New hearing date set for North Beach Road vacation lawsuit filed by Siesta resident

Court allows Michael Cosentino to file a second amended complaint, which expands on arguments in his original suit against Sarasota County

A graphic shows the segment of North Beach Road that the County Commission voted to abandon. Image courtesy Sarasota County

A Feb. 13 hearing on Sarasota County’s motion to dismiss a complaint filed by a Siesta Key resident over the County Commission’s May 11, 2016 vote to vacate a 357-foot segment of North Beach Road was cancelled on Feb. 8.

The action came as a result of plaintiff Michael Cosentino’s Feb. 3 request for court approval to file a second amended complaint in the case. Judge Frederick P. Mercurio granted that leave on Feb. 10 and gave the county 20 days to respond.

In the meantime, a new hearing date has been set for April 5, court records show.

In his latest filing, Cosentino incorporates an argument that his Sept. 8, 2016 purchase of a parcel at 10 Beach Road gives him greater standing to bring suit against the county. Additionally, he has pulled information from public records requests — which he has spoken of in numerous public meetings over the past months — to enhance arguments that were part of his original complaint.

Among the general allegations in his latest filing, Cosentino points out that, as owner of the 10 Beach Road property, he “has sufficient interests protected by the [county’s] Comprehensive Plan and State law to have standing in this matter, including his interest in Beach Road as a waterfront thoroughfare, and his interest in the density and intensity of development within the same subdivision plat …”

He maintains in the second amended complaint that the County Commission violated the Comprehensive Plan at the time of its May 11, 2016 decision to vacate the North Beach Road segment. Only then-Commissioner Christine Robinson cast a “No” vote, citing the same policy Cosentino has referenced. Last summer, when the board approved an updated version of the Comprehensive Plan, it modified the language of that policy to make it less restrictive.

Mike Consentino addresses the County Commission on Jan. 25. Rachel Hackney photo

The original policy read, “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.” The new one says, “The County should not vacate road segments or access points on waterfronts along any beach, bay, creek, river, or lake, and should encourage public right-of way use of these areas for public shoreline and water access.”

The Maddens’ construction plans

Cosentino’s original complaint also argued that the County Commission’s May 11 vote to give a Coastal Setback Variance to Dennis and Wendy Madden, owners of the property at 89 Beach Road, was a violation of the county’s Comprehensive Plan. The Maddens had sought the variance so they could tear down 12 dwelling units between North Beach Road and Avenida Veneccia and construct a new three-story, six-unit structure that would comply with all the current building standards.

Cosentino’s second amended complaint expands on the arguments he made in the first one in regard to the Maddens, whom the court has allowed to intervene in the case. The amended complaint points out that Florida Statute 163.3194(1)(a) says, “After a comprehensive plan, or element or portion thereof, has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted [plaintiff’s emphasis added].”

The statute also provides for any “aggrieved or adversely affected party” to seek legal recourse against any local government that takes action that “materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part.”

This house owned by the Maddens on North Beach Road has rental units. File photo

The complaint says Cosentino qualifies as an “‘aggrieved or adversely affected’” person as defined in the statute “because Cosentino actually uses … Beach Road for driving his vehicle,” owns the property at 10 Beach Road and “will be adversely affected by the approval of a development order and development permit allowing an increase in density and intensity that is inconsistent with the duly adopted Comprehensive Plan.”

The vacation of the road segment was necessary to provide the Maddens with sufficient property to erect the six new units, their attorney, Charles D. Bailey III of the Williams Parker firm, explained to the board in May 2016. The Maddens own property seaward of North Beach Road that they bought in August 2001, a county staff memo reported in May 2016. In a stipulation in their petition for the variance, they agreed that no construction ever would be allowed on those parcels closer to the Gulf of Mexico.

A May 11, 2016 county staff memo also explained that without the road vacation, the Maddens’ proposed new construction “would not meet current County Zoning Regulations with respect to density calculations and setbacks.” The road vacation would add 8,265 square feet to their property, the memo noted, which would allow them to increase the number of dwelling units they could build from five to six.

A legal sketch shows the road segment vacated by Sarasota County. Image courtesy Sarasota County

Cosentino’s amended complaint argues that the Maddens’ property is “located within the Coastal High Hazard Area,” and that if they wished to demolish the existing buildings, they should be able to “rebuild a duplex on each of the two parcels within the footprint of the voluntarily demolished structures” — for a total of four dwelling units — or “build one single-family unit on each of the two parcels that could exceed the footprint of the existing nonconforming structures …”

The second amended complaint points out that the county “repeatedly demonstrates that the street vacation is essential to permit development as proposed with six (6) units.”

The complaint further contends that the county’s own public documents make it clear that the May 11 votes on the road vacation and the variance, taken together, were designed “to permit development of land.”

The complaint also points out that even Howard J. Berna, the county’s manager of environmental permitting, wrote in a July 21, 2015 email, “‘It is my understanding that the purpose of the street vacation is to obtain the total lot square footage required to achieve the [Maddens’] desired outcome [the emphasis has been added].’”

Additionally, the second amended complaint quotes correspondence dated Aug 10, 2015 between Bailey — the Maddens’ attorney — and Weiqi Lin, a member of the county’s Environmental Permitting Division staff. Lin wrote, “‘[V]erification of ROW [right-of-way] Vacation is required to meet density calculations,’” and Bailey answered, “‘Noted: We are processing Street Vacation Petition for Beach Road concurrently with this Coastal Setback Variance Application [emphasis added].’”

Barrier island construction

The county staff report on May 11, 2016 showed the new site plan for the Maddens’ property. Image courtesy Sarasota County

Cosentino also refers to Future Land Use Policy 1.1.2 in the county’s Comprehensive Plan, which says, “The intensity and density of future development on the Barrier Islands of Sarasota shall not exceed that allowed by zoning ordinances and regulations existing as of March 13, 1989,” except to allow the rebuilding of nonconforming duplexes and multi-family structures within their existing footprints, if their density exceeds the restrictions of the zoning ordinances.

A staff analysis prior to the May 11, 2016 public hearing pointed out that the total habitable area of the Maddens’ new structures would be 18,901 square feet, with an average of 3,150.2 square feet per unit, the complaint says. That would mean the living area in the new buildings would be 3.9 times larger than the average habitable area of the existing ones.

Moreover, the second amended complaint says the county’s actions in May 2016 violate Environmental Policy 1.1.1 of the Comprehensive Plan by allowing construction at least 4.4 feet closer to the Gulf of Mexico than the existing residential structures, as pointed out in the staff analysis of the Maddens’ plans prior to the May 2016 public hearing.

The second amended complaint also quotes the following from that staff analysis: “The proposed multi-family residence will intensify construction located within the coastal setback hazard area seaward of the [county’s Gulf Beach Setback Line] GBSL, and therefore may pose a risk to public health, safety, and welfare if the structure is damaged during a storm event [emphasis added in the complaint].”

The staff analysis further reported that the non-habitable areas seaward of the GBSL would increase by 3,880 square feet.

Cosentino also is involved in a countersuit with the Maddens.

He continues to be represented by attorney Ralf Brookes of Cape Coral.