Judge agrees to county motion seeking dismissal of another count in North Beach Road lawsuit

Hearing set for Nov. 21 on motions calling for summary judgment on two of the remaining legal arguments

This is the view looking south at the vacated segment of North Beach Road. Image courtesy Sarasota County

Twelfth Judicial Circuit Court Judge Frederick Mercurio has dismissed another count in the lawsuit Siesta Key resident Michael Cosentino filed last year over the Sarasota County Commission’s decision to vacate a 357-foot-long segment of North Beach Road.

In an Oct. 2 order, Mercurio agreed with the assertions Assistant County Attorney David Pearce made both in a June 2 motion for partial summary judgment in the case and in a Sept. 27 hearing at the Judge Lynn N. Silvertooth Judicial Center in Sarasota. Mercurio found that Cosentino was wrong to argue that the county did not meet the statutory deadline for publishing the notice of the board’s May 11, 2016 road vacation vote. The judge also agreed that the County Code does not require disclosure of all owners of property involved in a petition for a Coastal Setback Variance.

“[Cosentino’s] Complaint does not involve an approval of a zoning variance under the Sarasota County Zoning Regulations, which are found in Appendix A of the Sarasota County Code,” Mercurio wrote.

With Mercurio having granted partial summary judgment in mid-April on a motion filed by intervenors Dennis and Wendy Madden, few issues remain to be considered in Cosentino’s second amended complaint, filed in February. In separate motions on Aug. 18, the Maddens — who were granted status as intervenors in the case — asked the court to dismiss most of the remainder of Cosentino’s suit.

On Oct. 3, Mercurio issued a notice saying that a hearing has been scheduled for 1:30 p.m. on Nov. 21 on those motions. He set aside an hour for that court event.

Michael Cosentino addresses the Siesta Key Association on Oct. 6, 2016. File photo

Reached by The Sarasota News Leader on Oct. 4, Cosentino said he had not seen the judge’s ruling on the county’s motion for partial summary judgment. However, he continued, “In light of the [April] ruling, I am not surprised and look forward to prevailing at the appellate court level.”

The county does not comment on pending litigation, spokesmen have told the News Leader on numerous occasions.

The earlier ruling

In April, Mercurio agreed with the Maddens that the road vacation and their petition for a Coastal Setback Variance were two distinct actions and did not constitute a “development order.” Cosentino had argued that the road vacation was necessary to the Maddens’ plans for new construction on their North Beach Road property. However, the Maddens’ litigator, Lewis Hall III of the Williams Parker firm in Sarasota, told the judge during an April 5 hearing that even though the County Commission considered the road vacation and the variance issue together on May 11, each petition stood on its own.

Lewis pointed out that the county closed the segment of North Beach Road to vehicular traffic in 1993 because repeated storm damage had made the road unsafe. Furthermore, Hall said, the cost of continuing to maintain the damaged portion “outweighed any benefit to the county …”

Although a rope-and-bollard system prevents vehicular traffic on the vacated North Beach Road segment, signage clearly states that the road is open to the public, including as a means to access the beach.

In May 2016, the Maddens and two other sets of petitioners for the road vacation also agreed to County Commissioner Charles Hines’ suggestion that another 5-foot-wide easement be created from the vacated segment across their private property the beach, to ensure additional public access.

A rendering Mike Cosentino commissioned shows how North Beach Road could look if the county had opted to build a step revetment system to protect it. Image from reopenbeachroad.com

Revising the resolution to incorporate that additional easement led to a delay in the formal filing of the board’s May 11, 2016 action with the Office of the Clerk of Court and County Comptroller, Assistant County Attorney Pearce told the judge on Sept. 27. The county did advertise the commission action in the Sarasota Herald-Tribune within 30 days of that formal “rendering,” Pearce added, which complied with state requirements for public notice of a local government decision.

In a statement he issued to the News Leader on Oct. 4, Cosentino’s attorney, Ralf Brookes of Cape Coral, wrote, “We are disappointed that the county did not follow the statutory post adoption notice, especially since the county staff changed [the original resolution provided to the board on May 11] and wrote the specific terms of the [new] easement without going back to the County Commission for a public hearing.”

Brookes argued in court last week that because the second easement was added as a result of discussions between the commissioners and the attorney for the petitioners during the hearing, members of the public had no advance notice of it and were therefore unable to comment on the action.

The Maddens plan to tear down 12 structures dating back decades so they can build seven new dwelling units that will conform to modern building code standards, their land-use attorney, Charles Bailey III of the Williams Parker firm, has explained. They needed the 8,265 square feet of the vacated road segment to meet county zoning requirements for that new construction, county staff testified on May 11, 2016.

