common law dedication of [Beach Access 3] to the public,” Elbrecht added, “and the County has argued that it now owns … Beach Access #3 because it has maintained the area for more than seven years.”
The latter point is a reference to state law regarding ownership of road segments. Section 95.361(2) of the Florida Statutes says that if “a road has been constructed by a nongovernmental entity,” or if it was constructed by an entity other than the one maintaining it, or if no one can determine who built the road, but the road was maintained “for the immediate past 7 years by a county, a municipality, or the Florida Department of Transportation,” that road segment “shall be deemed to be dedicated to the public to the extent of the width that actually has been maintained … for the prescribed period …”
In March, the county won a partial summary judgment ruling on the issue of the common law dedication, Elbrecht noted in his memo. “However,” he continued, “the Court found that questions of fact remained as to whether the County abandoned Beach Access #3 and whether the County has maintained the entire width of Beach Access #3 for seven years.”
On March 25, Assistant County Attorney Pearce filed a motion asking Circuit Judge Stephen Walker to reconsider the partial summary judgment and, instead, rule for the county on the abandonment issue. On May 24, Walker denied that motion.
State law and judicial precedent
On April 18, Siesta Beach Lots had responded to the county’s request for reconsideration.
Attorney Guarnieri wrote that Pearce contended that the county did not use the road abandonment procedure outlined in Florida Statute 336.09, so the court could not determine whether a common law abandonment of the Columbus Boulevard segment indeed had occurred.
Guarnieri emphasized, “[I]t is a questionable notion that the sole method by which a County may abandon or vacate a road is the statutory process … Certainly,” Guarnieri continued, “since the enactment of the statute in 1995 the methodology set out in [it] must be followed if a County is going to take the affirmative action of vacating or abandoning a road.”
However, he contended, no part of the statute “serves to remove the Court’s ability to find that an abandonment has been caused by the County’s actions or inactions, or to displace the common law jurisprudence of abandonment” discussed in a 1995 Florida Fourth District Court of Appeal case, Jewett v. Leisinger.
Walker had cited that judicial precedent in refusing to grant full summary judgment to the county in the Siesta Beach Lots litigation, Guarnieri pointed out.
Pearce had argued that the Jewett case “should not be relied upon by the Court because the easement that was under consideration in that case ran in favor of a municipality instead of a County,” Guarnieri continued. Yet, in a 2002 Florida Second District Court of Appeal case — Metro Dade County v. Potomkin Chevrolet — the court “looked to the common law maxim that to establish abandonment, a ‘clear affirmative intent’ must be shown to effectuate same,’” Guarnieri wrote. “Thus, it appears that the common law jurisprudence regarding abandonment continues to apply,” whether the government entity is a county or a municipality.
Further, Guarnieri pointed out that Sarasota County accepted the Columbus Boulevard segment “as early as 1926.” In support of that, he noted, Pearce included 1926 and 1948 aerial photos of the streets in that area as attachments to the county’s motion for reconsideration.
Since the state law regarding road abandonment was not enacted until 1955, Guarnieri continued, “[T]he common law abandonment concepts existed alone” prior to that year. Thus, the issue of a statutory abandonment, he added, “is irrelevant.”
The county’s view
In his July 5 Statement of the Case, Pearce argued that, in ruling for partial summary judgment for the county in March, Judge Walker noted that the court is required to make a decision as to whether a common law or statutory dedication of the area in question exists. “Further,” Pearce continued, “the Court wrote that if it determines that a common law dedication was accepted,” and that the right of way easement resulting from that remains, “there is no need to analyze whether a statutory dedication has occurred.”
Pearce contended that the language in Sections 336.09 and 336.10 of the Florida Statutes make clear that a county’s abandonment of road easements “must be held to a different standard than the abandonment of any other easement interests under the common law.” A county must use the process set forth in the state statutes, Pearce pointed out.
Moreover, Pearce wrote, Holderness “has no evidence that the County has adopted a resolution to vacate, abandon, discontinue or close that section of Columbus Boulevard extending westward from the intersection of Beach Road to the Gulf of Mexico.” In fact, Pearce continued, Holderness has admitted that he has no evidence of the County Commission’s having conducted a public hearing on vacating that part of Columbus Boulevard.
Additionally, Pearce argued, the fact that the county never constructed a paved road on that part of Columbus Boulevard was not sufficient evidence to prove abandonment, as Holderness claims. Pearce cited a 1974 Florida Second District Court of Appeal case, County of Manatee v Votey, to support his contention on that point.
In that litigation, Pearce noted, the Second District Court “reasoned that such a requirement would defeat public access to many beaches. … Thus, Columbus Boulevard has not been abandoned by Sarasota County simply because it hasn’t been paved for vehicular traffic.”
Further, Pearce wrote that the county would present evidence of its continued operation and maintenance of the road segment, “dating back to 2004.” That “demonstrates the County never expressed clear, affirmative intent to abandon its common law dedicated easement interest in the disputed area,” Pearce added.
Additionally, Pearce wrote, in the partial summary judgment ruling for the county, Walker found that the county had presented enough unrebutted evidence to establish that the county had accepted in a timely fashion the streets offered for dedication in the Mira Mar Beach plat.
In his March ruling, Walker noted that the public began using the streets shortly after the recording of the Mira Mar Beach plat in 1925. Holderness agreed on that point in answers to county requests for “admissions” in the case, court records show.