Oct. 7 hearing in North Beach Road lawsuit to include arguments against jury trial sought by Siesta resident Mike Cosentino

Documents also indicate hearing will include arguments seeking court order declaring Cosentino’s Charter amendments in violation of state law

A sea turtle nest in August 2018 is marked just a bit outside the vacated North Beach Road segment. Contributed photo

As the parties in Siesta Key resident Mike Cosentino’s complaint against the Sarasota County Commission prepare for an Oct. 7 hearing, a new filing in the docket indicates a change in the plans for that proceeding.

On Sept. 30, a revised notice says the attorneys for the county and intervenors in the case will argue against the holding of a jury trial that 12th Judicial Circuit Court Judge Andrea McHugh tentatively has scheduled for late April 2020.

Previously, the one-hour hearing had been planned for arguments on a Sarasota County motion asking the court to dismiss the newer part of the lawsuit, which focuses on two Sarasota County Charter amendments Cosentino wrote and for which he won voter approval in the November 2018 General Election.

Additionally, Cosentino has filed a new motion, asking the court to essentially throw out earlier judgments against him and let him start all over with his allegations regarding the May 11, 2016 County Commission vote to vacate a 373-foo-long segment of North Beach Road.

As for the Charter amendment issues: The Office of the County Attorney has maintained in court filings that they contravene state law. Conversely, Cosentino has accused the County Commission of trying to usurp the will of the voters.

One amendment — 3.10 — would prevent the county from selling any of its waterfront property that has even a “waterfront vista.” The other — 3.9 — calls for it to try to re-acquire the section of North Beach Road that the commission vacated on a 4-1 vote in May 2016. The road vacation spurred Cosentino’s original complaint against the county, in June 2016.

This is Sarasota County Charter Section 3.9, which was approved on Nov. 6, 2018. Image courtesy of the Office of the Sarasota County Clerk of Court and County Comptroller

This is the text of Charter Section 3.10, also approved by voters on Nov. 6, 2018. Image courtesy of the Office of the Sarasota County Clerk of Court and County Comptroller

In early September, Judge McHugh consolidated the road vacation case with a second one involving the Charter amendments.

Filings this week by other parties in the case — who own property on North Beach Road — support the county’s motion for summary judgment on the Charter amendments portion of the case, court records show.

Representing the Caflisch family, Ryan C. Reese of the Moore Bowman & Reese firm in Tampa, wrote in an Oct. 1 Notice of Joinder that Charter Amendment 3.9 “is in direct violation” of six sections of the Florida Statutes that bestow authority on counties as political subdivisions of the state.

Charter Amendment 3.10, Reese added, “must be declared void and inoperative because it offends provisions in Chapters 125, 171 and 336 [of the Florida Statutes].”

For example, Reese pointed out, Florida Statute 125.35 says, “The board of county commissioners is expressly authorized to sell and convey any real or personal property, and to lease real property, belonging to the county, whenever the board determines that it is to the best interest of the county to do so …”

The Oct. 7 hearing is set for one hour, starting at 9 a.m. in the Judge Lynn N. Silvertooth Judicial Center, located at 2002 Ringling Blvd. in downtown Sarasota.

Cosentino’s attempt to start over

Judge Frederick P. Mercurio. Image from the 12th Judicial Circuit Court website

On Sept. 11, Cosentino filed his motion asking the Circuit Court to vacate the final order Circuit Judge Frederick P. Mercurio issued on Sept. 11, 2018, dismissing the last of Cosentino’s complaint against Sarasota County in the original North Beach Road case.

In October 2018, Cosentino filed an appeal of Mercurio’s order with the Second District Court of Appeal. ASarasota News Leadercheck of the Appeal Court’s online docket on Oct. 1 showed the last activity in that case was a request for oral arguments, filed on Aug. 19.

Having won Judge McHugh’s approval to represent himself in the North Beach Road case — known as acting pro se — Cosentino wrote in his Sept. 11 motion that his basis for his new action is Rule 1.540(B)(3) of the Florida Rules of Civil Procedure. That rule says a court can vacate a final summary judgment order “on the grounds of fraud, misrepresentation, misconduct of an adverse party, and fraud upon the Court,” he pointed out in the motion.

Cosentino raises an allegation that he made to the County Commission during an Open to the Public period during the board’s regular meeting on Aug. 27.

The motion argues that the commission’s votes on May 11, 2016 to vacate part of North Beach Road and to approve a Coastal Setback Variance — which was sought by one set of petitioners for the road vacation — “resulted directly from years of misconduct by Sarasota County Attorneys, who assisted [two sets of the road vacation petitioners] in their fraudulent misrepresentations of law and fact …”

The street vacation enabled one set of North Beach Road property owners to assert “unity of title” of parcels seaward and landward of the road, plus the vacated road segment’s square footage, to win county zoning approval for the construction of six new condominiums on North Beach Road.

During one of the May 11, 2016 public hearings, the County Commission granted a Coastal Setback Variance to allow the new construction to extend 67.2 feet seaward of the Gulf Beach Setback Line (GBSL). That figurative line was established to protect dune habitat, which, in turn, protects inland structures from storm surge and other flooding events.

A graphic presented to the County Commission on May 11, 2016 shows North Beach Road and property landward and seaward of it that was the focus of the Coastal Setback Variance petition. Image courtesy Sarasota County

Charles D. Bailey III of the Williams Parker law firm in Sarasota explained that the section of the development that would be the furthest west of the GBSL actually would be a retaining wall already on the property.

