Mike Cosentino’s proposed Charter amendments to be on Nov. 6 ballot, though county attorney warns of potential legal concerns if they win approval

Cosentino argues that Office of County Attorney broke the law in rewriting his proposed amendments into language for the ballot and impugns character of commissioners and residents

Mike Cosentino addresses the County Commission on Aug. 29. Rachel Hackney photo

It took almost an hour and 50 minutes on Aug. 29 for the Sarasota County Commission to vote unanimously to put on the Nov. 6 General Election ballot two proposed amendments to the Sarasota County Charter that emanated from the board’s May 2016 vacation of a segment of North Beach Road.

Siesta Key resident Mike Cosentino — who has been engaged in a lawsuit with the county over that road vacation for the past two years — argued not only that the Office of the County Attorney had illegally rewritten his proposed amendments in its preparation of the ordinance containing the ballot questions, but Cosentino also contended that the commissioners should give him 20 minutes for a presentation on each of the proposed amendments, for a total of 40 minutes.

Under the County Commission’s rules of procedure, a person petitioning the board for action generally has 20 minutes to discuss the merits of the issue and then 5 minutes for rebuttal after public comments have been taken. On Aug. 29, the board members ultimately agreed to give Cosentino about 25 minutes for his presentation, with Vice Chair Charles Hines — who was presiding during the hearing — admonishing Cosentino not to repeat the history of the lawsuit in addressing the second proposed amendment, as Cosentino had in discussing the first one.

Chair Nancy Detert left just before the hearing began. When Cosentino asked Hines if she would be returning, Hines said she would not, but Hines offered no explanation about her departure.

At the outset of the hearing, County Attorney Stephen DeMarsh explained the action he took regarding the ordinance the board needed to approve to put the measures on the Nov. 6 ballot. The language in Section 2 of the ordinance “is exactly what was contained on the petitions,” DeMarsh said.

DeMarsh was referring to the petition drive that Cosentino and his supporters undertook to win the necessary number of signatures of registered county voters to meet the 5% threshold outlined in the Sarasota County Charter for citizen-initiated amendments to the Charter.

Then DeMarsh directed the commissioners to the memo he had provided them in advance of the Aug. 29 meeting. That explained that state legal requirements necessitate that a ballot question be no longer than 75 words and state the chief purpose of the proposed amendment.

County Attorney Stephen DeMarsh. File photo

If the amendments were approved, DeMarsh explained, the language Cosentino had used on the petitions would be added to the Charter.

DeMarsh also said that while he was prepared to address legal concerns that could arise from passage of the amendments — as Chair Detert had requested when the board voted in July to schedule the Aug. 29 public hearing — “I would not raise them as pre-election concerns.”

Furthermore, DeMarsh added, “I would not advise the [commission] to decline to place [the proposed amendments] before the voters.”

Hines told DeMarsh he would like to hear the legal concerns, and he felt members of the public would, as well.

Delving into the details

First, DeMarsh explained, in the county Charter, “limitations on the board’s authority are legally possible. Among them, for example, he continued, is the fact that the commission cannot issue bonds exceeding a certain amount. The current limit is approximately $23 million, DeMarsh noted. “But it’s not an absolute prohibition,” he said, as, through a referendum, the board can gain voter approval to issue debt above that level.

Cosentino’s proposed amendments contain prohibitions, DeMarsh said, but no means is provided for the board to work around those prohibitions.

In that context, DeMarsh said, “you could have a number of practical concerns” and, potentially, legal concerns.

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 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.”

“If one is required to reacquire the Beach Road right of way,” DeMarsh pointed out, “and then improve it as a public road,” the owners of private property abutting the road would have to be willing to give up their title to it. If they refused, he continued, “or placed such a high cost on that, then the County Commission would be in a very difficult position.”

He added, “If the board is mandated to pay whatever the cost of reacquiring and reconstructing a road, the board’s decision-making authority and discretion over its budget is limited in a way that could be subject to legal challenge.”

Proposed Amendment 3.10, DeMarsh continued, would restrict the board’s ability to convey real property, as provided for in the Florida Statutes. For example, DeMarsh said, if the board wanted to sell part of a park, “it would be flatly prohibited from doing so under this language.” Furthermore, he noted, language restricting the vacation of roads “may be inconsistent with state laws,” and the terminology in that proposed amendment “could be difficult to apply.” He pointed to “waterfront vista” as an example of that concern.

During the hearing, when Hines told Cosentino that passage of that amendment would prevent the board from being able to sell part of Nathan Benderson Park to Mote Marine, which wants to build a $130-million aquarium on the site, Cosentino suggested leasing the property to Mote, which has a lease for its City Island site with the City of Sarasota.

Later, during his presentation, Cosentino explained to the commissioners, “If I can stand on a road and see the water, you guys can’t give it away …”

However, in response to a question from Hines, Cosentino added, “I wouldn’t consider the view of [a] ditch a waterfront vista.”

Commissioner Paul Caragiulo asked whether the board would have to rely on Cosentino — if proposed Amendment 3.10 passed — to provide a determination on every future petition relating to vacation of roads on the waterfront. Cosentino replied, “Absolutely.”

Commissioner Charles Hines. Rachel Hackney photo

After DeMarsh concluded his comments, Hines told DeMarsh, “You’ve pointed out a lot of potential issues that may need to be considered should [these amendments pass].”

Nonetheless, Hines said, the board’s role that day “is to vote to put [the amendments] on the ballot.”

DeMarsh added that he did not believe the commissioners had the authority to change the language in the petitions Cosentino had proposed. However, DeMarsh said, he believed the commission had the obligation to make sure the questions were put on the ballot lawfully.