The remaining partial summary judgment requests

In one of their Aug. 18 filings, the Maddens asked the court to dismiss the rest of Count I in Cosentino’s amended complaint. The section of that count they targeted argues that Cosentino is “an aggrieved or adversely affected” person as defined in guidelines established by Florida Statute 163.3215(2): Cosentino owns property at 10 Beach Road that is less than 500 feet from the vacated road segment and within the same platted subdivision, and he “actually uses the subject area, including Beach Road for driving his vehicle.”

A dilapidated groin extends into the Gulf of Mexico on the parcel at 10 Beach Road. File photo

Cosentino contends that the resolutions the County Commission approved on May 11, 2016, “ended the right-of-way use … of the vacated segment of Beach Road for coastal and bay access …”

The Maddens argue that because the road segment had been closed since 1993, if Cosentino “is or has been driving along this stretch … he has done so illegally as only pedestrian and bicycle traffic have been permitted for the last twenty years.”

They further point out that to prove he is an aggrieved party, Cosentino must show that the adverse effect of the road vacation is greater for him than for members of the general public. Among compelling reasons, the motion says, would be a reduction in property value, blocked ocean views and encroachment on real property. “Yet Cosentino cannot legitimately raise any similar arguments,” the motion continues. “Instead, he argues that his ownership of a lot within the Mira Mar Beach subdivision affords him standing under the statute.” Case law has shown, however, that property ownership “does not provide the requisite element for standing,” the motion adds.

Additionally on Aug. 18, the Maddens filed a motion seeking partial summary judgment on Count III. Cosentino argues in that count that he has the right to be able to drive his vehicle along the entire length of Beach Road, but the vacation of the 357-foot-long segment prevents him from doing so.

Cosentino based his contention on the grantor’s dedication, “which appears on the original plat of the Mira Mar Beach subdivision,” the Maddens’ motion says. “The handwritten dedication designates Beach Road for ‘thoroughfare purposes,’” the motion notes, so Cosentino maintains that the phrase “intended that the platted roadway must allow vehicular traffic.”

The Maddens argue, “The dedication that appears on the plat only provided property owners the right to access their property via Beach Road. It never provided platted lot owners the right to travel on Beach Road by vehicle. … Cosentino’s private right of access has not been altered or affected by the vacation and later re-dedication of an easement to the public.”

A Sarasota County Sheriff’s deputy photographed flooding on North Beach Road as Tropical Storm Colin swept by the coast in June 2016. Image courtesy Sheriff’s Office

Cosentino’s second amended complaint also argues that the County Commission’s approval of the road vacation violated the county’s Comprehensive Plan Environmental Policy 1.1.13. That 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.” That issue also remains to be litigated.

Then-Commissioner Christine Robinson referred to the policy as her reason for voting against the road segment vacation. Last summer, when the County Commission approved revisions to its Comprehensive Plan, it agreed to modify language for that policy, giving the board more discretion in acting on road vacation petitions.


More signatures on the Charter petitions

This is one of the Charter amendment petitions Mike Cosentino is hoping to put on the ballot. Image from www.reopenbeachroad.com

In conjunction with his lawsuit, Cosentino is pursuing citizens’ signatures on petitions for two proposed amendments to the Sarasota County Charter.

In the wake of Mercurio’s order this week, Cosentino’s attorney, Brookes, told the News Leader, “We encourage citizens to sign our petitions so that this [vacation of a public road on a county waterway] will not happen in the future. It is important to preserve Sarasota County’s public lands.”

The first proposed amendment says the following: “Article III, Section 4.1. Preserve County-Owned Parks, Preserves, Beach and Water Access and Waterfront Vistas. The County shall not sell, and shall retain ownership of, County-owned Parks and Preserves, and shall not vacate or sell County-owned road segments or right of way along or abutting any beach, river, creek, canal, lake, bay, gulf access or waterfront vista. The County shall encourage maximum right of way use for public access and viewing of waterfront vistas. Whenever feasible, the County shall make these areas accessible to mobility impaired persons.”

The second says, “Article III, Section 4.2. Siesta Key Beach Road as Public Right of Way. The County shall rescind the vacation of, or re-acquire, Beach Road on Siesta Key as it existed on January 1, 2016, and shall not vacate or sell this County-owned road segment(s) or right of way. The County shall provide maximum right of way use of Beach Road for public access, including vehicular use and viewing of waterfront vistas. The County shall make Beach Road accessible to mobility impaired persons.”

He needs 13,866 valid signatures of registered Sarasota County voters to put the amendments on a ballot.

As of Oct. 4, the News Leader learned from staff of the Sarasota County Supervisor of Elections Office, the total for proposed Section 4.1 was 7,983; for proposed Section 4.2, it was 7,265.