This graphic shows details of the plans for the new construction at 89 Beach Road. Image courtesy Sarasota County

(The new condominiums were planned to replace existing dwelling units that dated back decades. A staff document provided to the board in advance of the meeting explained, “A prior owner developed [the property at] 89 Beach Road between 1935 and 1940 with seven living units in three non-conforming slab-on-grade buildings. [The structures later were modified to contain 12 units.] Two buildings are two-story, and one is one story.” Additionally, the document said, “There is no significant native dune habitat existing on any areas proposed for development.” The staff memo further noted, “The seaward extent of the proposed residential construction is 4.4 [feet] more seaward than the existing buildings …”)

In his Sept. 11 motion to vacate Judge Mercurio’s 2018 final order, Cosentino alleges that the county attorney worked in “a years long collaboration[his emphasis]” with two sets of North Beach Road property owners. One goal, Cosentino contends, was to achieve what he characterizes as the fraudulent manipulation of county staff reports related to potential repairs of North Beach Road.

A 2013 engineering analysis of the segment of North Beach Road that the commission vacated in 2016 included multiple photos of damage storms had inflicted upon the road over decades. The report, produced by Taylor Engineering of Jacksonville, offered several options for repairing the affected portion of the road. Ultimately, the commission chose not to pursue any of those methods. At that time, the county was continuing to deal with with the repercussions of the Great Recession. For example, in the 2013 fiscal year, the county received $108.8 million from property tax revenue. That compared to $175.7 million on the 2008 fiscal year, before the economic downturn began. The FY13 figure marked the nadir for property tax payments as a result of the recession, based on a graphic shown to the County Commission in late March.

This year, property values are just short of the high mark they reached before the downturn.

This bar graph, shown to the County Commission on March 29, provides an overview of property tax revenue the county collected in earlier years. The total projected for the 2020 fiscal year is about $171 million. Image courtesy Sarasota County

Since the summer of 2016, Cosentino has referred to recommendations in the 2013 Taylor Engineering report. He has remained adamant that the County Commission could have stabilized the road for less money than maintenance of the road — with the expectation of continuing damage — would have cost.

He cites that report again in the new motion.

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

Cosentino further points to a Nov. 26, 2012 letter from attorney Bailey to then-County Administrator Randall Reid — as Cosentino also has done consistently over the past three years. Cosentino maintains that the owners of the 89 Beach Road parcel wanted to have part of North Beach Road vacated instead of seeing the county repair it.

On Dec. 20, 2012, Reid wrote Bailey, “The ultimate goal is to provide future protection to the coast line in this area[emphasis provided],” Cosentino says in his motion.

The goal of the property owners, Cosentino contends, “was to turn their road front properties into beach front properties by having Beach Road vacated.”

However, no structures existed seaward of the road in front of 89 Beach Road at the time the road vacation petition was submitted to the county.

County photos included in the 2013 Taylor Engineering Report show the condition of North Beach Road in October 2005. Image courtesy Sarasota County

Cosentino further alleges that, following an August 2013 meeting involving the owners of 89 Beach Road, the county attorney and county staff, staff prepared an Oct. 23, 2013 report to the County Commission saying that staff’s recommendation was for Taylor’s “no-action alternative … based on project costs …”

In other words, staff advised the commission to refrain from pursuing any project that might stabilize the road and prevent future storm damage.

Further, Cosentino refers in the motion to testimony of Donna Thompson, the county’s zoning administrator, during a deposition taken in the lawsuit. According to Cosentino, Thompson “confirmed, twice,” that the owners of 89 Beach Road committed fraud by writing in their application for the Coastal Setback Variance that their property landward of Beach Road was contiguous to their parcel located at 84 Avenida Veneccia, and contiguous, as well, to a then-partly submerged lot seaward of North Beach Road. Cosentino points out that the county still owned the right of way of the applicable portion of North Beach Road when the application was submitted to county staff. Thus, he argues, the road separated the landward and seaward parcels, so they were not contiguous.

The Comprehensive Plan argument in theory and reality

Cosentino also continues to point out in his new motion that the county Comprehensive Plan in effect at the time of the road vacation had a policy that specifically prohibited the vacation. Parks Policy 1.1.13 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.”

Citing that policy, then-Commissioner Christine Robinson voted against the road vacation and the Coastal Setback Variance petition in May 2016.

Bollards installed in late January 2017 are at the ends of the vacated segment of North Beach Road. Signage makes plain that the public can access the road segment. File photo

Later that year, the commission approved an update of the Comprehensive Plan. That revision included the rewording of Parks Policy 1.1.13, to give the commissioners more flexibility in addressing petitions for vacations of road segments along water bodies.

Yet, as part of their proffers for their road vacation petition in May 2016, the North Beach Road property owners affirmed their intent to allow continued public access to the road segment by any means except motor vehicle. (The road formally had been closed to vehicular traffic since 1993, according to public hearing testimony.)

The property owners also supported the erection of signage emphasizing the public access. That signage was installed in January 2017, along with bollards on either end of the vacated portion of the road.

As attorney Bailey put it during the public hearing, if the board approved the road vacation, that act would ensure “forever and in perpetuity the public’s continued use of the right of way for walking, biking and things they’re not allowed to do now — sitting, watching sunsets and anything you can do on the public beach. We’re going to enhance and expand the use of the right of way and make it safer.”

The property owners even proffered an additional, 5-foot-wide pedestrian and bicycle access to the beach from the vacated North Beach Road segment. It was to go through parcels seaward of the road.

Later, then-County Administrator Tom Harmer reported to the board that employees of the county’s Parks, Recreation and Natural Resources Department had not observed any issues with beach access from the vacated road segment. As a result, the commissioners agreed that the proffered path did not need to be created.