County files cross claim against Cosentino, seeking court’s declaration that the amendments are inconsistent with state law and vague
Siesta Key resident Mike Cosentino warned the Sarasota County commissioners in late August that if they agreed to the Office of the County Attorney’s Nov. 6 ballot language for two proposed County Charter amendments Cosentino wrote, they were going to get sued.
County Attorney Stephen DeMarsh explained during the Aug. 20 public hearing on whether to place the amendments on the ballot that state law requires a ballot summary to be no more than 75 words and to include the chief purpose of the proposed action. Therefore, he told the commissioners, his staff rewrote the amendments in an effort to comply with state law.
Nonetheless, as it turns out, Cosentino was correct.
On Oct. 12, 12th Judicial Circuit Court Judge Frederick P. Mercurio has scheduled an hour-long emergency hearing on a motion by Siesta Key property owners to remove the proposed amendments from the ballot. The plaintiffs have been involved in a lawsuit Cosentino filed in June 2016 over the County Commission’s May 2016 vacation of a 373-foot-long segment of North Beach Road.
Additionally, the county has filed a cross claim against Cosentino and the nonprofit he established in June 2016 — Reopen Beach Road. The county is asking the court to declare that the proposed amendments “are inconsistent with state law and vague.”
In documents filed in early September, Dennis and Wendy Madden — and Wendy Madden as trustee of the Walther Family Trust — asked the court to declare that Cosentino’s proposed Charter amendments are invalid. They argue that the amendments “have been promoted through false information and deceptive advertising, namely numerous false and inaccurate assertions made by Cosentino in an effort to gather signatures on the Petitions and voter support for the proposed amendments.”
For example, they contend, voters considering the ballot summary for one of the Charter amendments would be unaware that by voting “Yes” on it, voters would require the county to make necessary improvements to the vacated road segment so people once again could drive on it.
The road has been closed to motor vehicle traffic since 1993 because of repeated storm damage.
“Nowhere does the ballot language mention ‘rebuilding’ Beach Road or the cost to the taxpayers of constructing and maintaining Beach Road as a viable roadway that is also accessible to ‘mobility impaired’ persons, as that amendment dictates, the Maddens point out in the complaint.
A 2013 analysis of the road conditions, undertaken by a Jacksonville engineering firm at the county’s request, found that even the least expensive option for stabilizing the road at that time — a concrete seawall — was estimated at $1,838,500.
Cosentino has called for the county to pursue the stepped revetment option in that report, which was estimated at $2,105,050. The analysis, undertaken by Taylor Engineering, noted that a stepped revetment was built on Casey Key in 1995. During the Aug. 29 public hearing on his Charter amendments, Cosentino cited the success of the Casey Key project when he addressed the commissioners.
In the county’s cross claim, Assistant County Attorney David Pearce wrote, “There is a bona fide, actual, present, and practical need for the declaration [the Maddens seek] because the County may have to re-acquire Beach Road, provide for ‘maximum right of way use,’ make Beach Road ‘accessible to mobility impaired persons,’ and be prohibited from selling or giving away any County-owned Parks and Preserves, or vacate or sell County-owned road segments or rights of way along or abutting any beach, river, creek, canal, lake, bay, gulf access or waterfront vista.” He was quoting from the proposed amendments.
In a preliminary response to the Maddens’ action, Cosentino argued that they have “improperly sought to bring new claims based on facts arising years after the [litigation commenced that are] unrelated to those facts [emphasis in the document] …”
He added that the Maddens are trying to “circumvent the requirements of Florida Rules of Civil Procedure.”
Judge Mercurio has given Cosentino until Oct. 9 for a full response to the Maddens’ Sept. 12 complaint about the amendments. As Cosentino’s co-counsel, Elizabeth Gomez-Mayo, explained in an Oct. 1 letter, Cosentino’s trial attorney, Lee R. Rohe, has been temporarily suspended from the Florida Bar in a matter unrelated to the case.
The judge agreed to the Oct. 9 date, as Gomez-Mayo noted that that would allow Rohe three business days after his return from suspension to file the response.
The Maddens, who own property at 89 Beach Road, were among three groups of petitioners for the May 2016 road vacation. If the county vacated it, the petitioners said, they would provide an easement to ensure continued public access by any means but motor vehicle, in perpetuity. Finally, they would agree to forgo any attempt to seek county approval for construction on property they owned seaward of the road.
The Maddens also won commission approval for a Coastal Setback Variance. As county staff explained during the May 2016 public hearing, they needed the square footage of the vacated portion of North Beach Road to conform to county zoning standards for new construction they plan. They want to tear down 12 decades-old dwelling units and replace them with about half as many in a new structure that will conform to modern building standards.
Only then-Commissioner Christine Robinson opposed the road vacation and the variance, pointing to the same county Comprehensive Plan policy that Cosentino cited as his focal point when he filed suit against the county in June 2016.
Last month, Judge Mercurio issued a final judgment, dismissing the remainder of Cosentino’s case against the county. The only part of the suit left for litigation involves the Maddens, whom Mercurio approved as intervenors in the case in 2016.
The new litigation
The Maddens pointed out in their Sept. 12 motion regarding Cosentino’s Charter amendments that Cosentino and Reopen Beach Road have claimed that the chief purpose of the petitions “is to ensure that the general public retains the same level of access to Siesta Key Beach as it had prior to the May 11, 2016 vacation of a portion of North Beach Road. … What Reopen Beach Road, Inc. and Cosentino fail to mention is that the general public already has the same level of access to Siesta Key Beach as it had prior to the May 11, 2016 vacation [emphasis in the complaint].”
They also contended that Reopen Beach Road and Cosentino gained signatures on the Charter amendment petitions by telling people that the road vacation “was akin to a decision to ‘privatize’ the beach by corrupt Sarasota County officials.”
Moreover, they said in the complaint, Cosentino claimed in June 2016 that he drove down Beach Road almost daily and that the county “deliberately allowed Beach Road to deteriorate in order to ‘let the road seem like a sand-covered lost cause and set up the plan to hand it over to the people with the development scheme,’” as reported by then-Sarasota Herald-Tribune columnist Tom Lyons in a June 2016 article.
Further, they pointed to Cosentino’s contention that their goal “was to ‘build a giant-ass condo and privatize the beach,’ a goal that could only be thwarted by the voters’ approval of the [Charter] Petitions,” as reported by Sarasota Magazine Associate Editor Cooper Levey-Baker in February 2017.
The proposed Charter amendments
In late June, Sarasota County Supervisor of Elections Ron Turner formally notified the County Commission that Cosentino had gained enough signatures of registered county voters to put the two amendments before the public on the Nov. 6 General Election ballot.
Following the Aug. 29 public hearing, which lasted just shy of two hours, the county commissioners voted unanimously to put the amendments on the ballot.
However, prior to their vote, County Attorney DeMarsh warned of multiple issues with the proposed amendments, including the potential that passage of one of them would prevent the county from ever selling any property located in proximity to a water view.
Proposed Charter Amendment 3.9 says, “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.”
Proposed Charter Amendment 3.10 says, “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 rights of way along orabutting any beach, river, creek, canal, lake, bay, gulf access or waterfront vista. The Countyshall 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.”