The time limit debate

When Hines called Cosentino to the podium for the presentation, Cosentino began his argument about the time limit. “I have, since the July 10 [County Commission] meeting … actually left several messages with [County Administrator Jonathan] Lewis and [the Office of the County Attorney], trying to get clarification” on how much time would be allowed for his remarks, Cosentino told the commissioners.

“Because I have two [amendments], why is it cut to 10 minutes [each]?” Cosentino asked.

When Hines asked why Cosentino needed 40 minutes, Cosentino replied, “I need 20 minutes to discuss one of my petitions” and another 20 minutes to discuss the other one. “Everyone else gets 20 minutes to discuss their petition. If Charlie Bailey comes up here” with two different land-use petitions, “does he have to cram ’em both into one?” Cosentino continued, referring to Charles D. Bailey III, a land-use attorney with the Sarasota firm Williams Parker.

“These are unrelated issues,” Cosentino insisted of his proposed amendments.

“But you have no opposition today,” Hines said.

“I sure as hell do,” Cosentino replied.

“Because this is going on the ballot,” Hines told him.

“You’ve illegally changed the language,” Cosentino said. “You do not have the statutory authority to do that, so it will take me 20 minutes just to discuss all the illegal things that Mr. DeMarsh just described,” Cosentino replied.

These are the ballot questions regarding Mike Cosentino’s proposed Charter amendments as they will appear on the Nov. 6 General Election ballot. Image courtesy Sarasota County

Then Hines turned to DeMarsh for help.

“It’s a Board of County Commissioner rule of procedure for public hearings … that petitioners get 20 minutes,” DeMarsh explained. “This is advertised as one public hearing on one ordinance. … If you want to extend the time, that’s entirely up to the commission.”

Cosentino interrupted again, saying, “These are two separate items.”

“I’m advising my client,” DeMarsh told him.

Hines then asked his colleagues what they felt would be appropriate. “Do we stick with the rule? … I don’t believe 40 total minutes to discuss something that’s going to go on the ballot is necessary …”

Commissioner Caragiulo began to reply, saying Cosentino was taking exception to the board rule, when Cosentino tried to interrupt him. Caragiulo turned from Hines to Cosentino at the podium, admonishing Cosentino for trying to interrupt the exchange. “The question is” whether Cosentino needed more time, Caragiulo said. “That remains to be seen.”

“This is important,” Hines responded. Because this was an unusual situation, Hines added, he wanted to be sure the board members did the best they could “to get it right.”

Again, Cosentino interrupted, asking whether he would be allowed 20 minutes if he had just one amendment to discuss. Hines ignored him and asked Commissioner Michael Moran what his thoughts were.

“Out of courtesy, maybe 25 minutes,” Moran told Hines.

When Hines then asked Commissioner Alan Maio his thoughts, Maio responded, “As the guy who’s been called very name in the book by Mr. Cosentino, I know Michael Cosentino. Give him the time.”

A history and criticism

In October 2013, Taylor Engineering of Jacksonville provided these options for addressing the North Beach Road damage. Image courtesy Sarasota County

During his presentation, Cosentino provided background on the 1993 closure to vehicular traffic of part of North Beach Road because of repeated storm damage. As he has multiple times over the past couple of years, Cosentino argued that the board should have paid for a step revetment system to stabilize the shoreline and then repair the road. He has cited an engineering report the board asked a Jacksonville firm — Taylor Engineering — to complete in 2013.

At various points, Cosentino impugned the character of attorney Bailey of Williams Parker, who represented the property owners in May 2016 when the commissioners heard the petition for the vacation of the damaged portion of North Beach Road; Dennis and Wendy Madden, who were among the petitioners and with whom Cosentino still is engaged in legal action regarding the road vacation; the Office of the County Attorney; and the commissioners.

For example, Cosentino said that Bailey was allowed to write the county staff report for the commissioners regarding the Taylor Engineering report. He also told the board that Bailey “lies for a living” and calls it “advocating for his clients.”

At another point, Cosentino referenced “the criminal activity of our County Attorney’s Office,” and he claimed that the commissioners only voted to vacate part of the road because they had received campaign contributions from some of the property owners.

“I’ve sold everything I’ve attained in my life,” Cosentino said. “I’m starting over financially at [age] 54 to try to protect the people’s interest on Beach Road.”

The public comments

Sarasota County issued this fact sheet about the North Beach Road vacation in August 2016. Image courtesy Sarasota County

Four people spoke during the hearing to support Cosentino’s proposed amendments.

Then two speakers argued against them. Attorney Bill Moore said he was representing the Caflisch family — another group of property owners who had petitioned for the road vacation in 2016. The reacquisition of the vacated road segment, Moore pointed out, “would cost the public literally millions of dollars … plus attorneys’ fees and costs.”

Attorney Bailey, representing the Maddens, agreed with the latter point. Bailey also noted that the easement the property owners granted to the county after the road vacation entitles the public to use the area for purposes as diverse as watching the sunset and walking pets, but no motor vehicles are allowed on the road section. The easement, he said, “essentially created a public linear park …”

Even after the county put up barricades in 1993 to prevent drivers from accessing the damaged portion of the road, Bailey pointed out, “Drivers would drive around the signage” and, in some cases, proceed onto the beach, in violation of county law.

Even Dr. Stephen Leatherman of Florida International University — known as “Dr. Beach” — wrote the county a letter last year, Bailey added, supporting the more natural state of the road “for the benefit of pedestrians.”

During his rebuttal, Cosentino contended that the easement to which Bailey had referred “is not a public right of way” and is revocable.

At the conclusion of the hearing, Commissioner Moran made the motion to approve placing the proposed amendments on the Nov. 6 ballot. Commissioner Caragiulo seconded the motion. When Hines asked whether any board member had further comment, no one responded. Then the motion passed 4-0.

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